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[2009] NSWSC 1223
procedural. The evidence identified in the plaintiff's Amended Notice under s 98(1) was admitted. The Court declined to exclude it under s 135 of the Evidence Act.
The Court decided an evidence question, not whether the defendants committed the alleged Customs offences. Although civil evidentiary procedure applied to the admissibility question, the plaintiff still had to prove any charges beyond reasonable doubt. The judge held that emails about an earlier container could help assess whether the defendants knew about or intended the contents of a later container. The emails were admitted because they had significant probative value, and the concern that a person mentioned in them could not be cross-examined did not substantially outweigh that value.
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2,385 words · generated 28/09/2026
The judgment is an evidentiary ruling made during Customs Act proceedings against brothers Ronnie Charles Karam and Dory Karam. The Chief Executive Officer of the Australian Customs Service sought recovery of penalties for alleged offences under the Customs Act 1901 (Cth), including smuggling, importing prohibited goods, evading duty and making a false statement. The defendants denied the offences. The plaintiff also sought convictions, so the proceedings involved a criminal standard of proof despite being conducted under a statutory procedure for Customs prosecutions ([1], [7]–[8]).
1 cited instrument linked from this judgment.
The immediate application concerned four emails about an earlier container importation in May 2007. The plaintiff sought to use them as coincidence evidence under s 98 of the Evidence Act 1995 (NSW). The defendants objected. The ruling followed a voir dire conducted during the substantive hearing, and decided admissibility rather than guilt or liability ([2], [9]).
The later container arrived in Sydney from Vietnam in August 2007. Its bill of lading named Drovers Footwear Pty Ltd as consignee. The evidence was capable of showing that both defendants were involved in the company's day-to-day conduct and took steps to obtain the container's release ([11]). The container's paperwork described shoes. A physical examination found 108 boxes of shoes at the front, with 490 unmarked boxes of leaf tobacco and 15 marked boxes containing 150,000 cigarette sticks behind them. The tobacco weighed 12,250 kilograms ([12]–[14]).
The judge identified the defendants' knowledge of the later container's contents as the critical issue. For offences with fault elements, the prosecution had to establish the requisite knowledge or intention. The importing-prohibited-goods offence was described as one of strict liability, although the judgment noted that a mistake-of-fact defence was available and appeared likely to be raised ([15]–[16]).
The four emails related to a May 2007 container. They referred to a “cigaretta cont”, charges for trucking and demurrage, and payment for shoes to put into the container. One email asked the defendants to pay those charges; Ronnie Karam replied that the shipment had nothing to do with him and asked not to be emailed about the situation. Dory Karam received the reply as a copied recipient. The emails were recovered from a laptop in Adnan Cheikho's possession and, in part, from a computer seized at premises alleged to be Dory Karam's business premises ([17]–[23]).
The plaintiff argued that the emails supported the conclusion that the earlier container contained shoes and illegally imported cigarettes, and that both defendants knew of its contents. The judge was cautious about what the emails established. She considered that, at minimum, they could support an inference that the defendants had requested FDI, a freight forwarder, to arrange a Vietnam-to-Australia container involving shoes and cigarettes. She noted that this was not the only possible inference ([24]–[28]).
A preliminary procedural issue was whether criminal or civil Evidence Act rules applied. The parties had argued on the assumption that the rules for criminal proceedings governed. McCallum J said that premise was incorrect in light of the High Court's decision in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd ([3]).
Section 247 of the Customs Act provides that Customs prosecutions may proceed under applicable rules for Crown suits in revenue matters, the court's usual civil practice and procedure, or the court's directions ([4]). As there were no relevant rules for Crown suits in revenue matters in the NSW Supreme Court, the usual civil practice and procedure applied ([5]). Accordingly, the admissibility question was determined by the Evidence Act provisions applicable in a civil case. The judge found it unnecessary to determine arguments about ss 101 and 137 ([6]).
That procedural conclusion did not alter the standard of proof on the charges. Since the plaintiff sought convictions, the criminal standard of proof beyond reasonable doubt remained applicable ([7]–[8]). The distinction is important: the ruling separated the procedure for deciding admissibility from the burden for deciding whether the alleged offences were proved.
Section 98(1)(b) required the Court to think the evidence would have “significant probative value”, either by itself or in the context of other evidence. The judge described the inquiry as the degree of impact the evidence could rationally have on the probability of a fact in issue. She also referred to formulations in AW v R that evidence be meaningful in the context of the issues or important in establishing facts in issue ([30]).
The emails were relevant because knowledge or intention about the August 2007 container was central. The August consignment involved a sea container from Vietnam to Sydney, shoes, cigarettes and tobacco. The earlier emails suggested a similar pattern: a Vietnam-related container to Sydney, shoes, a reference to cigarettes, and communication by a freight forwarder with the defendants about charges and the container's arrival ([29]–[32]). The earlier material could therefore rationally affect the assessment of whether the defendants were unaware of the later container's contents.
The judge did not find, for the purpose of this ruling, that the emails proved the earlier container actually contained illegally imported cigarettes. Nor did she decide that the defendants had arranged an unlawful importation in May. The decision was that the emails were capable of supporting a relevant inference and met the statutory threshold. Whether the suggested inference could ultimately be established to the required standard was left for another day ([27], [29], [32]).
The defendants also sought exclusion under s 135. They relied on the fact that Ms Lien, whose emails were part of the evidence, was unavailable for cross-examination about the source of her apparent belief that the defendants were responsible for the fees. The judge accepted that this kind of prejudice could be considered under s 135, drawing on the authorities cited at [33]. But she concluded that the probative value was not substantially outweighed by the inability to cross-examine Ms Lien ([34]).
The judge further considered her role as sole fact-finder. In her view, the risk that a jury might misuse the evidence unfairly did not arise in the same way. Any risk could be addressed by directing herself on the evidence's weight and proper use ([35]). The result was admission of the evidence and refusal to exclude it under s 135.
The judgment did not purport to create a new rule of evidence. It applied the High Court's existing construction of s 247 of the Customs Act in Labrador Liquor. As McCallum J understood that authority, admissibility in these Customs proceedings was governed by the civil evidentiary procedure applicable in the NSW Supreme Court, while the criminal standard of proof continued to apply to the charges ([3]–[8]).
The “before” position in the argument on the voir dire was an assumed one: that the Evidence Act provisions for criminal proceedings applied. The judge corrected that premise by reference to Labrador Liquor. She did not decide that every Customs prosecution must invariably use civil evidentiary rules regardless of its circumstances. Her formulation was expressly limited to “at least in the circumstances of the present case” ([3]), and she noted that the result followed from the absence of relevant court rules and the application of the usual civil procedure ([5]).
The “after” position for the case was therefore specific. The coincidence evidence had to satisfy s 98's significant-probative-value threshold, and it remained subject to the discretion in s 135. The ruling does not say that evidence with probative value is automatically admitted, or that unavailability for cross-examination is irrelevant. Instead, the judge weighed the identified prejudice against the evidence's value in the context of the issues ([30]–[35]).
The judgment also underscores that procedural classification and proof standard are distinct questions. Civil procedure governed admissibility, but the plaintiff still had to prove offences beyond reasonable doubt because convictions were sought ([7]–[8]). The decision does not itself alter the elements of the Customs offences, the availability of the mistake-of-fact defence, or the ultimate burden in the substantive proceedings.
At [3], the judge said that s 247 meant admissibility was governed by provisions of the Evidence Act applied in civil cases, “at least in the circumstances of the present case”. In plain English, the proceedings' Customs prosecution label did not itself determine which Evidence Act procedure applied. The statutory procedure and the High Court's interpretation controlled that question.
At [5], the judge explained that there were no rules for Crown suits in revenue matters in the Court, so the usual civil practice and procedure applied. In plain English, the route through s 247 was practical and specific: because the special rules did not exist, the ordinary civil procedure was used.
At [7]–[8], the judge stated that the standard of proof nevertheless “remains the criminal standard”. In plain English, using civil evidentiary procedure did not make it easier for the plaintiff to prove the alleged offences. The plaintiff still had to prove the charges beyond reasonable doubt.
At [27], the judge said the emails could support an inference that the defendants had requested FDI to arrange an importation from Vietnam to Australia of a container carrying shoes and cigarettes, while acknowledging that it was not the only available inference. This is a qualification, not a finding that the earlier importation was proved.
At [30], the judge described the s 98 inquiry as the impact the evidence could rationally have on the probability of a fact in issue. In plain English, coincidence evidence is relevant to this threshold if it can meaningfully affect the assessment of a disputed fact, here the defendants' knowledge or intention.
At [32], the judge found that the defendants' knowledge or intention concerning the earlier apparent or proposed importation had significant probative value in the context of the later importation. That is the central application of s 98. At [34]–[35], she explained why the evidence was not excluded: its value was not substantially outweighed by the identified prejudice, and she could assess its proper weight as the fact-finder.
The ruling is most directly relevant to Customs Act proceedings in which the statutory procedure under s 247 raises a question about which Evidence Act rules govern admissibility. Its reasoning is tied to the circumstances identified by McCallum J: a NSW Supreme Court Customs prosecution, no applicable rules for Crown suits in revenue matters, and reliance on the usual civil practice and procedure ([3]–[5]). The judgment should not be treated as resolving every possible procedural setting under s 247.
It is also relevant where the prosecution seeks to use evidence of a prior similar event to prove a disputed state of mind in a later event. Here, the similarities were the Vietnam-to-Sydney sea cargo route, containers associated with shoes and cigarettes or tobacco, and freight-forwarder communications with the defendants about charges or arrival ([28]–[32]). The judge's reasoning depends on the evidence's relationship to a fact in issue, rather than on similarity alone.
The decision illustrates that evidence may cross the admissibility threshold even if it does not conclusively establish the earlier event. The judge considered the emails capable of supporting a relevant inference while reserving whether that inference could be established to the required standard ([27], [29]). The ruling therefore concerns potential probative value, not a final finding of historical fact.
Finally, the s 135 discussion is relevant where a party identifies prejudice because a person whose communications bear on the evidence cannot be cross-examined. The judgment treats that concern as capable of being considered, but assesses it against probative value and the context in which the evidence will be evaluated ([33]–[35]). The fact that the judge, rather than a jury, would determine the facts was material to her assessment of possible misuse.
The supplied judgment does not identify any later decisions treating Karam. It therefore provides no basis for stating whether later courts followed, distinguished, limited or questioned this ruling. The case list within the judgment consists of authorities cited by McCallum J, not later treatment of Karam.
The authorities the judge relied on have distinct roles in the reasoning. Labrador Liquor supplied the governing interpretation of s 247 and the separation between civil procedure for admissibility and the criminal standard of proof ([3], [5], [7]–[8]). AW v R was cited for ways of expressing the significance inquiry under s 98 ([30]). Dann, Sing and Galvin were cited concerning prejudice associated with inability to cross-examine, while Ainsworth v Burden supported considering such matters under the s 135 discretion ([33]). Parker was cited in relation to the criminal standard of proof in Customs proceedings ([8]).
Those citations explain the reasoning in this judgment. They do not establish subsequent treatment of Karam. Any account of later judicial reception would require sources beyond the judgment supplied here.
The ruling leaves the substantive case unresolved. It does not decide whether the defendants knew the August container contained cigarettes or tobacco, whether they had the fault elements for the offences, whether a mistake-of-fact defence applied to the strict-liability offence, or whether any charge was proved beyond reasonable doubt ([15]–[16], [31]–[32]).
It also leaves open the factual status of the May container. The judge doubted whether the emails alone established that the earlier container contained shoes and illegally imported cigarettes. She considered them capable of supporting an inference of an arranged importation involving shoes and cigarettes, but expressly left the sufficiency of any further inference for another day ([17], [27], [29]).
The ruling does not set out a comprehensive approach to every s 98 application or every form of prejudice under s 135. Its treatment concerns these emails, this evidentiary context, and a judge sitting as the fact-finder. The reasons do not resolve how the balance would apply to materially different evidence or where a jury would assess the evidence.
Nor does the judgment provide later authorities that clarify the reach of its reasoning. A later-treatment analysis cannot responsibly be supplied from the text alone. The decision's own qualifications, particularly its reference to the circumstances of the case at [3] and its reservation at [29], should remain part of any account of its scope.
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CITATION : Chief Executive Officer of the Australian Customs Service v Karam [2009] NSWSC 1223
DECISION : That the evidence set out in the plaintiff's Amended Notice pursuant to s 98(1) be admitted.
Criminal Code (Cth) LEGISLATION CITED : Customs Act 1901 (Cth) Evidence Act 1995
Ainsworth v Burden [2005] NSWCA 174 AW v R [2009] NSWCCA 1 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 (2003) 216 CLR 161 CASES CITED : Galvin v The Queen [2006] NSWCCA 66 (2006) 161 A Crim R 449 Parker v Comptroller-General of Customs [2007] NSWCA 348 R v Dann [2000] NSWCCA 185 R v Sing (2002) 54 NSWLR 31
Chief Executive Officer of the Australian Customs Service (Plaintiff) PARTIES : Ronnie Charles Karam (1st Defendant) Dory Karam (2nd Defendant)
Mr L P Robberds QC (Plaintiff) COUNSEL : Mr M Gollan (1st Defendant) Mr G Beauchamp (2nd Defendant)
SOLICITORS : Australian Government Solicitor (Plaintiff) Galloways Solicitors (1st & 2nd Defendants)
20234/08 CHIEF EXECUTIVE OFFICER OF THE AUSTRALIAN CUSTOMS SERVICE v RONNIE CHARLES KARAM & ANOR
JUDGMENT 1 HER HONOUR: These are proceedings under Part XIV of the Customs Act 1901 (Cth) for the recovery of penalties for offences under that Act. The proceedings fall within the definition of "Customs prosecutions" (s 244 of the Act) and are brought by the Chief Executive Officer of the Australian Customs Service, as allowed by s 245 of the Act. The defendants are two brothers, Mr Ronnie Karam and Mr Dory Karam. They deny commission of the offences charged against them. 2 The hearing of the proceedings commenced before me on 2 November 2009. On the third day of the hearing, the plaintiff sought to adduce evidence of the kind referred to in s 98 of the Evidence Act 1995 (coincidence evidence). The evidence was objected to by each of the defendants. This is my ruling on that objection, following a voir dire heard intermittently during the hearing of the substantive proceedings. 3 The argument on the voir dire proceeded on the premise that, in determining whether the evidence is admissible, the provisions of the New South Wales Evidence Act 1995 applicable to "criminal proceedings" (within the meaning of that Act) are to be applied. However, that premise is wrong. The decision of the High Court in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161 holds that, although the standard of proof in Customs prosecutions is the criminal standard of proof beyond reasonable doubt, the effect of s 247 of the Customs Act is that questions of admissibility of evidence in such proceedings are governed, at least in the circumstances of the present case, by the provisions of the Evidence Act that would be applied in a civil case in this State: at [40] per Gummow J, Kirby J agreeing at [92]; at [146]-[148] per Hayne J, Gleeson CJ and McHugh and Kirby JJ agreeing. 4 Section 247 provides: Every Customs prosecution in a court referred to in subsection 245(1) may be commenced prosecuted and proceeded with in accordance with any rules of practice (if any) established by the Court for Crown suits in revenue matters or in accordance with the usual practice and procedure of the Court in civil cases or in accordance with the directions of the Court or a Judge. 5 There being no rules of practice for Crown suits in revenue matters in this Court, the usual practice and procedure of the Court in civil cases applies. As noted by Hayne J in Labrador Liquor at [147], it is not to the point to consider whether the proceedings ought be classified as criminal proceedings for the purposes of the Evidence Act of this State. 6 Accordingly, it is not necessary to consider the matters raised in argument pertaining to the application of sections 101 and 137 of the Evidence Act. 7 For the reasons explained at length in Labrador Liquor, however, the standard of proof remains the criminal standard. The statement of claim in the present case charges that each defendant has committed the offences of smuggling goods under s 233(1)(a) of the Customs Act, importing prohibited goods under s 233(1)(b) of the Act, evading payment of duty under s 234(1)(a) of the Act and making a false statement under s 234(1)(d)(i) of the Act. The relief claimed includes that each defendant be convicted of each of those offences and that each pay a penalty pursuant to the relevant penalty provisions for those offences. 8 Since the proceedings seek the recording of convictions against the defendants, the criminal burden of proof beyond reasonable doubt applies, despite the terms of s 247 of the Customs Act: Labrador Liquor at [135]-[138]; see also at [2] per Gleeson CJ; at [32] per Gummow J; at [90] per Kirby J; cited in Parker v Comptroller-General of Customs [2007] NSWCA 348 at [29].
The Coincidence rule 9 Accordingly, the task on the present application is to determine whether the evidence satisfies the requirements of s 98 of the Evidence Act. There is no dispute that the plaintiff has satisfied the requirement to give reasonable notice of his intention to adduce the evidence, as required by s 98(1)(a) of the Act. 10 The critical question is whether the evidence satisfies the requirement in s 98(1)(b), which is that "the Court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." In order to assess whether that requirement is met in the present case, it is necessary to consider the evidentiary context in which the evidence is sought to be adduced.
Circumstances in which the evidence is sought to be adduced 11 The prosecution case may be summarised by reference to an agreed statement of facts tendered with the consent of the defendants (exhibit B). As indicated by that document, the defendants accept that, in August 2007, a sea cargo container carrying cigarettes and "unmanufactured (leaf) tobacco" arrived in Sydney from Vietnam under a bill of lading which named "Drovers Footwear Pty Ltd" as consignee. The evidence in the substantive proceedings is capable of establishing that both Mr Ronnie Karam and Mr Dory Karam are involved in the day to day conduct of the business of that company and there does not appear, from the way in which the case has been conducted on their behalf, to be any real dispute about that proposition. The evidence is capable, further, of establishing that, following the arrival of the container in Sydney, both Mr Ronnie Karam and Mr Dory Karam took steps to obtain its release. 12 The critical fact in issue in the proceedings is whether the defendants were aware that the imported container carried cigarettes and tobacco. The container was owned by Malaysia International Shipping Company Berhad (MISC) and was held in Vietnam by that company until its release on 12 July 2007 to the shipper, Jupiter Pacific Forwarding under a "Master Bill of Lading" issued by MISC. In that bill of lading, the contents of the container were described as "880 CTNS 8,800 pairs of different kinds of shoes". 13 The container was returned to MISC on 13 July 2007 at the port of loading, where it was loaded onto a vessel destined for Singapore. On that date, a "House Bill of Lading" was issued by Jupiter Pacific Co Ltd naming Drovers Footwear as the consignee and describing the goods as "800 CTNS 1x40" HC 8,800 pairs of different kinds of shoes". 14 After the vessel arrived in Singapore, the container was transhipped to a different vessel which arrived in Port Botany, Sydney on 2 August 2007. The container was transported from the port to a customs examination facility where it was x-rayed and then referred for physical examination. The physical examination revealed 108 brown cardboard boxes at the front of the container, all of which contained shoes. Stacked behind those boxes were 490 unmarked brown cardboard boxes which contained the leaf tobacco, together with 15 boxes marked "Golden Eagle Virginia Filter Deluxe". Those boxes were found to contain 150,000 cigarette sticks. The weight of the tobacco was 12,250 kilograms. 15 Except as to the offence of importing prohibited goods under s 233(1)(b) of the Customs Act, each of the offences charged has a fault element: s 3.1 of the Criminal Code (Cth). The offence of importing prohibited goods is an offence of strict liability, and accordingly has no fault element. However, the defence of mistake of fact under s 9.2 of the Criminal Code is available in respect of that offence: s 6.1(1)(b). The matters outlined in argument on behalf of the defendants in the present case suggest that it is likely that the defendants will seek to rely upon that defence. 16 In any event, at least so far as the offences having a fault element are concerned, a critical fact in issue in the prosecution case is whether the defendants knew that the container had carried the cigarettes and tobacco into Australia. Whilst there is of course no onus of proof on the defendants to prove any such matter in the proceedings, it has been indicated in statements from the bar table and during the cross-examination of witnesses that the defendants will contend that they have reason to believe that the person responsible for the importation of those items may be a former associate of theirs, Mr Adnan Cheikho.
Coincidence evidence sought to be adduced 17 The evidence sought to be adduced as coincidence evidence consists of four emails relating to an earlier importation of a sea container in May 2007. Mr Robberds, who appears for the plaintiff, contends that the emails establish an earlier importation of a sea container by the defendants which contained shoes and cigarettes. However, it is doubtful whether, taken alone, the emails establish that fact. 18 The emails were tendered on the voir dire in a number of forms. All four emails were recovered from a laptop computer which was in the possession of Mr Adnan Cheikho when he arrived at Sydney International Airport on 10 October 2007. Three of the same emails were also extracted from a computer seized during the execution of a search warrant at an office alleged to be the business premises of the second defendant, Mr Dory Karam. 19 Taking the emails in the order in which they were apparently sent, the first is from Ms Lien at FDI to "Adnan" at FDI dated 27 May 2007 under the subject "Ciragget cont". Other evidence in the proceedings suggests that FDI is a company that carries on the business of forwarding freight. The email is in the following terms: "Dear Adnan,
I sent a message to Dory to check about this cont at SYD but he has yet reply to my message ..
I would like you to double check with them whether they receive it or not …thank you
-trucking holding fee (05 days): VND 1,000,000 = USD93.75 -Cont demurrage: USD490.00 -Purchase of shoe from DM to put into this cont: VND4,320,000 = USD270.00
Rgds/Lien" 20 The second email, also from Ms Lien, is dated 31 May 2007. It is addressed to both of the defendants and copied to "Adnan" at FDI. It carries the subject "Re: Ciragget cont", suggesting that it may have been created by forwarding the first email. The second email is in the following terms: "Dear Ronnie & Dory,
About the charges of the cigaretta cont..….please pay it back to us. -trucking holding fee (05 days): VND 1,000,000 = USD93.75 -Cont demurrage: USD490.00 -Purchase of shoe from DM to put into this cont: VND4,320,000 = USD270.00
21 The third email in the string is a reply to the second email, apparently sent by Mr Ronnie Karam (the first defendant) and copied to Mr Dory Karam (the second defendant). It is in the following terms: "this shipment has nothing to do with me you better check your information corretly (sic) and please do not email me about this situation phone is better, I am just helping people out" 22 The fourth email is from Ms Lien to "Adnan" forwarding the string consisting of the first, second and third emails. There is no separate text in that email. 23 The separate versions of the emails sought to be tendered from the sources identified above are capable of establishing that:
(a) Mr Adnan Cheikho of FDI in Vietnam received an email from Ms Lien, also of FDI in Vietnam, with an inquiry as to who would pay FDI for certain charges. A few days later, Mr Cheikho also received a copy of Ms Lien's email to both defendants seeking payment of those charges, which were identified to relate to a "cigaretta cont";
(b) Mr Ronnie Karam received Ms Lien's request for payment and responded to it;
(c) Mr Dory Karam received the reply sent by Mr Ronnie Karam, which included the first two emails as part of the string of emails;
(d) Mr Adnan Cheikho received, from Ms Lien, a copy of Mr Ronnie Karam's reply. 24 Mr Robberds submitted that the emails support clear inferences that a container imported into Australia in May 2007 contained cigarettes and shoes; that Ronnie Karam knew that fact and knew that the cigarettes had been imported illegally and that Ronnie Karam did not want any further written communication about the illegal importation but was prepared to discuss it over the telephone with Ms Lien. 25 As to Mr Dory Karam, Mr Robberds submitted that the emails show that the container imported in May 2007 contained shoes and illegally imported cigarettes. Mr Robberds further submitted that the four emails alone show that "both defendants by 31 May 2007 had a connection with that container and that they knew that it illegally imported cigarettes into Australia". 26 In the voir dire hearing, the plaintiff also adduced evidence establishing that the only containers imported into Australia in May 2007 under the names of Drovers, Ronnie Karam, Dory Karam or Adnan Cheikho were two containers consigned to Drovers Footwear which were imported by sea from Vietnam and as to which the relevant customs declaration described the contents as "Bart casual kids shoes" and "leather shoes". That additional evidence was said to sustain the inferences contended for. 27 As already noted, I doubt whether the emails establish that the container imported in May 2007 in fact contained shoes and illegally imported cigarettes. In my view, however, they are capable of supporting an inference that the defendants had made a request to FDI as freight forwarder to arrange for the importation from Vietnam to Australia of a container carrying shoes and cigarettes. That may not be the only inference available to be drawn from the emails, but it is certainly one. 28 The emails indicate that, so far as Ms Lien of FDI in Vietnam was concerned, FDI was entitled to recover from the defendants charges it had paid (or perhaps incurred) in respect of an importation into Sydney of cargo apparently described, or thought by Ms Lien to be described, as a cigarette container. The charges included "Purchase of shoe from DM to put into this cont". 29 There are strong similarities between the circumstances of the demand made by FDI and the circumstances of the importation the subject of the present proceedings. Both involve the importation by sea cargo from Vietnam to Sydney of containers carrying both cigarettes and shoes. In each case, there is a suggestion that the primary cargo was cigarettes (and tobacco in the case of the second importation) and that the shoes were placed in the container as a front. Whether that suggestion may be elevated to an inference established to the necessary standard is a question for another day. In each case, the relevant freight forwarder sought payment for fees associated with the consignment from the defendants, and communicated with them as to the arrival of the container. 30 The test under s 98 of the Evidence Act looks to the degree of impact the evidence could rationally have on the probability of the existence of a fact in issue. While there is arguably no need to depart from the statutory test (whether I think the evidence has "significant probative value"), the question has otherwise been expressed as being whether the evidence is "meaningful in the context of the issues at trial", or "important in establishing the facts in issue": AW v R [2009] NSWCCA 1 at [47] per Bell JA (as her Honour briefly was), Latham and Fullerton JJ agreeing. 31 As already noted, a fact in issue in the present case, indeed the critical fact in issue, is whether the defendants had the necessary intention or knowledge as to the importation of cigarettes and tobacco in August 2007, so as to satisfy the fault elements of the offences in accordance with s 5.1 of the Criminal Code. If it is established that the August container was consigned and delivered to a company in which they were involved, and that they each personally took steps to secure its release from Customs, questions of fact as to their knowledge or intention will entail a close assessment of the probability of their being ignorant of its contents. 32 I think their knowledge or intention as to similar events concerning the apparent or proposed importation in May 2007 of a container said to contain cigarettes has significant probative value in that context. On that basis, I am satisfied that the evidence is admissible. 33 It was submitted on behalf of the defendants that I should nonetheless exercise my discretion under s 135 of the Evidence Act to exclude the evidence on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants. The prejudice identified by the defendants was the fact that Ms Lien is not available to be cross-examined as to the source of her apparent belief that the defendants were responsible for the fees demanded. It appears to be accepted that that is prejudice of the kind properly to be taken into account for the purpose of s 137 of the Act: R v Dann [2000] NSWCCA 185 at [37] per Heydon JA (Spigelman CJ and James J agreeing); R v Sing (2002) 54 NSWLR 31 at [35] per Hodgson JA (Levine and Howie JJ agreeing); Galvin v The Queen [2006] NSWCCA 66; (2006) 161 A Crim R 449 at [28] per Howie J (McClellan CJ at CL and Latham J agreeing). I can see no reason why such considerations might not properly be taken into account in the exercise of the Court's discretion under s 135: Ainsworth v Burden [2005] NSWCA 174 at [99] per Hunt AJA (Handley and McColl JJA agreeing). 34 On balance, however, I do not think that the probative value of the evidence is substantially outweighed by any prejudice to the defendants occasioned by their inability to cross-examine Ms Lien. It was stated by counsel on behalf of the defendants that attempts had been made to secure Ms Lien's attendance, but an opportunity to lead evidence on that issue was declined. I do not think there is any great prejudice in her being unavailable. 35 Further, since I am the trier of fact in these proceedings, I do not think there is prejudice of the kind that arises where there is a jury, and there is a risk that the evidence will be misused in some unfair way. Any such risk could be met by my appropriately directing myself in respect of the weight and proper use of the evidence. Accordingly, I do not propose to exercise my discretion to exclude the evidence. **********
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Chief Executive Officer of the Australian Customs Service
Karam
[2007] NSWCA 348
(2003) 216 CLR 161
(2002) 54 NSWLR 31
[2003] HCA 49
The evidence identified in the plaintiff's Amended Notice under s 98(1) was admitted. The Court declined to exclude it under s 135 of the Evidence Act.