Case Study: Illegal Importation of Tobacco Charge- section 233BABAD Customs Atc 1991

At our Melbourne-based criminal law firm, we recently had a client who was charged with Possessing Tobacco with the intent to defraud the Commonwealth of its revenue. Our client was only charged with one count, but we believed the charge was unjustified and requested that the prosecution discontinue it.

To prove the charge against our client, the prosecution had to establish three elements: that our client conveyed or had in his possession, goods; that the goods were tobacco products; and that our client was reckless as to whether the goods were imported with the intent to defraud the revenue.

Intent to Defraud

The concept of "intent to defraud" is notoriously difficult to define comprehensively, let alone the concept of being reckless of an intent to defraud, which would be the intent of the company or the person who imported the goods. Our focus was on the element that our client was reckless as to whether the goods were imported to defraud the revenue.

Lack of Evidence

There was no evidence, direct or circumstantial, in the brief that could support the assertion that our client was reckless as to whether the goods were imported with the intent to defraud the revenue. The prosecution had to prove beyond reasonable doubt that our client was reckless as to whether the goods were imported by the importers with an intent to avoid customs duty being paid to the revenue when the revenue was entitled to that duty.

There were no direct or intermediate facts in the prosecution case that were indispensable to any inference that may or may not be relied upon by the prosecution to establish, beyond reasonable doubt, that our client knew or was reckless to the fact that the contents of those containers had been imported with the intention to defraud the revenue.

Requirement of Dishonesty

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. There was no evidence of any acts done by our client that comprised an intention or a foresight of probability that the goods were imported to Australia to defraud the Commonwealth of the duty associated with the revenue.

Although the prosecution did not need to prove dishonesty as an independent element of the element of intent to defraud, they had to prove beyond reasonable doubt that the accused relied on some dishonest means that would make him reckless to the fact that the Commonwealth would be deprived of the duty associated with the tobacco products.

Other issues

The brief of evidence was riddled with multiple other issues, including the legality of the search (as it happened in a public area, so the provisions of the Customs Act 1991 did not apply), the legality of statements made by our client (as his English was not functional, especially his comprehension of English), and whether our client knew that the goods were tobacco products.

We submitted that the remaining charge was fatally flawed and had no prospect of a successful prosecution. It was therefore our request to the CDPP to withdraw this charge at a no-cost basis.

Our submission was successful, and the prosecution discontinued the charge against our client. At our Melbourne-based criminal law firm, we are committed to defending the rights of our clients and ensuring they receive the best possible legal representation. If you need assistance with a criminal law matter in Melbourne or its surrounds, contact us to schedule a consultation by clicking here.