Paul Gerber


[extract] At the trial, the only evidence before the Court consisted of the description given by customs officers of the tobacco found in the respondent’s truck. The respondent (who was not legally represented) did not challenge any of the evidence. In the result, Customs submitted that in the absence of contradictory evidence, it had proved its case in reliance on the averments to the requisite legal standard of proof, relying on s 144 of the Act which relevantly provides that:

(1) In any Excise prosecution the averment of the prosecutor or plaintiff contained in the information, complaint, declaration or claim shall be prima facie evidence of the matter averred.

(2) This section shall apply to any matter so averred although:...

(3) the matter averred is a mixed question of law and fact but in that case the averment shall be prima facie evidence of the fact only

The respondent was duly convicted of an offence against s 117 of the Act, the cut tobacco was condemned as forfeit to the Crown, and the respondent ordered to pay the amounts of excise duty allegedly evaded.