Tbu v The Queen

[2020] WASCA 76

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 of Public Prosecutions v Withers [1975] AC 842

DM Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; (1998) 192 CLR 557

Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309

Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166

Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2015] HCA 10; (2015) 254 CLR 489

Gibbs v The State of Western Australia [2018] WASCA 68

Gill v Chief Executive Officer of Customs [2001] NSWCCA 470; (2001) 166 FLR 125

Hansen v Comptroller-General of Customs (1996) 130 FLR 72

Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306

KND v The State of Western Australia [2017] WASCA 36

La Bianca v The State of Western Australia [2019] WASCA 105

Le‑Ta v The State of Western Australia [2020] WASCA 14

Mohammadi v Bethune [2018] WASCA 98

Parker v Churchill (1986) 9 FCR 334

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558

R v Australasian Films Ltd [1921] HCA 11; (1921) 29 CLR 195

R v Blastland [1986] 1 AC 41

R v Iannelli [2003] NSWCCA 1; (2003) 56 NSWLR 247

R v Kastratovic (1985) 42 SASR 59

R v Terry [1984] AC 374

R v Turner (No. 4) [2001] TASSC 51; (2001) 10 Tas R 81

R v Zhang [2017] SASCFC 5; (2017) 265 A Crim R 113

Re Alcan Australia Pty Ltd; ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96

Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728

RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620

Scott v Metropolitan Police Commissioner [1975] AC 819

Shepherd v The Queen (1990) 170 CLR 573

Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603

Stephens v Abrahams (1902) 27 VLR 753

Subramaniam v The Public Prosecutor [1956] 1 WLR 965

Tajjour v The State of New South Wales [2014] HCA 35; (2014) 254 CLR 508

Vella v Commissioner of Police (NSW) [2019] HCA 38; (2019) 93 ALJR 1236

Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283

Wells v The State of Western Australia [2017] WASCA 27

Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598

Wilson v Chambers and Company Pty Ltd [1926] HCA 15; (1926) 38 CLR 131

TABLE OF CONTENTS

BUSS P & MAZZA JA:

The offence created by s 233BABAD(1) of the Act

Facts that were not in dispute at the trial

The Crown's case at the trial in relation to intention of defrauding the revenue

The appellant's case at the trial in relation to intention of defrauding the revenue

The grounds of appeal

The appellant's submissions and the Crown's submissions

The merits of ground 1

Ground 2:  the trial judge's directions

Ground 2:  the introduction of s 233BABAD

Ground 2:  the elements of the offence created by s 233BABAD(1)

Ground 2:  the concept of 'intent to defraud'

Ground 2:  the concept of 'with the intention of defrauding the revenue' in s 233BABAD(1)(c) of the Act

Ground 2:  its merits

The merits of ground 3

Conclusion

MITCHELL JA:

Summary

Circumstances of importation

Section 233BABAD of the Customs Act

The parties' cases at trial

Ground 1: prejudicial evidence

Relevant evidence

Appellant's submissions as to ground 1

Disposition of ground 1

Ground 2: direction as to intention of defrauding the revenue

The trial judge's direction

Appellant's submissions

Proper construction of s 233BABAD of the Customs Act

Relating the law to the issues to be determined

Conclusion as to ground 2.

Ground 3: Inconsistent verdicts and unreasonable verdict

Inconsistent verdicts

Unreasonable verdicts: general principles

Unreasonable verdicts: evidence against the appellant

Disposition of unreasonable verdict argument

Orders

BUSS P & MAZZA JA:

1. This is an appeal against conviction.

2. The appellant and Azhar Hussain were jointly charged on an indictment which alleged that on 25 August 2016, at Fremantle, the appellant and Mr Hussain imported goods, being tobacco products, with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) (the Act).

3. On 24 May 2019, after a joint trial in the District Court before Lonsdale DCJ and a jury, the appellant was convicted and Mr Hussain was acquitted.

4. On 5 September 2019, the trial judge sentenced the appellant to 2 years' immediate imprisonment, to be released after serving 1 year.

5. The appellant requires an extension of time to appeal.  The last date for appealing was 26 September 2019.  The appellant did not file his appeal notice until 21 October 2019.  The delay has been explained satisfactorily.  We would grant an extension of time.

6. On 30 March 2020, this court ordered that the appellant be released on bail pending the determination of the appeal.

7. In our opinion, her Honour misdirected the jury in relation to the element of the offence that the appellant imported the tobacco with the intention of defrauding the revenue.

8. We would allow the appeal.  The judgment of conviction should be set aside and a new trial be had.

The offence created by s 233BABAD(1) of the Act

1. At the material time, s 233BABAD(1) of the Act provided:

   A person commits an offence if:

   (a)the person imports goods; and

   (b)the goods are tobacco products; and

   (c)the person imports the goods with the intention of defrauding the revenue.

2. By s 233BABAD(4), relevantly, an offence against s 233BABAD(1) is punishable on conviction by imprisonment for not more than 10 years, a fine not exceeding the amount worked out under s 233BABAD(5), or both.

Facts that were not in dispute at the trial

1. At the trial, the appellant and Mr Hussain made a number of admissions pursuant to s 32 of the Evidence Act 1906 (WA).

2. Consequently, numerous facts, including the following, were not in contest at the trial:

   (a)On 30 August 2016, the following goods were received at the Fremantle Container Examination Facility:

   (i)499.75 kg of 'Al Fakher' molasses tobacco; and

   (ii)484 kg of 'Ghafoor Shah' herbal product.

   (b)The goods were contained within 34 cardboard boxes wrapped in plastic hessian stacked on three pallets.

   (c)The goods had been loaded in and shipped from Karachi in Pakistan, via Singapore, to Perth in Western Australia.

   (d)The consignor of the goods was:

   Hamza Enterprises Plot

   LY 12‑79 D-D Chaudhry Rd

   P-2 B Antwa Gali Karachi

   Pk

   (e)The consignee of the goods was:

   Azhar Hussain [that is, the co‑accused]

   11 Patchett St

   Cloverdale6105  AU  

   (f)The goods were shipped in or under the following:

   (i)Container:  HJCU8453048;

   (ii)Ocean Bill of Lading (OBOL): HJSCSIN620081300;

   (iii)House Bill of Lading (HBOL):  MWL3370; and

   (iv)Hamza Enterprises Commercial Invoice No. & Date DTD:  28/7/2016.

   (g)After forensic testing was carried out by the law enforcement authorities it was determined that:

   (i)the 'Al Fakher' molasses tobacco contained tobacco; and

   (ii)the 'Ghafoor Shah' herbal product did not contain tobacco.

   (h)As at 30 August 2016:

   (i)the customs duty payable on 499.75 kg of tobacco was $335,672.68; and

   (ii)the GST payable on 499.75 kg of tobacco was $34,066.96.

   (i)The delivery address for the goods under Bill of Lading MWL3370 was changed from 11 Patchett Street, Cloverdale in Western Australia to 70A Leake Street, Belmont in Western Australia.

   (j)On 8 September 2016, officers from the Australian Border Force attended 70A Leake Street, Belmont and executed a search warrant.

   (k)On 8 September 2016, when the officers from the Australian Border Force arrived at 70A Leake Street, Belmont and executed the warrant, the appellant and Mr Hussain were present.

   (l)The person who was responsible for consigning the goods from Pakistan to Western Australia was referred to at the trial by his first name, 'Danial'.

   (m)The consignment documents described the goods as comprising about 1,000 kg of 'non‑tobacco herbal chewing tobacco'.  No customs duty was payable on goods of that description.  The only amount payable was a modest amount of GST.

The Crown's case at the trial in relation to intention of defrauding the revenue

1. Counsel for the Crown told the jury in his opening address that when the jury saw 'the paperwork' and heard the witnesses, the jury would appreciate that 'the goods actually imported were not those described in the relevant paperwork' (ts 53).

2. Counsel explained that it was alleged that the appellant and Mr Hussain had imported tobacco products with the intention of defrauding the revenue.  Counsel added '[i]n other words, dodging duty [and] GST payable'.  Counsel said that the jury would have to determine beyond reasonable doubt that this was the intention of the appellant and Mr Hussain before the jury could convict them (ts 57).

3. Counsel said that the Crown's case was 'straightforward' in that:

   Each of the accused men intentionally imported tobacco products, and did so in such a way, by reference to the misdeclaration of what the goods actually were, and all of the evidence, once you've heard it, considered as a whole, with the intention of avoiding payment of duty and GST payable on the goods in question (ts 58). (emphasis added)

4. Counsel for the Crown told the jury in his closing address that an element of the charged offence was that 'the accused man in question imported the [goods] with the intention of defrauding the revenue' (ts 5).

5. According to counsel, 'what's really important in lay, simple terms, is what each of the two men knew' (ts 5).

6. Counsel contended: 

   (a)The goods were sent 'by an outfit in Pakistan called Hamza Enterprises, and … the consignee of the goods – the intended recipient, was [Mr Hussain]' (ts 6).

   (b)Nothing about 'the delivery documents, the transportation documents, [gave] any indication as to the true dutiable identity of these goods, for the simple reason that [they were] described as non‑tobacco products' (ts 6).

   (c)So 'on the face of it, nothing about the documentation, describing and enabling the transit of these goods from Pakistan via Singapore to Western Australia, told the truth as to the import ‑ and therefore duty ‑ dutiable status ‑ of these goods' (ts 6).

7. Counsel said he anticipated that it would be submitted on behalf of each of the appellant and Mr Hussain in closing addresses that he did not know or suspect that the consignment contained tobacco products (ts 7 ‑ 13).

8. Counsel acknowledged that the Crown's case against the appellant and Mr Hussain was circumstantial.  There was no direct evidence that either the appellant or Mr Hussain 'knew what was in the consignment' (ts 15).  What the jury had was 'evidence culled from here, there and everywhere, and the surrounding circumstances from which [the jury could] draw an inference' that the appellant and Mr Hussain did know (ts 15).  For example, counsel asserted that WhatsApp communications found on the appellant's mobile telephone, including messages and attached photographs, required the jury's 'careful consideration' (ts 10).  In particular, counsel asked the jury to consider what the messages and the attached photographs '[told the jury] about [the appellant's] knowledge and intention in relation to the actual content of the consignment' (ts 10).

The appellant's case at the trial in relation to intention of defrauding the revenue

1. The appellant did not give sworn or affirmed evidence at the trial.

2. On 10 January 2017, the appellant participated in an electronically recorded interview with officers from the Australian Border Force.  At the trial, the Crown tendered the electronically recorded interview as part of its case.

3. The appellant's case at the trial relied upon two assertions.  First, that the appellant was not the importer of the goods.  Secondly, if he was the importer of the goods, he had no intention of defrauding the revenue.

4. Counsel for the appellant submitted in his closing address that the appellant was not the importer of the goods because the transaction was between Danial, who was the exporter, and Mr Hussain, who was the importer.

5. Counsel invited the jury to consider what the appellant knew about the shipment in deciding whether he was the importer:

   The evidence on his phone is that he knew that Danial was sending tobacco and non‑tobacco.  That's pretty clear.  Danial sent him photos of tobacco products and non‑tobacco products, and he talked to him about which ones he thought he should send.  He made suggestions.  He knew that there might have been 500 kilos of tobacco products coming to Australia, you might think, from those pictures.  But again, knowing that someone is importing is not the same as you importing (ts 29).

6. Counsel then invited the jury to consider what evidence there was in relation to the appellant's intention about the payment of customs duty in deciding whether, if he was the importer, he had an intention of defrauding the revenue:

   Well, he knew, you might think, that there was some duty or tax payable because he'd turned his mind to that.  He says a number of times he believed that that was taken care of by those involved, that is, by [Mr Hussain] and by Danial.  He said that multiple times in his interview with the investigators, that he thought others were responsible for the tax.  You've heard him say that in the interview.  You can watch the interview again, but that's his position.  It's as simple as that.  The defence says he had no intention to defraud because his understanding was 'other people are responsible for the tax, it's nothing to do with me' (ts 29).

The grounds of appeal

1. The appellant relies upon three grounds of appeal.

2. Ground 1 alleges that the trial judge erred in law and a miscarriage of justice occurred in that her Honour permitted 'hearsay evidence to be adduced by [Mr Hussain] which was highly prejudicial to the appellant's case' and by failing to direct the jury as to the purpose for which the jury could use that evidence.

3. Ground 2 alleges that a miscarriage of justice occurred in that her Honour failed to direct the jury that 'the element of having an intention to defraud the Revenue required that [the Crown] establish an intention to do so by dishonest means'.

4. Ground 3 alleges that the conviction of the appellant and the acquittal of Mr Hussain were 'inconsistent verdicts' and that the appellant's conviction was unreasonable and not supported by the evidence.

5. On 6 December 2019, Buss P referred the application for leave to appeal to the hearing of the appeal.

The appellant's submissions and the Crown's submissions

1. The appellant's submissions and the Crown's submissions are summarised in Mitchell JA's reasons.  It is unnecessary to repeat the summary.

The merits of ground 1

1. We agree with Mitchell JA, generally for the reasons he gives, that ground 1 has not been made out.  We would refuse leave to appeal on ground 1.

Ground 2:  the trial judge's directions

1. The trial judge gave the jury a written aide which summarised the elements of the charged offence.  Her Honour emphasised that the aide was not to be used in substitution for her Honour's oral directions.  The aide reads:

   Before you could find either accused guilty, the Crown would need to satisfy you beyond reasonable doubt that the following four elements have been proven:

   1.Identity;

   2.That the accused imported goods and did so intentionally;

   3.That the goods were tobacco products and the accused knew them to be tobacco products or were reckless as to whether they were tobacco products;

   4.That the accused imported the goods with the intention of defrauding the revenue.

2. Her Honour reminded the jury in her summing up that the appellant did not admit that he was responsible for the importation.

3. The trial judge told the jury that, on the Crown's case, the jury could be satisfied beyond reasonable doubt that the appellant was intentionally involved in the importation, even if he was not the only person involved.  Her Honour elaborated:

   The Crown points to the fact that [the appellant] and Mr Hussain knew each other.  They were both there at the address in Belmont on the day that the Australian Border Force arrived.  The Crown points to text messages which passed between [the appellant] and Mr Danial in Pakistan which included photographs of what appears to be boxes of tobacco very similar to the tobacco that was found by the [Australian Border Force], and the Crown submit that some of those photographs very clearly show that it was tobacco and not some other tobacco substitute (ts 352).

4. Next, her Honour said that, on the appellant's case, the importation of the tobacco was 'nothing to do with him' (ts 352).  The appellant denied any knowledge of the importation of tobacco.

5. As to the third element of the charged offence, the trial judge directed the jury that the Crown must prove beyond reasonable doubt that the goods were tobacco products and that the accused in question 'knew or [was] reckless as to whether [the goods] were tobacco products' (ts 353).  Her Honour noted that both the appellant and Mr Hussain had admitted that the consignment did in fact contain tobacco products.  However, the Crown was also obliged to prove beyond reasonable doubt that, at the time of the importation, the accused in question 'knew that the goods contained tobacco products or [was] reckless as to that fact' (ts 353).

1. Her Honour gave the jury these directions in relation to the fourth element of the offence concerning an intention of defrauding the revenue:

   Now, the fourth element is that [the appellant or] Mr Hussain … intended to defraud the revenue and it is said that they intended to do that because they were intending to avoid the payment of duty on the tobacco.

   Now, a person has intention, with respect to a result, if he or she means to bring it about or is aware that it will occur in the ordinary course of events.  In this case, in order to prove that [the appellant and] Mr Hussain … intended to avoid the payment of duty, the Crown must prove, beyond reasonable doubt, that they knew of the obligation to pay duty and intended to avoid payment of that duty.

   So again, you must consider what [the appellant and] Mr Hussain … intended.  And you must also consider what they knew about the obligation to pay.  Both [the appellant and] Mr Hussain … have essentially said that they believed that it would [be] sorted out by others, namely the Customs broker and they assumed that any tax which was payable would be payable by them (ts 355).

2. Later in her summing up, the trial judge gave the jury these directions about the appellant's state of mind in relation to 'the issue of intention and knowledge' (ts 358).  First, her Honour told the jury that the Crown submitted that the jury should 'draw inferences that … [the appellant] knew the goods to be tobacco products, or at least [was] reckless as to that fact' and that the appellant had 'an intention of defrauding the revenue' (ts 358 ‑ 359).  Secondly, her Honour told the jury that the Crown submitted that the jury should draw inferences that the appellant had 'an intention to import tobacco and intended to defraud the revenue because of the fact that he was there in Belmont when it arrived, from what he said to Mr Danial, [and] the photographs' (ts 359).  Thirdly, her Honour told the jury that the Crown submitted that the jury should reject the appellant's explanation and should 'rely on all of the other circumstances which [the Crown] says supports an inference as to [the appellant's] knowledge and intention' (ts 359 ‑ 360).

Ground 2:  the introduction of s 233BABAD

1. In 2012, s 233BABAD was introduced into the Act by the Customs Amendment (Smuggled Tobacco) Act 2012 (Cth).

2. The explanatory memorandum accompanying the Customs Amendment (Smuggled Tobacco) Bill 2012 noted that s 233 of the Act already created an offence for, relevantly, the smuggling of any goods, including tobacco products.  However, that offence could only be prosecuted by way of a Customs prosecution and was punishable by a penalty only.  The new offences created by s 233BABAD would be criminal offences punishable by up to 10 years' imprisonment or a fine, or both.

3. The explanatory memorandum also noted that the elements of the new offences created by s 233BABAD were the same as those in the current offences in s 233 as they related to smuggled tobacco products. However, the new offences had been structured differently in s 233BABAD in accordance with the standard approach to formulating offences set out in the Criminal CodeAct 1995 (Cth) (the Criminal Code).

4. The Attorney‑General said in her second reading speech on the Customs Amendment (Smuggled Tobacco) Bill 2012 that:

   Illegal tobacco importations typically occur when an importer attempts to evade the duty payable on these imports.  Given the high duty payable on tobacco, this generally occurs by misdeclaring the goods to the Australian Customs and Border Protection Service as non‑tobacco products with a lower duty liability.

   See Commonwealth of Australia, Parliamentary Debates, House of Representatives, 27 June 2012, 8147 (Ms Roxon, Attorney‑General).

Ground 2:  the elements of the offence created by s 233BABAD(1)

1. Section 233BABAD(1) of the Act provides that a person commits an offence if:

   (a)the person imports goods; and

   (b)the goods are tobacco products; and

   (c)the person imports the goods with the intention of defrauding the revenue.

2. By s 5AA(1) of the Act, subject to s 5AA(2), ch 2 of the Criminal Code applies to an offence against the Act.

3. Section 5AA(2) applies to a 'Customs prosecution' as defined in s 244 of the Act. The proceedings against the appellant, in the present case, were not a 'Customs prosecution', as defined.

4. Chapter 2 of the Criminal Code is headed 'General Principles of Criminal Responsibility' and comprises s 2.1 to s 16.4.

5. The physical elements and the fault elements of the offence created by s 233BABAD(1) of the Act must be identified in accordance with the provisions of ch 2 of the Criminal Code.

6. The elements of the offence created by s 233BABAD(1) are as follows.

7. First, a physical element comprising conduct, namely the importation by the accused of goods.  See s 233BABAD(1)(a) of the Act.

8. Secondly, a fault element for that physical element. The Act does not specify a fault element for that physical element. By s 5.6(1) of the Criminal Code, intention is therefore the fault element for that physical element. A person has intention with respect to conduct if he or she means to engage in that conduct. See s 5.2(1) of the Criminal Code.

9. Thirdly, a physical element comprising a circumstance, namely that the goods imported by the accused are tobacco products.  See s 233BABAD(1)(b) of the Act.

10. Fourthly, a fault element for that physical element. The Act does not specify a fault element for that physical element. By s 5.6(2) of the Criminal Code, the fault element for that physical element is recklessness. If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. See s 5.4(4) of the Criminal Code.

11. Fifthly, another fault element in relation to the importation by the accused of the goods, namely that the accused imported the goods 'with the intention of defrauding the revenue'.  That fault element is specified in s 233BABAD(1)(c) of the Act.

Ground 2:  the concept of 'intent to defraud'

1. It is notoriously difficult to state exhaustively what is involved in the concept of 'intent to defraud'.  See Peters v The Queen;[1] DM Cannane v J Cannane Pty Ltd(in liq).[2]

   [1] Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [30] (Toohey & Gaudron JJ).

   [2] DM Cannane v J Cannane Pty Ltd(in liq) [1998] HCA 26; (1998) 192 CLR 557 [30] (Gaudron J).

2. However, it is well‑established that 'defrauding' may occur if the accused deceives another person into acting or refraining from acting contrary to his or her public duty.  See Board of Trade v Owen;[3] R v Terry;[4] Director of Public Prosecutions v Withers;[5] R v Turner (No. 4);[6] Wills v Petroulias.[7]

   [3] Board of Trade v Owen [1957] AC 602, 622.

   [4] R v Terry [1984] AC 374, 379 ‑ 381.

   [5] Director of Public Prosecutions v Withers [1975] AC 842, 860, 862, 873, 875.

   [6] R v Turner (No. 4) [2001] TASSC 51; (2001) 10 Tas R 81 [17] ‑ [30].

   [7] Wills v Petroulias [2003] NSWCA 286; (2003) 58 NSWLR 598 [19].

3. In Scott v Metropolitan Police Commissioner,[8] the appellant was charged, with others, on an indictment containing numerous counts including a count of conspiracy to defraud.  He was convicted on his plea of guilty on the count of conspiracy to defraud.  The appellant appealed against his conviction on that count on the ground that, on the admitted facts, the count was not proved.  His argument on appeal was that an agreement with persons employed by the owners of various cinema theatres temporarily to remove cinematograph films from their possession, so that unauthorised copies could be made of those films, did not involve any deception of the cinema owners and, therefore, did not constitute a conspiracy to defraud.  The House of Lords rejected the argument.  Viscount Dilhorne (Lord Reid, Lord Diplock, Lord Simon of Glaisdale and Lord Kilbrandon agreeing) observed that 'a fraud may be perpetrated without deceit by secrecy and that an intent to defraud need not necessarily involve an intent to deceive' (836).  His Lordship also said that where the intended victim is a private individual or corporation, as distinct from a public official or public authority, 'to defraud' ordinarily means 'to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud be entitled' (839) (emphasis added).

   [8] Scott v Metropolitan Police Commissioner [1975] AC 819.

4. In Peters, the High Court, while accepting that Scott was correctly decided, rejected the proposition that dishonesty is an independent element of a conspiracy to defraud.  All of the judges of the High Court (apart from Kirby J) held that dishonest means, but not dishonesty of itself or in addition, must be proved to constitute a conspiracy to defraud.[9]

   [9] Peters [21], [27] ‑ [34] (Toohey & Gaudron JJ); [73] ‑ [74], [79] ‑ [85] (McHugh J, Gummow J agreeing).

5. In Peters, Toohey and Gaudron JJ said:

   Ordinarily, however, fraud involves the intentional creation of a situation in which one person deprives another of money or property or puts the money or property of that other person at risk or prejudicially affects that person in relation to 'some lawful right, interest, opportunity or advantage' (R v Kastratovic (1985) 42 SASR 59 at 62, per King CJ), knowing that he or she has no right to deprive that person of that money or property or to prejudice his or her interests (See Archbold Criminal Pleading, Evidence and Practice (1996), vol 2, par 17 ‑ 89, 17 ‑ 94.  See also R v Sinclair [1968] 1 WLR 1246; [1968] 3 All ER 241; (1968) 52 Cr App R 618). Thus, to take a simple example, a 'sting' involving an agreement by two or more persons to use dishonest means to obtain property which they believe they are legally entitled to take is not a conspiracy to defraud [30].

6. In Peters, McHugh J observed:

   In most cases of conspiracy to defraud, to prove dishonest means the Crown will have to establish that the defendants intended to prejudice another person's right or interest or performance of public duty by:

   •making or taking advantage of representations or promises which they knew were false or would not be carried out;

   •concealing facts which they had a duty to disclose; or

   •engaging in conduct which they had no right to engage in [84].

7. In R v Kastratovic,[10] the accused was charged with having demanded money from another person, with intent to defraud, in the amount of $500,000 under a forged guarantee, in the knowledge that the guarantee had been forged.  King CJ said:

   The essential notion of defrauding is dishonestly depriving some person of money or property, or depriving him of, or prejudicially affecting him in relation to, some lawful right, interest, opportunity or advantage which he possesses.  As Lord Radcliffe pointed out in Welham v. Director of Public Prosecutions ([1961] AC 103, at p. 123), 'although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning'. The detriment suffered by the person defrauded is usually economic but is not necessarily so. To defraud must involve something more than the mere inducing of a course of action by dishonest means: Welham v. Director of Public Prosecutions ([1961] AC 103), per Lord Radcliffe at p. 127. In offences constituted by obtaining money or property with intent to defraud, that something more may be found in the mere parting by the victim of the fraud with money or property which he is entitled to retain and which he would not have parted with but for the use of the dishonest means: Balcombe v. De Simoni ((1972) 126 CLR 576). In other cases, the defrauding may consist of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit, or not doing something that but for it he would have done.  In all cases, the element of intent to defraud connotes the intention to produce a consequence which is in some sense detrimental to a lawful right, interest, opportunity or advantage of the person to be defrauded, and is an intention distinct from and additional to the intention to use the forbidden means (62 ‑ 63) (emphasis added).

   [10] R v Kastratovic (1985) 42 SASR 59.

8. In Spies v The Queen,[11] the appellant was a director of a company, SNDF.  He was convicted after a trial of defrauding SNDF's creditors in their dealings with SNDF by having caused SNDF to purchase his shares in another company. 

   [11] Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603.

9. Gaudron, McHugh, Gummow and Hayne JJ noted in Spies [91] that when there is a charge of defrauding, as opposed to a charge of committing an act with intent to defraud, there must be an actual obtaining of property or an actual deprivation of the person defrauded of something which is regarded as belonging to that person.

10. Their Honours referred to the decision of the House of Lords in Scott and the decision of the High Court in Peters.  Their Honours said in relation to Scott:

    The decision in Scott must mean that a person may also be defrauded without being deceived.  It necessarily follows that, in an offence alleging 'defrauding', deceit is not a necessary element of that offence, notwithstanding what was said in Balcombe v De Simoni. Statements to the contrary in that case can no longer be regarded as authoritative. Nevertheless, to prove a defrauding the prosecution must establish that the accused used 'dishonest means' to achieve his or her object [78].

11. Gaudron, McHugh, Gummow and Hayne JJ held in Spies [81] that, to prove that the appellant had defrauded a 'person in his or her dealings' with SNDF, the prosecution had to prove that the appellant used 'dishonest means' to prejudice the rights of such a person in his or her dealings with SNDF.

12. The concept of 'intent to defraud' does not have a universal connotation which applies in each and every statutory context in which it appears.  See Balcombe v De Simoni;[12] DM Cannane [54] (Gummow J). In other words, the legislative framework in which the concept appears may affect its content and ambit. Ordinarily, the meaning of the phrase 'intent to defraud' in a statute is determined by the statutory text, context and purpose.

Ground 2:  the concept of 'with the intention of defrauding the revenue' in s 233BABAD(1)(c) of the Act

[12] Balcombe v De Simoni [1972] HCA 9; (1972) 126 CLR 576, 582 ‑ 583 (Barwick CJ).

1. In R v Australasian Films Ltd,[13] the High Court considered the expression 'intent to defraud the revenue' in the context of offences created by s 241 (as then enacted) of the Act. In that case, an action in the High Court was brought against the defendant company and Harry George Musgrove to recover penalties under s 234 (as then enacted) and s 241 of the Act. By the statement of claim, the defendant company was charged, relevantly, with having committed 30 specified offences 'with intent to defraud the revenue', contrary to s 241. The defendant Musgrove was charged, relevantly, with eight specified offences 'with intent to defraud the revenue', contrary to s 241.

   [13] R v Australasian Films Ltd [1921] HCA 11; (1921) 29 CLR 195.

2. In Australasian Films, Knox CJ heard the action.  At the conclusion of the evidence, his Honour made certain findings of fact, which he stated in a case in which he reserved certain questions of law for the consideration of the Full Court.

3. Knox CJ made the following relevant findings of fact:

   (a)Eight arc lamps were shipped from the United States of America to Australia by the SS Aeon.  Eight arc lamps were also shipped from the United States of America to Australia by the SS Roscommon.

   (b)At all material times, Millard Johnson was employed by the defendant company as its American representative.

   (c)At the time of shipment of the arc lamps, Millard Johnson knew that the arc lamps formed part of complete kinematograph machines purchased by the defendant company as complete machines including the arc lamps and that the remaining parts of the complete machines were shipped by the same ship as the arc lamps.

   (d)At the time of shipment of the arc lamps, Millard Johnson knew that, according to the practice of the Customs Department, duty would be payable on the arc lamps, if imported in the same ship as the other parts of the machines of which they formed part, at a higher rate than if imported in another ship, and believed that the Customs Department would insist on duty being paid at the higher rate on the arc lamps if imported in the same ship with the other parts of the machines of which they formed part.

   (e)At the time of the shipment of the arc lamps, Millard Johnson forwarded a separate invoice for the arc lamps, in order to enable the defendant company to evade payment of duty on the value of the arc lamps at the higher rate applicable to arc lamps imported as part of complete kinematograph machines, if imported with the machines in a complete or substantially completed state.  Millard Johnson intended that the defendant company should evade payment of such duty.

   (f)The defendant company evaded payment of the duty properly payable on the importation of the arc lamps due to the fact that separate invoices had been furnished to the Customs Department for the arc lamps and for the remaining parts of the complete machines.

4. Knox CJ reserved for the consideration of the Full Court the question whether, on the facts found by his Honour, the defendant company could be found to have committed, with intent to defraud, the offences charged in respect of the importation of the arc lamps.

5. In the Full Court, Knox CJ, Gavan Duffy and Rich JJ said that the substantial question of law involved in the questions reserved for the consideration of the Full Court was whether a company could be convicted of an offence against the Act with intent to defraud the revenue (214).  Their Honours held that it was clear, from the provisions of the Act, that 'the intention was to make the principal responsible for an act done by his agent or servant in the course of his employment and for the state of mind of the agent or servant in doing that act' (217).  Their Honours said in relation to the alleged offences involving the arc lamps:

   With regard to the arc lamps imported by the Aeon and Roscommon, we are of opinion that the Company is liable to be convicted of intent to defraud the revenue by reason of the intention existing in the mind of Millard Johnston [sic] that the Company should evade payment of duty on these goods coupled with the acts done by him in furtherance of that intention and the fact that payment of duty was evaded. We think it was rightly decided in Stephens v. Abrahams (27 VLR, 753; 23 ALT 233) that preventing something from getting into the revenue which the revenue is entitled to get amounts to defrauding the revenue; and it follows that on the findings of fact Millard Johnston [sic] had an intent to defraud the revenue in the acts found to have been done by him in respect of these goods. It is specifically found that the acts done by Millard Johnston [sic] with this intent were done by him in the course of his employment (218). (emphasis added)

6. Accordingly, Knox CJ, Gavan Duffy and Rich JJ held that the defendant company could be convicted of intent to defraud the revenue in connection with the offences charged in respect of the importation of the arc lamps.

7. In Australasian Films, Millard Johnson had an intent to defraud the revenue in that:

   (a)at all material times, Millard Johnson knew that, according to the practice of the Customs Department, customs duty would be payable on the arc lamps, if imported in the same ship as the other parts of the machines of which they formed part, at a higher rate than if imported in another ship; and

   (b)in that knowledge, Millard Johnson prepared and forwarded a separate invoice for the arc lamps with the intention of deceiving the Customs Department into the false belief that the arc lamps had not been imported in the same ship as the other parts of the machines and, thereby, enabling the defendant company to evade payment of duty on the value of the arc lamps at the higher rate.

1. The defendant company was responsible for the acts done by Millard Johnson in that, on a proper construction of the provisions of the Act, the Parliament intended to make a principal responsible for an act done by a servant or agent in the course of his or her employment and for the state of mind of the servant or agent in doing those acts.

2. In Australasian Films, Knox CJ, Gavan Duffy and Rich JJ said that it was rightly decided in Stephens v Abrahams,[14] that preventing something getting into the revenue which the revenue is entitled to get amounts to defrauding the revenue.  That statement of their Honours related to the concept of 'defrauding the revenue' as distinct from the concept of 'an intent to defraud the revenue'.

   [14] Stephens v Abrahams (1902) 27 VLR 753.

3. The 'intent to defraud the revenue', as found by Knox CJ, Gavan Duffy and Rich JJ in Australasian Films, comprised 'the intention existing in the mind of [Millard Johnson] that [the defendant company] should evade payment of duty on [the goods in question] coupled with the acts done by him in furtherance of that intention and the fact that payment of duty was evaded' (218). The acts done by Millard Johnson comprised, relevantly, the preparation and forwarding of the separate invoice for the arc lamps in the knowledge and with the intention we have noted at [74] above. Millard Johnson's acts were dishonest.

4. In Stephens, the defendant was charged with being unlawfully concerned in presenting to an officer of Customs 'a certain document purporting to be a genuine invoice which was not in fact a genuine invoice with intent to defraud the revenue contrary to the … Customs Act 1901'.  At the date when the alleged offence was committed, a bill had been introduced into the House of Representatives providing for the imposition of duties upon the goods in question, but neither such bill nor any resolution directing the imposition of such duties had then been passed by the House.  The defendant was convicted in the Magistrates Court.  On appeal, Hodges J set aside the conviction on the basis that, if the defendant had succeeded in his whole purpose, he would not have succeeded in defrauding the revenue, and therefore the defendant could not be guilty of the charged offence.

5. Hodges J noted that, for the purposes of deciding the appeal, he assumed that:

   (a)the invoice was not a genuine invoice;

   (b)the invoice untruly stated the value of the goods in question;

   (c)both the Customs officer and the defendant believed the goods to be dutiable; and

   (d)the defendant misrepresented the value of the goods in the invoice with the view of getting possession of the goods without paying the amount that would be demanded by the Customs officer if the true value had been stated.

6. His Honour then proceeded to consider whether, assuming all of those facts, the invoice was presented 'with intent to defraud the revenue' (767).

7. Hodges J held:

   (a)the 'revenue', in the context of the phrase 'with intent to defraud the revenue', was 'moneys which belong to the Crown, or moneys to which the Crown has a right, or moneys which are due to the Crown' (767);

   (b)customs duties which are due to the Crown under the Act are part of the 'revenue' (767); and

   (c)to get out of the revenue something that is already in it, or to prevent something getting into the revenue which the revenue is entitled to get, is 'defrauding the revenue' (767).[15]

   [15] In Parker v Churchill (1986) 9 FCR 334, 348 ‑ 349, Jackson J (Bowen CJ & Lockhart J relevantly agreeing) cited with approval the observations of Hodges J as to the meaning of the 'revenue' in the context of the phrase 'with intention to defraud the revenue'.

8. However, his Honour was of the opinion that the defendant did not 'defraud the revenue' (767).  On the facts which his Honour had assumed, the defendant 'did not take anything out of the revenue which was in it; he got nothing by it.  He did not prevent anything getting into the revenue which the revenue was entitled to get on the true state of the facts' (767).  His Honour explained that 'if a person accomplishes his whole purpose, and does not effect a defrauding of the revenue … it is not possible to say that the act was done with intent to defraud' (767).

9. Hodges J concluded:

   It may be correct to say that [the defendant] here had the intention to defraud the Crown out of what he believed to be the revenue, and probably out of what the Customs officer believed to be the revenue; but that is not the charge.  That would not be an offence.  It is not defrauding the Crown out of what the individual believes to be the Crown's money that is the offence, but it is defrauding the Crown out of what is its money – not out of what the individual believes to be the Crown's money.  I think the conviction should be set aside on that ground (768).

10. In Stephens, the defendant had an intent to defraud the Crown out of what he believed to be the revenue in that, on the assumed facts:

    (a)the defendant presented to the Customs officer an invoice that was not a genuine invoice;

    (b)the invoice untruly stated the value of the goods in question;

    (c)the defendant believed the goods to be dutiable; and

    (d)the defendant misrepresented the value of the goods in the invoice with a view to getting possession of the goods without paying the amount that he believed would be demanded by the Customs officer if the true value had been stated.

11. However, the defendant did not 'defraud the revenue' because, even if the defendant had accomplished his whole purpose, he would not have prevented anything getting into the revenue which the revenue was entitled to get because, at the date when the alleged offence was committed, no duty was payable under the Act in respect of the goods.  It followed that the defendant's actions were not done with 'intent to defraud the revenue'.

12. In Stephens, the defendant had 'an intent to defraud the Crown' out of what he believed to be the revenue in that the defendant engaged in the acts referred to at [84] above with the state of mind referred to at [83] ‑ [84] above. The defendant's acts were dishonest. However, the defendant's intent to defraud did not result in the defendant 'defrauding the revenue' because, even if he had accomplished his whole purpose, he would not have prevented anything getting into the revenue which the revenue was entitled to get.

13. It is apparent from our examination of Australasian Films and Stephens that the High Court in Australasian Films and Hodges J in Stephens considered that, having regard to the statutory provisions under consideration, there was a distinction between 'defrauding the revenue', on the one hand, and 'an intent to defraud the revenue', on the other. Knox CJ, Gavan Duffy and Rich JJ alluded to the distinction between those concepts in the passage we have cited at [72] above. The concept of 'defrauding the revenue' involved getting out of the revenue something that was already in it, or preventing something getting into the revenue which the revenue was entitled to get. The concept of 'intent to defraud the revenue' involved an intention dishonestly to get out of the revenue something that was already in it or an intention dishonestly to prevent something getting into the revenue which the revenue was entitled to get.

14. In Wilson v Chambers and Company Pty Ltd,[16] Isaacs J considered the distinction between the mere omission to pay customs duty, the evasion of customs duty, and defrauding the revenue of customs duty in the context of an appeal against a magistrate's decision to dismiss charges against the respondents of offences under the Act which were allegedly committed with 'intention to defraud the revenue'.  His Honour said:

    The position so far is that 'evasion' is more serious than mere omission to pay and less serious than attempting to defraud the revenue.  At this point one observation is material.  Defrauding the revenue is not confined to escaping payment for ever.  Escaping for a time with an intention to pay when convenient and in the meantime depriving the Customs of its security is defrauding the revenue, though the moral tint is a shade lighter (see R v Naylor (1865) LR 1 CCR 4). Now, what is the evasion which the statute places intermediately between simple omission and fraud on the revenue. Any trick or artifice or force which results in obtaining dutiable goods without payment of duty is a fraud on the revenue, and is, therefore, outside simple 'evasion' (144).

    [16] Wilson v Chambers and Company Pty Ltd [1926] HCA 15; (1926) 38 CLR 131.

15. So, in Wilson, Isaacs J held that a mere omission to pay customs duty is less serious than an evasion of customs duty and that an evasion of customs duty is less serious than defrauding the revenue of customs duty.  His Honour expressed the view that a fraud on the revenue would include any 'trick or artifice or force' which results in obtaining dutiable goods without payment of duty.

16. The expression 'imports goods' in s 233BABAD(1)(a) of the Act refers to participation in a process of importation which extends beyond the landing of goods in Australia and extends to conduct connected with the bringing in of goods, and with the recovery of those goods after landing.  See Director of Public Prosecutions (Cth) v Larson.[17]

    [17] Director of Public Prosecutions (Cth) v Larson [2017] VSCA 292; (2017) 54 VR 420 [66] ‑ [67] (Maxwell P & Beach JA).

17. The concept of a person having an 'intent to defraud' ordinarily involves the person having an intent that can be characterised as dishonest.

18. In our opinion, the fault element in s 233BABAD(1)(c) of the Act in relation to the importation by the accused of goods, namely that the accused imported the goods 'with the intention of defrauding the revenue', connotes a dishonest intent.  The requisite intention is that the accused intended dishonestly to deprive the revenue of customs duty that was payable in respect of the goods upon their importation.

19. The accused's intention must be dishonest according to the standards of ordinary, decent people.  See Peters [18].

20. The requirement in s 233BABAD(1)(c) of the Act that the accused intended dishonestly to deprive the revenue of customs duty that was payable in respect of the goods upon their importation is not satisfied by a mere intention to avoid the payment of duty which the accused knows or believes is payable.  An intention to avoid payment may or may not, depending upon the circumstances, involve dishonesty.  For example, the accused may intend to avoid payment by means that he or she honestly believes are lawful and which in his or her honest belief will result in no duty being payable.

21. Ordinarily, the intention of an accused must be inferred from the surrounding facts and circumstances.

22. In Australasian Films, it was inferred that Millard Johnson intended dishonestly to deprive the revenue of customs duty that he believed was payable on the arc lamps in that:

    (a)at all material times, he knew that customs duty would be payable on the arc lamps, if imported in the same ship as the other parts of the machines of which they formed part, at a higher rate than if imported in another ship; and

    (b)in that knowledge, he prepared and forwarded a separate invoice for the arc lamps with the intention of deceiving the Customs Department into the false belief that the arc lamps had not been imported in the same ship as the other parts of the machines.

23. In Stephens, it was assumed that the defendant intended dishonestly to deprive the revenue of customs duty that he believed was payable on the goods in that:

    (a)he presented to the Customs officer an invoice that was not a genuine invoice;

    (b)the invoice untruly stated the value of the goods; and

    (c)he misrepresented the value of the goods in the invoice with a view to getting possession of the goods without paying the amount that he believed would be demanded by the Customs officer if the true value had been stated.

Ground 2:  its merits

1. In the present case, it appears, on the evidence, that Danial exported the goods 'with the intention of defrauding the revenue' by sending the tobacco from Pakistan to Western Australia with consignment documents which, to his knowledge, misdescribed the goods as 'non‑tobacco herbal chewing tobacco'.

2. The critical point, in the context of ground 2 of the appeal, is the test to be applied in determining whether the appellant, as an importer of the goods, imported the tobacco 'with the intention of defrauding the revenue'.

3. In our opinion, the appellant, as an importer of the goods, would not have imported the tobacco 'with the intention of defrauding the revenue', unless the appellant intended dishonestly to deprive the revenue of customs duty that was payable in respect of the tobacco upon its importation.

4. On the evidence in the present case (in particular, the facts we have set out at [12] above that were not in contest at the trial), the dishonesty relating to the export and the import of the tobacco involved the misdescription of the goods.

5. It was not essential for the Crown to prove beyond reasonable doubt that the appellant knew the precise particulars of the scheme apparently formulated and carried into effect by Danial; that is, the precise particulars of the misdescription of the goods in the consignment documents.   However, it was essential for the Crown to prove beyond reasonable doubt that the appellant, as an importer of the goods, intended to recover the tobacco after landing in the knowledge or belief that the revenue had been, or would be, dishonestly deprived of the customs duty that was payable in respect of the tobacco as a result of the goods having been misdescribed.  The proof of those facts would establish that the appellant had imported the goods 'with the intention of defrauding the revenue', within s 233BABAD(1)(c) of the Act. 

6. The trial judge's directions in relation to the fault element that the appellant had imported the goods 'with the intention of defrauding the revenue', within s 233BABAD(1)(c), merely stated that the Crown had to prove beyond reasonable doubt that the appellant knew of the obligation to pay customs duty and intended to avoid payment of the duty (ts 355).  Those directions were inadequate.  Her Honour's directions failed to engage with the requisite aspect of dishonesty that had to be involved in the appellant's importation of the tobacco.  If the appellant intended to recover the tobacco after landing in the knowledge that customs duty was payable and with the intention not to pay the duty, those facts would not, of themselves, constitute the importation of the goods 'with the intention of defrauding the revenue', within s 233BABAD(1)(c).

7. The essence of ground 2, as developed at the hearing of the appeal, has been made out. Her Honour's misdirection in relation to the concept of 'with the intention of defrauding the revenue', within s 233BABAD(1)(c), involved a wrong decision on a question of law by the judge (within s 30(3)(b) of the Criminal Appeals Act 2004 (WA)) and occasioned a miscarriage of justice (within s 30(3)(c) of the Criminal Appeals Act).  It was not suggested (and it could not reasonably have been suggested) by counsel for the Crown that, in the circumstances, the proviso should be applied in relation to the misdirection.

The merits of ground 3

1. Ground 3 reads:

   The acquittal of [Mr Hussain] and the conviction of the appellant were inconsistent verdicts and the conviction of the appellant was unreasonable and not supported by the evidence at trial.

2. Section 30(3)(a) of the Criminal Appeals Act provides that this court must allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction was based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

3. As Mitchell JA points out, the allegation in ground 3 that the guilty verdict is unreasonable or cannot be supported by the evidence has two limbs.  The first limb alleges that the verdict of guilty is inconsistent with the acquittal of Mr Hussain.  The second limb is focused on the evidence against the appellant. 

4. The legal principles applicable to the first limb are set out by Mitchell JA at [229] below and the legal principles applicable to the second limb are set out by his Honour at [233] below. We agree with his Honour's statement of the applicable principles.

5. As to the allegation of inconsistent verdicts, we agree with Mitchell JA, generally for the reasons he gives, that (disregarding the misdirection to which we have referred in considering ground 2) the verdicts are plainly reconcilable.  The contrary position is not reasonably arguable. 

6. We turn to the second limb of ground 3. 

7. We have set out at [51] ‑ [55] above the elements of the offence created by s 233BABAD(1) of the Act.

8. As Mitchell JA's reasons demonstrate, it was open to the jury to be satisfied beyond reasonable doubt in relation to the first, second, third and fourth elements of the offence. 

9. As to the fifth element, namely that the accused imported the goods 'with the intention of defrauding the revenue', we are of the opinion that, subject to the jury's assessment of and findings in relation to the evidence as a whole, it would be open to a reasonable jury, properly directed according to law, to be satisfied beyond reasonable doubt, on the evidence adduced at the trial, that the Crown had proved this element.  Our reasons for this conclusion are as follows.

10. As we have said, it was essential for the Crown to prove beyond reasonable doubt that the appellant, as an importer of the goods, intended to recover the tobacco after landing in the knowledge or belief that the revenue had been, or would be, dishonestly deprived of the customs duty that was payable in respect of the tobacco as a result of the goods having been misdescribed.  It was not enough for the Crown to prove merely that the appellant intended to recover the tobacco after landing in the knowledge that customs duty was payable and with the intention not to pay the duty. 

11. The relevant evidence is set out in Mitchell JA's reasons at [234] ‑ [249] below. There can be no doubt that the consignment documents falsely described what was being imported as non‑tobacco products.

12. It must be accepted that there was no direct evidence that the appellant was involved in preparing, or had seen, the consignment documentation prior to importing the goods.  Nevertheless, it would be open to a reasonable jury, properly directed according to law, to be satisfied that the only reasonable inference, on the evidence adduced at the trial, is that the appellant was aware that the goods had been deliberately misdescribed in the consignment documentation.  We are of that view having regard to the combined force of these factors:

    (a)In his interview with the Australian Border Force officers on 10 January 2017, the appellant said, in effect, that he was aware that an importer of goods into Australia was liable to pay customs duty on the imported goods and was responsible for declaring those goods to the customs authorities for the assessment of any customs duty.

    (b)In the interview, the appellant agreed, in effect, that he had not declared the goods nor paid any duty in respect of them. 

    (c)It is to be inferred from par (a) above that the appellant must have known that goods being imported into Australia are accompanied by documents which require the goods to be described accurately so as to enable the customs authorities to decide whether customs duty is payable on the goods and, if so, the amount of duty payable.

    (d)The WhatsApp communications on the appellant's mobile telephone showed the appellant viewing, ordering, paying for and giving the address for delivery of 500 kg of what was plainly the tobacco products in question.  Those communications support a finding beyond reasonable doubt that the appellant imported the tobacco products intentionally and in the knowledge that they comprised tobacco products.

    (e)The WhatsApp photographs on the appellant's mobile telephone showed that the tobacco products in question had been packed by Danial or someone on his behalf with the non‑tobacco products in such a way as to conceal the presence of the tobacco products.  Those photographs, and the relevant WhatsApp communications as a whole, support a finding beyond reasonable doubt that the appellant was aware that the tobacco products would be imported in a manner that would endeavour to conceal their presence.

    (f)It is to be inferred from par (a) to par (e) above that the appellant knew that customs duty was payable on the importation of the tobacco products in question and that an object of the importation was, by deception, to evade the obligation to pay customs duty.

    (g)The evidence was capable of establishing that the appellant had used Mr Hussain as a 'front man' for the importation.  In the interview, the appellant admitted that he had paid $11,000 to Mr Hussain.

1. All of those factors, in combination, point to the appellant being part of a scheme to import into Australia a quantity of dutiable tobacco products, well aware that the tobacco products were subject to customs duty, and with the intention of dishonestly depriving the revenue of the customs duty that was payable. The scheme involved deliberately misdescribing the nature of the goods being imported. Having regard to all of the evidence, and particularly the factors referred to at [116] above, it would be open to a reasonable jury, properly directed according to law, to reject the innocent explanations given by the appellant in his interview with the Australian Border Force officers.

2. In our opinion, based on our examination of the whole of the evidence, and subject to the jury's assessment of and findings in relation to the evidence as a whole, it would be open to a reasonable jury, properly directed according to law, to be satisfied beyond reasonable doubt that the appellant had imported the goods 'with the intention of defrauding the revenue' and that he was guilty of the charged offence. 

3. Ground 3 has not been made out.

Conclusion

1. We would grant the appellant an extension of time within which to appeal.  Leave to appeal should be granted on grounds 2 and 3 and refused on ground 1.  The appeal should be allowed on the basis of

ground 2.  The judgment of conviction must be set aside.  It is appropriate, having regard to our reasons for deciding that the second limb of ground 3 has not been made out, to order a new trial rather than enter a judgment of acquittal.  There are no circumstances that render it unjust to the appellant to make him stand trial again.

MITCHELL JA:

Summary

1. The appellant was convicted after trial of one count of importing tobacco products with the intention of defrauding the revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth). He was sentenced to 2 years' imprisonment, with release on recognizance after serving 1 year. His co-accused, Azhar Hussain, was found not guilty of that offence.

2. The charge related to the importation of about 500 kg of molasses tobacco from Pakistan to Australia.  The tobacco arrived at the Port of Fremantle on 25 August 2016.  The tobacco was shipped together with about 500 kg of a non-tobacco herbal product.  The person responsible for the consignment of the goods from Pakistan was referred to by various surnames in the course of evidence at trial.  Adopting the course taken at trial, it is convenient to refer to him by his first name, 'Danial', in these reasons.   

3. Customs duty of $335,672.68, and GST of $34,066.96, was payable on the tobacco.  However, the imported goods were described in consignment documentation as being about 1,000 kg of 'non-tobacco herbal chewing tobacco'.  No customs duty, and only a small amount of GST, was payable on the goods as described.  Mr Hussain was described as the consignee in the customs documentation.

4. The appellant now appeals against his conviction on three grounds. 

5. Ground 1 contends that the trial judge erred in law and a miscarriage of justice was occasioned by:

   (1)permitting hearsay evidence to be adduced by Mr Hussain which was highly prejudicial to the appellant's case; and

   (2)failing to provide any direction to the jury as to the purpose for which the jury could consider that evidence. 

The challenged evidence concerned Mr Hussain's evidence as to the reasons why he understood his Australian Business Number (ABN) to be required for the importation.

1. In my view, ground 1 is not established.  The challenged evidence was properly admitted on the basis that it was relevant to Mr Hussain's state of mind.  Its probative value was not outweighed by any prejudicial effect.  In the circumstances, there was no real risk that the jury would improperly use it against the appellant as evidence of what he had said to Danial.  Therefore, a direction as to its permissible use was not required.

2. Ground 2 relates to the trial judge's direction that, in order to establish that the appellant had the intention of defrauding the revenue, the Crown must prove, beyond reasonable doubt, that he knew of the obligation to pay duty and intended to avoid payment of that duty.  Ground 2 contends that a miscarriage of justice was occasioned by the trial judge failing to direct the jury that the element of having an 'intention of defrauding the revenue' required that the prosecution establish an intention to do so by dishonest means. 

3. In my view, the trial judge's direction was correct. However, this is a minority view. As I apprehend it, the difference between my approach and that of Buss P and Mazza JA concerns the proper construction of s 233BABAD(1)(c) of the Customs Act.  The critical question of construction is whether proving that an accused imported goods with the intention of defrauding the revenue requires proof of an intention to dishonestly deprive the revenue of customs duty payable in respect of the tobacco upon its importation.  Buss P and Mazza JA answer this question in the affirmative.  My dissent arises from the different view I have taken as to the proper construction of the provision.

4. In my view, a person importing tobacco products will have the intention of defrauding the revenue for the purposes of s 233BABAD(1)(c) of the Customs Act if, at the time of importation, he or she intends to avoid the payment of customs duties which the person knows are payable.  There is no additional requirement that the accused must intend that this result be achieved by dishonest means.  The relevant requirement for dishonesty is rather satisfied by the accused engaging in conduct which he or she knows creates a tax liability while intending to avoid payment of the tax.  No miscarriage of justice arose from the absence of further elaboration by the trial judge as to this element of the offence.

5. Ground 3 contends that the acquittal of Mr Hussain and the conviction of the appellant were inconsistent verdicts and that the conviction of the appellant was unreasonable and not supported by the evidence at trial.

6. In my view, ground 3 is not established.  The different verdicts are readily reconcilable on the basis of the different evidence as to the appellant's and Mr Hussain's respective knowledge that the goods being imported were tobacco products.  It was open to the jury on the whole of the evidence - particularly evidence of WhatsApp communications between the appellant and Danial - to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.

7. As none of the grounds are established, in my view, the appeal should be dismissed.

8. I note that, on 30 March 2020, the appellant was granted bail pending the determination of this appeal.

Circumstances of importation

1. The following facts as to the circumstances in which the tobacco was imported into Australia were either formally admitted by the appellant or established by uncontentious evidence at trial.

2. WhatsApp messages on Mr Hussain's phone showed communications between Danial and Mr Hussain on 26 August 2016 in relation to the use of Mr Hussain's ABN.  Mr Hussain sent Danial a copy of a written authority he had signed appointing Seabridge Pty Ltd as his customs broker.  The written authority was dated 26 August 2016.  The authority purported to give Mr Hussain's ABN, but the number used was actually his tax file number.  An officer of Seabridge asked Mr Hussain to confirm his ABN, as the details given were invalid.  Mr Hussain's evidence was that he sent his correct ABN to Seabridge by email.[18]

   [18] Exhibit 15, trial ts 220 - 221.

3. On 30 August 2016, 499.75 kg of 'Al Fakher' molasses tobacco and 484 kg of 'Ghafoor Shah' herbal product were received at the Fremantle Container Examination Facility.  These goods were contained within 34 cardboard boxes wrapped in plastic hessian, stacked on three pallets. 

4. The goods had been loaded in and shipped from Karachi, Pakistan, via Singapore to Perth, Western Australia.  The consignor of the goods was Hamza Enterprises, which had an address in Karachi.  The consignee of the goods was described as Azhar Hussain of an address in Cloverdale, Western Australia.

5. The goods were shipped under a bill of lading which described Hamza Enterprises as the shipper, Mr Hussain as the consignee at the Cloverdale address and Seabridge as the Australian customs broker.[19]   The package was said to comprise 34 cartons containing 'non-tobacco herbal chewing tabacco (sic) substitute', with a net weight of 1,000 kg.  There was also a commercial invoice of Hamza Enterprises for USD $2,000, for 34 packages of 'non-tobacco herbal chewing tobacco substitute' with a net weight of 1,000 kg.[20]

   [19] Exhibit 7 (Blue/green AB 31).

   [20] Exhibit 8 (Blue/green AB 32).

6. Departmental records showed that an import declaration was lodged by Seabridge on 30 August 2016.  Using that information, the total customs value of the goods was assessed at $2541.24 and the invoice total was $2,660.98 (accounting for $126.40 transport and insurance costs).  No customs duty was assessed.  $266.76 in GST and $92 in administrative charges (being a total of $358.76) was assessed and paid in respect of the importation.[21]

   [21] Exhibit 3.1, 3.2 (Blue/green AB 7 - 8); trial ts 79 - 83.

7. Officers from the Australian Border Force examined the goods from 31 August 2016 to 2 September 2016.  The molasses tobacco was packed in the cartons under a layer of the herbal product.  The molasses tobacco was branded as having different flavours, such as apple, watermelon and grape.  During the examination, samples of the goods were taken.  Subsequent analysis showed that the samples from the 'Al Fakher' molasses tobacco contained tobacco, while samples from the 'Ghafoor Shah' herbal product did not.  Photographs were taken of the goods, and the goods were repacked under customs seal.

8. At some point, the delivery address for the goods was changed to an address in Belmont, Western Australia which was the appellant's residence.  Border Force officers were advised of the change of address by the customs broker on 7 September 2016.[22]  On 8 September 2016, officers from the Australian Border Force executed a search warrant at the Belmont address, where they found the appellant and Mr Hussain.  The appellant's mobile phone was seized at that time.

   [22] Trial ts 126.

9. The appellant's name did not appear on any of the consignment documentation for the goods.

Section 233BABAD of the Customs Act

1. Section 233BABAD(1) of the Customs Act provides:

   A person commits an offence if:

   (a) the person imports goods; and

   (b) the goods are tobacco products; and

   (c) the person imports the goods with the intention of defrauding the revenue.

2. The physical element specified in s 233BABAD(1)(a) is conduct: the importation of goods.  Importation is the bringing of goods into the country irrespective of the presence or absence of a commercial purpose, and includes all that is incidental and proximate to the act of importation.  That is, importation is the whole process of making available in Australia goods from overseas.  It does not cease when goods are landed or pass through customs.  Importation can include the picking up and delivery of imported goods, but does not include the use, transport or disposal of goods after everything proximate and incidental to the importation has been completed.[23]  The fault element for that physical element is intention.[24]  It was therefore necessary for the Crown to prove that the appellant meant to import the goods into Australia.[25]

   [23] See Director of Public Prosecutions (Cth) v Farmer (a pseudonym) [2017] VSCA 292; (2017) 54 VR 420 [19] - [22], [73] - [85].

   [24] Criminal Code (Cth), s 5.6(1).

   [25] Criminal Code, s 5.2(1).

3. The physical element specified in s 233BABAD(1)(b) is a circumstance: that the goods are tobacco products.  The fault element for that physical element is recklessness.[26]  In the present circumstances, it was therefore necessary for the Crown to prove either that:[27]

   (1)the appellant was aware that the goods were tobacco products; or

   (2)the appellant was aware that there was a substantial risk that the goods were tobacco products and, having regard to all the circumstances known to him, it was unjustifiable to take that risk.

   [26] Criminal Code, s 5.6(2).

   [27] Criminal Code, s 5.3, s 5.4(1), s 5.4(4).

4. The fault element specified in s 233BABAD(1)(c) required the Crown to prove that the appellant imported the goods 'with the intention of defrauding the revenue'.  This element will be discussed further in the context of dealing with ground 2.

The parties' cases at trial

1. At trial, the prosecutor summarised the Crown's case in the following terms:[28]

   The Crown's case is straightforward.  Each of the accused men intentionally imported tobacco products, and did so in such a way, by reference to the mis-declaration of what the goods actually were, and all of the evidence, once you’ve heard it, considered as a whole, with the intention of avoiding payment of duty and GST payable on the goods in question. (emphasis added)

   [28] Trial ts 58.

2. Mr Hussain's case at trial was to the effect that the appellant was the person who ordered the goods.  Mr Hussain agreed for his name to be used on the consignment documentation for the goods, and to provide his ABN, because he was told that the appellant and Danial needed an Australian citizen with an ABN.  Mr Hussain, who lived in Melbourne, did not know the appellant but knew Danial from Pakistan.  Mr Hussain flew to Perth to sign for the goods when they were delivered to the appellant's house.  Mr Hussain thought that all of the goods were a non-tobacco 'naswar' herbal chewing product.[29]  Mr Hussain gave evidence to this general effect at trial.  His defence put in issue whether he knew, or was reckless as to whether, the goods were a tobacco product and whether he imported the goods with the intention of defrauding the revenue.

   [29] Trial ts 59 - 60.

3. The appellant's case at trial was that he was not the person who imported the goods.  Rather, the transaction was one between Danial and Mr Hussain.  Further, the appellant did not have any intention of defrauding the revenue.  He said that he was not the importer of the goods, and the importer and exporter were responsible for dealing with the tax and paperwork.  His contention was that the Crown had not proven, beyond reasonable doubt, either that he imported the tobacco products or that he intended to defraud the revenue.[30]  He did not give evidence at trial, but relied on exculpatory statements made in a recorded interview with Border Force officers.

   [30] Trial ts 67 - 70.

Ground 1: prejudicial evidence

1. Ground 1 contends that the trial judge erred in law and a miscarriage of justice was occasioned by permitting hearsay evidence to be adduced by Mr Hussain which was highly prejudicial to the appellant's case, and by failing to provide any direction to the jury as to the purpose for which the jury could consider that evidence.  The challenged evidence concerned Mr Hussain's evidence as to the reasons why he understood his ABN to be required for the importation.

Relevant evidence

1. In the course of Mr Hussain's examination in chief, his counsel, Ms Muhling, asked him the following questions:[31]

   You said it was using your ABN?---Yes.

   Were you given any reason from anybody why it was your ABN and not someone else's ABN?---Is Danial told me like - - -

   [31] Trial ts 203.

2. At this point, the appellant's trial counsel, Mr Freitag SC, objected to the last question on the ground that the answer would be hearsay.  Counsel debated the objection in the absence of the jury.  Ms Muhling submitted that the evidence was adduced only for the purpose of establishing Mr Hussain's knowledge, understanding and intention.  Mr Freitag anticipated that the answer would be based on what Danial had told Mr Hussain about what the appellant had said to Danial.  Mr Freitag submitted that the appellant would be prejudiced because he could only cross-examine Mr Hussain as to what he was told and not the actual truth of what he was told.[32]

   [32] Trial ts 204 - 205.

3. The trial judge ruled that Mr Hussain could give the evidence, which went to both his knowledge and intent.  In the course of doing so, her Honour observed:[33]

   No doubt, I can give the jury a warning about the use that they can make of hearsay. I’ll have to tell them that it doesn't go to the truth of what he was told but it's relevant to establish his knowledge and intent.

   [33] Trial ts 205.

4. When the jury returned the examination proceeded as follows:[34]

   MUHLING, MS: I think the question was, what was your understanding as to why your ABN and not – Australian Business Number – or ABN and not someone else's was to be used?---In this case, me, Danial and [the appellant] is involved.  So Danial is not living in Australia, did not have any business number.  [The appellant], he just clearly told Danial that he doesn't want to involve his self in the – in this case. So he didn’t want his name, he didn't want his ABN number.

   Okay. So that was your?---And at that time I said, 'okay. Maybe he don't want so I can do.' But I don’t mind it because Danial told me it’s only naswar, not tobacco molasses, there’s nothing else.

   Okay?---So I said, 'yes, should be no issue.' That’s why I provide my ABN number and then my name. (emphasis added)

   [34] Trial ts 206.

5. It is the emphasised part of the passage quoted above which is the subject of this ground.  That part of Mr Hussain's evidence was not subsequently referred to either by counsel or the trial judge.

Appellant's submissions as to ground 1

1. The appellant advances three contentions in support of ground 1.

2. First, the appellant submits that the emphasised part of the passage quoted at [154] above was inadmissible hearsay. In making that submission, the appellant accepts that, when a person's state of mind is relevant, evidence tending to prove that fact is admissible, and the state of mind may be proven by conduct, or statements made by the person or another, from which an inference may be drawn.[35]

   [35] Appellant's submissions, par 9 - 11, citing Walton v The Queen [1989] HCA 9; (1989) 166 CLR 283 [18]; Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558, 564; R v Blastland [1986] 1 AC 41 and Subramaniam v Public Prosecutor [1956] 1 WLR 965.

3. The appellant says that the issues at trial relating to the knowledge and intent of Mr Hussain were whether Mr Hussain knew or was reckless as to whether the products being sent to Australia were tobacco products, and whether Mr Hussain intended to defraud the revenue. The appellant contends that the emphasised part of the passage quoted at [154] above does not go to either of these issues. That is said to be because the evidence does not support that Mr Hussain did not know that the products were tobacco products, nor does it go to establishing that Mr Hussain did not have an intention of defrauding the revenue. The appellant submits that the evidence was therefore inadmissible as hearsay and the trial judge erred in law in admitting the evidence over objection.[36]

   [36] Appellant's submissions, par 12 - 13.

4. Secondly, the appellant submits that the evidence ought to have been excluded on the basis that its probative value was outweighed by its prejudicial effect against the appellant.  He submits that Mr Hussain's evidence was a repetition of what was supposedly told to him by Danial, who was not called as a witness.  He submits that there was a risk that the jury might use Mr Hussain's oral testimony as evidence of what the appellant told Danial, and therefore as evidence that the appellant was aware of the importation and was intentionally not wanting any of his information to be connected with the importation.[37]

   [37] Appellant's submissions, par 14, appeal ts 8 - 9, 11.

5. Thirdly, the appellant submits that the trial judge failed to direct the jury as to how they could and could not use the evidence.  He submits that such a direction was required to avoid a perceptible risk of a miscarriage of justice, and to ensure the jury did not make improper use of the evidence beyond the purpose for which counsel for Mr Hussain sought to admit it.  Such a direction was particularly required where the trial judge had directed the jury that Mr Hussain's evidence at trial could be used in considering whether the Crown had established the case against the appellant beyond reasonable doubt.[38]

1. By contrast, the offences in the Customs Act are directed at conduct - importation - which itself creates the liability of the importer to pay tax.  That is, rather than being concerned with an act or omission that results in the non-payment of an existing tax liability, s 233BABAD is directed to the act of importation which creates the liability.  There is no absurdity or manifest injustice in making it an offence to intentionally engage in conduct which creates a tax liability, knowing that it does so and intending to avoid payment of the tax when engaging in the proscribed conduct.

2. For the above reasons, in my opinion a person importing tobacco products will intend to defraud the revenue if, at the time of importation, the person intends to avoid the payment of customs duties which the person knows are payable.  That is, it is sufficient to show that, when importing goods, the accused knew that duty was payable on the importation and intended to avoid payment of that duty.  There is no additional requirement that the accused must intend that this result be achieved by dishonest means.  The relevant requirement for dishonesty is rather satisfied by the accused engaging in conduct which he or she knows creates a tax liability while intending to avoid payment of the tax.

3. Therefore, in my view, the trial judge was correct to direct the jury that, in order to establish that the appellant intended to defraud the revenue, the Crown must prove, beyond reasonable doubt, that he knew of the obligation to pay duty and intended to avoid payment of that duty. The appellant's argument based on the construction of s 233BABAD of the Customs Act should be rejected.

Relating the law to the issues to be determined

1. I turn to consider the appellant's second submission, noted at [184] above.

2. The obligation of a trial judge is to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  It is of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them.  A trial judge should identify the issues in the case and relate the law to those issues, explaining how the relevant law applies to the facts of the particular case.[86]  However, it is not the province of the trial judge to direct the jury about how they may (as opposed to may not) reason towards a conclusion of guilt.  That is the province of the jury, and the trial judge's task in relation to the facts ends at identifying issues for the jury and giving whatever warnings may be appropriate about impermissible or dangerous paths of reasoning.[87]

   [86] Alford v Magee (1952) 85 CLR 437, 466; RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 [41]; Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 [77] - [80]; Huynh v The Queen [2013] HCA 6; (2013) 228 A Crim R 306 [31]; Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 [28].

   [87] Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50 [49] - [50]; RPS [43].

3. Where the drawing of an inference as to an element of an offence such as the intention of an accused necessarily depends on satisfaction as to the existence of an intermediate fact, it may be appropriate for the jury to be told that the intermediate fact must be found beyond reasonable doubt before the ultimate inference can be drawn.[88] In the circumstances of the present case, if the appellant's knowledge of, or participation in, the misdescription of the tobacco products as 'non-tobacco herbal chewing tobacco' was an intermediate fact indispensable for drawing an inference as to intention then it may have been necessary for the jury to be directed that they must find that fact beyond reasonable doubt before they could be satisfied as to the element of intention. However, as explained at [255] - [256] below, in my view it was not necessary to establish that the appellant knew the precise means by which payment of duty was to be avoided before the jury could be satisfied, beyond reasonable doubt, that the appellant imported the tobacco products with the intention of defrauding the revenue. The appellant's knowledge of, or participation in, the misrepresentation of the tobacco products in customs documentation was not an indispensable intermediate fact about which the jury needed to be directed.

   [88] Shepherd v The Queen (1990) 170 CLR 573, 579.

4. The questions identified by the trial judge were whether, when he imported the tobacco products, the appellant knew of the obligation to pay duty and intended to avoid payment of that duty.  The direction identified the questions in plain language which the jury would have readily understood.  The questions were sufficiently related to the facts of the case and did not require further elaboration to avoid a perceptible risk that the jury would adopt an impermissible or dangerous path of reasoning.  To have directed the jury as to how they might have inferred intent from a conclusion that the appellant knew of, or participated in, the misdescription of the tobacco products in consignment documentation would have risked entering into the territory of directing the jury about how they may (as opposed to may not) reason towards a conclusion of guilt.

5. In my view, no miscarriage of justice arose from the fact that the trial judge did not further elaborate on her direction as to the element that the appellant must have acted with the intention of defrauding the revenue.

Conclusion as to ground 2.

1. For the above reasons, in my view ground 2 is not established.

Ground 3: Inconsistent verdicts and unreasonable verdict

1. Ground 3 contends that the acquittal of Mr Hussain and the conviction of the appellant were inconsistent verdicts and that the conviction of the appellant was unreasonable and not supported by the evidence at trial.  It is convenient to deal separately with these two limbs of ground 3.

Inconsistent verdicts

1. The appellant submits that there was no proper basis for the jury to acquit Mr Hussain and convict the appellant.  The appellant refers to evidence as to the information provided to Mr Hussain, and the discrepancies and inconsistencies in Mr Hussain's evidence.  He submits that the jury must not have been satisfied that Mr Hussain was aware that the goods had been misdescribed and that the proper duty and GST had not been paid for the goods.  The appellant submits that there was no proper foundation in the evidence for the jury to reach a different verdict in relation to the appellant, and conclude that he knew that the goods had been misdescribed and that the proper duty and GST had not been paid for the goods.[89]

   [89] Appellant's Submissions, par 42 - 72.

2. The principles applicable to an appeal brought on a ground that a verdict is unreasonable or cannot be supported having regard to the evidence because it is inconsistent with other verdicts given by the jury are well established.  The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness.  In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts?[90]  As was noted by Buss P, with whom Mazza and I agreed, in KND v The State of Western Australia:[91]

   It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question.  If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense.  The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.

   [90] Bailey v The State of Western Australia [2018] WASCA 169 [40] and cases there cited.

   [91] KND v The State of Western Australia [2017] WASCA 36 [36].

3. The verdicts in the present case are readily reconcilable.  There was evidence admissible against the appellant, discussed below, which strongly indicated that he was the principal importer of the goods and was using Mr Hussain as a 'front' for the importation.  That evidence was well capable of satisfying the jury that the appellant imported the goods knowing that they were tobacco.  Mr Hussain's evidence at trial that he was assisting in the importation of the goods which had been ordered by the appellant was consistent with that evidence.  Evidence of the appellant's WhatsApp discussions with Danial made it clear that he knew the imported goods comprised tobacco products.  That evidence from the appellant's phone included photographs of the goods, which made it plain that they were tobacco products, at various stages during the importation process.  There was no equivalent evidence against Mr Hussain clearly indicating that he must have known that the goods he was importing were tobacco products.

4. Even if the jury did not positively accept Mr Hussain's evidence, his evidence considered together with all of the other evidence admissible against him was capable of giving rise to a reasonable doubt as to whether Mr Hussain knew that the goods he was importing for the appellant comprised tobacco products, or was reckless about that fact.  The whole of the evidence admissible against the appellant was capable of establishing, beyond reasonable doubt, that the appellant intentionally imported the goods knowing they were tobacco products, while using Mr Hussain as a front man.  If the jury took that view of the evidence, then there was a proper logical basis for delivering different verdicts in respect of the two accused men.  As the verdicts are plainly reconcilable on this basis, this aspect of ground 3 is not reasonably arguable.

Unreasonable verdicts: general principles

1. Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow an appeal against conviction if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

2. The general principles governing an appeal on this ground are well established.[92]  In summary:

   [92] See Wells v The State of Western Australia [2017] WASCA 27 [13] and cases there cited; Gibbs v The State of Western Australia [2018] WASCA 68 [28] - [34].

   (1)The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.  It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict.  The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

   (2)The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

   (3)That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

   (4)In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.

   (5)A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

   (6)If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.

   (7)The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.

Unreasonable verdicts: evidence against the appellant

1. The principal evidence against the appellant was evidence of the WhatsApp communications between the appellant and Danial.  There was no issue at trial that these communications were downloaded from the appellant's phone, and were between the appellant and Danial.  The downloaded communications were contained in Exhibit 15, which included the uncontentious dates and times of the communications and, where relevant, translation of the text into English.  The times noted in the exhibit were Coordinated Universal Time (UTC), which is 8 hours behind Australian Western Standard Time.  The exhibit evidences the following communications.

2. On 23 July 2016, Danial sent the appellant 8 photographs of different types of Al Fakher tobacco products, including a label that indicated that they were made in the United Arab Emirates by Al Fakher Tobacco Trading Co.  The appellant promptly responded with an audio file, where he said:

   Hello Mr Danial, check all flavours that is has; take photos of the flavours and send them to me. (English translation)

   Danial then sent the appellant 29 photographs showing various fruit 'flavours' of Al Fakher molasses tobacco.

3. On 24 July 2016, the appellant sent Danial the following text messages:

   Only grape 50 kilos

   Strawberry 100 kilos

   Sorry grape 100 kilos

   Double apple 100 kilos

   Mint 50 kilos

   Shaftaloo 50 kilos

   Mango 50 kilos

   Water melon 50 kilos

   Only fakher

   That makes 500 kilos

4. On 26 July 2016, Danial sent the appellant the following message:

   I am on the way going to pickup the flavour goods to do the packing. (English translation)

5. About 48 minutes later, Danial sent the appellant a photo of a whiteboard with the following notes written on it:

   Grape = 100 kg

   Strawberry = 50 kg

   Double Apple = 100 kg

   Mint = 100 kg

   Water Melon = 100 kg

=

Total             450 kg

At the same time Danial sent the appellant the following text messages:

To add 50 kg mint extra

150 kg

1. About 1 hour and 20 minutes later, Danial sent the appellant a text message reading 'Expiry date 2018' and 9 photographs of the Al Fakher products.  A number of the photographs showed packages of the product loaded on the back of a truck.  One photograph showed a label indicating that the components of the product were 'Tobacco, Molasses, Glycerine, Flavour'.

2. Later on 26 July 2016, the appellant sent Danial an audio file in which he said:

   Money has been taken/or received, I think it is with Ghulam Hussain; whenever he has a chance, he will send it 100%  Don't worry about the (Paisa) money. (English translation)

3. On 28 July 2016, Danial sent the appellant 17 photos showing the Al Fakher products being unloaded and packed, under 'Ghafoor Shah' herbal product, into the hessian wrapped boxes into which they were imported.

4. On 29 July 2016, Danial and the appellant exchanged the following text messages:

   Danial:Salam shipment clear from Pakistan

   Total received 1165000, it is the amount (agreed amount)

   Appellant:This makes 15000 Australian ($)

   DanialIf God willing shipment will go to Singapore after 7 days, after that if God willing direct to Perth

   (English translation)

5. On 6 August 2016, Danial sent the appellant a message which read:

   It will arrive in Singapore on Monday.  If God willing!

   (English translation)

6. On 14 August 2016, Danial provided Mr Hussain's bank account details to the appellant.  On 19 August 2016, the appellant sent Danial an image of his bank's confirmation that $5,000 had been paid into Mr Hussain's account under the description 'Grocery purchase'.

7. On 25 August 2016, Danial sent the appellant an image of the shipping details, which indicated that the container with 1,000 kg of goods was estimated to arrive in Perth on that day.

8. On 27 August 2016, Danial sent the appellant three photos showing the way in which the Al Fakher product was packed with 'Ghafoor Shah' herbal product.  Also on 27 August 2016, the appellant sent the address of his Belmont residence to Danial.

9. There were further discussions and photos in relation to Al Fakher product on 30 August 2016 - 8 September 2016, although it is not clear whether they related to the shipment which is the subject of the current appeal.

10. In the above manner, the WhatsApp communications showed the appellant viewing, ordering, paying for and giving the address for the delivery of 500 kg of what was obviously the tobacco product which was imported into Australia on 25 August 2016.  That evidence firmly supported a finding, beyond reasonable doubt, that the appellant intentionally imported the goods knowing that they comprised tobacco products, and that he was the principal purchaser of the goods.  The fact that the goods were sent to the appellant's residential address, and that the appellant was present at that address when the search warrant was executed, also supports the Crown's case against him.

11. The WhatsApp communications also provided a sound basis for rejecting the account which the appellant gave to Border Force officers in his recorded interview of 10 January 2017.[93]  In general terms, the effect of that account was that the appellant was in contact with Danial, who he had met in Pakistan in 2014, because he wanted to import rice.  Danial sent 'naswar' molasses to Mr Hussain, which was to be sold in Perth, and the appellant agreed to the goods being sent to his address for that purpose.  He thought that the import did not have anything to do with tobacco, and even if it was tobacco Mr Hussain and Danial would pay the tax.  He paid $11,000 (in instalments of $5,000 and $6,000) to Mr Hussain because he was going to be a guarantor in relation to a shipment of rice.  That account was directly contradicted by the WhatsApp messages.

    [93] Although the transcript of that interview refers to the date being 10 January 2016, this is clearly an error.  Mr Anthony indicated the date of the interview at trial ts 103.

12. The appellant's submissions refer to a number of contradictions in Mr Hussain's evidence, and inconsistencies between his evidence and what he had previously told police.  It is unnecessary to detail those criticisms of Mr Hussain's evidence in these reasons.  I accept that the matters raised by the appellant required that Mr Hussain's evidence be considered with considerable caution, and may have precluded acceptance of his evidence which was not corroborated by other evidence.  However, Mr Hussain's evidence that the goods imported in his name belonged to the appellant, and that the appellant had given Mr Hussain money to pay for the goods,[94] was corroborated by the WhatsApp messages.

Disposition of unreasonable verdict argument

[94] See, for example, trial ts 207, 208.

1. The evidence summarised above clearly established, beyond reasonable doubt, that the appellant intentionally imported goods which were, to his knowledge, tobacco products. 

2. The remaining question is whether the only reasonable inference to be drawn from the evidence, considered as a whole, was that the appellant imported the tobacco products with the intention of defrauding the revenue.  That is, when the appellant imported the tobacco products, did he know that duty was payable on the importation and intend to avoid paying that duty? 

3. That question was to be answered in a context where there was no direct evidence that the appellant had seen the consignment documentation describing the imported products as 'non-tobacco herbal chewing tobacco'.  Nor was there any direct evidence as to the person or persons who provided information to Seabridge as to the nature of the goods.  There was no direct evidence that the appellant had ever contacted or engaged with Seabridge in relation to the importation of the goods.

1. However, while he denied importing the goods, the appellant's recorded interview indicates that: [95]

   (1)he knew that the importer of goods was liable to pay customs duty on the imported goods, and was responsible for declaring the goods to customs; and

   (2)he had not declared the goods or paid any duty on them. 

   The jury were entitled to act on these admissions, as well as the appellant's admission that he had paid $11,000 to Mr Hussain.

   [95] Recorded interview ts, page 11, 21, 22 - 23, 27, 39 - 40, 41

2. The evidence established that the appellant ordered and imported 500 kg of tobacco products, which he had not declared to customs and on which he had not paid any duty.  The evidence also supported the inference that the appellant knew that taxes would be payable on the importation of such a substantial quantity of tobacco products.  The jury could infer from the WhatsApp messages, the payment of money to Mr Hussain and Mr Hussain's presence at the appellant's residence when the delivery of the goods was expected that the appellant knew the goods had been imported in Mr Hussain's name.  It would readily follow from that conclusion that the appellant concealed his involvement in the importation because customs duty was being evaded on the tobacco product.  The quantum of the tax payable on the importation, for which the appellant was liable, provided him with ample motive to do so.  The jury could also infer, from the WhatsApp photographs on the appellant's phone, that he was aware that the tobacco products had been packed under non-tobacco products in a manner that disguised the presence of tobacco products when the package was opened.

3. The above evidence, taken as a whole, satisfies me that, at the time he imported the tobacco products, the appellant knew that taxes were payable on the import and intended to avoid payment of those taxes. That is, the evidence as a whole satisfies me that the appellant imported the tobacco products intending to defraud the revenue, within the meaning of s 233BABAD(1)(c) of the Customs Act.  That is so even if there was a reasonable doubt as to whether the appellant:

   (1)knew the precise means by which duty would be evaded, by describing the goods in consignment documentation as 'non-tobacco herbal chewing tobacco'; or

   (2) was himself involved in the misdescription of the goods in the consignment documentation. 

   It was open to the jury to also be so satisfied.

4. For these reasons, in my view it was open to the jury, upon the whole of the evidence, to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of which he was convicted.  While I would grant leave to appeal on ground 3, the ground is not established.

Orders

1. The appeal notice was filed out of time, so the appellant requires an extension of time in which to commence the appeal.  The appellant also applies to adduce a witness statement by Mr Hussain and a transcript of a recorded interview with Mr Hussain as additional evidence in the appeal.  The appellant's applications for leave to appeal, for an extension of time in which to appeal and to adduce additional evidence in the appeal were referred to the hearing of the appeal.

2. The appellant commenced the appeal about 3.5 weeks after the time for doing so expired.  The delay is short and explained by the fact that the appellant is a refugee with limited understanding of the Australian legal system, for whom English is a second language, and who needed to engage with the Legal Aid Commission to commence his appeal.  I would grant the extension of time in which to appeal.

3. I see no proper basis for admitting the statement and transcript of the recorded interview of Mr Hussain as additional evidence in the appeal.  That material was not before the trial court, and an excursion beyond the trial record is not required or warranted in determining the appellant's grounds of appeal.  I would refuse the application to adduce additional evidence in the appeal.

4. Therefore, I would make the following orders:

   (1)The time for the appellant to institute this appeal is extended to 21 October 2019.

   (2)The appellant's application in an appeal filed on 8 January 2020, to admit additional evidence in the appeal, is dismissed.

   (3)Leave to appeal on ground 1 is refused.

   (4)Leave to appeal on grounds 2 and 3 is granted.

   (5)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JM
Research Associate to the Honourable Justice Buss

15 MAY 2020