R v Jada

[2004] NSWCCA 12

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v Jada [2004]  NSWCCA 12

FILE NUMBER(S):
60148/03

HEARING DATE(S):               25/08/03

JUDGMENT DATE: 12/02/2004

PARTIES:
Crown
Issa Mousa Jada

JUDGMENT OF:       Mason P Hidden J Smart AJ   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          02/11/0298

LOWER COURT JUDICIAL OFFICER:     McGuire DCJ

COUNSEL:
Ms M Cinque - C'th Crown
Mr P Boulten - App

SOLICITORS:
Commonwealth Director of Public Prosecutions
Mr Joe Weller - App

CATCHWORDS:
CRIMINAL LAW:  Appeal against conviction - defrauding the Commonwealth - whether evidence supported the charge as particularised in the indictment - whether verdict unreasonable.

LEGISLATION CITED:
Crimes Act (Cth) 1914

DECISION:
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60148/03

MASON P
HIDDEN J
SMART AJ

Thursday, 12 February, 2004

REGINA v Issa Mousa JADA

Judgment

1. MASON P:  I agree with Hidden J.

2. HIDDEN J: The appellant, Issa Jada, was tried in the District Court upon a charge of defrauding the Commonwealth: s29D of the Crimes Act (C’th).   He was found guilty and sentenced to a term of imprisonment.  He appeals against conviction only. 

3. Put shortly, it was the Crown case that the appellant evaded the payment of import duty upon a large quantity of cigarettes which arrived in Australia by sea in a container.   Also in the container was a large quantity of plastic household goods.  The appellant was said to have been responsible for the shipment, as well as for the preparation of an Australian Customs document known as an “Entry for Home Consumption”, which disclosed the arrival of the plastic goods but not of the cigarettes.  It was alleged that he was complicit in the preparation of that document, intending to evade the payment of duty by the dishonest failure to disclose the shipment of the cigarettes.  The duty payable on the cigarettes would have been very much greater than that levied upon the plastic goods.

4. The only ground of appeal is that the verdict is unreasonable, having regard to the evidence.  This was argued on two bases.  The first was that the prosecution evidence, taken at its highest, was incapable of making out the charge as it was particularised in the indictment.  The indictment charged that the appellant:

   Between about 19 February 2001 and 27 March 2001 at Sydney in the State of New South Wales did defraud the Commonwealth in that he did evade the payment of import duty due to the Commonwealth on an importation of cigarettes that was falsely described as “plastic household wares”.

5. A Customs officer gave evidence about the documents, including the Entry for Home Consumption, involved in an importation and the clearance of a shipment through Customs.  As one might expect, a shipping container sometimes carries the goods of more than one owner.  In the present case, however, the Entry for Home Consumption document conveyed that the only goods in the container were five hundred and twelve “packages” of plastic household wares, all the property of one owner. 

6. Counsel for the appellant submitted that the terms of the indictment, alleging the false description of cigarettes as plastic household wares, did not reflect the evidence.  There were in fact plastic goods in the container.  What the evidence established was that in it there were also cigarettes, and that these had not been declared in the Customs document.  Accordingly, it was argued, the indictment should have alleged a failure to disclose the presence of the cigarettes, rather than a misdescription of them. 

7. The argument does not withstand critical analysis.  The matter should be approached with an eye to the principle that failure to disclose relevant information, particularly when there is a duty to do so, may amount to an untrue representation:  R v Evans (CCA, unreported, 11 December, 1997).  What the indictment alleged was “an importation of cigarettes that was falsely described as plastic household wares” (my emphasis).  The Customs document conveyed that the importation was of plastic goods only.  It was not: it was also of cigarettes.  In that sense, it could fairly be said to have been “falsely described”.

8. The indictment might have been expressed in the manner suggested by counsel for the appellant.  However, the manner in which it was framed was appropriate in the light of the evidence.

9. Otherwise, counsel argued that, on the whole of the evidence, it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt, relying upon the familiar principles to be found in M v The Queen (1994) 181 CLR 487. The Crown presented a fairly detailed circumstantial case against the appellant but, given the defence case, it is not necessary to examine the evidence at any length.

10. For some years the appellant had been in the business of importing goods, including plastic goods of the kind in question.  He frequently used a particular Customs broking company and it was that company which dealt with the relevant shipment.  A number of his previous importations had been inspected by Customs officers, and on some of those occasions goods had been damaged in the process.  In addition, he personally had been the subject of Customs scrutiny when returning from overseas trips. 

11. The appellant had imported goods from the Philippines over a number of years, dealing through an agent in that country.  It was from the Philippines that the relevant shipment came to Australia.  In evidence at the trial, the appellant denied any knowledge of the cigarettes in the container but he acknowledged that it was he who had imported the plastic goods.  However, he went about it in a most unusual way.

12. In dealing with the shipping company which conveyed the container to Australia, the Customs broking company, and a transport company engaged to deliver the container after its arrival here, the appellant did not use his own name or the business name under which he traded.  He represented the owner of the goods to be Cumberland Plastics Pty Limited.  There was such a company at premises at Liverpool, but it was not the importer of the goods and it was not suggested that the appellant had any interest in it. 

13. To the shipping company, the Customs broker and the transport company the appellant supplied a mobile phone number, said to be that of Cumberland Plastics.  It was not that company’s number, but had been subscribed to about a month before the importation in the name “Joseph Nicholas” of an address which proved to be non-existent.  He used the false name, Joseph Nicholas, when dealing with the transport company.  He directed that company to deliver the container, purportedly to Cumberland Plastics, at 19 Penny Place, Arndell Park.  That was not that company’s address, but he rented a storage unit at 29 Penny Place. 

14. This was evidence in the Crown case which, by and large, the appellant did not dispute.  He gave evidence that he sought to distance himself from the importation, not because of any involvement in the smuggling of cigarettes, but because of the previous scrutiny by Customs to which I have referred, which he saw as persistent, unwarranted and detrimental to his business. 

15. Before the container was delivered to the Arndell Park address Customs became aware that Cumberland Plastics was not the importer of the goods, and an inspection of the container exposed the cartons of cigarettes.  It was decided to conduct a “controlled delivery” of the container, and it was driven to Arndell Park by an employee of the transport company, accompanied by a Customs officer.  Upon arrival at the nominated address, 19 Penny Place, it was apparent that there was nothing to connect those premises with Cumberland Plastics.

16. It was the Crown case that the appellant approached the truck driver and asked what he was looking for.  When the driver said that he was trying to find Cumberland Plastics, the appellant directed him to the storage unit at 29 Penny Place.  There the appellant, assisted by some other men, unloaded the cartons from the container and placed them in the storage unit.  He declined the truck driver’s offer to help with the unloading.

17. Later, Customs officers entered the storage unit, to find that the cartons which contained the plastic goods were stored on one side and those containing the cigarettes on the other, with an access corridor left between them.  The appellant was arrested.  He gave his name as “Joseph” and, when asked for identification, said that he had none in his possession.

18. In evidence, the appellant denied having refused the truck driver’s offer of assistance.  He said that it was the men who were helping him, not he, who decided how the cartons should be placed within the storage unit.  He acknowledged having given the name “Joseph” on his arrest and having falsely denied that he had identification on his person, but he said that this was because he was afraid that Customs would discover that he had used a false name for the purpose of the importation and he panicked. 

19. In the defence case there was evidence, which was not contested, that the relevant documentation had been prepared by the appellant’s agent in the Philippines and that the plastic goods had been packed for shipment at a commercial packing house in the Philippines at a time when the appellant was in Australia. His evidence was that the goods which arrived were not all that he had ordered, and there was undisputed evidence that a further shipment of goods of that kind arrived here some months later. It was his case that the cigarettes must have been loaded into the container in the Philippines by accident or design, but in either event without his knowledge. It was argued at trial, as it was in this Court, that that was an inference reasonably available on the whole of the evidence.

20. There was other evidence, to which I find it unnecessary to refer to decide this ground of appeal. It is sufficient to say that it was open to the jury, acting reasonably, to reject the evidence of the appellant in so far as it was in conflict with evidence in the Crown case and, in particular, to reject the explanation which he proffered for his admitted course of deception. Equally, it was open to the jury to characterise as fanciful the proposition that the cigarettes were in the container without his knowledge and to be satisfied to the requisite degree of his involvement in their shipment to Australia. I my view, there was ample evidence to establish the appellant’s guilt of the offence charged.

21. I would dismiss the appeal.

22. SMART AJ:   I agree with Hidden J.  The Entry For Home Consumption, The Manifest and The Bill of Lading each stated that what was being imported was 1 container containing 512 pcs/crtns of assorted plastic Household Wares (or Housewares).  The Consignee and Owner was shown as Cumberland Plastics Pty Ltd.  In fact, within the container were either 290 or 300 cartons each holding a total of 10,000 cigarettes and a number of boxes of religious statues and ornaments.  The cigarettes attracted import duty of $600,000.

23. The evidence establishes that the majority of the importation comprised cigarettes and they were falsely described as "plastic household wares".  The indictment sufficiently covered the facts which emerged in the evidence.

24. Hidden J has briefly summarised the devious conduct of the applicant and his attempts to hide his connection with it from official eyes.  Such conduct, despite his explanations, makes it impossible to accept his assertion that he had never imported  cigarettes.  The Crown case was very strong and the defence case was fanciful.

25. The appeal against conviction should be dismissed.

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LAST UPDATED:               13/04/2004