Beckwith v R

(1976) 135 CLR 569
(1976) 12 ALR 333
(1976) 51 ALJR 247

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(Judgment by: Jacobs J)

Between: Beckwith
And: the Queen

Court:

Judges: Gibbs J
Stephen J
Mason J

Jacobs JMurphy J

Subject References:
Customs

Hearing date: 27 August 1976
Judgment date: 1 November 1976

Sydney

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Judgment by:
Jacobs J

In my opinion the appeal should be allowed. The question raised is a difficult one because of the manner in which the statutory provisions are framed. I am substantially influenced in my conclusion by the difficulty of applying the precise language of s. 233B(1)(ca) to an attempt. The offence would be that of attempting without reasonable excuse to have in possession any prohibited imports to which s. 233B of the Customs Act 1901-1975 applies which are reasonably suspected of having been imported into Australia in contravention of the Act. The absence of reasonable excuse as a constituent of the principal offence must exist at the time of having the prohibited imports in possession. If there is no possession, there is strictly no basis upon which the issue of reasonable excuse at the relevant time could be determined.

If a statute unambiguously so provided, effect could be given to it, but it would be necessary to transpose the requirement that there be no reasonable excuse from the time of possession to another time, presumably the time of an attempt to acquire possession. Where the language of the Act is not clear, I do not think that the transposition can be justified. Thereby strength is given to the submission that the general provision relating to attempts which is contained in s. 237 is displaced by a context in s. 233B wherein the legislature expressly and exhaustively provides for those cases where an attempt is to constitute an offence. (at p583)