The owner of a Wodonga gift shop said to be selling illegal tobacco is appealing his conviction on the grounds that police cannot prove he knew about $4000 cash seized, nor that excise had never been paid on the cigarettes.
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Hassan Mustafa was convicted in the Magistrates Court last year of dealing with proceeds of crime, but took the case to Wodonga County Court on Thursday.
He was not charged with selling unexcised cigarettes, but rather the possession of $4127 found when police raided Aussie Gifts and Accessories, located on High Street, on August 3, 2017.
Crown prosecutor Peter Triandos said police seized 41,000 unexcised cigarettes and 12.5 kilograms of raw tobacco, plus the cash box hidden behind a filing cabinet.
"Customers continued to enter the store attempting to purchase the illegal cigarettes while police were present," he said.
"(Mustafa) stated he was the only person responsible for ordering stock for the shop.
"He was unable to explain how the tobacco was ordered to the shop and who was responsible."
The store employee, who was also charged, told police he would leave about $4000 from cigarette sales in the box each day and Mustafa - he referred to as "Sammy" - would restock the tobacco.
Defence barrister Hayden Rattray did not deny Mustafa owned the shop, saying the basis of the appeal was a lack of evidence linking him to the specific $4127 seized.
"There might be money in the box, there might not be … There's no evidence he even knew it was there," he said.
"They've charged him with the wrong offence."
He said while the tobacco was illegal because it did not comply with plain packaging laws, police just relied on the employee's assumption the excise had not been paid.
Mr Triandos asked Judge Richard Smith to draw an inference that the tobacco was illegal and Mustafa had "custody and control of the goods".
Judge Smith said to uphold the original decision, he would have to accept Mustafa was "up to his neck" in delivery and supply of illegal cigarettes.
He adjourned the case to consider his decision.
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