Express law No. 25

5 August 2005

The proper subject matter of averments

The High Court in El Hajje considered the issue of
whether there are constraints on the types of fact which
can be averred and in particular, whether the ultimate
fact or a fact which, in effect, constitutes an offence
can properly be the subject of an averment. 1

CEO of Customs v El Hajje

[2005] HCA 35, 3 August 2005

In this case the CEO of Customs averred in his Statement
of Claim that cut tobacco, which was found in the respondent's
possession, was manufactured or partly manufactured. The
relevant offence alleged to have been committed was a breach
of section 117 of the Excise Act 1901 which provided,
at the time, that no person other than a manufacturer shall,
except with authority, have in that person's possession,
custody or control, any manufactured or partly manufactured
excisable goods upon which excise duty has not been paid.

The High Court's decision

In a decision delivered on 3 August 2005, five justices
of the High Court of Australia held that an averment of
the ultimate fact in issue in an Excise prosecution (that
the respondent was in possession, custody or control of
manufactured or partly manufactured goods) was properly
the subject matter of an averment provision, in this case
s 144(1) of the Excise Act 1901.

The joint majority decision (McHugh, Gummow, Hayne and
Heydon JJ) held that there was no warrant for a distinction
to be drawn between an averment of an ultimate fact in
issue (or factum probandum) and other facts by which
that fact is proved (or facta probantia). Accordingly,
the High Court held that the trial judge was not in error
in finding that the material in the respondent's possession,
custody or control was, as averred in the statement of
claim, manufactured or partly manufactured goods, in this
case a quantity of cut tobacco.

In the joint judgment their Honours said that:

Reference to the ultimate fact in issue in connection
with Excise prosecutions might be understood as suggesting
that there will always be a single determinative issue
of fact in such a proceeding. ... None of [the identified
crucial] facts was to be singled out as more significant
than the others. If any of these elements was not admitted
by the respondent it could be described as an ultimate
fact in issue. Nothing in the [Excise] Act shows why
it could not be averred. [36]

Their Honours went on to say that the distinction drawn
by the Victorian Court of Appeal between ultimate facts
in issue, on the one hand, and some or all of the factual
elements that must be established in the proceeding, on
the other, 'is not a useful distinction to be drawn
in this context. That there is no statutory warrant for
drawing the distinction is reason enough not to do so.' [37]

Implications of decision

The decision affirms the utility and efficacy of averments
in those prosecutions which have the benefit of averment
provisions to support them. Properly drawn, so as to aver
the essential facts and not the evidence that would be
adduced at trial to prove those facts, averments are a
legitimate tool available to prosecutorial agencies and
their use is not confined or diminished.

The decision clearly and usefully states that the use
of averment provisions can not be restricted to certain
averred facts and that their continued use as prima
facie evidence of the facts stated remains unaffected.

Text of the decision is available at:

AGS acted as solicitor for the appellant in this matter.

For further information please contact:

Peter Opat
Senior Lawyer
T 03 9242 1243 F 03 9242 1496

Evan Evagorou
Senior Executive Lawyer
T 03 9242 1246 F 03 9242 1215


1 Averments provisions allow a statement of
fact made by the prosecution to be taken as evidence of
this fact unless the defendant produces evidence to the

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