Chief Executive Officer of Customs v El Hajje

HIGH COURT OF AUSTRALIAMcHUGH, GUMMOW, KIRBY, HAYNE AND HEYDON JJCHIEF EXECUTIVE OFFICER OF CUSTOMS                   APPELLANTANDNAZIH EL HAJJE  RESPONDENTChief Executive Officer of Customs v El Hajje[2005] HCA 353 August 2005M171/2004ORDER1.Appeal allowed with costs.2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made on 17 December 2003 and remit the matter to that Court for its further hearing and determination.On appeal from the Supreme Court of VictoriaRepresentation:C M Maxwell QC with P D Nicholas for the appellant (instructed by the Australian Government Solicitor)D B Baker with G J Herbert for the respondent (instructed by Michael J Gleeson & Associates Pty Ltd)Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.CATCHWORDSChief Executive Officer of Customs v El HajjeCustoms and excise – Averment provision – Whether ultimate fact in issue in an excise prosecution is not properly the subject-matter of an averment provision – Whether Excise Act 1901 (Cth), s 144(1) draws a distinction between an ultimate fact in issue and other facts – Whether primary judge erred in finding that the material in the respondent's possession, custody or control was manufactured or partly manufactured goods.Constitutional law (Cth) – Whether the High Court should consider constitutional issues if not necessary to decide a case – Effect of absence of notice under Judiciary Act 1903 (Cth), s 78A.Constitutional law (Cth) – Averment provisions – Compatibility of statutory averment provisions with the judicial power and functions provided for...