Baxter and Ah Way [1909] HCA 21

7"

212 HIGH COURT [1909.

H.C, or A. issue on which he fails, he runs the risk not only of not getting 1910. the costs of that issue, but of being deprived of other costs which: Atexaxper he might perhaps otherwise have got. That seems to be the

Fuxevses principle which the Law Officer might properly have applied, and

Paes which, in fact, he did apply. As, therefore, there has been neither Crawrorp a misapprehension of facts nor a disregard of principle, there is

& Co. Lt. 114 reason for interfering with the exercise of his discretion. Griffith C.J. O'Coxnor J. Iam of the same opinion. Isaacs J. I coneur. Appeal dismissed with costs. Respondents to puy costs of notice to vary the order. Pik Solicitor, for the appellant, F. B. Waters. oe Solicitor, for the respondent, H. Hart for A. de Lissa, Sydney. SOL BL. (HIGH COURT OF AUSTRALIA,] BAXTER SEE ee 72 ye oe 5 4 : . INFORMANT; AND AH WAY AND ANOTHER . Ane . DEFENDANTS. H. ©. of A. Customs Act 1901 (No. 6 of 1901), secs. 236, 255—Customs prosecution—Burden of 1909. proof— Averment," ~

eae Sec. 255 of the Customs Act 1901 throws on a defendant in a Customs pro- April 297, Secution the burden of disproving the charge made against him, the word 28, 29, "'averment" in that section covering the essential part of the offence and not

- merely technical averments preliminary or final. Higgins J. Secs. 236 and 255 of the Customs Act 1901 discussed and applied.

United States v. Arnold, (1 Gallison, 348), applied.

10 C.L.R.] OF AUSTRALIA,

Inrormation for a penalty under the Customs Act 1901.

The defendant was charged on information before a Court of summary jurisdiction in Sydney, New South Wales, for that he (a) did unlawfully have in his possession certain goods, namely, 867 tins of opium suitable for smoking, contrary to the Act in such case made and provided ; ()) did unlawfully import certain prohibited imports, namely, 867 tins of opium suitable for smoking, contrary to the Act in such case made and provided. The information was, pursuant to sec 246 of the Customs Act 1901, tried in the High Court before Higgins J.