The appellant was convicted of importing tobacco products with the intention of defrauding the revenue, contrary to the Customs Act 1901 (Cth). The appellant was jointly tried with a co-accused (Mr Hussain) who was acquitted. The appellant argued several grounds of appeal, including that the trial judge erred by permitting Mr Hussain to give hearsay evidence which was prejudicial to the appellant’s case, and by failing to direct the jury about the limited purpose for which the evidence could be used. Ultimately the Court of Appeal refused leave to appeal on this ground but a majority allowed the appeal on another ground and accordingly ordered the conviction be set aside and a new trial take place.
Further Background & Reasons:
The relevant evidence was Mr Hussain’s response to questions in examination in chief relating to why his ABN was used for the transaction declaration. The co-accused said that ‘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’. In response to a follow-up question, he continued ‘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.’
The trial judge allowed this evidence to be given after an objection by the appellant’s trial counsel, her Honour noting that she could provide the jury with a warning that they could only use the evidence to go to the co-accused’s knowledge and intent, not for its truth. The trial judge ultimately gave no such warning.
Mitchell JA (with whom Buss P and Mazza JA agreed on this ground) found that none of the appellant’s submissions in relation to the hearsay evidence had any merit.
First, it was not inadmissible hearsay. The out of court assertions were relevant for a purpose other than their truth: ‘Mr Hussain’s evidence as to his understanding tended to negate the inference, which might otherwise be drawn from the prosecution evidence, that he knew that tobacco products were being imported and that he intended to defraud the revenue. The evidence was admissible for the purpose of establishing Mr Hussain’s understanding of the position when he provided his ABN to Seabridge. The evidence was therefore relevant as going to Mr Hussain’s state of mind, and its use for that purpose did not infringe the hearsay rule’ ().
Second, given that the trial judge could direct the jury about the permitted use of the evidence if required, ‘there was no basis for her Honour to have excluded the evidence on the ground that its probative value in the case against Mr Hussain was outweighed by its capacity to lead the jury to reason incorrectly to a conclusion as to the appellant’s guilt’ ().
Third, though the trial judge did not ultimately provide the jury with any direction about the permissible use of the evidence, it was not required because of the way in which the evidence emerged and with an appreciation of the whole conduct of the trial (). There was ‘no real risk that the jury would use Mr Hussain’s answer as evidence of what the appellant had said to Danial. No-one suggested to them that this was the effect of the evidence, and the evidence was not given in those terms’ ().
This case provides a good reminder that although the trial judge’s capacity to give directions may factor into decisions about the admission (or non-exclusion) of evidence, ultimately those directions may not be required when regard is later had to the entirety of the trial.
The judgment was delivered on 15 May 2020. You can access it here. See especially the paragraphs cited above.
TBU v The Queen  WASCA 76