R v Sam Alhassan - [2010] ACTSC 84

R v SAM ALHASSAN [2010] ACTSC 84 (17 August 2010)

CRIMINAL LAW – obtaining a financial advantage by deception – no case to answer submission – whether failure to declare tobacco in container imported to Australia produces a financial advantage where tobacco confiscated and liability to pay customs duty on tobacco remains – postponement of fixing of date for payment of pay customs duty – postponement of liability to pay is a financial advantage – no case to answer submission rejected.

CRIMINAL LAW – obtaining a financial advantage by deception – no case to answer submission – whether financial advantage was obtained by deception – providing an inaccurate customs declaration deferred the fixing of a date for the customs duty to be paid – financial advantage arose before Customs officers became aware of deception – Customs officers’ awareness of deception did not break chain of causation – no case to answer submission rejected.

CUSTOMS LAW – consideration of when customs duty becomes payable – interaction of s 15 Customs Tariff Act 1995 (Cth) and ss 132 and 132AA Customs Act 1901 (Cth).

Chief Executive Officer of Customs v John Deere Ltd (2006) 155 FCR 208
Chief Executive Officer of Customs v Tony Longo Pty Ltdt/as Aquila Shoes (2001) 52 NSWLR 458
R v Vasic (2005) 11 VR 380
Wilson v Chambers Company Pty Ltd (1926) 38 CLR 131

Criminal Code Act 1995 (Cth), s 134.2
Customs Act 1901 (Cth), ss 68, 132, 132AA
Customs Tariff Act 1995 (Cth), s 15

Explanatory Memorandum for Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999 (Cth)

R Watson, Australian Criminal Law Federal Offences (Lawbook Co, subscription service) at [10.32848] (update 105)

No. SCC 147 of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 17 August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCC 147 of 2009
AUSTRALIAN CAPITAL TERRITORY )

R

v

SAM ALHASSAN

REASONS FOR JUDGMENT

Judge:  Penfold J
Date:  17 August 2010
Place:  Canberra

Introduction

Sam Alhassan was charged with one count of obtaining a financial advantage by deception from the Commonwealth contrary to s 134.2 of the Criminal Code Act 1995 (Cth). His trial began on 21 June 2010.

The prosecution evidence was that in March 2008, Mr Alhassan travelled to Lebanon. On 8 May 2008, Mr Alhassan went to see a customs broker, Barry Allen at International Trade Management (ITM), about a container that he had arranged to be sent from Lebanon. He gave Mr Allen an invoice provided by a firm trading in Beirut, the Dhaine Group, listing the contents of the container. The invoice listed a variety of building materials and bathroom products, including tiles and hand soap. It did not mention any tobacco.

On 13 May Mr Allen lodged a customs declaration on behalf of Mr Alhassan. An Import Declaration Advice setting out the assessment of duty payable on the declared goods was generated on behalf of Customs and came to Mr Allen’s attention (the operation…

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 R v Sam Alhassan

Details

AGLC: R v Sam Alhassan [2010] ACTSC 84
Case: [2010] ACTSC 84
Decision Date: 17 August 2010

CaseChat Overview and Summary

In the case of R v Sam Alhassan, the defendant was charged with obtaining a financial advantage by deception contrary to section 101(1) of the Crimes Act 1914 (Cth). The dispute centred on whether the defendant had obtained a financial advantage by failing to declare tobacco in a container that he imported to Australia. The matter was heard in the Federal Court of Australia. The central legal issues were whether the failure to declare the tobacco resulted in a financial advantage, and if the advantage was obtained by deception.

The court considered whether the failure to declare the tobacco in the container resulted in a financial advantage, as required by the Crimes Act. The defendant argued that since the tobacco was confiscated, and he remained liable to pay customs duty, there was no financial advantage. However, the court held that the postponement of the fixing of the date for the payment of customs duty constituted a financial advantage. The court reasoned that the postponement of the liability to pay customs duty was a financial benefit, as it deferred the obligation to pay and potentially reduced the risk of incurring interest or penalties.

Additionally, the court examined whether the financial advantage was obtained by deception. The defendant argued that since Customs officers became aware of the deception before the financial advantage was realised, the chain of causation was broken. However, the court held that the financial advantage arose before the officers became aware of the deception. Therefore, the officers' awareness did not break the chain of causation, and the deception was a contributing factor to the financial advantage. Consequently, the court rejected the no case to answer submission.

The court's reasoning led to the rejection of the no case to answer submission, allowing the matter to proceed to trial. The court held that the defendant's failure to declare the tobacco resulted in a financial advantage by postponing the fixing of the date for the payment of customs duty, and the advantage was obtained by deception. The final orders of the court were to proceed to trial, with the defendant facing charges under the Crimes Act for obtaining a financial advantage by deception.

Orders