A BUSINESSMAN from The Swan convicted of evading excise duty having been found guilty of bringing almost €2 million worth of cigarettes into the State told last week’s Circuit Court in Portlaoise that he thought the 400 plus brown boxes that arrived at his warehouse contained electric scooters.
James Brophy, of The Swan, denied having any knowledge of the 4,358,600 Benson and Hedges cigarettes Customs officials discovered at his warehouse in The Swan on August 25, 2010. The cigarettes were packed in 436 brown boxes and had been transported to Brophy’s warehouse from Dublin port by truck. The UK duty had been paid on them but none of the packets carried the Irish tax stamp, which meant that the correct taxes and duties had not been paid. At the time, a packet of 20 cigarettes cost €8.55, which gave a total value on the Irish market of €1,863,301.50.
Customs and Excise officer, Ms Marie Tracey gave evidence that she had first applied herself to an investigation of the container at Dublin port in August and discovered it was listed as a shipment of electric bikes and spare parts, with the consignee listed as Mr James Brophy Jnr. On August 25, Ms Tracey and her team followed the container as it was taken by truck to Brophy’s commercial premises at The Swan. A search warrant was applied for while Ms Tracey and her team continued their surveillance of the warehouse, but at 2.40pm Ms Tracey took an operational decision to enter the premises ahead of the warrant and acting under the proper authority.
Customs discovered Brophy and three other men off-loading the container, with most of the boxes stacked on the ground and a strong smell of tobacco in the warehouse. Ms Tracey, along with Customs officers Mr Shane Conway and Mr Greg Foley, testified that when Ms Tracey asked Brophy what was in the boxes, Brophy replied “fags”. Ms Tracey also testified that she saw one of the boxes had been partially opened when Customs first arrived.
However, Brophy denied this in court and claimed that when the officer asked him what was in the boxes he told her they contained motorbikes and motorbike parts. Defence, Mr Roderick O’Hanlon SC told the jury that his client claimed the book of evidence that had been served on him did not accurately reflect what he had said at the time.
Taking the witness box, Brophy said that his business is selling motorbikes, but as bikes are “luxury money” business has not been good in recent years. He said that he had ordered six or seven containers from China since around 2002 and on this occasion he was expecting a shipment of electric scooters, or “glorified skateboards”, in 283 boxes.
“They’re packed two in a box and bubble-wrapped, they’re secured tight,” he said.
He claimed that there had been no smell of tobacco from the boxes and the only smell he got from the container was one of disinfectant, or “J’s Fluid”, which he attributed to the fact that containers from China have to be fumigated. Brophy also claimed that he only became aware that there were cigarettes in the boxes when Ms Tracey opened a box and showed him.
“I was shocked, I couldn’t believe it,” he said. “I signed the interview (with Ms Tracey) but it was a muddle. I’ve never been in trouble in my life.”
Brophy told the court that he had been in China in June 2010 and visited a factory where he placed his order for the electric scooters.
“The language barrier is unbelievable. They have a student at the trade fairs translating, that’s who you do business with,” said Brophy.
He said that he sent on the payment afterwards by electronic transfer, but he had not spoken to anyone at the factory after that as “it’s literally impossible to talk on the phone” and so he preferred texting instead.
State prosecutor, Mr Will Fennelly put it to Brophy that following his arrest he must have contacted the company with some “pretty strong correspondence”.
“I’ve contacted the factory and they’ve put me onto their legal team, but it’s not sorted yet,” said Brophy.
Mr Fennelly asked whether he had brought any of this correspondence to court. Brophy replied he had not. Mr Fennelly then asked whether he had thought to go to China, to which Brophy replied that he could not afford to.
“If you’re down €16,500 for goods bought and you didn’t even have the goods, and you’re landed in a pot of stew, in those exceptional circumstances, you’d make an exceptional effort,” said Mr Fennelly.
“Oh, I will,” said Brophy.
“But there’s no hurry,” retorted Mr Fennelly, “sure, it’s two years on.”
Mr Fennelly went on to say that he was puzzled by the invoice Brophy had provided for the goods he claimed to have ordered. He noted that there were no brands listed, nor engine sizes, and he went on to describe the invoice as very vague.
“This invoice is a very, very strange document, it’s a very vague, generalised description,” he said.
“It’s a typical Chinese job, it’s a muddle to anyone who doesn’t understand,” replied Brophy.
“It’s not a muddle, it’s a makey-up document, a blank canvas,” said Mr Fennelly. “This is not a real invoice at all.”
Mr Fennelly asked were there no order numbers on any of the items Brophy claimed to have ordered, which included such spare parts as throttle grips and clutch cables.
“Not with the Chinese,” Brophy said.
Mr Fennelly remarked that all of the boxes that had arrived were the same size and he asked Brophy was it not strange for different items to all be “horsed into” the one box. Brophy said it was not strange. Mr Fennelly next asked had it not struck Brophy when he was unloading the container that 436 boxes had arrived instead of the expected 283.
“We hadn’t completed unloading,” said Brophy.
“Do mudguards weigh the same as a bike?” asked Mr Fennelly.
“The boxes would be mixed.”
“Then (the invoice) is even more meaningless. Everything packs away into uniform shapes?” asked the State prosecutor. “Like cigarettes would be?”
“I don’t know anything about cigarettes,” said Brophy.
The three men present in the warehouse with Brophy when Customs officers arrived also gave evidence for the defence. Mr Michael Larter, Carlow, Mr Mark Fox, Crettyard, and Mr Dwayne Buggy, Crettyard, all testified that they helped Brophy unload the container and they believed the box contained motorbike parts. The three men told the court that they expected to be paid in bike parts for their work.
In his closing statement to the jury, Mr Fennelly said it was beyond probability that this volume of cigarettes had just ambled their way to Brophy’s warehouse.
“If you’re only ordering milk from Tesco, you walk out with a receipt. His invoice is little more than a puff of smoke, it’s vagueness on stilts. 1.8million cigarettes just idled and wandered down to The Swan? Was it an accident? Was it a freak? Or was it something James Brophy was involved in?” asked Mr Fennelly.
The jury took just under three hours to return a unanimous verdict of guilty against Brophy.
The matter has now gone back to May 2 for sentencing.