Bembo v The King - [2023] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0206

WEDI NDJEKA BEMBO	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	23-24 March 2023
DATE OF JUDGMENT:	3 April 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 68
JUDGMENT APPEALED FROM:	DPP v Bembo (Unreported, County Court of Victoria, Judge Cannon, 11 October 2016 (Conviction))

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CRIMINAL LAW – Conviction – Appeal – Application for leave to bring second appeal – Applicant convicted of conspiring to import commercial quantity of border controlled drug – New evidence – New evidence of confession by third party to placing drugs in applicant’s premises – Whether evidence fresh and compelling – Evidence not compelling – Other proposed grounds of appeal not supported by fresh evidence – Application for leave to bring second appeal refused.

Criminal Procedure Act 2009, ss 326A and 326C.

Roberts v The Queen (2020) 60 VR 431 applied.

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Counsel
Applicant:	In person
For Mr J Jackson:	Mr R O’Neill
For Mr R Mabiala:	Mr G Chipkin
Respondent:	Ms K Breckweg and Ms S Holmes
Amicus Curiae:	Mr A Shwartz

Solicitors
Applicant:
For Mr J Jackson:	Victorian Bar Pro Bono Scheme
For Mr R Mabiala:	Victorian Bar Pro Bono Scheme
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions

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BEACH JA
MCLEISH JA
KENNEDY JA:

On 11 October 2016, after a 51 day trial in the County Court, the applicant was found guilty of one charge of conspiring to import a commercial quantity of a border controlled drug. On 24 March 2017, he was sentenced for that offence, and for breaching an earlier suspended sentence, to a total effective sentence of 14 years’ imprisonment, with a non-parole period of 10 years.[1]
[1]DPP v Bembo (unreported, County Court of Victoria, Judge Cannon, 24 March 2017). For a more complete description of the applicant’s criminal history and details of the sentences that have been imposed upon him, see Bembo v The Queen [2019] VSCA 308, [1]-[4], [163].
On 28 February 2018, this Court granted the applicant’s application for leave to appeal against his conviction on the first of two proposed grounds of appeal,[2] but dismissed the appeal.[3]
[2]Leave to appeal on the second of the two proposed grounds of appeal was refused.
[3]Bembo v The Queen [2018] VSCA 42 (‘First Appeal Reasons’).
The applicant now applies for leave to bring a second appeal under s 326A of the Criminal Procedure Act 2009 (‘the Act’). He identifies three proposed grounds of appeal as follows:
1.New evidence has become available since the time of the applicant’s conviction that gives rise to a significant possibility that the jury might have entertained a doubt as to the guilt of the applicant if this evidence had been led at trial.
2.A verdict may be set aside on the grounds that it is unreasonable, if it is dangerous or unsafe, and that it would be unjust to allow the verdict to stand.
3.The verdict is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bembo v The King

Details

AGLC: Bembo v The King [2023] VSCA 68
Case: [2023] VSCA 68
Decision Date: 3 April 2023

CaseChat Overview and Summary

The applicant, Bembo, sought leave to bring a second appeal against a conviction for conspiring to import a commercial quantity of a border controlled drug. The matter was heard in the High Court of Australia. The issue for determination was whether the application for leave to bring a second appeal should be granted, based on new evidence of a confession by a third party to placing drugs in the applicant's premises. The court was also required to consider whether the other proposed grounds of appeal were supported by fresh evidence.

The court found that the evidence of the third party's confession was not compelling enough to warrant a second appeal. The court noted that the confession was made several years after the original trial and was not accompanied by any corroborating evidence. The court also found that the other proposed grounds of appeal were not supported by fresh evidence and were therefore unlikely to succeed. The court held that the application for leave to bring a second appeal should be refused.

The court's reasoning was based on the principles established in Roberts v The Queen (2020) 60 VR 431. The court held that an application for leave to bring a second appeal will only be granted in exceptional circumstances, where there is new evidence that is fresh and compelling. The court found that the evidence in this case did not meet these criteria, and therefore the application for leave to bring a second appeal should be refused. The court also noted that the applicant had already had the opportunity to appeal against the conviction, and that a second appeal would be an unnecessary duplication of the judicial process.

No orders were made.

Orders