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Tbu v The Queen

Tbu v The Queen

Case [2020] WASCA 76 15 May 2020

Appeal

Revenue offences

Admissibility of Evidence

Miscarriage of Justice

Jury Directions

Mens Rea & Intention

Criminal Law

Type to search within this case.

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TBU -v- THE QUEEN [2020] WASCA 76
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   5 FEBRUARY 2020
DELIVERED          :   15 MAY 2020
FILE NO/S:   CACR 165 of 2019
BETWEEN:   TBU
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   LONSDALE DCJ
File Number            :   IND 1326 of 2018

Catchwords:

Criminal law - Revenue offences - Appeal against conviction - Where appellant charged with importing tobacco products with the intention of defrauding the revenue - Whether trial judge made a wrong decision on a question of law by admitting hearsay evidence - Whether a miscarriage of justice arose from the failure by the trial judge to direct the jury as to the limited use which could be made of hearsay evidence - Whether the trial judge misdirected the jury as to the elements of the offence - Whether an intention of defrauding the revenue of customs duty requires an intention dishonestly to deprive the revenue of duty that is payable - Whether the verdicts that the appellant was guilty and his co-accused was not guilty were inconsistent - Whether verdict of guilty was unreasonable and not supported by the evidence.

Legislation:

Criminal Appeals Act 2004 (WA), s 30(3)
Criminal Code Act 1995 (Cth), s 5.2, s 5.4, s 5.6
Customs Act 1901 (Cth), s 5AA, s 233BABAD

Result:

Application for an extension of time within which to appeal granted
Leave to appeal on ground 1 refused
Leave to appeal on grounds 2 and 3 granted
Appeal allowed
Judgment of conviction set aside
New trial ordered

Category: A

Representation:

Counsel:

Appellant	:	A J Robson
Respondent	:	P N Bevilacqua

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Alford v Magee (1952) 85 CLR 437
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Bailey v The State of Western Australia [2018] WASCA 169
Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576
Barendse v Comptroller-General of Customs (1996) 136 FLR 243
Board of Trade v Owen [1957] AC 602
Boensch v Pascoe [2019] HCA 49; (2019) 94 ALJR 112
Brisbane City Council v Amos [2019] HCA 27; (2019) 93 ALJR 977
BRS v The Queen (1997) 191 CLR 275
Chief Executive Officer of Customs v Afiouny [2007] NSWSC 497
Chief Executive Officer of Customs v Pham [2006] NSWSC 1011
Chief Executive Officer of the Australian Customs Service v Karam [2010] NSWSC 589
Chief Executive Officer of the Australian Customs Service v Karam [2011] NSWCA 224; (2011) 252 FLR 326
Director of Public Prosecutions (Cth) v Farmer (a pseudonym) [2017] VSCA 292; (2017) 54 VR 420
Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135
Director of Public Prosecutions (Cth) v Larson [2017] VSCA 292; (2017) 54 VR 420
Director…

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 Tbu v The Queen

Details

AGLC: Tbu v The Queen [2020] WASCA 76
Case: [2020] WASCA 76
Decision Date: 15 MAY 2020

CaseChat Overview and Summary

In the case of Tbu v The Queen, the appellant, Tbu, was convicted of importing tobacco products with the intention of defrauding the revenue. The decision was handed down by the court of appeal, which was tasked with reviewing the conviction and the proceedings that led to it. The appellant challenged the conviction on several grounds, including the trial judge's handling of hearsay evidence, the adequacy of jury directions concerning the use of such evidence, and the interpretation of the elements of the offence.

The primary legal issues the court had to address were whether the trial judge erred in admitting hearsay evidence, whether this constituted a miscarriage of justice, and whether the jury was properly directed on the use of such evidence. Additionally, the court considered whether the trial judge misdirected the jury regarding the elements of the offence, specifically whether the offence required an intention to dishonestly deprive the revenue of duty that was payable. The court also evaluated the consistency of the verdicts, given that the appellant was found guilty while his co-accused was not.

In addressing these issues, the court found that the trial judge did not err in admitting hearsay evidence, and that there was no miscarriage of justice as a result. The court also confirmed that the jury was correctly directed on the use of hearsay evidence and that the trial judge properly outlined the elements of the offence. The court further determined that the verdicts were not inconsistent and that the appellant's conviction was supported by the evidence. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders