Masri v R [2015] NSWCCA 243

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Masri v R [2015] NSWCCA 243 Hearing dates: 23 April 2015 Decision date: 08 September 2015 Before: Simpson J at [1]; R A Hulme J at [69]; Bellew J at [70] Decision: (1) Appeal against conviction dismissed;

(2) Leave to appeal against sentence refused. Catchwords: APPEAL - conviction - joint criminal enterprise fraudulently to import cigarettes using "piggyback" method - offence of doing "anything with the intention of dishonestly causing a loss" to a Commonwealth agency - Criminal Code (Cth), s 135.1(3) - whether indictment duplicitous where Crown relied upon variety of acts to sustain single charge - reliance on a course of conduct sufficient to avoid duplicity - Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157

WORDS AND PHRASES - "anything" - composite concept encompassing a variety of acts - word can entail single act or courses of conduct

APPEAL - conviction - admissibility of evidence of prior "piggyback" importations - whether evidence tendency evidence - whether danger of unfair prejudice outweighed probative value - any prejudice curable by directions - evidence used to establish context of offending - evidence had "very high" probative value

APPEAL - conviction - whether direction to jury concerning substantial participation invited tendency evidence reasoning - direction drawn directly from Harriman v The Queen [1989] HCA 50 - no error found - appeal against conviction dismissed

APPEAL - sentencing - whether trial judge erred in finding appellant's role "not insignificant" - finding supported by the facts - sentence imposed not consistent with finding of high degree of involvement - leave to appeal against sentence refused Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6 Criminal Code (Cth), ss 11.2A, 135.1(3) Evidence Act 1995 (NSW), ss 97, 137, 191 Cases Cited: Bentley v BGP Properties Pty Ltd [2005] NSWCCA 157; 139 LGERA 449 Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303; 316 ALR 206 Giam v R [1999] NSWCCA 53; 104 A Crim R 416 Harriman v The Queen [1989] HCA 50; 167 CLR 590 Category: Principal judgment Parties: Ahmed Masri (Appellant) Regina (Respondent) Representation: Counsel: B Walker SC/P Lange (Appellant) P McGuire (Respondent)