CEO of Customs v El Hajje

[2002] VSC 286

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6669 of 2000

CEO OF CUSTOMS	Plaintiff
v
NAZIH EL HAJJE	Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2002
DATE OF JUDGMENT:	23 July 2002
CASE MAY BE CITED AS:	CEO of Customs v El Hajje
MEDIUM NEUTRAL CITATION:	[2002] VSC 286

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Customs and excise – excise prosecution – possession custody or control of excisable goods – no belief that possession was unlawful – no defence – keep or store proclaimed material – whether carriage of material is keeping or storing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E.J. Lorkin	Australian Government Solicitor
For the Defendant	Appeared in person	Lewenberg & Lewenberg

HIS HONOUR:

1. This is an excise prosecution brought against the defendant, Nazih El Hajje, seeking the recovery of penalties under the Excise Act 1901 and for the condemnation of certain seized goods. The goods in question are a quantity of cut tobacco weighing 691.48 kg and 15 bales of leaf tobacco, both seized from the defendant on 21 February 2000 on the basis that they were the subject of contraventions by him of s. 117 of the Act.

1. I should mention at the outset two procedural matters which arose at the commencement of the trial.  The proceeding was instituted by writ filed on 30 August 2000.  Following service, an appearance on behalf of the defendant was entered by CPH Lawyers who quickly advised those acting for the plaintiff that their instructions were to admit the contraventions alleged.  The matter was fixed on that basis for a short trial to be held on 19 September 2001.  A few weeks before the trial the present solicitors, Lewenberg & Lewenberg, became involved on behalf of the defendant.  On 14 September 2001 they became solicitor on the record.  They indicated that the proceeding would be opposed;  the defence to be raised was that the defendant had no belief that the tobacco in his possession was illicit.  The trial date was vacated and directions were given on 20 November 2001 for a contested hearing to commence on 18 July 2002.  Some four months later the new solicitors served a notice of ceasing to act, apparently on the basis that the defendant had failed to put them in funds.  This notice was ineffective since no leave had been granted and, on 5 July 2002, some two weeks before the trial, the solicitors filed an application returnable on 16 July 2002 seeking leave to file a notice of ceasing to act.  On the return date of the summons the Listing Master referred the application to the trial judge.

1. When the application came on for hearing before me as trial judge on 18 July 2002 I refused it.  I did so for a number of reasons.  There was no fresh solicitor ready to take over the conduct of the defendant’s case and no firm prospect that any funds would be available to enable this to be done.  The proceeding has been on foot since late 2000 and the defendant has already on one occasion had a trial date vacated.  The trial directions given by the Master have been largely ignored by the defendant.  It seemed to me that this was a tactical ploy of the defendant intended to put off the trial in circumstances where the defence, as disclosed, did not seem to have much prospect of success.  I indicated to the solicitor appearing on Mr El Hajje’s behalf that, notwithstanding that Lewenberg & Lewenberg remained the solicitors on the record, I would not consider it a discourtesy to the Court if they took no part in the trial for want of funds.  Whether they chose to do so was a matter for them.

1. As things turned out, the solicitors took no part in the trial, leaving Mr El Hajje to represent himself.  He sought an adjournment on the basis that he lacked the skill and facility with the English language to conduct his defence.  He asked for two months to obtain the funds to obtain representation.  I refused this adjournment for much the same reasons.  The case then proceeded. 

1. The basic facts were not in dispute. Mr El Hajje was intercepted in Broadford en route for Sydney in a hired truck containing about 1500 kg of tobacco and four tyres and some wheel rims. The cut tobacco portion of the goods was manufactured excisable goods upon which duty had not been paid. The duty payable on the cut tobacco was $165,567.97. The leaf tobacco was proclaimed material within the definition of that term in s. 4 of the Act. The defendant knew that he was carrying tobacco. The plaintiff alleged that this amounted to a contravention by the defendant of s. 117 which is in the following terms:

“117.(1)     No person other than a manufacturer shall, except by authority, have in his possession custody or control any manufactured or partly manufactured excisable goods upon which Excise duty has not been paid, and no person other than a manufacturer, producer, or dealer shall except by authority keep or store any proclaimed material.

(2)A person who contravenes subsection (1) is guilty of an offence punishable upon conviction as provided by section 129.”

1. The defendant, in his defence filed on 2 October 2001, maintained that, while he knew he was carrying tobacco, he did not know that he was contravening the Act or that it was unlawful for him to be doing what he did. 

1. Mr El Hajje said that he intended to travel by truck to Sydney to obtain and carry back to Melbourne a quantity of a Lebanese delicacy, molichia.  A friend, Mustapha Mahmoud, had learnt of his intention and asked to be advised.  At about noon on 20 February 2000, the defendant and a friend, Osman Salma, went to Delta Truck Hire where his friend hired a truck, registered number PXL 280, for 24 hours.  After Mr El Hajje brought the truck back to his home in Fawkner, Mr Mahmoud called and took it away, returning it with the tobacco loaded.  He asked the defendant to take the tobacco to Sydney where he would contact a recipient on a given telephone number and deliver it to that person.  For this he was to be paid $600.  The defendant saw the tobacco in the truck when he loaded the wheels and rims which he had agreed to carry to Sydney for another friend. 

1. He left Melbourne at about 10.30 pm travelling along the Hume Highway.  He left the highway at Broadford in order to avoid a weighing station because, he said, he did not have a licence endorsed for such a truck.  When he was intercepted by the police a little after midnight he frankly acknowledged that he had a load of tobacco on board but otherwise gave evasive or untrue answers to questions.  His explanation for this was that, when he was intercepted, he telephoned Mr Mahmoud to tell him of this fact.  Mr Mahmoud told him to keep his mouth shut or he would kill him.  He said that he then realised for the first time that the tobacco was illicit.  He maintained thereafter a refusal to answer questions as to the source or destination of the tobacco. 

1. There are many aspects of this evidence which cause me to suspect that it is a less than candid and accurate account.  But in the end it does not matter.  The evidence shows without any doubt and, a fortiori, on the balance of probabilities, that, when intercepted, the cut tobacco as manufactured goods was in the possession, custody or control of the defendant.  It is sufficient for this purpose that he knew he had cut tobacco on board.  It is no part of the plaintiff’s case that he knew it to be illicit or that he believed that he was entitled to have the goods in his possession.  The contravention in respect of the cut tobacco is made out. 

1. The alleged contravention with respect to the leaf tobacco is that the defendant kept or stored it without authority.  I am not satisfied that, as a matter of law, the carriage of goods from Melbourne to Sydney is a keeping or storing of them.  It lacks the element of retention for a period of time.  Accordingly, the contravention in respect of the leaf tobacco is not made out. 

1. I turn now to the relief sought. I will make a declaration as to the established contravention and record a conviction. Pursuant to s. 129 of the Act, I am obliged to impose by way of penalty a fine not exceeding five times the amount of duty payable on the cut tobacco and not less than two times that amount. It was not suggested that I should impose a fine greater than the minimum. Although the contravention is serious one, the monetary penalty represented by even the minimum fine is enormous in terms of Mr El Hajje’s means and in terms of the benefit he stood to gain from his involvement. I will, therefore, impose a fine of $331,135.94 for the contravention of s. 117 proved. I will make the declarations sought that the cut tobacco be condemned as forfeited. Otherwise, the only other orders now sought were for the payment of costs. I will order that the defendant pay the costs of the plaintiff including reserved costs.

1. I propose, therefore, the following orders:

1.Declare that the defendant has committed a contravention of s. 117 of the Excise Act 1901 inasmuch as he on 21 February 2000 had in his possession, custody or control manufactured or partly manufactured excisable goods, namely 691.48 kg of cut tobacco, upon which excise duty had not been paid.

2.The defendant be convicted of the offence referred to in paragraph 1.

3.Order that the defendant be fined for the said contravention the sum of $331,135.94.

4.Declare that the tobacco referred to in paragraph 1 be condemned as forfeit to the Crown.

5.Order that the defendant pay the costs of the plaintiff of the proceeding including reserved costs.

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