[2003] HCA 49

Customs and excise – Prosecutions under Customs Act 1901  (Cth) and Excise Act 1901  (Cth) – Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901  (Cth) and Excise Act 1901  (Cth).

Practice and procedure – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether standard of proof a matter of “practice and procedure” in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) – Whether standard of proof within contemplation of rules governing “commencing, prosecuting or proceeding with” a prosecution – Whether statutory averment provisions affect question of standard of proof.

Federal jurisdiction – Supreme Court exercising federal jurisdiction in respect of “Customs prosecutions” and “Excise prosecutions” under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether s 79 Judiciary Act 1903 (Cth) “picks up” any State law prescribing standard of proof to be applied – Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.

Criminal law – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof – Common law requirements where conviction sought for offence against a law of the Commonwealth – Significance of orders sought in prosecution proceedings – Meaning of “conviction” – Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.

Words and phrases – “Customs prosecution”, “Excise prosecution”, “recovery of penalties”, “usual practice and procedure”, “commenced prosecuted and proceeded with”, “conviction”.

[2007] FamCA 1235

FAMILY LAW – APPEAL – PARENTING ORDERS –ALLEGATIONS OF UNACCEPTABLE RISK OF SEXUAL ABUSE – ONUS AND STANDARD OF PROOF – Where trial Judge found no unacceptable risk of sexual abuse when ordering child spend unsupervised time with father – Whether trial Judge had applied correct legal principles in determining the question of unacceptable risk – Whether trial Judge erred in failing to give adequate reasons in determining the child would not be exposed to an unacceptable risk in the father’s care – Discussion of principles in M and M  [1988] HCA 68; (1988) 166 CLR 69 – Whether s 140 of  Evidence Act 1995  (Cth) applies – Whether trial Judge applied excessively high test – Trial Judge applied correct standard and onus of proof where no finding of actual abuse was sought.

FAMILY LAW – APPEAL – INJUNCTION RESTRAINING NON-PARTY – Injunction sought by independent children’s lawyer at conclusion of trial – Where mother’s new husband restrained from certain activities with the child – Where no allegations of abuse made against mother’s new husband – Consideration of exercise of discretion under s 68B – Whether adequate foundation for granting of injunction – Consideration of evidence required to dissolve injunction – Whether trial Judge’s discretion miscarried – Error by trial Judge established – Appeal allowed.

FAMILY LAW – COSTS – Where parties applied for certificates under Federal Proceedings (Costs) Act 1981 (Cth) – Where mother’s appeal against trial Judge’s finding of no unacceptable risk was wholly unsuccessful – Mother ordered to pay two-thirds of father’s costs – Where independent children’s lawyer sought injunction – No order for independent children’s lawyer’s costs.

Evidence Act 1995  (Cth) – Part 4.1, s 140, s 190