Citation: Masri v R [2015] NSWCCA 243
Court: Court of Criminal Appeal, NSW
Date: 8 September 2015
Judges: Simpson J (principal judgment); R A Hulme J and Bellew J agreeing
Background
The appellant was convicted in the District Court of doing "anything with the intention of dishonestly causing a loss" to the Australian Customs and Border Protection Service, contrary to s 135.1(3) of the Criminal Code (Cth). The charge arose from an alleged joint criminal enterprise with a co-accused to smuggle cigarettes into Australia by falsely representing a shipping container's contents as glass and aluminium frames.
The scheme relied on the "piggyback" method: fraudulent shipments were consigned to a legitimate importer with a clean Customs record, reducing the likelihood of scrutiny under Customs' risk-profiling system. The container in question arrived in Sydney in January 2012 and was seized by Customs officers after they became suspicious. The appellant's alleged participation included handling paperwork, providing funds for freight charges, and obtaining an electronic delivery order needed to release the container.
The trial judge admitted evidence of three prior similar importations and directed the jury on how to use that evidence. The appellant was convicted and sentenced to 16 months' imprisonment with release after 10 months. He appealed against both conviction and sentence.
Legal Issues
- Whether the amended indictment was duplicitous, given that it referred to a course of conduct rather than a single act
- Whether evidence of three prior "piggyback" importations was admissible as background or context evidence, or whether it should have been excluded under s 137 of the Evidence Act 1995 (NSW) because its prejudicial effect outweighed its probative value
- Whether the trial judge's direction to the jury concerning the appellant's "substantial participation" in prior importations impermissibly invited tendency reasoning
- Whether the sentencing judge erred by finding the appellant's role "not insignificant" when he had also said he could not determine the appellant's precise role
Decision
Ground 1: Duplicity. The Court held that the word "anything" in s 135.1(3) is a composite concept capable of encompassing a variety of acts or a course of conduct, not merely a single isolated act. Relying on Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157, Simpson J confirmed that a charge framed by reference to a course of conduct is not duplicitous. The amended indictment, which referred to facilitating the release of the container, was properly framed and did not require the jury to choose between distinct offences.
Ground 2: Admissibility of prior importations. The prior importation evidence was admitted as context evidence rather than as tendency evidence under s 97 of the Evidence Act. The Court found it had "very high" probative value: it explained the coded language used in the telephone conversations between the appellant and his co-accused, and it helped the jury understand the nature and operation of the piggybacking scheme. Any risk of unfair prejudice was capable of being addressed by appropriate jury directions, and the trial judge had given such directions. The Court rejected the submission that the evidence should have been excluded under s 137.
Ground 3: The substantial participation direction. The trial judge's direction told the jury that evidence of the appellant's participation in prior container importations could support an inference of continued substantial participation in the offence charged. The Court noted the direction mirrored the reasoning of Brennan J (as he then was) in Harriman v The Queen (1989) 167 CLR 590, and that the appellant had conceded as much. Because the direction followed authority from the High Court, no error was established, and this ground was rejected.
Sentence appeal. The proposed ground was that the sentencing judge could not find the role "not insignificant" having earlier declined to make a precise finding about the appellant's role. The Court disagreed: the evidence of the appellant's activities and communications with his co-accused was capable of supporting a finding that his role was not insignificant. The Court also noted that the sentence actually imposed was inconsistent with any finding of major involvement, making the contention of sentencing error difficult to sustain. Leave to appeal was refused.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence refused
Key Takeaways
- Under s 135.1(3) of the Criminal Code (Cth), the word "anything" encompasses courses of conduct as well as single acts, meaning an indictment framed by reference to a course of conduct is not duplicitous.
- A charge relying on a course of conduct to avoid duplicity is consistent with the approach confirmed in Bentley v BGP Properties Pty Ltd, and this principle was applied in the context of a federal fraud offence.
- Prior similar act evidence admitted as context evidence, rather than tendency evidence, can have "very high" probative value where it explains coded communications or the mechanics of the alleged scheme, and any prejudice may be curable by appropriate jury directions rather than exclusion.
- Jury directions drawn directly from High Court authority (here, Brennan J's reasoning in Harriman) do not constitute error merely because they reference the defendant's prior participation.
- In dismissing the sentence appeal, the Court of Criminal Appeal observed that a sentence inconsistent with a finding of major involvement can itself undermine a ground that the sentencing judge impermissibly overstated the offender's role.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), ss 11.2A, 135.1(3)
- Criminal Appeal Act 1912 (NSW), s 6
- Evidence Act 1995 (NSW), ss 97, 137, 191
Cases:
- Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; 139 LGERA 449
- Harriman v The Queen [1989] HCA 50; 167 CLR 590
- Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
- Giam v R [1999] NSWCCA 53; 104 A Crim R 416