Director of Public Prosecutions v Jabal (Ruling No. 1)

[2020] VCC 1221

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02477

THE QUEEN

v

MAJID JABAL

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2020
DATE OF RULING:	18 February 2020
CASE MAY BE CITED AS:	DPP v Jabal (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1221

RULING
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Subject:CRIMINAL LAW

Catchwords:          Accused jointly charged with importing tobacco with the intention of defrauding the revenue; Application by Crown to adduce evidence of earlier alleged tobacco importation as coincidence evidence, tendency evidence or evidence bearing on the accused’s state of mind; Evidence of earlier importation admissible as coincidence evidence.

Legislation Cited:         Evidence Act 2008.

Cases Cited:The Queen v Ivanoff [2015] VSCA 116; The Queen v Lin [2018] VSCA 100; Harriman v The Queen (1989) 167 CLR 590.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Cth)	Ms S. Holmes	Director of Public Prosecutions (Cth)
For the Accused	Mr J. McQuillen	Stary Norton Halphen

HIS HONOUR:

Introduction

1Majid Jabal and Ahmed Al‑Shammari are charged that on 23 July 2017, at Melbourne, they jointly, with unknown others, imported goods being tobacco products with the intention of defrauding the revenue.

2The charge arises out of the importation of 3245 kilograms of molasses tobacco.  At the time of the importation, tobacco, in that form, attracted a duty rate of $771.60 per kilogram.  If the consignment the subject of the charge had been accurately declared, the total of $2,754,226.20 in duties and taxes would have been payable to the Commonwealth.  It is the evasion of those taxes and duties which represents the essence of this charge.

3Mr Jabal is alleged to have imported an earlier shipment of molasses tobacco in 2016.  In this application, which concerns Mr Jabal alone, the prosecution seek to adduce the evidence of a 2016 importation as coincidence evidence or, in the alternative, tendency evidence or, in further alternative, as evidence bearing upon Mr Jabal's state of mind, in the sense described in The Queen v Ivanoff[1] and The Queen v Lin[2].

[1] [2015] VSCA 116.

[2] [2018] VSCA 100.

4For the reasons that follow, I have determined that the proposed evidence of the 2016 importation is admissible in Mr Jabal’s trial as coincidence evidence.

Background

5Turning to the 2017 importation, the subject of this charge, in the early part of July 2017, Mr Jabal is alleged to have engaged a customs broker, Success Logistics, to arrange clearance and delivery of a particular shipping container.  It is anticipated an employee of Success Logistics will give evidence that the relevant documentation relating to that container was provided by Mr Jabal and included an import declaration form with the following details:  that the importer was Amsterdam Import Pty Ltd; that the delivery address was 343 Bell Street, Preston, Victoria, 3072; that the consignment originated in the United Arab Emirates; and that the goods being imported consisted of ‘4MM Clear Float Guardian Glass’.  It will also be alleged that Mr Jabal arranged to have the company, Amsterdam Import Pty Ltd, set up in May 2017 through an accountant Samir Alobadi.  It will be further alleged that the name provided to Mr Alobadi by Mr Jabal for the purposes of the registration of the business was Khalid Zabid, another name for Mr Al‑Shammari.  The address given was 4 Alhambra Drive, Epping.  The company was established with Mr Zabid as the sole director.

6On 1 August 2017, Australian Border Force (ABF) officers inspected the shipping container in question and x‑rays identified anomalies.  Further inspection showed that the container had been fitted with a false wall creating a secret compartment within the container which contained the large quantity of molasses tobacco.  The brand of the tobacco was ‘Al Fakher’. It was found in 540 cartons and 5 loose packets, and as I have indicated, weighed 3,245 kilograms.  The rest of the container contained glass of a type used in residential developments.

7When interviewed by investigators, Mr Jabal accepted that he participated in the importation of the glass.  He said Amsterdam Imports was the co‑accused, Mr Al‑Shammari's company, and through his counsel, it was said Mr Jabal will deny knowing about or having anything to do with the importation of the tobacco.

The 2016 importation

8Turning now to the 2016 importation, the proposed evidence of which is as follows:  On 23 November 2015, the company Aussie T Pty Ltd was registered with the Australian Securities and Investment Commission (ASIC) with the name Majid Malloh Jabal listed as the sole director.

9On 15 December 2015, Mr Jabal signed an authorisation form with a logistics company known as Dimerco Express, appointing that company to act as his customs broker with respect to imported goods.  He signed the form in his name, listing himself as the director of ‘Aussie T’.  This document was later located in Mr Jabal's possession during the execution of a search warrant at his home on 21 March 2018, in connection with the investigation into the 2017 importation.

10On 18 February 2016, the consignment was intercepted by ABF officers with the goods declared as, 'Hair Colorant - Maroon'.  A statement from ABF officer Greg Durney, describes that consignment as consisting of four packages of ‘Al Fakher’ brand packets of tobacco concealed inside packaging for ‘Natural Henna Hair Dye’. Photos were tendered on the application which also depict the consignment and the outer layer of hair dye packaging. The gross weight of the molasses tobacco concealed in that consignment was 111 kilograms.

11On 14 April 2016, a notice of seizure, together with a covering letter, was sent to Mr Jabal as the sole director of Aussie T Pty Ltd. That notice and letter appear at pages 593 to 596 of the depositions, and both were relied upon by the prosecutor on the application.

12The covering letter of 14 April 2016 states as follows:

As the Director of the above registered business [Aussie T Pty Ltd],

The Australian Border Force (ABF) has taken possession of tobacco products that were found in an air freight importation consigned to your company, Aussie T Pty Ltd.  The consignment arrived into Sydney, Australia ex Indonesia on 18 February 2016 via flight number QF0042. 

The goods were declared as “Hair Colorant -  Maroon”. 

An ABF examination located 4 packages with a weight of 100 kilograms of “Al Fakher” brand molasses tobacco concealed within outer packaging, which described the contents as “Natural Henna Hair Dye”.  Consequently, the goods have now been seized as forfeited goods.

Particulars of the seizure are detailed on the enclosed Seizure Notice.  Please read this carefully and refer to the ‘Important notes’ section.  No action is required by you in respect of the Seizure Notice unless you wish to make a claim for the return of the seized goods.  If no action is taken, the goods will be condemned as forfeited to the Commonwealth. 

The importation and/or possession of smuggled goods can result in serious penalties and/or terms of imprisonment being imposed. You will be advised of any further action related to this matter (emphasis in original).

13That letter was signed by Mr David Rees, an investigator with the Organised Crime Branch of the investigations division of the ABF.  Mr Rees again wrote to Mr Jabal on 26 October 2016 in a letter which appears at page 597 of the depositions.  In that letter, Mr Rees wrote as follows: 

Mr Jabal,

On 18 February 2016 a consignment addressed to Aussie T Pty Ltd, Epping, Victoria, 3076, arrived in Sydney.  The Australian Border Force (ABF) examined the consignment and located a quantity of 100 kilograms of molasses tobacco. 

Schedule 3 of the Customs Tariff Act 1995 specifies that tobacco, in the form of molasses, attracted a duty of $663.72 per kilogram. The importation of tobacco and tobacco related products into Australia with the intention of defrauding the revenue is an offence under section 233BABAD(1) of the Customs Act 1901.  The maximum penalty for this offence is imprisonment for not more than 10 years, a fine not exceeding 5 times the duty that would have been payable, or where the Court cannot determine the amount of that duty, a penalty not exceeding 1,000 penalty units, or both. 

As you are the registered director of Aussie T Pty Ltd, a Seizure Notice was sent to address 90 Gammage Boulevard, Epping, Victoria, 3076 on 14 April 2016. 

It has been decided by the ABF that an official warning is to be given to you in this instance; however, you should be aware that it is deemed to be a serious offence to smuggle tobacco products into Australia with the intent to defraud the revenue. 

Please be informed that any similar offences committed by you in the future, which are deemed to be in breach of the Customs Act 1901 or other Commonwealth legislation, will be dealt with seriously and may result in prosecution action being initiated against you.  Additionally, if further offences are committed by you, the matters for which you have received an official warning will also be considered for prosecution. 

Please also note that a copy of this letter will be retained on file as evidence of an official warning having been issued (emphasis in original).

Applicable legislation

14The evidence establishing that first importation in 2016 was not formally challenged by the accused.  Before proceeding to deal with the application, I should note that the coincidence notice served on the defence and filed with the court was not served within a reasonable time period, nor did it comply provisions of the Evidence Act2008 (‘the Act’).  However, it was submitted that the tendency notice relating to the same evidence was produced within time, and there was therefore no surprise in the prosecution seeking to have this evidence used in the manner that I have set out for the purposes of this application.

15No objection was made to the late notice, however I would indicate, even if objection had been made, I would have likely dispensed with the notice requirements under s 100 of the Act, having regard to the fact that, in my view, the defence were not prejudiced by the late notice.

16Section 98(1) of the Act states that:

Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

Prosecution submissions

17Ms Holmes, on behalf of the Crown, argued that the circumstances of the 2016 importation make it improbable that Mr Jabal innocently associated with the 2017 importation of the tobacco as he effectively claims.  She relied on the following similarities and circumstances, comparing the two importations: 

1.    in both instances, companies were used to import the goods;

2.    each company was set up shortly before the importation;

3.    in each instance customs agents were used;

4.    each importation concealed the tobacco in question;

5.    in each instance, legitimate items or packaging was used to effect the concealment;

6.    the same brand of tobacco was imported;

7.    each importation used a false declaration;

8.    both importations occur within a year or so of each other; and,

9.    the dissimilarities as exist between the two importations suggest no more than an increasing sophistication in attempting to avoid detection.

18When taken together, it was submitted these circumstances render the earlier 2016 importation significantly probative of the Crown case. 

19With respect to the further restriction on the admissibility of coincidence evidence in s 101(2) of the Act, to the effect that the probative value of the evidence must substantially outweigh any prejudicial effect it may have on the accused, Ms Holmes argued that any unfair prejudice in the nature of prohibited propensity reasoning or bad character can and is routinely addressed through appropriate direction. She pointed out that the cogency of the evidence in the setting of the issues in this trial was clearly prejudicial to the accused in the sense that it incriminated him powerfully. It was submitted, however, there was nothing unfair about that.

Submissions in opposition to application

20Mr McQuillan, on behalf of Mr Jabal, submitted that the proposed evidence lacked the requisite significant probative value and was, in any event, outweighed by the unfair prejudice it was likely to have on the accused.  He argued that the alleged similarities relied on by the prosecution tended to be generic or common to any importation, and that there was nothing distinctively similar about the circumstances of each importation so as to render the first importation significantly probative of the Crown case. 

21Mr McQuillan noted that the goods were imported into different cities, that is Sydney and Melbourne, and that in each instance the method of concealment was different.  In the 2016 importation, hair dye packaging was used to disguise the tobacco and in 2017, a different product, glass, was used to essentially disguise the importation.  The other features of the importations were so broad or common, it was submitted, as to lack significant probative value.

22As to prejudice, Mr McQuillan argued, in effect, that this evidence is likely to induce the jury to jump to the conclusion that Mr Jabal is guilty of the second importation without a proper analysis of the evidence.  There is, moreover, a real risk the jury will misuse the evidence by giving it much more weight than it properly deserves.  Direction, it was said, could not cure the prejudice because the evidence was so likely to irrationally impress or sway the jury to the conclusion that Mr Jabal must have been involved in the second importation.

The fact in issue

23In considering these submissions, it is helpful, I think, to set out with some precision the fact in issue in Mr Jabal's trial.  The prosecution charge that Mr Jabal participated in what is, in effect, a joint criminal enterprise to import the tobacco.  Mr Jabal, in his record of interview, takes no issue that he was involved in the importation insofar as it involved the importation of glass, that is, that he was innocently associated with the importation.  He denies knowledge or participation in the importation of the molasses tobacco. 

24It follows that the critical question in assessing the probative value of the proposed evidence is to ask to what extent does that evidence have the capacity to rebut innocent association with the 2017 importation. Section 98 of the Act requires that the evidence must do so to a significant extent.

Analysis

25Having defined the fact in issue, I should refer now to the legal principles that must apply.  It has long been the law that evidence which does no more than show the commission of or predisposition to commit other offences, even if they be offences of the same or similar character as the offence charged, should not be admitted into evidence unless it would be an affront to common sense not to do so.  So much can be gleaned from the judgments in Harriman v The Queen[3] which were canvassed in argument. 

[3] (1989) 167 CLR 590, (‘Harriman’), see Brennan J at p 593.

26Overlaying the principles identified in Harriman now are of course the provisions of the Evidence Act.  Those provisions continue to recognise that it is no small thing to admit evidence of the accused's other misconduct in the form of prior convictions and the like because of its dangerously prejudicial effect.  The restriction on such evidence being admitted, that it be of significant probative value and that its probative value substantially outweigh the prejudicial effect, should be and is, a high hurdle to overcome.  Nonetheless, in my view, the combination of the similarities in two the importations and the circumstances in which they occurred have a probative force that can fairly be described as significant and is such as to transcend the prejudice traditionally used to exclude evidence of this kind and relied upon by Mr McQuillan.

27Put simply the prosecution should be permitted to argue that it is no coincidence that there was tobacco of the same brand concealed in the 2017 importation.

28In my view, the establishment of the companies, the timing in doing so, the use of the customs agent, the concealing of the tobacco which in both instances was of the same type and of the same brand, the use of false declarations and the warnings given to Mr Jabal in the letter of 14 April 2016 and again on 26 October 2016, in combination, genuinely render it improbable that Mr Jabal's involvement with the 2017 importation was innocent.  I am not persuaded that such dissimilarities as were identified in argument by Mr McQuillan diminish the probative value of the proposed evidence.  The methods of concealment, for example, vary, but not in a way that at all detracts from the improbability reasoning sought to be relied on by the Crown.

29Finally, whilst I readily accept evidence of this kind may be misused or unduly impress the jury, I am satisfied that very strong directions as to the limited use of the evidence and a warning that it not be used for a prohibited propensity purpose, will, in these circumstances, adequately negate that prejudice.

Conclusion

30Accordingly, I rule that the proposed evidence is admissible as coincidence evidence in Mr Jabal's trial.  It is not, therefore, necessary for me to rule upon the alternative Crown submissions as to tendency evidence and context.

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