Masri v R - [2015] NSWCCA 243

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Masri v R [2015] NSWCCA 243
Hearing dates: 23 April 2015
Decision date: 08 September 2015
Before: Simpson J at [1]; R A Hulme J at [69]; Bellew J at [70]
Decision:
(1) Appeal against conviction dismissed;
(2) Leave to appeal against sentence refused.
Catchwords:
APPEAL - conviction - joint criminal enterprise fraudulently to import cigarettes using “piggyback” method - offence of doing “anything with the intention of dishonestly causing a loss” to a Commonwealth agency - Criminal Code (Cth), s 135.1(3) - whether indictment duplicitous where Crown relied upon variety of acts to sustain single charge - reliance on a course of conduct sufficient to avoid duplicity - Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157

WORDS AND PHRASES - “anything” - composite concept encompassing a variety of acts - word can entail single act or courses of conduct

APPEAL - conviction - admissibility of evidence of prior “piggyback” importations - whether evidence tendency evidence - whether danger of unfair prejudice outweighed probative value - any prejudice curable by directions - evidence used to establish context of offending - evidence had “very high” probative value

APPEAL - conviction - whether direction to jury concerning substantial participation invited tendency evidence reasoning - direction drawn directly from Harriman v The Queen [1989] HCA 50 - no error found - appeal against conviction dismissed
APPEAL - sentencing - whether trial judge erred in finding appellant’s role “not insignificant” - finding supported by the facts - sentence imposed not consistent with finding of high degree of involvement - leave to appeal against sentence refused
Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Criminal Code (Cth), ss 11.2A, 135.1(3)
Evidence Act 1995 (NSW), ss 97, 137, 191
Cases Cited: Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; 139 LGERA 449
Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206
Giam v R [1999] NSWCCA 53; 104 A Crim R 416
Harriman v The Queen [1989] HCA 50; 167 CLR 590
Category: Principal judgment
Parties: Ahmed Masri (Appellant)
Regina (Respondent)
Representation:
Counsel:
B Walker SC/P Lange (Appellant)
P McGuire (Respondent)
Solicitors:
Hanna Legal (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2012/222051
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

17 October 2014

Before:

Bozic DCJ

File Number(s):

2012/222051

Judgment

SIMPSON J: On 14 July 2014 the appellant was arraigned in the District Court on an indictment that alleged an offence against s 135.1(3) of the Criminal Code (Cth) (“the Code”). Section 135.1(3) provides that a person is guilty of an offence if the person “does anything with the intention of dishonestly causing a loss” to a Commonwealth entity. Section 11.2A of the Code (upon which the prosecution relied) sets out circumstances in which such an offence may be committed jointly with another person. Essentially, s 11.2A…

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 Masri v R

Details

AGLC: Masri v R [2015] NSWCCA 243
Case: [2015] NSWCCA 243
Decision Date: 08 September 2015

CaseChat Overview and Summary

The appeal in Masri v R involved the appellant contesting his conviction and sentence following his involvement in a joint criminal enterprise that fraudulently imported cigarettes using the “piggyback” method. The appellant was charged under section 135.1(3) of the Criminal Code, which pertains to causing a dishonest loss to a Commonwealth agency. The case was heard in the court of appeal.

The central legal issues included whether the indictment was duplicitous, the admissibility of evidence concerning prior similar importations, and the correctness of the jury direction and sentencing. The court needed to determine if the Crown's reliance on a variety of acts to sustain a single charge constituted duplicity and whether the evidence of prior importations was admissible. Additionally, the court examined if the jury direction correctly applied the principles from Harriman v The Queen and if the sentence was appropriate given the appellant's role in the criminal enterprise.

The court found that the indictment was not duplicitous as the word “anything” in the statute could encompass a variety of acts, and a course of conduct could support a single charge. Evidence of prior importations was deemed highly probative and not unfairly prejudicial, and thus, admissible. The court also held that the direction to the jury was correctly drawn from Harriman and did not invite improper reasoning. Finally, the court found that the appellant’s sentence did not reflect the degree of his involvement, though the appeal against the sentence was dismissed.

No orders were made concerning the conviction; however, the appeal against the sentence was refused.

Orders