Masri v R

The Crown case

1. The Crown case, as opened to the jury, was circumstantial. A large proportion of the prosecution evidence was not in dispute and was put before the jury in the form of two Statements of Agreed Facts (Exhibits B and H), pursuant to s 191 of the Evidence Act 1995 (NSW).
2. Put briefly, the Crown alleged that there was in existence a known method of fraudulent importation of goods, called "the piggyback" method. This involved the use of the name of a legitimate importer with a satisfactory record, who would, therefore, be less likely to attract a high degree of scrutiny from Customs authorities, who had in operation a risk "profiling" system, that enabled a lower risk profile to be assigned to regular and compliant importers. A fraudulent importation would then be forwarded to that importer, but intercepted before it could be delivered. By that means, the fraudulent importation would escape the scrutiny of Customs officers.
3. The Crown case was that the appellant was a party to a joint criminal enterprise with another man (Omar Elomar) to import into Australia cigarettes in containers that falsely represented that the contents were float glass and aluminium frames, and thereby avoid the imposition of customs duties. In order to do so, they utilised "the piggyback" method. The Crown alleged that, in November and December 2011, Elomar, with the assistance of the appellant, arranged for the shipment of a container loaded with cigarettes to be consigned to Australia, addressed to a company called "Alternative Glass". The container docked in Sydney on 11 January 2012 on board a ship called "the Cape Mondego".
4. A Customs agent was engaged to secure the clearance of the container through Customs. The agent was provided with false documents for the purpose. However, having become suspicious, the agent withdrew. Various steps were then taken to ensure that the clearance was achieved.
5. On 13 January 2012 Customs agents examined, and then seized, the cargo.
6. In opening the case to the jury, the Crown prosecutor identified the appellant's participation as including:

• facilitating and dealing with the necessary "paperwork";
• providing funds for import freight charges;
• obtaining an electronic delivery order (referred to as an "EDO"), necessary to secure the release of the container. The Crown also alleged that, between the dates alleged in the indictment to have been the time at which the offence was committed, the appellant and Elomar were in frequent communication by mobile telephone. In their conversations, the two men used a form of code, designed to disguise their conversations in the event that they were subject to electronic surveillance. The communications were, in fact, under electronic surveillance and were recorded. The recordings, and transcripts thereof, made up a considerable part of the Crown case.

1. Prior to the commencement of the trial, a ruling was sought on the admissibility of a body of evidence upon which the Crown proposed to rely. This was evidence that, the Crown asserted, had the capacity to show that the appellant and Elomar had, on four separate occasions, previously been involved in importations of cigarettes in a similar way to that alleged against the appellant in the charge the subject of the indictment. Objection was taken to the admission of the evidence, and a voir dire was conducted. The trial judge ruled, on 4 July 2014, that the evidence relating to three, but not the fourth, of the previous importations would be admitted. That ruling gives rise to the second ground of appeal. It will be necessary to deal with the evidence, and the argument, in more detail below.

The defence case

1. The appellant did not give or call evidence. As opened by senior counsel on his behalf, the issue was a very narrow one indeed. It was not in dispute that the cigarettes had been illegally imported, and that they had been illegally imported by Elomar. Nor was it in dispute that the appellant had, in the past, been (at least) involved in Elomar's importations.
2. In outlining the defence case to the jury (at the conclusion of the Crown opening), senior counsel said: "One thing you are going to have to watch out for and it will become an issue in this case is this, there are a series of telephone calls prior to December the 30th. You will hear them probably tomorrow and that is Omar Elomar and Masri and others. And the conversations, quite frankly, is pretty shifty. They are clearly talking, you might think about the tobacco smuggling business … Now that will paint a very bad picture for Mr Masri, as being a bloke who you might think is well and truly involved in the black market of cigarettes and maybe even containers. But he's not charged with that. That evidence is there so you can, as Mr Crown says, see what the system is, so you can interpret the words, Dell, D, paperwork. It is going to be a hard job. And his Honour will give you a warning because the case is not about whether Mr Masri is the sort of person who might be involved in black market of cigarettes. The case is not about whether Mr Masri might have done something before, though you will form a bad opinion about him probably, if he has. The case is not about whether he knows people who are smugglers. What the case is about is this case. The one you're dealing with. Has the Crown proved beyond reasonable doubt that he was facilitating the removal of a container in an agreement with Mr Elomar and others or Mr Elomar as part of a joint criminal enterprise to get the container off the docks."

The appeal against conviction

1. The grounds of the conviction appeal are pleaded as: "1 His Honour erred in permitting the Crown to amend the indictment, in circumstances where the amended indictment was duplicitous; 2 His Honour erred in admitting evidence of other 'piggyback importations' as background/context evidence, on the grounds that such evidence was irrelevant, or inadmissible, or alternatively, should have been excluded pursuant to s 137 Evidence Act 1995; 3 His Honour erred in directing the jury that substantial participation in the importation of containers, prior to the offence charged, could support an inference of continued substantial participation." The proposed ground of appeal against sentence is as follows: "1 His Honour erred in sentencing the appellant, on the basis that the appellant's role was not insignificant, in circumstances where his Honour was unable to make a finding as to the appellant's role."

Ground 1: duplicity

1. The first ground of appeal against conviction may be stated simply. It depends upon the construction of the word "anything" as it appears in s 135.1(3). Section 135.1(3) is in the following terms: "(3) A person is guilty of an offence if: (a) the person does anything with the intention of dishonestly causing a loss to another person; and (b) the other person is a Commonwealth entity. Penalty: Imprisonment for 5 years."
2. The entire point of the ground is that the charge as framed is duplicitous because the Crown relied upon a variety of acts on the part of the appellant to sustain it. Implicit in the argument was that each individual act ought to have given rise to a separate charge.
3. The appellant sought to gain support for the argument from two decisions of this Court. The first is Giam v R [1999] NSWCCA 53; 104 A Crim R 416. Mr Giam was charged under a section of the Crimes Act 1900 (NSW) (s 178BB, now repealed) that created an offence of making "any statement" known to the maker to be false or misleading "in a material particular" with intent to gain financial advantage.
4. What was alleged against Mr Giam was that he made two statements to a bank, the first that he was the secretary of a company, and the second that he was authorised (by the company) to enter into certain arrangements on its behalf. The Crown (State) asserted that both statements were false, and the jury was directed that all members of the jury had to be unanimous as to which (if only one) was knowingly false.
5. Spigelman CJ (with whom Abadee and Adams JJ agreed) accepted a submission that the indictment was bad for duplicity. He nominated three reasons. The first was, conventionally, that a criminal statute is to be construed strictly. The second was that the word "any", as it appears before "statement" pointed to "a degree of singularity". The third (somewhat puzzlingly) was that: "… the reference to the definite article in these crucial references to 'material particularity' is such as to identify the fact that a single statement is being referred to on the proper construction" of the section. It is likely, in my opinion, that the reference to "the definite article" was intended to be a second reference to the singularity imported into the phrase "false or misleading in a material particular".
6. Importantly, his Honour went on to note a category of cases in which a single statement can be constituted by more than one utterance or representation.
7. In my opinion the decision in Giam does not in any way advance the appellant's argument. There is no equivalent "singularity" in what is made the subject of s 135.1(3) of the Code. "Anything" does not, in any way, equate to "a statement" or "a material particular". The legislation under consideration in Giam was legislation which referred to "any statement" that is false in "a material particular". The Crown there relied upon two separate statements, either of which could have founded the charge. But Spigelman CJ recognised that a single statement could be constituted by multiple utterances or representations. It will be necessary, in any individual case, to examine what it is that the Crown asserts. Each case will depend upon the terminology of the statute in question.
8. The second authority to which reference was made was Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; 139 LGERA 449. BGP Properties and its controller (a Mr Gordon) were prosecuted in the Land and Environment Court under s 118D(1) of the National Parks and Wildlife Act 1974 (NSW), which relevantly provided: (1) A person must not, by an act or an omission, do anything that causes damage to any habitat … of a threatened species …
9. The Summons against Mr Gordon, after amendment, was in the following terms: "That between [date and place] he did, by an act, namely by slashing, clearing and/or crushing vegetation and/or constructing access tracks on Lot 1 DP 42613 and/or Lot 4 DP 248860, caused damage …"
10. In pre-trial correspondence, the prosecutor confirmed that it would be the prosecution case that: "(a) slashing vegetation; and/or (b) clearing vegetation; and/or (c) crushing vegetation; and/or (d) constructing access tracks; in and of itself caused 'damage' to the habitat of the relevant threatened species …"
11. Giles JA (with whom Buddin J agreed) held that the amendment created "self-inflicted and self-confessed duplicity". That was because: "20 The [prosecutor] chose to use 'and/or', deliberately so according to the correspondence prior to the hearing of the application … It is evident that he proposes so to conduct his case as to maintain that an offence will be made out if he proves clearing vegetation without more, that an offence will be made out if he proves constructing access tracks without more, and so on, as the act or omission causing damage to the habitat; further, that an offence will be made out if he proves damage by activity on either of the lots … he alleges damage caused in a number of different ways, and the different ways are alternatives."
12. This was specifically the result of the manner in which the prosecutor proposed to conduct the case, by the series of alternatives set out. In the preceding paragraph Giles JA said: "19 If [the prosecutor's] case was that the damage to the habitat had been caused by the cumulation of a number of acts or omissions, a charge could have been framed in terms which enabled him to rely on the course of conduct … On the other hand, if [the prosecutor's] case was that the damage to the habitat was caused by one act or omission, or alternatively another act or omission, the separate acts or omissions would mean separate offences.
13. Far from assisting the appellant's case, the decision in BGP confirms that reliance on a course of conduct is sufficient to avoid duplicity. That is precisely what the Crown in the present case relies upon.
14. The word "anything", although it appears in s 135.1(3), does not appear in the amended indictment (nor did it appear in the original indictment). What the Crown alleged, as is perfectly clear from the language of the amended indictment, is that the conduct attributed to the appellant as constituting the offence against s 135.1(3) of the Code was "facilitating the release" of the container. That is something that can be done by a multiplicity of individual acts, amounting to a course of conduct. It would be very surprising indeed if, on the proper construction of the legislation, an accused person could be charged with a separate offence in relation to every telephone call, every interaction with a co-offender, every dealing with documentation, every communication with a Customs agent, and every payment. Yet that would be the effect of acceptance of the appellant's proposition. And it could hardly be in the interests of the appellant for the Court to adopt that position. He would be exposed to a separate penalty of imprisonment for 5 years in respect of each individual act.
15. The proposition itself depends upon the construction of the word "anything", and relies heavily upon the decision of Spigelman CJ in Giam. What must be recognised, and is of linguistic importance, is that "anything" is quite a different concept to "any statement". In the latter, "any" has the effect of separating individual statements, each of which (to amount to a crime) must be false or misleading "in a material particular"; in the former, the composite notion is to encompass a variety of acts. In this case, the "anything" the appellant was alleged to have done was the facilitation of the importation. That was done by a series of acts, or as Giles JA said, a course of conduct.
16. In my opinion there is no substance in Ground 1. I would reject it.

Ground 2: the admission of evidence of other "piggyback" importations

1. The trial judge admitted evidence of three other importations in which the names of legitimate importers (of other types of goods) had been appropriated. All of these were in December 2011. He rejected the evidence of a fourth, and earlier, importation, on the basis that the appellant was not shown to have been involved in it, although Elomar was; that was an importation in the name of an entity called "Eccosit". The importations in respect of which he admitted evidence were in the names of entities called "Pakplast", "Alpha Tiles", and "Livingstone".
2. The Crown prosecutor identified the basis of the tender of the evidence as "background, context, and relationship". He expressly disavowed reliance on the evidence as tendency evidence under s 97 of the Evidence Act. Objection to the admission of the evidence was taken on behalf of the appellant on the grounds: (i) that, notwithstanding the disavowal by the Crown prosecutor, the evidence was, properly characterised, tendency evidence, and the requirements of s 97 had not been met; if not admitted to prove tendency, the evidence was otherwise irrelevant; (ii) the evidence ought to be rejected under s 137 of the Evidence Act, its probative value being outweighed by the danger of unfair prejudice.
3. Before turning to the specific matters raised in support of this ground, I make the following observations. It is worth reiterating that Ground 2 challenges the admissibility of the evidence. By s 6 of the Criminal Appeal Act 1912 (NSW), a conviction may be set aside on the ground of "the wrong decision of any question of law". Such a ground is to be determined on the material that was before the trial judge at the time of the decision to admit the evidence. I make that rather obvious observation because of the following circumstances.
4. The voir dire into the admissibility of this evidence was conducted on 1 and 2 July 2014, before the jury was empanelled. The transcript of that proceeding reveals that a good deal of evidence was tendered. In the opening stages, the transcript shows, the trial judge was presented with what was described as a "Statement of Facts of the Australian Federal Police", and a "Schedule". These were not marked as exhibits. The Crown then tendered what was described as a "Folder Volume 1" (Ex A), which, it appears, contained a number of witness statements. The Crown also tendered a "Statement of Facts" (Ex B); a "Schedule of Containers" (Ex C); and a "Volume of telephone intercepts together with the CD of the actual recording" (Ex D).
5. On behalf of the appellant, a bundle of correspondence between legal representatives (Ex 1, p 649) and a "Bundle seized on execution of search warrant" (Ex 2, p 649). The transcript (656-661) reveals that the compact disc recordings of 16 telephone conversations were played to the court.
6. Almost none of this material was provided to this Court.
7. When, in the course of preparation of these reasons, it became apparent that the Statement of Facts and Schedule referred to did not accord with the two statements of facts in the evidence as admitted under s 191 of the Evidence Act (Exhibits B and H in the trial), efforts were made by the Court to obtain from the parties the correct document. Eventually, a Statement of Facts, which appears to be that to which reference was made, was provided. No document conforming with the "Schedule" was provided; nor were any of the other documents marked as voir dire exhibits, nor the compact discs. There was contained in the appeal materials the two "Statements of Agreed Facts under s 191 of the Evidence Act 1995", Exhibits B and H in the trial.
8. Since the parties have evinced no interest in ensuring that this Court has available to it the material upon which the trial judge made his decision, and appear to have no concerns about the absence of that evidence, on which the admissibility ruling was made, it is necessary that this Court proceed to rule on the ground as best it can.
9. The Statement of Facts that was eventually provided (not the Statement of Agreed Facts for the purposes of s 191) referred to evidence relating to the Pakplast, Alpha Tiles, and Livingstone Importations. It contained extracts of intercepted conversations involving the appellant and Elomar, sometimes with each other, sometimes with third parties. The Crown prosecutor relied on the conversations, inter alia, to show a "familiarity of language" between the appellant and Elomar, the relationship between them, and the nature of the transactions in which they were engaged. The evidence could be seen to show a pattern of conduct that put in context the evidence specifically referable to the Alternative Glass importation. There is one conversation that bears particular attention. On 29 December 2011, the appellant, when speaking to an unknown male, was recorded as saying: "I got screwed too. Two man, fucking two" and "I got screwed two in like one week." The statement goes on to note that the unknown male suggested that the appellant change his occupation and become a partner in furniture removals, to which the appellant replied by saying that he had a house within the next two or three days for removal and for the unknown male to be on standby.
10. The value of this conversation to the Crown is that, on 19 December 2011, the Pakplast importation had been examined by Customs officers and seized; and on 23 December 2011, the Alpha Tiles importation was similarly examined and seized. The reference to being twice "screwed" could be construed by the jury as a reference to those failed importations. The reference to "a house within the next 2-3 days for removal" could be construed by the jury as a reference to the anticipated arrival of the Cape Mondego bearing the Alternative Glass importation.
11. In a further conversation which was recorded between the appellant and Elomar on 12 January 2012, Elomar was recorded as asking the appellant whether the appellant wanted him to bring "paperwork" to which the appellant responded "Yeah". On the Crown case, the reference to "paperwork" was a reference to documentation associated with the importation in the name of Alternative Glass. On the following day, a further conversation was recorded between Elomar and the appellant, in which the appellant was recorded as saying "… get me the D tonight". That, on the Crown case, was reference to the electronic delivery order, or EDO (referred to at [11] above). There was also evidence of a conversation between them on 15 January 2012 where the passage of a vessel was discussed which, on the Crown case, was a reference to the path of the Cape Mondego. Within that conversation was a further reference to "paperwork".

The judgment on the voir dire

1. In respect of the evidence concerning the Pakplast, Alpha Tiles and Livingstone importations, the trial judge said: "If the evidence was restricted to the telephone intercepts and conduct in the period specified in the indictment, namely 30 December 2011 to 17 January 2012, and the evidence admissible was only that relating to the Alternative Glass importation, the jury would have before them evidence of four phone calls between Elomar and the accused, namely on 12, 13, 15 and 16 January. It would be in that context that they would then be asked to assess the Crown case in the context of the issue raised by the accused and they would do so on the basis that there was one apparent dealing between the accused and Elomar, and they would have to determine, in the light of the conversations particularly on 15th and 16th, whether there was the agreement of the kind alleged by the Crown. In my view to restrict the evidence in that way would be highly artificial …"
2. He proceeded to identify four independent bases justifying the admission of the evidence. These were: (i) the evidence demonstrated "substantial participation" in the importation of containers in December 2011, that is, at a point close in time to the importation the subject of the indictment, and could therefore support an inference of continued participation; (ii) the evidence threw light upon the nature and character of the association between Elomar and the appellant, who could be seen to be close associates, speaking in code; the evidence was therefore relevant to showing the extent of the appellant's involvement; (iii) the evidence was available to the Crown to negative an anticipated case on the part of the appellant that his involvement was limited to contributing $1000 "for something to do with the contents of the container"; (iv) the evidence threw light upon the language - code - used by Elomar and the appellant during the intercepted telephone conversations.
3. He rejected the objection based on s 97 of the Evidence Act. In reaching this conclusion, his Honour relied upon the decision of the High Court in Harriman v The Queen [1989] HCA 50; 167 CLR 590.
4. His Honour then considered the objection based on s 137 of the Evidence Act. Essentially for the same reasons, he concluded that the probative value of the evidence was "very high" as showing substantial participation, shedding light on the character of the association between Elomar and the appellant and capable of "creating a very different context in which to analyse the events in the period of the indictment".
5. He considered that any prejudice the evidence could cause to the appellant could be remedied by appropriate directions. He found, for the purposes of s 137, that the probative value of the evidence outweighed any danger of unfair prejudice.

The argument on appeal

1. The principal argument advanced in relation to Ground 2 was that the evidence is, properly characterised, tendency evidence within the meaning of s 97 of the Evidence Act.
2. Throughout the voir dire, the Crown prosecutor was at pains to insist that the evidence was not tendered for a tendency purpose. It was stated, as set out above, to be tendered for the purpose of showing the context in which the appellant and Elomar were operating, the relationship between the two, and the extent of the appellant's participation in the importation.
3. "Tendency evidence" is evidence tendered for that purpose: see the Dictionary to the Evidence Act. However, the assertion by the tendering party that evidence is not tendered for that purpose cannot be conclusive, and it is necessary for the court to examine the real purpose of the tender of the evidence. The nature of tendency evidence was explored by this Court in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 at [353]-[372]. Tendency evidence is evidence to provide a foundation for an inference that, because the person in question had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party, on an occasion the subject of the proceedings.
4. That was not the purpose of the evidence the subject of this ground of appeal. It was, in the true sense, evidence tendered to establish, and capable of establishing, the context in which the events the subject of the trial took place.
5. It was also submitted that Harriman was not authority for the admission of the evidence. It was pointed out (correctly) that Harriman was decided under an evidence law regime that predated and did not involve the Evidence Act.
6. It is true that authorities decided under a different regime, or in NSW before the enactment of the Evidence Act, must be approached in the light of any changes made by the Evidence Act. However, once it is accepted that the evidence was not tendered under s 97, common law principles continue to be relevant. In Harriman, the High Court unanimously concluded, in relation to a trial of a charge of being knowingly concerned in the importation of heroin into Australia, evidence that the accused and another person (apparently a co-offender, but the chief Crown witness) had a previous involvement in the sale of heroin was admissible as being highly probative of the criminal character of the association between the accused and the witness at the time of the importation the subject of the trial. The circumstances in Harriman can be directly related to the circumstances of the present case. The evidence was admissible on the principles stated by the High Court in that case.
7. A further argument advanced in respect of this ground of appeal was directed to the third and fourth bases on which the trial judge determined to admit the evidence. It was submitted that it was not necessary, or even helpful, to understand the code used by the appellant and Elomar. It was submitted that the Crown had alternative means of proving the appellant's involvement.
8. It was submitted that the evidence in the Crown case did not consist merely of telephone intercept evidence, and further, that the Crown was able to explain the code used without resort to the evidence the subject of this ground.
9. The simple response to that proposition is that it has never been the case that the Crown is shut out from adducing evidence because it has other evidence available to prove the same point. A further point sought to be made was that the codes used were not always consistent, and that there were other means by which the terms used in the conversations could be explained. Again, these are not answers to the admission of the evidence. To the extent that there were inconsistencies in the codes used, that was relevant to the weight to be attributed to the evidence. Moreover, the assertions of inconsistencies in the codes, and the assertions of other available evidence, were not the subject of any evidentiary references by which this Court could make an assessment of the validity of the challenge.
10. Although detailed written submissions were provided in relation to this ground, the oral argument was muted. Indeed, an express concession was made, that if the "cracking of a code" argument failed, then the entire ground failed. That was, in my opinion, an appropriate concession. Since, in my view, the "cracking of the code" argument fails, then the concession has the necessary consequence that the ground fails. In any event, the principal basis on which the admission of the evidence was opposed was that the evidence was tendency evidence, and, in my view, that argument clearly fails. The four bases given by the trial judge for the admission of the evidence have not been shown to be erroneous.
11. Similarly, the contention that the evidence ought to have been admitted or to have been excluded under s 137 of the Evidence Act must fail. The trial judge engaged in an entirely appropriate balancing of the probative value of the evidence, which he held to be "very high", and any unfair prejudicial effect. He considered that appropriate directions could ameliorate any unfairness.
12. In this context, it is of interest that, except in the limited way raised under Ground 3, no complaint is made of the directions he ultimately gave to the jury.
13. I would reject Ground 2 of the appeal.

Ground 3: direction concerning substantial participation

1. The direction about which complaint was made is as follows: "But it is important to understand the limited basis upon which you can use that evidence. The Crown says the evidence in relation to those other containers is relevant in the following ways. First of all it shows in the period prior to 30 December substantial participation by Mr Masri in the importation of containers at a time very close in time to the importation of the Alternative Glass container and the Crown says to you that that evidence of substantial participation can, in the circumstances of this case, support an inference of continued substantial participation. That is the first way."
2. Although, on appeal, it was acknowledged that the direction "mirrors" the express reasoning of Brennan J (as he then was) in Harriman, it was nevertheless submitted that the direction was erroneous. It was submitted that the direction invited tendency evidence reasoning.
3. The acknowledgment that the direction was drawn directly from the judgment of Brennan J in Harriman was correct and is fatal to the ground. The direction did not invite tendency reasoning; it invited reasoning along the lines expressly authorised in Harriman. There was no error in this direction. I would reject this ground of appeal.

Application for leave to appeal against sentence

1. The proposed ground of appeal against sentence was narrow. It concerned a finding that the appellant was motivated by financial greed, and that his role was "not insignificant". This was contrasted with an earlier observation by the trial judge that he could not be satisfied as to the precise role played by the appellant. It was not, therefore, it was submitted, open to the trial judge to assess the appellant's role as "not insignificant".
2. I would reject this contention. The evidence showed various activities undertaken by the appellant, and conversations with Elomar, capable of being seen as "not insignificant".
3. In any event, the sentence imposed is not consistent with a finding of any major degree of involvement by the appellant.
4. I would refuse leave to appeal against sentence.
5. The orders I propose are: 1. Appeal against conviction dismissed; 2. Leave to appeal against sentence refused.
6. R A HULME J: I agree with Simpson J.
7. BELLEW J: I agree with Simpson J.

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