Wilcox v Donohoe [1905] HCA 68

3 CLR.) OF AUSTRALIA. 83

(HIGH COURT OF AUSTRALIA.]

WILCOX . . . 4 F APPELLANT ; AND DONOHOE C c F t 3 x . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Beer Excise Act 1901 (No. 7 of 1901), secs. 4, 8—Excise Tariff Schedule—Making W,C, or A. beer without a licence—Liquor below dutiable standard when brewed—Subsequent 1905. smerease in alcoholic strength—Not part of process of making. aay

Sypvey, Appeals to High Court—Special leave—Supreme Court exereising federal jurisdiction <4 96, 97

—Less than appealable amount involved—A ppeals from State Courts exercising

original federal jurisdiction—Judiciary Act 1903 (No. 6 of 1903), secs. 35, 38, Gritith C.F,

39. O'Connor JJ. The appellant, not having a brewer's licence, brewed a liquor containing a

lower percentage of proof spirit than the standard fixed for excisable beer by

the Bxcise Tariff, 1902, and the liquor having been bottled and stored on the

appellant's premises, the contents of some bottles were subsequently found, on

analysis by the Customs authorities, to have increased in alcoholic strength to

@ point above the standard. 'The increase could only be accounted for as the

result of a secondary fermentation in the bottles, which was no part of the

process of brewing, and which every reasonable precaution had been taken to

prevent.

Held, that the maker was not guilty of the offence of making beer without a licence, within the meaning of sec. 8 of the Beer xcise Act 1901.

The appellant was prosecuted by the Customs authorities in a Court of summary jurisdiction under sec. 134 (c) of the Hacise Act 1901, and was con- victed, and fined. He obtained a rule nisi for a statutory prohibition from the Supreme Court. The matter then came before a Judge in Chambers, exercising the powers of the Supreme Court under sec. 114 of the Justices Act 1902 (N.S.W.), who, without going into the merits, discharged the rule on the ground that he had no jurisdiction to entertain an application for a prohibition against a Court exercising federal jurisdiction.