Commissioner of Taxation v Price

[2006] QCA 108

Queensland Court of Appeal

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Interrogate

Catchwords

1. Taxes and Duties
2. › Customs and Excise
3. › Penal provisions
4. › Offences
5. › Unlawful conveyance of excisable goods
6. › Burden of proof of unlawfulness
7. › Whether prosecution required to negative existence of permissions under s 61C
8. › Excise Act 1901 (Cth), ss 61C, 119
1. Taxes and Duties
2. › Customs and Excise
3. › Jurisdiction and procedure in customs prosecutions
4. › How instituted and in general
5. › Excise prosecution conducted under civil procedure rules
6. › Whether procedure denied common law rights regarding self-incrimination
7. › Whether miscarriage of justice
8. › Excise Act 1901 (Cth), s 136
9. › Uniform Civil Procedure Rules 1999 (Qld), rr 137, 139, 166
1. Constitutional Law (Cth)
2. › Operation and effect of the Commonwealth Constitution
3. › Separation of powers
4. › Judicial power of the Commonwealth
5. › Whether procedural provisions regulating burden of proof usurp judicial power
6. › Whether averment provisions and civil procedure rules inconsistent with Ch III
7. › Excise Act 1901 (Cth), ss 136, 144
1. Criminal Law
2. › Criminal liability and capacity
3. › Double jeopardy
4. › Whether same act constituted contravention of both s 117 and s 119
5. › Whether s 4C Crimes Act 1914 (Cth) precluded imposition of penalty for both offences
6. › Crimes Act 1914 (Cth), s 4C

Quick Take

In excise prosecutions under s 119 of the Excise Act 1901 (Cth), the prosecution bears the burden of proving unlawfulness, including negativing the existence of any permission under s 61C that might render the conveyance lawful. Section 4F(2) of the Crimes Act 1914 (Cth) applies only where a penalty for an existing offence is reduced, not where offence provisions are repealed and replaced with different offences having different elements; in the latter case, s 8(d) of the Acts Interpretation Act 1901 (Cth) preserves the repealed penalty provisions. Section 8(d) cannot be used to preserve a burden-of-proof provision where its application presupposes the very conclusion (that an offence was committed) that the burden of proof is needed to determine.