Chief Executive Officer of Customs BY Wendy Lorraine Quinn, His Duly Authorised Delegate v Sayed - [2006] WASC 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CHIEF EXECUTIVE OFFICER OF CUSTOMS BY WENDY LORRAINE QUINN, HIS DULY AUTHORISED DELEGATE -v- SAYED [2006] WASC 119

CORAM: TEMPLEMAN J

HEARD: 1, 2, 68 JUNE 2006

DELIVERED : 23 JUNE 2006

FILE NO/S: CIV 2551 of 2002

BETWEEN: CHIEF EXECUTIVE OFFICER OF CUSTOMS BY WENDY LORRAINE QUINN, HIS DULY AUTHORISED DELEGATE
Plaintiff
AND
MAHMOUD SAYED
Defendant

Catchwords:

Customs - Smuggling - Unauthorised movement of goods - Unlawful possession of smuggled goods - Entire case circumstantial - Intention the only fault element - Whether inference of guilt can be drawn beyond reasonable doubt - Inappropriate interview of defendant by Customs Officers - Turns on own facts

Legislation:

Criminal Code Act 1995 (Cth), s 4.1, s 5.1, s 5.2, s 5.3, s 5.6, s 6.1, s 9.2

Customs Act 1901 (Cth), s 4, s 33(1), s 68, s 71A, s 233(1)(d), s 233(1AB), s 233B(1)(b), s 255(1), s 255(4)(a)

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr P G McGowan
Defendant: Mr H N H Christie

Solicitors:

Plaintiff: Australian Government Solicitor
Defendant: Henry Christie

Case(s) referred to in judgment(s):

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161
R v Saengsai‑Or (2004) 61 NSWLR 135

Case(s) also cited:

Bridal Fashions Pty Ltd v ComptrollerGeneral of Customs & Anor (1996) 140 ALR 681
Chief Executive Officer of Customs v Bayatpour [2003] NSWSC 1062
Chief Executive Officer of Customs v El Sayed [2003] NSWSC 1092
Chief Executive Officer of Customs v Tony Longo Pty Ltd (2001) 52 NSWLR 458
ComptrollerGeneral of Customs v Parker [2006] NSWSC 390
He Kaw Teh v The Queen (1985) 157 CLR 523
L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157
Poole v Wah Min Chan (1947) 75 CLR 218
R v Collins [2004] ACTSC 48

TEMPLEMAN J: On 11 February 2002, Customs Officers supported by armed Federal Police Officers executed search and seizure warrants at warehouse premises in Welshpool where the defendant, Mahmoud Sayed, carried on a business. As the Customs Officers knew from surveillance activities and earlier investigations, a 20‑foot shipping container containing 200 cartons of molasses tobacco packed behind some 200 cartons of charcoal had just been delivered to the defendant's premises. The container had been cleared through Customs on the instructions of the defendant but on the basis that it contained only charcoal and some copper products.
The defendant was charged subsequently with intentionally moving, altering or interfering with the tobacco, contrary to s 33(1) of the Customs Act 1901 (Cth) and with being in unlawful possession of the tobacco within the meaning of s 233(1)(d) of that Act.
The defendant denies that he knew there was tobacco in the container. He claims to have been the unwilling victim of a deception practised on him by a friend and business associate, on whose instructions he had foolishly acted.
This action is a prosecution brought against the defendant by the Chief Executive Officer of Customs acting by Wendy Lorraine Quinn, his duly authorised delegate. In the action, the plaintiff seeks declarations that the defendant contravened the sections of the Customs Act to which I have referred above. The plaintiff seeks also to have the defendant convicted of the contraventions and ordered to pay substantial penalties as well as the unpaid duty on the tobacco, amounting to $125,356.80.
The plaintiff's case is entirely circumstantial. It is based on inferences which, it is contended, should be drawn from the circumstances of the importation of the container and its subsequent unloading at the defendant's premises. The plaintiff accepts that the defendant cannot be convicted unless I am satisfied beyond a reasonable doubt that he contravened s 33(1) and s 233(1)(d) of the Customs Act. However, the plaintiff contends that the strength of the inferences are such that this is the inevitable result.
The plaintiff's case rests on the evidence of the Customs Officers who were involved in the investigation and in the execution of the search and seizure warrants on the defendant's premises. The evidence includes documents found in the defendant's possession and elsewhere from which, it is said, a clear picture emerges.
Although it is submitted on behalf of the defendant that the plaintiff has not made out a case to answer, no such submission was made at the conclusion of the plaintiff's case. The defendant gave evidence. No other witness was called on his behalf.
I accept much, but not all, of the defendant's evidence. In order to provide a basis for the drawing of inferences, I set out my findings of fact drawn from the evidence as a whole. These findings relate to the importation of the container and the defendant's involvement in it. They are in narrative form, and in broadly chronological order.

Findings of fact

The defendant carried on business under the name "Snack Plus" at warehouse premises on the corner of Star and President Streets, Welshpool. The business involved wholesaling food stuff and related goods. The defendant commenced that business early in 2001. The defendant's main line of business was to provide baskets of packaged chocolate, potato crisps and similar snack foods to commercial offices in the Perth central business district.
The defendant also bought and sold general and imported food stuffs. He did not import any of those goods himself. He purchased from other wholesalers and generally sold his goods to takeaway and other food outlets.
In about October 2001, the defendant began to operate a business known as the Charcoal House Café at Shops 1 – 3, 910 Albany Highway, Victoria Park. The café specialised in food cooked over charcoal. The defendant did not own the Charcoal House Café business. He said he was operating it under an agreement with the owner, one Bah Ban, to the effect that if the business was successful, it would be sold and that he and the owner would share the proceeds. Having regard to what seems to be the agreement (exhibit 1/1) that is not entirely accurate. However, nothing turns on the inaccuracy for present purposes.
The defendant purchased charcoal for the cafe on a monthly basis from South Australia. He normally used about three pallets of charcoal each month.
One of the persons present at the defendant's warehouse on 11 February 2002 was Hendra Nasution. Mr Nasution was a part‑time employee of the defendant, having commenced employment on or about 1 February 2002. He became known to the defendant in the following circumstances.
Mr Nasution came from Indonesia, having moved here with his family in January 2000.
In 2001, Mr Nasution set up an import/export business with a friend. The business operated from the friend's house in St James.
The first product to be imported by the business was charcoal, produced in Indonesia. The charcoal was imported by Mr Nasution's business as a result of an approach from Bah Ban who said he wanted to buy half a container of charcoal and that if it was of good quality, he would buy more.
That container of charcoal was cleared through Customs by brokers known as Lou Valsecchi & Associates. Mr Nasution found their name in the Yellow Pages.
When the container arrived, Mr Nasution had no warehouse in which to store the charcoal. He was told by Bah Ban that he had a friend with a warehouse; namely, the defendant.
Mr Nasution contacted the defendant who agreed to allow him to store the charcoal at the Snack Plus premises at Welshpool and to have access to it whenever anyone purchased charcoal. The defendant did so without charge, as a favour to Mr Nasution.
Mr Nasution did not import any more charcoal. However, he occasionally spoke with and met the defendant when he needed access to his charcoal.
In December 2001, Mr Nasution travelled to Indonesia with his family. He went to Madan, North Sumatra, to visit other members of the family.
While he was there, Mr Nasution was joined by the defendant. They went together to see the charcoal supplier in Madan who had been the source of the charcoal imported previously by Mr Nasution. Mr Nasution also introduced the defendant to another charcoal dealer. Both of these contacts were made with a view to the importation of charcoal into Australia by the defendant.
The immigration records, which I accept as accurate, show that the defendant departed Australia on 5 December and returned on 9 December (exhibit 1/282 and 283).
Another business contact of the defendant's was Hecham Alfas who carried on a wholesale food and general goods business in New South Wales. He had a large warehouse at 113 Punchbowl Road, Belfield.
The defendant met Mr Alfas in about 1997 or 1998 and about three times in 2001. In addition, the defendant dealt with Mr Alfas' business partner, a Mr Abbas.
In late 2001, after the defendant started operating the Charcoal House Café business, he visited Mr Alfas' warehouse in Belfield to purchase goods for the Snack Plus business. On that occasion, there was a discussion between the defendant and Mr Alfas about the fact that the defendant used a substantial quantity of charcoal in the Charcoal House Café business. In answer to an enquiry from Mr Alfas about the source of his charcoal, the defendant said he bought it in South Australia. After asking the defendant the price he paid, Mr Alfas said he could supply charcoal from Indonesia at a much cheaper price. Mr Alfas asked the defendant if he was interested in buying charcoal from him. The defendant said he was, if Mr Alfas could supply charcoal of acceptable quality. The defendant gave Mr Alfas his business card so that he could be contacted for that purpose.
On the occasion of this visit to Mr Alfas' premises, the defendant purchased a box of Nakhla molasses tobacco from Mr Alfas. The purchase was made for a customer who had placed a specific order and to whom the box was sold shortly after the defendant received it. The tobacco was stored for a short time at the Snack Plus premises in late 2001 and then sold to the customer at the price the defendant paid for it. This was done as a favour to a regular client.
The defendant made a further trip to Mr Alfas' premises in December 2001 or January 2002. He asked Mr Alfas about obtaining some further Nakhla tobacco for himself and his manager at the Charcoal House Café. Mr Alfas had no tobacco in stock. However, he sent out for several 250 gram packets from another supplier. Mr Alfas gave the packets to the defendant without charge. The defendant used one packet himself. He gave some packets to his manager at the Charcoal House Café. The remaining few packets remained in the warehouse.
In late January 2002, the defendant received a telephone call from Mr Alfas to the effect that a container of charcoal and a few copper cooking implements had arrived in Fremantle, having been shipped under the name of his business, the Charcoal House Café. That was one of the names on the defendant's business card.
Mr Alfas asked the defendant to arrange for the container to be cleared through Customs and delivered to him. Mr Alfas also offered to sell up to half of the charcoal in the container to the defendant. Mr Alfas said he would be taking the remainder of the charcoal and the cooking implements. Mr Alfas said also that he would come to Perth to arrange for the collection of the charcoal and the cooking implements.
During the course of the telephone conversation, Mr Alfas asked the defendant to organise the Customs formalities. He said he would send the defendant the shipping documents. The defendant received them through the post from Mr Alfas a few days later.
The defendant had not previously been involved in the importation of goods into Australia. He did not know who he might use as a broker for that purpose. He therefore asked Mr Nasution who, as I have noted above, had imported charcoal in 2001.
Mr Nasution gave the defendant the name and contact details of Lou Valsecchi & Associates, the Customs brokers he had used previously. The defendant wrote this information on a photograph of his son (exhibit 1/228).
On about 5 or 6 February 2002, the defendant telephoned Mr Valsecchi and said he wanted to import a container of charcoal. The defendant said he had been recommended by Mr Nasution, to whom he referred as Hendra. Mr Valsecchi tracked that name and found that Mr Nasution had engaged his services to clear some goods through Customs about six to twelve months previously.
Mr Valsecchi asked the defendant when the container was due. The defendant said that it was due that week. He said he did not have the original Bill of Lading and that he would visit Mr Valsecchi's office when he had those documents.
Mr Valsecchi told the defendant he could fax copies of the documents so that the process could be commenced, and that the defendant could bring the originals in when he received them.
At about lunch time on 8 February 2002, the defendant visited Mr Valsecchi at his office. Mr Valsecchi asked him for what purpose he used the charcoal. The defendant said he had a "chicken café" and that he used the charcoal for cooking the chicken. The defendant told Mr Valsecchi that he was out of charcoal and that he wanted it urgently. He asked Mr Valsecchi to arrange transport and delivery of the container to the Snack Plus premises at Welshpool.
Mr Valsecchi told the defendant he would pay all the costs including duty and GST and send an account in due course. The defendant gave Mr Valsecchi an invoice from Adany Export Co, Cairo ("Adany"). The invoice bore the number 215 and was dated 21 December 2002. It related to 415 boxes of charcoal and 8 boxes of copper products, having a total value of $4645. It was addressed to the Charcoal House Cofe [sic, Café] (exhibit 1/14). The defendant also gave Mr Valsecchi the original Bill of Lading. However, there was no packing declaration. Mr Valsecchi needed this for quarantine purposes.
Mr Valsecchi obtained a sample packing declaration from his colleague Salvatore (Sam) Miragliotta and gave it to the defendant. He told the defendant that it would be necessary for the packing declaration to be completed by the exporter or supplier. The defendant told him he would have it signed by the supplier.
The defendant sent Mr Alfas the sample packing declaration he had received from Mr Valsecchi.
Later, Adany faxed to Mr Alfas a completed packing declaration dated 23 January (exhibit 1/16). It is clear that this document was created by superimposing the Adany letterhead over the sample packing declaration supplied by Mr Valsecchi. It bears an unrecognisable signature.
It appears from the facsimile transmission advice appearing at the top of the document that it was sent from the Adany office in Cairo. The date and time of the transmission are shown as 9 February and 8:56 am.
Mr Alfas then re‑transmitted to the defendant the document he had received from Adany. The facsimile transmission details indicate that the document was transmitted on 8 February at 14:12, the day before the date on the Adany facsimile.
Clearly, one of the dates must be incorrect. I am satisfied that it is the date on the facsimile transmitted by Adany. That is because the computerised "entry for home consumption" prepared by Mr Miragliotta and transmitted to Customs is dated 8 February and timed at 16:53.
Mr Miragliotta's evidence was that the packing declaration was faxed to him by the defendant. I am therefore satisfied that the defendant received the declaration from Mr Alfas at 14:12 on 8 February and transmitted it later that afternoon by facsimile to Mr Miragliotta.
On the day Mr Alfas faxed the packing declaration to the defendant (which I find to be 8 February 2002), he asked the defendant to remove the facsimile transmission details from the top of the document (that is, showing the document having been faxed from Mr Alfas).
The defendant complied. He cut from the top of the document a small strip of paper containing Mr Alfas' facsimile details (exhibit 1/18). He put the slip of paper in his briefcase.
During the course of the telephone conversation between Mr Alfas and the defendant, probably in early February 2002, Mr Alfas asked the defendant to book flights for him and two of his colleagues to travel from Sydney to Perth. The defendant did so. On 5 February, he made a booking in the name of Mohammed Manaf to travel from Sydney to Perth on 17 February: a one‑way ticket (exhibit 1/26).
Then, on 6 February, the defendant made bookings for Mr Alfas and one Hashem Chahade to travel from Sydney to Perth on 10 February, arriving at 10.50 pm and returning from Perth to Sydney on 12 February, departing at 6.10 am. The defendant was authorised to use Mr Manaf's credit card in payment of the flights. Mr Manaf gave the defendant the credit card details in the course of a telephone conversation.
On the evening of 10 February, the defendant met Mr Alfas and Mr Chahade on their arrival at Perth airport and took them to the Burswood Casino.
Later that night, the defendant left Mr Alfas and Mr Chahade at the Burswood Hotel where they occupied a room he had booked in his name. The defendant had a VIP card from the Burswood Casino which entitled him to gamble in the International Room. The VIP card was used for gambling that night. Points were thereby earned, which were credited to the card. This entitled the defendant, as the holder of the card, to a complimentary hotel booking.
On the morning of 11 February, Mr Nasution went to the Snack Plus warehouse at about 8.30 am. When he arrived, the defendant asked to be driven to the Burswood Hotel because his car had broken down. The defendant told Mr Nasution that two friends of his had arrived from Sydney on the previous night and he wanted to collect them.
Mr Nasution drove to the Burswood Hotel. He stayed in the car while the defendant went inside. After about five minutes, the defendant returned to Mr Nasution's car with Mr Alfas and Mr Chahade. They were dressed in casual clothes. Mr Nasution drove back to the Snack Plus premises. When he did so, the defendant, Mr Alfas and Mr Chahade conversed in a language which Mr Nasution did not understand but which he believed to be Arabic. They arrived at approximately 9.30 am. He saw the three men go into the defendant's office.
At 8.40 am, while the defendant was out of his office, Mr Miragliotta telephoned and left a message asking the defendant to return his call.
The defendant telephoned Mr Miragliotta before 9 am and said he wanted delivery of the container as soon as possible and that he wanted the trailer which carried the container to be left at the delivery address overnight.
At 9 am, Mr Miragliotta telephoned the haulage company, Valbro (which has some association with Lou Valsecchi & Associates), and gave instructions for the container to be taken to the Snack Plus warehouse. It was loaded on to a truck at the Customs Facility at Fremantle from which it departed at 9.45 am.
At about that time, the defendant told Mr Nasution that the container of charcoal was to be delivered that day. He asked Mr Nasution to help with the unloading. Mr Nasution agreed. He went home to change because he was dressed for office deliveries, not warehouse duties.
Mr Nasution returned to the warehouse about 45 minutes later, shortly after 10.30 am, when the container arrived. He saw that the container doors had been opened but it appeared that no boxes had been removed.
There were then five people in the warehouse, Mr Nasution, the defendant, Mr Alfas, Mr Chahade and Mr Barond, the defendant's storeman.
Mr Alfas and Mr Barond began unloading the container and placing boxes on wooden pallets. However, Mr Barond soon complained of a sore back. Mr Nasution then took his place. The unloading process involved placing cartons from the container on to the pallets which were then lifted down by a forklift truck (the container being in an elevated position, on the back of the trailer).

The defendant drove the forklift truck for the purpose of removing the first pallet of boxes from the container: these were boxes containing charcoal. The defendant and/or Mr Chahade opened one of the boxes containing charcoal and poured some into a plastic bin. The defendant then instructed Mr Barond to take that sample of charcoal to the Charcoal House Café to determine whether it was of a suitable quality.
The defendant then returned to his office and took no further part in the unloading. This was completed by Mr Nasution, Mr Alfas and Mr Chahade. In the course of the unloading, the pallets containing boxes of charcoal were placed on the floor of the warehouse adjacent to the container. The boxes containing tobacco were placed further from the container. Seven of those pallets were placed on the floor and one was placed on top of another pallet on which soft drink cartons had been stacked.
At about 12.55 pm, Customs Officers, accompanied by armed Federal Police Officers, entered the defendant's premises in the execution of search and seizure warrants. The Customs Officer in charge of the operation was Malcolm Ross Plant. He was accompanied by Steven Marshall Tye, who carried a tape recorder for the purpose of recording events as they unfolded. A transcript of the audio tapes was prepared.
At the trial, counsel for the plaintiff sought to tender the entire transcript. However, it contained not only the dialogue between the defendant, Mr Plant and Mr Tye, but exchanges between them and other persons present at the defendant's premises, including other Customs Officers and various unidentified speakers.
I admitted into evidence the transcript of the dialogue between the defendant, Mr Plant and Mr Tye. I also admitted the original audio tapes for the purpose of enabling me to listen to them so as to clarify (as far as possible) passages in the transcript which were in dispute and passages which the transcriber had described as indistinct. (The marked up copy of the transcript and a document prepared by the defendant's counsel identifying the excluded passages became exhibits 11 and 11A respectively.)
It is not necessary to set out the whole of the interview between Mr Plant, Mr Tye and the defendant. It is sufficient to note that at 12.57 pm, Mr Plant cautioned the defendant and the defendant said that he understood the caution.
Immediately after the defendant was cautioned, Mr Plant asked him "What about the tobacco in the container"?
The defendant replied:
"It's for charcoal and I open already two boxes and I sent them to try them in my shop and there is one already here. I don't where (?) is … tobacco, it's not tobacco."
A little later, when Mr Plant was searching the defendant's briefcase, he found the Adany invoice relating to the charcoal. He asked the defendant how he was paying for the consignment. The defendant said he had not paid for it yet: that he was from Lebanon which was close to Egypt and that when he went overseas he would pay. The defendant said he had an overseas bank account but that the details of the account were overseas.
Questioned further, the defendant said he had no tobacco on the premises: and that the boxes which had been unloaded from the container all contained charcoal.
A little later, the defendant was asked whether he dealt with tobacco at all: whether he sold tobacco. He said he did not. He was then asked whether he had ever sold or imported tobacco. Although the transcript records "no" (query) and "no" respectively to those questions, I did not hear the defendant make any response.
In any event, Mr Plant told the defendant he had come across some packets of tobacco on his shelves. Mr Plant showed him some packets of molasses tobacco. The defendant said he used it for himself but that it was not tobacco "it's a fake one". He said he had bought the packets from Sydney "but they're no good … they're not real tobacco".
In using the word "fake", the defendant meant that molasses tobacco was treated differently from ordinary tobacco, because it has only a small proportion of tobacco and consists mainly of molasses and flavouring. That was the defendant's evidence in a supplementary statement (exhibit V, par 12) which was not challenged and which I accept.
Later still, the defendant was asked how many times he had dealt with Adany. He said he did not know them and had never dealt with them. When Mr Plant put to the defendant that Adany had allowed him to take consignments without paying, he said his friend in Lebanon had arranged it.
When the defendant was questioned further about the packets of molasses tobacco found on his shelves, he said it was not tobacco but that he called it massell. Mr Tye asked the defendant "So you don't regard that as tobacco?" The defendant said it was "apple … and sweet". He confirmed that it was smoked in a water pipe, which the Customs Officers referred to as a hookah, but which the defendant knew as an argyla. The defendant said, in effect, that he did not know whether there was massell in the cartons unloaded from the container.
In making these findings, I have left open the possibility that at some stage in his dealings or communications with Mr Alfas the defendant was told or became aware that there would be molasses tobacco in the container. There is no direct evidence of that: and the defendant denies any such knowledge. I therefore turn to consider the plaintiff's case in relation to that issue.

The plaintiff's case

As I have noted above, the plaintiff contends that the defendant contravened s 33(1) and s 233(1)(d) of the Customs Act.
Section 33(1) provides that:
"If:
(a)a person intentionally moves, alters or interferes with goods that are subject to the control of Customs; and
(b)the movement, alteration or interference is not authorised by this Act;
the person commits an offence …".
In the present case, there is no doubt that the molasses tobacco was subject to the control of Customs because it had not been entered in accordance with the procedures prescribed by s 68 and s 71A of the Customs Act.
Equally, there is no doubt that the defendant "moved" the tobacco, in the sense that he made the arrangements for collection and delivery of the container into which the tobacco had been packed. The question is, therefore, whether the defendant so acted intentionally: that is, whether he knew at the material time that the container contained tobacco.
The plaintiff's case in relation to s 33(1) is set out in the particulars of par 3(a) of his statement of claim as follows:
"(i)The goods were transported from the dock at Fremantle and delivered to the premises upon the defendant's instructions.
(ii)The defendant unloaded the goods.
(iii)The goods were separated from other goods.
(iv)Some of the goods were installed on storage racks at the premises.
(v)In the circumstances, the defendant must have intended for the above to occur."
The allegation in (i) above does not advance the plaintiff's case unless it can be proved that the defendant actually knew about the presence of the tobacco in the container.
The allegation in (ii) is not made out. I have found that the defendant did not unload the tobacco. He unloaded only the first pallet of boxes taken from the container, these being boxes of charcoal.
The allegation in (iii), that the tobacco was separated from other goods, appears to be based on the proposition that in the course of unloading, pallets on which charcoal boxes were stacked were separated from pallets on which the boxes containing tobacco were stacked. However, I do not regard that as significant. The pallets on which the boxes of charcoal had been stacked were placed on the floor of the warehouse close to the container. These boxes must have been removed first from the container. It is therefore understandable that they would have been placed close to it. Thus, the boxes containing tobacco, being the last to be removed from the container, would naturally have been placed on the ground further from the container than the charcoal pallets. In any event, it appears from a sketch plan drawn by a Customs Officer that the placing of the pallets on the warehouse floor was somewhat haphazard. Indeed, as I have noted above, one of the tobacco pallets had been placed on top of a stack of soft drink cartons (exhibit 1/208).
The allegation in (iv) above was withdrawn. It was clearly based on a misunderstanding of observations made by Customs Officers.
The allegation in (v) that the defendant "must have intended for the above to occur" is clearly equivocal. It does not assist in determining whether the defendant knew, before he made arrangements for the container to be cleared, that it contained tobacco.
The plaintiff apparently seeks to rely on s 255(1) of the Customs Act. This section provides that the averment of a plaintiff contained in documents including a statement of claim shall be prima facie evidence of the matter averred. However, s 255(4)(a) makes the section inapplicable to an averment of the intent of a defendant. This is confirmed by the decision of the High Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161, at [142], per Hayne J, with whom Gleeson CJ and McHugh J agreed.
In these circumstances, I very much doubt whether the defendant had a case to answer in relation to the alleged contravention of s 33(1) of the Customs Act as pleaded in par 3(a) of the statement of claim. However, no submission to that effect was made on behalf of the defendant at the conclusion of the plaintiff's case: and further evidence was adduced against the defendant (without objection) during the course of the defendant's case. Before dealing with these additional matters, I turn to the plaintiff's contention that the defendant was in breach of s 233(1)(d) of the Customs Act.
Section 233(1)(d) provides that a person shall not unlawfully have in his possession any smuggled goods.
The Customs Act does not contain a definition of smuggled goods. However, "smuggling" is defined in s 4 to include any importation of goods with intent to defraud the revenue. It must follow that "smuggled goods" are those which have been imported with an intention to defraud. A person cannot therefore contravene s 233(1)(d) unless that person knows about the existence of the relevant goods and that those goods have been smuggled. This is subject to s 233(1AB) which makes a contravention of s 233(1)(d) an offence of strict liability.
Strict liability offences are defined in s 6.1 of the Criminal Code Act 1995 (Cth). They are offences in which:
"(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 9.2 is available."
A physical element is defined by s 4.1 of the Code as being, essentially, conduct or a consequence of conduct.
Fault elements are defined by s 5.1:
"A fault element for a particular physical element may be intention, knowledge, recklessness or negligence."
And s 5.2 provides that a person has intention with respect to conduct "if he or she means to engage in that conduct".
Knowledge is defined in s 5.3 as being an awareness of the existence of a circumstance, or that the circumstances will exist in the ordinary course of events.
Section 5.6 provides:
"(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element."
In R v Saengsai‑Or (2004) 61 NSWLR 135, the Court of Criminal Appeal of New South Wales held that the physical element of s 233B(1)(b) was one of conduct only. Thus, having regard to s 5.6, the only fault element was intention.
Section 233B(1)(b) prohibits the importation into Australia any prohibited imports to which the section applies (and their exportation). It is, therefore, similar to s 233(1)(d) in the sense that it prohibits particular conduct.
That being so, I consider that the only fault element for s 233(1)(d) is intention: recklessness is irrelevant.
The particulars of unlawful possession relied on by the plaintiff as constituting a contravention of s 233(1)(d) of the Customs Act are as follows:
"(i)The goods remained at the premises.
(ii)The goods were separated from other goods.
(iii)Some of the goods were installed on storage racks at the premises.
(iv)In the circumstances, the defendant must have been aware of the nature of the goods."
On the facts as I have found them to be, I do not think that (i) above is of any significance. The container arrived at the defendant's warehouse at about 10.30 am on 11 February 2002. The defendant unloaded one pallet of boxes containing charcoal and then retired to his office. The remaining boxes of charcoal and the boxes containing tobacco were unloaded by others. At about 12.55 pm, before any of the goods were moved elsewhere, the Customs Officers entered the warehouse in the execution of the search and seizure warrants.
It is true that the tobacco "remained" at the defendant's premises for a period of some two and a half hours, in the sense that it was physically there. However, the tobacco could not have been in the defendant's possession unless he knew in advance that it would be arriving and intended that it should remain.
Paragraphs (ii) and (iii) are the same as those relied on in relation to the alleged contravention of s 33(1) of the Customs Act. My observations about those matters set out above are equally applicable here.
It follows that, as in relation to s 33(1), the particulars of unlawful possession cannot support the allegation that the defendant "must have been aware of the existence of the tobacco", unless he was expecting its arrival. In the absence of any allegation of actual knowledge, I do not think that the case advanced by the plaintiff establishes a contravention by the defendant of s 233(1)(d). But again, in the absence of any such submission on behalf of the defendant, this is not a matter I have to consider.
At the close of the plaintiff's case, the defendant gave evidence. In the course of cross‑examination, various documents were put to him and tendered by counsel for the plaintiff. In so doing, the plaintiff's counsel effectively split his case. This is a course which is generally impermissible: see Seaman on Civil Procedure, [34.5.15]. However, it did not prompt any objection from counsel for the defendant.
Much of the cross‑examination of the defendant was directed to his honesty and hence, his credibility. Broadly, it is submitted on behalf of the plaintiff that the defendant is dishonest and that, accordingly, his evidence that he did not know there was tobacco in the container until informed of that fact by Customs Officers, should not be believed. I turn to consider these matters.

The defendant's credibility

The defendant was born in Lebanon in 1949. He came to Australia in 1972 and was granted Australian citizenship in 1976. The defendant was then working in a bank. I accept the defendant's evidence that the bank advised him to use an Australian name: and he chose the name Michael Touma.
1983, the defendant returned to Lebanon when, he said, he changed his name by deed poll back to Mahmoud Sayed. As I understood the defendant's evidence, that change was not effected in Australia, but in Lebanon (TS 210). The defendant returned to Australia in 1985.
In 1998, the defendant was conducting a business known as Australian United Brokers in Sydney. The business was concerned with insurance, finance and travel. The defendant had previously been involved in a business as a travel agent or travel consultant. That business was DIB Group Air Service. As a consultant to that organisation, the defendant obtained an accreditation with the Australian Federation of Travel Agents.
In 1988, the defendant became bankrupt in the name Michael Touma. It was submitted by counsel for the plaintiff that this circumstance was "odd in the extreme" when the defendant was known at the time as Mahmoud Sayed (TS 335). However, in the absence of an explanation, I do not draw any adverse inference against the defendant from that fact. I note from the immigration records to which I have referred above that the defendant appears to have been known by both names (exhibit 1/282 and 283).
The defendant was cross‑examined about his business activities and those of his wife, who qualified as a dentist but has never practised as such. The defendant and his wife were involved in some business ventures together. I found the defendant's evidence somewhat confusing, partly because of the way he expressed himself and partly because of his inability to recall matters of detail. I do not find this surprising, given that the plaintiff's case as pleaded and presented in opening would not have given the defendant any intimation that he would be asked about these matters. He therefore had no opportunity to refresh his memory.
Counsel for the plaintiff made much of the fact that the defendant was – as he freely admitted – a gambler. Indeed, the defendant volunteered evidence that he had come from overseas with $10,000,000 and lost much of it gambling at the Star City Casino in Sydney.
The defendant brought that amount of money with him when he returned to Australia in 1985. By 1998, when he was declared bankrupt, there was none left (TS 223).
When living in Sydney, the defendant was given some form of privilege card for the Star City Casino. The card (exhibit 13) apparently gives the holder access to the Endeavour Room at the casino where the so called "high rollers" gamble. They are people who gamble in large sums of money. The defendant said he had been a high roller in Sydney.
The expiry date on the defendant's card is December 2001. It is not clear when the card was issued. However, I infer that it was issued before the defendant was declared bankrupt.
The defendant was also the holder of a Privileged Player card for the Burswood International Resort Casino in Perth. That card (exhibit 14) was valid until December 2002. It gave the defendant access to the International Room at the Burswood Casino. This was also a room for high rollers (TS 221).
The defendant's evidence was that it was not necessary to gamble in large amounts of money in order to maintain his status as a Privileged Player. He said he had showed his Star City Casino card at Burswood when he came to Perth following his bankruptcy at the end of 1998 and he had been given the Privileged Player card at Burswood. He said the card was renewed automatically, even though he did not gamble. He decided to give up his gambling after losing so much in Sydney and in response to his wife's concerns. The defendant said he went to the Burswood Casino simply to relax: that he went "just for fun … like everybody else" (TS 224).
The defendant admitted that he had been at the International Room on the night of 9 February 2002. However, he said he had not been gambling himself but that he had been in the company of a friend who had used his (the defendant's) Privileged Player card for the purpose of gambling: and that in so doing, the friend had accumulated "points" which were credited to the defendant's card and which permitted him to free accommodation in the hotel that night. The defendant's wife and child were on holiday in Sydney at the time.
I see nothing implausible in this evidence. I expect that proprietors of a casino would wish to encourage clients to make use of the services they provided. I can therefore see that once a privilege card of some kind had been issued, it would be renewed automatically. Further, I can accept that the holder of a privilege card from one Australian casino would be given a similar card from another casino on presentation.

There is no evidence to contradict the defendant's assertion that he is no longer a gambler. As with the defendant's evidence about his business activities, questions about gambling would have come to him unheralded. Apart from his reticence about giving evidence relating to the business affairs of other people, the defendant answered all the questions put to him without hesitation and in a way which led me to believe he was telling the truth. I therefore accept his evidence about these matters.
I have referred above to the visit made by the defendant to Indonesia in December 2001 when he had attempted to source charcoal for the business he was then operating.
The defendant re‑entered Australia at Perth airport. He had with him some samples of canned fish which he had obtained in Indonesia but which he did not declare for quarantine purposes. The cans were detected in his luggage and a Quarantine Infringement Notice was completed by a Quarantine Officer and countersigned by the defendant (exhibit 15). The defendant gave his occupation as "travel consultant". It was put to the defendant in cross‑examination that this was a false statement because at the time, the defendant was unemployed (TS 225). I assume that the defendant visited Indonesia shortly before he started the Snack Plus business at the end of 2001.
The defendant said that he had given his occupation as "travel consultant" because that was his profession even though he did not practise it. I accept that the defendant genuinely believed he was justified in giving that answer. I note that later in his evidence, the defendant was asked what was his wife's occupation. He said "She's a dentist" (TS 231). In fact, as the defendant stated immediately, his wife had never practised as a dentist, despite holding that qualification. That, I think, is the sense in which the defendant answered the question about his own occupation in December 2001.
The Quarantine Infringement Notice describes the items the defendant failed to declare as "various canned foods (fish shrimp)". The weight was said to be 2 kg.
According to the defendant, the food in question was three small samples of canned fish from one of the factories he had visited with Mr Nasution in Indonesia. He said that the 2 kg included the charcoal which he had also brought back with him. However, the Quarantine Infringement Notice makes no reference to charcoal.
The defendant said he did not look "that much" at the Notice: that he signed it because he was tired from travelling and had to go. The defendant said, in effect, that the cans were small samples which were worth nothing and he did not know he was required to declare them (TS 227).
The amount of penalty imposed on the defendant was $55, being one half of a penalty unit.
I note from the defendant's eftpos receipt and the Customs receipt he was given, that he paid the penalty at 10.43 pm on 9 December 2001. It seems that he flew via Singapore. I can therefore accept that he was tired from travelling at the time.
This does not, of course, excuse the defendant from his failure to declare food stuffs for quarantine purposes. However, it provides an explanation which I am inclined to accept. However, even if the defendant deliberately failed to disclose that he was carrying some cans of food, I do not think he should therefore be regarded as the kind of man who would practise the kind of deception alleged against him in the present case in an attempt to conceal the importation of a nominal 4 tonnes of tobacco.
The defendant's credibility was attacked also in relation to some of the answers he gave to Mr Plant and Mr Tye when they questioned him during the course of the execution of the search and seizure warrants. In particular, reliance is placed on the defendant's assertion that he did not sell tobacco in his business. This, despite the fact that eleven packets of molasses tobacco were found on the shelves of the defendant's warehouse and that there was reference to the purchase of molasses tobacco in his computer system. Further, among a number of barcodes seized at the defendant's warehouse, was a barcode for "L Nakhla" with a price of $18. The number of the barcode is indistinct. However, it commences with the numbers 62230 and ends with the numbers 497. Four packets of molasses tobacco bearing barcode 6223000090497 were found on the shelves at the defendant's warehouse. Three were damaged quite badly (exhibit 8): one was undamaged (exhibit 6).
Seven further packets were found. None displayed barcodes and all were damaged (exhibits 5 and 10).
The defendant's computer system showed that he had received 48 boxes of L Nakhla maasal [sic, massell] at a cost of $8 per box, apparently on 6 January 2002 from supplier 54 which is, apparently, Hecham Coffee. That is Mr Alfas' business.
Forty‑eight packets at $8 per packet would have cost a total of $384. The computer showed net purchases from Hecham Coffee on 6 January 2002 amounting to $9,697.15. However, the individual stock items do not appear to have been recorded (exhibit 1/9, 10, 11). The selling price is said to be $18, which is consistent with the barcode (exhibit 1/12).
The fact that there were four packets of tobacco on the defendant's shelves bearing the same barcode as that obtained from Hecham Coffee, is consistent with the defendant's evidence that he had purchased a box for a particular customer. I infer that he sold the bulk of the box to the customer but kept a few packets for himself. This is consistent with the defendant's answer to Mr Plant that he used the remaining packets for himself (exhibit 1/98). The six or seven packets he said were "no good" is, I think, a reference to the seven damaged packets which did not have a barcode on them and which the defendant said he had bought in Sydney some two months previously. I therefore see nothing untrue or evasive in those answers.
The fact that the molasses tobacco on the defendant's shelves appeared to bear a price tag of $18, does not seem to me to be inconsistent with his evidence. Assuming he did sell the majority of the contents of a box of tobacco to a particular customer, it would have been appropriate for the tobacco to be priced. The defendant said, in effect, that his storeman was responsible for pricing. Again, this is not a matter that was explored in any detail (nor was the storeman called to give evidence). I am therefore unable to make anything of that piece of evidence.
I have referred above to the defendant's assertion that he did not sell tobacco. Having regard to the fact that he regarded molasses tobacco or massell as different from conventional tobacco, I do not think that was an untrue statement.
The defendant admitted that he lied to Customs Officers when he told them that he would pay for the consignment in the container when he went overseas and that he had a bank account overseas (exhibit 1/94): and also when he said that a friend of his in Lebanon had arranged the shipment (exhibit 1/100 and 106).
Immediately after giving the second of the answers referred to above, the defendant said that he would prefer to talk to his solicitor. In response, Mr Plant said:
"You don't have to answer any questions, as I said, but I'm … it doesn't stop me from asking questions. I'll ask questions because there are a lot of things which are a bit confusing to me." (exhibit 1/106)
The defendant had said earlier in the course of the interview that he would like to talk to a solicitor because he had no experience of the situation in which he found himself. Mr Plant said the defendant was quite welcome to talk to a solicitor. However, because the defendant did not have a solicitor, he asked Mr Plant to recommend one. Mr Tye said they could not recommend a solicitor: they were not allowed to do so. However, he invited the defendant to look in the Yellow Pages and find a solicitor by that means.
As I understand it, the defendant was then left in his office under the supervision of another Customs Officer.
When Mr Plant and Mr Tye returned, the defendant was speaking on the telephone to somebody at the firm of Julienne Penny & Associates, solicitors. The defendant was heard to ask whether he could hand the telephone to someone who could explain the position. The telephone was given to Mr Plant who said he was from the investigation section of Customs and that they had executed search and seizure warrants on the defendant's premises "in relation to the importation of smuggled tobacco". Mr Plant then handed the telephone back to the defendant saying that the person to whom he had spoken was "just looking for a lawyer who handles criminal matters …"
A few moments later, the defendant handed the telephone back to Mr Plant who spoke to a solicitor. Mr Plant's part of the conversation has been transcribed. He said that he was from the investigation section of Customs; that they had just executed search and seizure warrants on the defendant's premises in relation to what was believed to be 4 tonnes of tobacco products from Egypt. Mr Plant said "the offence is smuggling under the Customs Act". A little later, Mr Plant said that the defendant had been cautioned but that he had not been charged "as yet" (exhibit 1/82‑3).
A little later, Mr Tye confirmed with the defendant that he had spoken to his solicitor. Mr Tye asked "What have you got to tell us or …". The defendant said:
"He said he will talk in the court … I will talk in court."
The following exchange then took place:
"Mr Tye:Right. So you're quite happy you've had your chance to talk to the solicitor?
The defendant:       Yes.
Mr Tye:He's advised you of your rights?
The defendant:       Yes.
Mr Tye:And he says, what, he'll talk in court or something?
The defendant:       Yeah.
Mr Tye:Okay. So he's explained all your rights to you and that …
The defendant:       Yeah, yeah.
Mr Tye:Excellent." (exhibit 1/86)
Immediately following this exchange, Mr Plant informed the defendant that people would be searching his office and the warehouse and that he would be given a receipt for anything that was taken. Mr Plant said he would want to talk to the defendant further in relation to that.
In my view, Mr Tye and Mr Plant did not have sufficient regard for the defendant's rights. The defendant was properly cautioned and properly given an opportunity to speak to a solicitor. I accept the defendant's evidence that despite Mr Tye having told him that Customs could not recommend a solicitor, a Customs Officer did select Julienne Penny & Associates as the defendant's solicitor. I accept that this was done with the intention of assisting the defendant, who was clearly in a position in which he needed legal advice.
It is, I think, reasonably clear that the advice given to the defendant by his new‑found solicitor was to decline to answer further questions. In my view, it was inappropriate for Customs Officers to question the defendant further without clarifying what his position was and ensuring that he understood fully that he was not obliged to answer questions. This is particularly so when Mr Plant had given the impression to the solicitor that the defendant had committed a criminal offence in circumstances in which the defendant was protesting his innocence.
The defendant said in his evidence, in effect, that he felt intimidated by the presence in his warehouse of numerous Customs Officers and police officers armed with sub‑machine guns. I accept that evidence.
The defendant lied, he said, because he realised he had been the victim of a deception practised on him by Mr Alfas whom he regarded as a powerful figure. He did not want to implicate Mr Alfas for fear of reprisals against him or his family. For that reason, he told the Customs Officers that the consignment had been arranged by a friend in Lebanon.
The lie is not relied on by the plaintiff as tantamount to an admission of guilt. It is said to relate only to the defendant's credibility.
The fact that the defendant says he told a lie is a circumstance to be taken into account. However, the significance of the lie cannot be determined without knowing whether the defendant was guilty. Clearly, if his explanation for the lie is truthful, it reflects much less badly on his credibility than if he was the instigator of the offence.
However, given the circumstances in which the defendant was questioned, I have considerable doubt whether his answers were given voluntarily. I therefore place very little weight on this evidence.
A further attack on the defendant's credibility is based on what is said to be a false assertion that he did not know there was tobacco in the container until so informed by Customs Officers. (I assume, for present purposes, that this denial included molasses tobacco.)
As I have noted above, when the container arrived at the Port of Fremantle, it was taken into a Customs inspection facility. When the container was opened, several Customs Officers noted the strong smell of molasses tobacco. It was a smell, they said, which they noticed in the defendant's warehouse when they entered in the execution of the search and seizure warrants. However, Officer Fenlon, who was involved in unpacking and re‑packing the container at the Customs Facility, and who looked inside cartons containing molasses tobacco, did not then notice any significant smell (TS 95). And Officer Gentelli, who recalled a smell at that time said it was nothing memorable or noticeable:
"… there are lots of different odours that come from cargo. There was nothing that really stood out" (TS 104).
Those Customs Officers who recalled the particular smell of molasses tobacco were cross‑examined on the basis that the smell they had noticed at the defendant's warehouse might have emanated from the various spices the defendant had there at the time. I accept the defendant's evidence that these included coriander, cumin, chilli, black and white pepper, pimento, cinnamon, cloves, paprika, aniseed and star aniseed. It was the defendant's evidence that the spices tended to overpower all other smells. Generally, however, the witnesses did not accept that proposition.
A carton taken from the container and itself containing 80 packets of molasses tobacco was produced in court, albeit not tendered in evidence. The aroma of the tobacco was apparent to me. However, a similar aroma emanated from the eleven, 250 gram packets to which I have referred above, which were tendered in evidence. These packets were damaged and presumably gave rise to a stronger smell than the tobacco in the container. Accepting, as I do, that there was a mixture of smells at the defendant's warehouse, it is not clear to what extent (if at all) these eleven packets on the shelves contributed to the smells. None of the Customs Officers who gave evidence had visited the defendant's warehouse before 11 February 2002.
The plaintiff's point is that the defendant must have realised, as soon as the container was opened at his warehouse, that it contained molasses tobacco. Therefore, it is submitted, his denial of knowledge when this was put to him by Customs Officers must have been false: a circumstance which may be taken into account in determining his credibility.
Viewed objectively, there are a number of possibilities. The first is, of course, that the defendant smelt the molasses tobacco in the container when he unloaded the first boxes containing charcoal.
Secondly, it is possible that the defendant had become so inured to the smells in his warehouse that, as he said in his evidence, he did not consciously differentiate between them. Because smells cannot be measured objectively, I cannot exclude that as a reasonable possibility.
I have found as a fact that the defendant retired to his office after unloading the first few boxes of charcoal and dispatching a sample to the Charcoal House Cafe. I find that the office had an air conditioner. 11 February 2002 was a very hot day and I am satisfied that the air conditioner was operating at the time. This would have tended to insulate the defendant in his office from smells in the warehouse.
Assuming, without deciding, that the defendant did smell the molasses tobacco when the container was opened, what inferences could reasonably be drawn from that and the other circumstances relied on by the plaintiff?

The inferences

The plaintiff accepts that the defendant cannot be held liable for breaches of s 33(1) or s 233(1)(d) of the Customs Act unless he knew when he arranged for the clearance of the container through Customs that it contained molasses tobacco. If he did not know, then he had no intention to import the tobacco or to take possession of it subsequently. It follows that the defendant must be liable on both counts or on neither.
The plaintiff submits that guilt should be inferred from circumstances beyond those set out in the pleaded case. The circumstances include the fact that the defendant made the arrangements for the importation of the container. However, the plaintiff relies also on the fact that Mr Alfas and Mr Chahade came from Sydney to Perth at considerable expense so as to be here on the very day the container arrived at the defendant's warehouse and that they arranged to return to Sydney early on the following day. It is submitted that these arrangements would not have been made for a container of charcoal having a value of some $4000.
It is further submitted that unless the defendant was involved in the importation of the molasses tobacco, he would not have accepted the delivery of the container to his premises and made the arrangements for travel and accommodation of Mr Alfas and Mr Chahade, with whom he had only slight acquaintance.
The plaintiff relies also on the defendant's evidence that he had been a gambler all his life. It was put to the defendant in cross‑examination that gamblers take risks. The defendant answered "That's why I'm here now" (TS 221).
In short, it is submitted, the defendant imported the molasses tobacco and gambled on not being caught.
It is submitted further, that the defendant's evidence that he was acting on the instructions of Mr Alfas is not evidence that Mr Alfas was the instigator of the transaction. That evidence is admissible only as proof of the instructions on which the defendant operated. In relation to the ownership of the molasses tobacco, it would be hearsay.
It is, of course, possible to draw the inference identified by the plaintiff. However, the plaintiff must prove his case beyond a reasonable doubt. And he cannot do so if there is any other inference reasonably open which is inconsistent with guilt.
In my view, there is such an inference. I accept the defendant's evidence that Mr Alfas was reputed to be an important and powerful man in the Arab community in Sydney. I have accepted the defendant's evidence that he acted on the instructions of Mr Alfas. I have accepted the defendant's evidence that he cut the strip containing Mr Alfas' fax details from the packing declaration Mr Alfas had faxed to him on Mr Alfas' instructions. I draw the inference from that conduct that Mr Alfas did not want to be seen to be associated with the importation of the container.
I draw the inference from the fact that the defendant kept the strip of paper containing Mr Alfas' fax details, that he thought at least there was something odd about the circumstance and did so as a form of insurance.
I draw from the fact that Mr Alfas and Mr Chahade came to Perth for the purpose (apparently) of meeting and assisting in the unloading of the container, the inference that they knew it contained something far more valuable than charcoal. However, I am unable to draw the inference that the defendant knew it contained molasses tobacco. Indeed, if Mr Alfas was importing the tobacco for his own purposes, he might well consider it prudent not to inform the defendant, but to induce the defendant to accept the container for the purpose of obtaining some charcoal.

The inference that the defendant accepted the container for that purpose is, I think, reasonably open, having regard to the fact that the defendant's business did consume considerable quantities of charcoal: and he had only recently been to Indonesia in an attempt to source a supply at a cheaper price than he was paying in Australia.
I think it plausible that the defendant accepted delivery of the container as a favour to Mr Alfas (as he had for Mr Nasution previously) in the hope that he might purchase charcoal from his business. The gamble to which he referred, might well have been a reflection of his suspicion that Mr Alfas was importing something other than charcoal.
Assuming (without deciding) that the defendant did recognise the smell of molasses tobacco when the container was opened at his warehouse, the inference is, I think, reasonably open that he realised only then that he was the victim of a deception. I have found that immediately after unloading the first few boxes of charcoal from the container, the defendant retired to his office. Assuming he then knew there was molasses tobacco in the container, I do not think his conduct equates with an intention to possess the tobacco. The inference is reasonably open that he regarded the tobacco as belonging to Mr Alfas and that he wanted no part in it.
In these circumstances, even if I believed that the defendant was lying when he said he did not smell molasses tobacco in the container, I would not be satisfied beyond a reasonable doubt that he intended to import the tobacco when he arranged for the container to be entered.
However, I do not positively disbelieve the defendant. I accept his evidence that the goods he kept in his warehouse produced a variety of smells. These included molasses tobacco, albeit in relatively small quantities but which nevertheless produced a smell. It was a smell which must have been familiar to the defendant because he smoked molasses tobacco.
On the other hand, apart from one Customs Officer who recognised the smell of molasses (because he fed it to his horses), those Officers who regarded the tobacco as having a distinctive smell were unfamiliar with the substance. Further, as I have noted above, none of the Customs Officers who attended at the defendant's warehouse on 12 February 2002 had been there previously.
In these circumstances, I think that the defendant might have been telling the truth when he said he did not notice any different or unusual smell when the container was opened and unloading commenced. He was not actually in the container: he was driving the forklift truck.
For all these reasons, I am not satisfied beyond reasonable doubt that the defendant knew in advance of the arrival of the container at his warehouse that it contained molasses tobacco. The plaintiff has not, therefore, proved his case: and the question of a defence under s 9.2 of the Criminal Code does not arise. The action must be dismissed.