Masri v R

1. [1]

   SIMPSON J: On 14 July 2014 the appellant was arraigned in the District Court on an indictment that alleged an offence against s 135.1(3) of the Criminal Code (Cth) (“the Code”). Section 135.1(3) provides that a person is guilty of an offence if the person “does anything with the intention of dishonestly causing a loss” to a Commonwealth entity. Section 11.2A of the Code (upon which the prosecution relied) sets out circumstances in which such an offence may be committed jointly with another person. Essentially, s 11.2A is the Commonwealth statutory adoption of the common law doctrine of joint criminal enterprise. It was on that basis that the appellant was charged.

2. [2]

   Initially, the indictment presented was as follows:

3. [3]

   At the conclusion of the opening address by the Crown prosecutor, a question was raised as to whether the indictment was duplicitous. After hearing argument, Bozic DCJ held that it was, and discharged the jury. He granted leave to the Crown to amend the indictment, which it did, rephrasing it in the following terms:

4. [4]

   After a trial by jury, the appellant was convicted of the offence. Section 135.1(3) provides for a maximum penalty for the offence of imprisonment for 5 years. On 17 October 2014 Bozic DCJ sentenced the appellant to imprisonment for 16 months (commencing on the day sentence was imposed) and ordered that he be released at the expiration of 10 months, that is on 16 August 2015.

5. [5]

   The appellant now appeals against the conviction, and seeks leave to appeal against the sentence. He has identified three grounds of appeal against conviction, and one against sentence. They are reproduced below.

The Crown case

1. [6]

   The Crown case, as opened to the jury, was circumstantial. A large proportion of the prosecution evidence was not in dispute and was put before the jury in the form of two Statements of Agreed Facts (Exhibits B and H), pursuant to s 191 of the Evidence Act 1995 (NSW).

2. [7]

   Put briefly, the Crown alleged that there was in existence a known method of fraudulent importation of goods, called “the piggyback” method. This involved the use of the name of a legitimate importer with a satisfactory record, who would, therefore, be less likely to attract a high degree of scrutiny from Customs authorities, who had in operation a risk “profiling” system, that enabled a lower risk profile to be assigned to regular and compliant importers. A fraudulent importation would then be forwarded to that importer, but intercepted before it could be delivered. By that means, the fraudulent importation would escape the scrutiny of Customs officers.

3. [8]

   The Crown case was that the appellant was a party to a joint criminal enterprise with another man (Omar Elomar) to import into Australia cigarettes in containers that falsely represented that the contents were float glass and aluminium frames, and thereby avoid the imposition of customs duties. In order to do so, they utilised “the piggyback” method. The Crown alleged that, in November and December 2011, Elomar, with the assistance of the appellant, arranged for the shipment of a container loaded with cigarettes to be consigned to Australia, addressed to a company called “Alternative Glass”. The container docked in Sydney on 11 January 2012 on board a ship called “the Cape Mondego”.

4. [9]

   A Customs agent was engaged to secure the clearance of the container through Customs. The agent was provided with false documents for the purpose. However, having become suspicious, the agent withdrew. Various steps were then taken to ensure that the clearance was achieved.

5. [10]

   On 13 January 2012 Customs agents examined, and then seized, the cargo.

6. [11]

   In opening the case to the jury, the Crown prosecutor identified the appellant’s participation as including:

7. [12]

   Prior to the commencement of the trial, a ruling was sought on the admissibility of a body of evidence upon which the Crown proposed to rely. This was evidence that, the Crown asserted, had the capacity to show that the appellant and Elomar had, on four separate occasions, previously been involved in importations of cigarettes in a similar way to that alleged against the appellant in the charge the subject of the indictment. Objection was taken to the admission of the evidence, and a voir dire was conducted. The trial judge ruled, on 4 July 2014, that the evidence relating to three, but not the fourth, of the previous importations would be admitted. That ruling gives rise to the second ground of appeal. It will be necessary to deal with the evidence, and the argument, in more detail below.

8. [13]

   The appellant did not give or call evidence. As opened by senior counsel on his behalf, the issue was a very narrow one indeed. It was not in dispute that the cigarettes had been illegally imported, and that they had been illegally imported by Elomar. Nor was it in dispute that the appellant had, in the past, been (at least) involved in Elomar’s importations.

9. [14]

   In outlining the defence case to the jury (at the conclusion of the Crown opening), senior counsel said:

The appeal against conviction

1. [15]

   The grounds of the conviction appeal are pleaded as:

2. [16]

   The first ground of appeal against conviction may be stated simply. It depends upon the construction of the word “anything” as it appears in s 135.1(3). Section 135.1(3) is in the following terms:

3. [17]

   The entire point of the ground is that the charge as framed is duplicitous because the Crown relied upon a variety of acts on the part of the appellant to sustain it. Implicit in the argument was that each individual act ought to have given rise to a separate charge.

4. [18]

   The appellant sought to gain support for the argument from two decisions of this Court. The first is Giam v R [1999] NSWCCA 53; 104 A Crim R 416. Mr Giam was charged under a section of the Crimes Act 1900 (NSW) (s 178BB, now repealed) that created an offence of making “any statement” known to the maker to be false or misleading “in a material particular” with intent to gain financial advantage.

5. [19]

   What was alleged against Mr Giam was that he made two statements to a bank, the first that he was the secretary of a company, and the second that he was authorised (by the company) to enter into certain arrangements on its behalf. The Crown (State) asserted that both statements were false, and the jury was directed that all members of the jury had to be unanimous as to which (if only one) was knowingly false.

6. [20]

   Spigelman CJ (with whom Abadee and Adams JJ agreed) accepted a submission that the indictment was bad for duplicity. He nominated three reasons. The first was, conventionally, that a criminal statute is to be construed strictly. The second was that the word “any”, as it appears before “statement” pointed to “a degree of singularity”. The third (somewhat puzzlingly) was that:

7. [21]

   Importantly, his Honour went on to note a category of cases in which a single statement can be constituted by more than one utterance or representation.

8. [22]

   In my opinion the decision in Giam does not in any way advance the appellant’s argument. There is no equivalent “singularity” in what is made the subject of s 135.1(3) of the Code. “Anything” does not, in any way, equate to “a statement” or “a material particular”. The legislation under consideration in Giam was legislation which referred to “any statement” that is false in “a material particular”. The Crown there relied upon two separate statements, either of which could have founded the charge. But Spigelman CJ recognised that a single statement could be constituted by multiple utterances or representations. It will be necessary, in any individual case, to examine what it is that the Crown asserts. Each case will depend upon the terminology of the statute in question.

9. [23]

   The second authority to which reference was made was Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; 139 LGERA 449. BGP Properties and its controller (a Mr Gordon) were prosecuted in the Land and Environment Court under s 118D(1) of the National Parks and Wildlife Act 1974 (NSW), which relevantly provided:

10. [24]

    The Summons against Mr Gordon, after amendment, was in the following terms:

11. [25]

    In pre-trial correspondence, the prosecutor confirmed that it would be the prosecution case that:

12. [26]

    Giles JA (with whom Buddin J agreed) held that the amendment created “self-inflicted and self-confessed duplicity”. That was because:

13. [27]

    This was specifically the result of the manner in which the prosecutor proposed to conduct the case, by the series of alternatives set out. In the preceding paragraph Giles JA said:

14. [28]

    Far from assisting the appellant’s case, the decision in BGP confirms that reliance on a course of conduct is sufficient to avoid duplicity. That is precisely what the Crown in the present case relies upon.

15. [29]

    The word “anything”, although it appears in s 135.1(3), does not appear in the amended indictment (nor did it appear in the original indictment). What the Crown alleged, as is perfectly clear from the language of the amended indictment, is that the conduct attributed to the appellant as constituting the offence against s 135.1(3) of the Code was “facilitating the release” of the container. That is something that can be done by a multiplicity of individual acts, amounting to a course of conduct. It would be very surprising indeed if, on the proper construction of the legislation, an accused person could be charged with a separate offence in relation to every telephone call, every interaction with a co-offender, every dealing with documentation, every communication with a Customs agent, and every payment. Yet that would be the effect of acceptance of the appellant’s proposition. And it could hardly be in the interests of the appellant for the Court to adopt that position. He would be exposed to a separate penalty of imprisonment for 5 years in respect of each individual act.

16. [30]

    The proposition itself depends upon the construction of the word “anything”, and relies heavily upon the decision of Spigelman CJ in Giam. What must be recognised, and is of linguistic importance, is that “anything” is quite a different concept to “any statement”. In the latter, “any” has the effect of separating individual statements, each of which (to amount to a crime) must be false or misleading “in a material particular”; in the former, the composite notion is to encompass a variety of acts. In this case, the “anything” the appellant was alleged to have done was the facilitation of the importation. That was done by a series of acts, or as Giles JA said, a course of conduct.

17. [31]

    In my opinion there is no substance in Ground 1. I would reject it.

18. [32]

    The trial judge admitted evidence of three other importations in which the names of legitimate importers (of other types of goods) had been appropriated. All of these were in December 2011. He rejected the evidence of a fourth, and earlier, importation, on the basis that the appellant was not shown to have been involved in it, although Elomar was; that was an importation in the name of an entity called “Eccosit”. The importations in respect of which he admitted evidence were in the names of entities called “Pakplast”, “Alpha Tiles”, and “Livingstone”.

19. [33]

    The Crown prosecutor identified the basis of the tender of the evidence as “background, context, and relationship”. He expressly disavowed reliance on the evidence as tendency evidence under s 97 of the Evidence Act. Objection to the admission of the evidence was taken on behalf of the appellant on the grounds:

20. [34]

    Before turning to the specific matters raised in support of this ground, I make the following observations. It is worth reiterating that Ground 2 challenges the admissibility of the evidence. By s 6 of the Criminal Appeal Act 1912 (NSW), a conviction may be set aside on the ground of “the wrong decision of any question of law”. Such a ground is to be determined on the material that was before the trial judge at the time of the decision to admit the evidence. I make that rather obvious observation because of the following circumstances.

21. [35]

    The voir dire into the admissibility of this evidence was conducted on 1 and 2 July 2014, before the jury was empanelled. The transcript of that proceeding reveals that a good deal of evidence was tendered. In the opening stages, the transcript shows, the trial judge was presented with what was described as a “Statement of Facts of the Australian Federal Police”, and a “Schedule”. These were not marked as exhibits. The Crown then tendered what was described as a “Folder Volume 1” (Ex A), which, it appears, contained a number of witness statements. The Crown also tendered a “Statement of Facts” (Ex B); a “Schedule of Containers” (Ex C); and a “Volume of telephone intercepts together with the CD of the actual recording” (Ex D).

22. [36]

    On behalf of the appellant, a bundle of correspondence between legal representatives (Ex 1, p 649) and a “Bundle seized on execution of search warrant” (Ex 2, p 649). The transcript (656-661) reveals that the compact disc recordings of 16 telephone conversations were played to the court.

23. [37]

    Almost none of this material was provided to this Court.

24. [38]

    When, in the course of preparation of these reasons, it became apparent that the Statement of Facts and Schedule referred to did not accord with the two statements of facts in the evidence as admitted under s 191 of the Evidence Act (Exhibits B and H in the trial), efforts were made by the Court to obtain from the parties the correct document. Eventually, a Statement of Facts, which appears to be that to which reference was made, was provided. No document conforming with the “Schedule” was provided; nor were any of the other documents marked as voir dire exhibits, nor the compact discs. There was contained in the appeal materials the two “Statements of Agreed Facts under s 191 of the Evidence Act 1995”, Exhibits B and H in the trial.

25. [39]

    Since the parties have evinced no interest in ensuring that this Court has available to it the material upon which the trial judge made his decision, and appear to have no concerns about the absence of that evidence, on which the admissibility ruling was made, it is necessary that this Court proceed to rule on the ground as best it can.

26. [40]

    The Statement of Facts that was eventually provided (not the Statement of Agreed Facts for the purposes of s 191) referred to evidence relating to the Pakplast, Alpha Tiles, and Livingstone Importations. It contained extracts of intercepted conversations involving the appellant and Elomar, sometimes with each other, sometimes with third parties. The Crown prosecutor relied on the conversations, inter alia, to show a “familiarity of language” between the appellant and Elomar, the relationship between them, and the nature of the transactions in which they were engaged. The evidence could be seen to show a pattern of conduct that put in context the evidence specifically referable to the Alternative Glass importation. There is one conversation that bears particular attention. On 29 December 2011, the appellant, when speaking to an unknown male, was recorded as saying:

27. [41]

    The value of this conversation to the Crown is that, on 19 December 2011, the Pakplast importation had been examined by Customs officers and seized; and on 23 December 2011, the Alpha Tiles importation was similarly examined and seized. The reference to being twice “screwed” could be construed by the jury as a reference to those failed importations. The reference to “a house within the next 2-3 days for removal” could be construed by the jury as a reference to the anticipated arrival of the Cape Mondego bearing the Alternative Glass importation.

28. [42]

    In a further conversation which was recorded between the appellant and Elomar on 12 January 2012, Elomar was recorded as asking the appellant whether the appellant wanted him to bring “paperwork” to which the appellant responded “Yeah”. On the Crown case, the reference to “paperwork” was a reference to documentation associated with the importation in the name of Alternative Glass. On the following day, a further conversation was recorded between Elomar and the appellant, in which the appellant was recorded as saying “… get me the D tonight”. That, on the Crown case, was reference to the electronic delivery order, or EDO (referred to at [11] above). There was also evidence of a conversation between them on 15 January 2012 where the passage of a vessel was discussed which, on the Crown case, was a reference to the path of the Cape Mondego. Within that conversation was a further reference to “paperwork”.

The judgment on the voir dire

1. [43]

   In respect of the evidence concerning the Pakplast, Alpha Tiles and Livingstone importations, the trial judge said:

2. [44]

   He proceeded to identify four independent bases justifying the admission of the evidence. These were:

3. [45]

   He rejected the objection based on s 97 of the Evidence Act. In reaching this conclusion, his Honour relied upon the decision of the High Court in Harriman v The Queen [1989] HCA 50; 167 CLR 590.

4. [46]

   His Honour then considered the objection based on s 137 of the Evidence Act. Essentially for the same reasons, he concluded that the probative value of the evidence was “very high” as showing substantial participation, shedding light on the character of the association between Elomar and the appellant and capable of “creating a very different context in which to analyse the events in the period of the indictment”.

5. [47]

   He considered that any prejudice the evidence could cause to the appellant could be remedied by appropriate directions. He found, for the purposes of s 137, that the probative value of the evidence outweighed any danger of unfair prejudice.

6. [48]

   The principal argument advanced in relation to Ground 2 was that the evidence is, properly characterised, tendency evidence within the meaning of s 97 of the Evidence Act.

7. [49]

   Throughout the voir dire, the Crown prosecutor was at pains to insist that the evidence was not tendered for a tendency purpose. It was stated, as set out above, to be tendered for the purpose of showing the context in which the appellant and Elomar were operating, the relationship between the two, and the extent of the appellant’s participation in the importation.

8. [50]

   “Tendency evidence” is evidence tendered for that purpose: see the Dictionary to the Evidence Act. However, the assertion by the tendering party that evidence is not tendered for that purpose cannot be conclusive, and it is necessary for the court to examine the real purpose of the tender of the evidence. The nature of tendency evidence was explored by this Court in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [353]-[372]. Tendency evidence is evidence to provide a foundation for an inference that, because the person in question had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party, on an occasion the subject of the proceedings.

9. [51]

   That was not the purpose of the evidence the subject of this ground of appeal. It was, in the true sense, evidence tendered to establish, and capable of establishing, the context in which the events the subject of the trial took place.

10. [52]

    It was also submitted that Harriman was not authority for the admission of the evidence. It was pointed out (correctly) that Harriman was decided under an evidence law regime that predated and did not involve the Evidence Act.

11. [53]

    It is true that authorities decided under a different regime, or in NSW before the enactment of the Evidence Act, must be approached in the light of any changes made by the Evidence Act. However, once it is accepted that the evidence was not tendered under s 97, common law principles continue to be relevant. In Harriman, the High Court unanimously concluded, in relation to a trial of a charge of being knowingly concerned in the importation of heroin into Australia, evidence that the accused and another person (apparently a co-offender, but the chief Crown witness) had a previous involvement in the sale of heroin was admissible as being highly probative of the criminal character of the association between the accused and the witness at the time of the importation the subject of the trial. The circumstances in Harriman can be directly related to the circumstances of the present case. The evidence was admissible on the principles stated by the High Court in that case.

12. [54]

    A further argument advanced in respect of this ground of appeal was directed to the third and fourth bases on which the trial judge determined to admit the evidence. It was submitted that it was not necessary, or even helpful, to understand the code used by the appellant and Elomar. It was submitted that the Crown had alternative means of proving the appellant’s involvement.

13. [55]

    It was submitted that the evidence in the Crown case did not consist merely of telephone intercept evidence, and further, that the Crown was able to explain the code used without resort to the evidence the subject of this ground.

14. [56]

    The simple response to that proposition is that it has never been the case that the Crown is shut out from adducing evidence because it has other evidence available to prove the same point. A further point sought to be made was that the codes used were not always consistent, and that there were other means by which the terms used in the conversations could be explained. Again, these are not answers to the admission of the evidence. To the extent that there were inconsistencies in the codes used, that was relevant to the weight to be attributed to the evidence. Moreover, the assertions of inconsistencies in the codes, and the assertions of other available evidence, were not the subject of any evidentiary references by which this Court could make an assessment of the validity of the challenge.

15. [57]

    Although detailed written submissions were provided in relation to this ground, the oral argument was muted. Indeed, an express concession was made, that if the “cracking of a code” argument failed, then the entire ground failed. That was, in my opinion, an appropriate concession. Since, in my view, the “cracking of the code” argument fails, then the concession has the necessary consequence that the ground fails. In any event, the principal basis on which the admission of the evidence was opposed was that the evidence was tendency evidence, and, in my view, that argument clearly fails. The four bases given by the trial judge for the admission of the evidence have not been shown to be erroneous.

16. [58]

    Similarly, the contention that the evidence ought to have been admitted or to have been excluded under s 137 of the Evidence Act must fail. The trial judge engaged in an entirely appropriate balancing of the probative value of the evidence, which he held to be “very high”, and any unfair prejudicial effect. He considered that appropriate directions could ameliorate any unfairness.

17. [59]

    In this context, it is of interest that, except in the limited way raised under Ground 3, no complaint is made of the directions he ultimately gave to the jury.

18. [60]

    I would reject Ground 2 of the appeal.

19. [61]

    The direction about which complaint was made is as follows:

20. [62]

    Although, on appeal, it was acknowledged that the direction “mirrors” the express reasoning of Brennan J (as he then was) in Harriman, it was nevertheless submitted that the direction was erroneous. It was submitted that the direction invited tendency evidence reasoning.

21. [63]

    The acknowledgment that the direction was drawn directly from the judgment of Brennan J in Harriman was correct and is fatal to the ground. The direction did not invite tendency reasoning; it invited reasoning along the lines expressly authorised in Harriman. There was no error in this direction. I would reject this ground of appeal.

22. [64]

    The proposed ground of appeal against sentence was narrow. It concerned a finding that the appellant was motivated by financial greed, and that his role was “not insignificant”. This was contrasted with an earlier observation by the trial judge that he could not be satisfied as to the precise role played by the appellant. It was not, therefore, it was submitted, open to the trial judge to assess the appellant’s role as “not insignificant”.

23. [65]

    I would reject this contention. The evidence showed various activities undertaken by the appellant, and conversations with Elomar, capable of being seen as “not insignificant”.

24. [66]

    In any event, the sentence imposed is not consistent with a finding of any major degree of involvement by the appellant.

25. [67]

    I would refuse leave to appeal against sentence.

26. [68]

    The orders I propose are:

    1. (1)

       Appeal against conviction dismissed;

    2. (2)

       Leave to appeal against sentence refused.

27. [69]

    R A HULME J: I agree with Simpson J.

28. [70]

    BELLEW J: I agree with Simpson J.