DPP (Cth) v Hussein - [2003] VSCA 187

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (C'TH)

ALI HUSSEIN

No. 8 of 2003

THE QUEEN

ALI HUSSEIN

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2003
DATE OF JUDGMENT:	24 November 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 187

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Criminal Law – Defrauding the Commonwealth – Manufacture of tobacco on which excise duty not paid – Legal relationship between applicant and Commonwealth not an element of offence – Conduct of business of manufacturing tobacco over a period of time properly the subject of one count of defrauding the Commonwealth – Crimes Act 1914 (Cth)., s.29D.

Criminal Law – Sentence – Crown appeal – Defrauding the Commonwealth – Fine and release on recognisance not manifestly inadequate.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N.T. Robinson	Solicitor for Commonwealth DPP
For the Applicant/ Respondent	Mr P.F. Tehan, Q.C. Mr W.E. Stuart	Lewenberg & Lewenberg

BUCHANAN, J.A.:

The applicant seeks leave to appeal from his conviction on two counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 in respect of excise duty on tobacco. The respondent has appealed against the sentences imposed on the applicant, contending that they are manifestly inadequate.

The collection of excise duty is regulated by the Excise Act 1901 and the Excise Tariff Act 1921. At the time of the events giving rise to the charges against the applicant s.35 of the Excise Act provided that only a person licensed to do so was to manufacture excisable goods, which included tobacco. There are six licensed manufacturers of tobacco. The applicant is not among them. It was common ground between the parties that tobacco is manufactured only when tobacco leaf is cut. Section 54 of the Excise Act provided that the manufacturer of excisable goods was liable to pay excise duty on the goods. Section 5 of the Excise Tariff Act, together with the Schedule to that Act, provided that duties of excise were thereby imposed upon tobacco “manufactured or produced in Australia.”

In April 1999, the police obtained a warrant to intercept calls to the mobile telephone of one Christos Vellinos. A number of the intercepted calls were between the applicant and Vellinos. Their conversations related to the purchase of tobacco leaf by the applicant and the sale to Vellinos and others of tobacco after it had been cut. The conversations also related to sales by the applicant of uncut tobacco leaf. The applicant and Vellinos discussed prices of tobacco, payments and deliveries. On 13 May 1999, the applicant leased a factory unit in Williamstown. He gave the landlord a false address.

On 8 June 1999, a search warrant was executed at the applicant’s residence in North Altona and at the factory unit in Williamstown and the applicant was arrested. The goods seized under the warrant included 169.390 kilograms of cut tobacco, 2,333.937 kilograms of tobacco leaf contained in 21 bales, two tobacco cutting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP (Cth) v Hussein

Details

AGLC: DPP (Cth) v Hussein [2003] VSCA 187
Case: [2003] VSCA 187
Decision Date: 24 November 2003

CaseChat Overview and Summary

The case of DPP (Cth) v Hussein involved the Commonwealth Director of Public Prosecutions against the defendant, Hussein. The central dispute concerned the manufacture of tobacco products on which excise duty had not been paid, with the defendant being charged under section 29D of the Crimes Act 1914 (Cth) for defrauding the Commonwealth. The primary issue before the court was whether the conduct of manufacturing tobacco over an extended period could be properly subject to a single count of defrauding the Commonwealth, and whether the legal relationship between the applicant and the Commonwealth was an essential element of the offence.

The court examined the legislative provisions and concluded that the legal relationship between the applicant and the Commonwealth was not a requisite element of the offence. The court found that the conduct of manufacturing tobacco over a continuous period constituted a single course of conduct, making it appropriate to charge the defendant under a single count of defrauding the Commonwealth. The court further held that the sentence imposed by the lower court, which included a fine and release on recognizance, was not manifestly inadequate.

In summary, the court upheld the conviction and sentence, affirming that the continuous conduct of manufacturing tobacco on which excise duty had not been paid could be subject to one count of defrauding the Commonwealth. The sentence was deemed sufficient, and the appeal by the Crown was dismissed.

Orders