Bembo v The King
[2023] VSCA 68
•3 April 2023
| 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 unreasonable or cannot be supported having regard to the whole of the evidence.[4]
[4]Proposed grounds 2 and 3 were added in a document headed ‘Re-amended Written Case for the Applicant’ filed on 16 December 2022.
In support of his application for leave to bring a second appeal, the applicant relied upon new evidence which he submitted was fresh and compelling within the meaning of s 326C of the Act. He also relied upon a number of other matters concerning the conduct of his trial, some of which were submitted to support the proposition that his conviction was unreasonable or could not be supported having regard to the whole of the evidence.[5] Before dealing with these matters, it is necessary to give a brief description of the trial, the issues at trial and the issues in the applicant’s first application for leave to appeal.
[5]Cf s 276(1)(a) of the Act.
The trial
Prosecution case at trial
The prosecution case was that the applicant had, with two co-accused, used overseas contacts to arrange the importation of high-purity methamphetamine from Guangzhou, China. Four kilograms of methamphetamine were to be imported, using two couriers who had been recruited by a co-accused upon the instructions of the applicant. Each courier was to carry two kilograms of methamphetamine in a suitcase. The couriers had been told that they would be transporting important documents, such as false passports, to Australia. The two couriers left Australia but did not return from China. There was no evidence as to what had become of them.
The prosecution case was substantially based upon intercepted communications between the applicant, his co-accused, and other parties. Some portions of the intercepted communications revealed that the applicant was involved in trafficking methamphetamine within Australia.
The prosecution case was that the intercepted communications revealed the motive for the planned importation. The applicant was selling South African methamphetamine, referred to as ‘Mandela’, which was of inferior quality because of its low purity. The applicant wished to obtain methamphetamine produced in China, referred to as ‘Bruce Lee’, which was of superior quality because of its higher purity.
The prosecution also relied upon evidence of money transfers to China, expert evidence in relation to methamphetamine production in China and methamphetamine trafficking in Australia, evidence of the travel arrangements made for the couriers, and evidence that a quantity of methamphetamine was found by police in the garage of the applicant’s house.
Defence case at trial
In response to the prosecution opening, counsel for the applicant told the jury that there was no issue that the applicant was involved in various telephone discussions and no issue that in those discussions he was making arrangements with various people. The applicant’s counsel further told the jury that there was no issue that some of the discussions were covert; that at times a code was used; and that the discussions related to something small, of high value, that could be of high quality or low quality, and the possession of which carried an element of danger or the potential for prosecution.
The applicant gave evidence in the trial. His evidence was that the intercepted communications, and the arrangements for the couriers, were in relation to an attempt to import black market diamonds rather than methamphetamine. To support this contention, the applicant adduced evidence that his mother had been arrested in December 2013 upon entry into Australia after a flight from Guangzhou, China with rough, uncut diamonds.
The issue at trial
The issue at trial was described as being one of ‘subject matter’. That is, whether the prosecution had proved beyond reasonable doubt that the subject matter of the covert arrangements, in which the applicant had participated, was a border controlled drug.
Evidence at trial relevant to the first application for leave to appeal
As we have already said, the prosecution case was substantially based upon intercepted communications between the applicant, his co-accused and other parties. Additionally, evidence was given of a small amount of methamphetamine being found in the applicant’s garage eight days after he was initially arrested and taken into custody. Prior to the empanelment of the jury, the applicant sought to have excluded, under s 137 of the Evidence Act2008, the evidence of the finding of methamphetamine in his garage. He also sought the exclusion of part of a telephone intercept of a conversation between the applicant and a co-accused on 20 May 2014. The applications to exclude these pieces of evidence were refused. In order to understand the context in which the present application for leave to appeal arises, it is necessary to briefly describe the evidence which the applicant sought to have excluded at trial.
Methamphetamine in the garage
The applicant was arrested on 26 June 2014 at his home. Police and customs officers conducted a search of the house and garage. They utilised an X-ray machine. Two dogs, a ‘currency and drug’ dog and a ‘firearms and explosives’ dog, were deployed. A number of boxes in the garage were X-rayed and boxes were also searched by hand. The garage was messy and cluttered. The currency and drug dog was deployed inside the house but it was led into and out of the property through the garage. No methamphetamine was found in the applicant’s house or garage on 26 June 2014.
The applicant was taken into custody on 26 June 2014. On 4 July 2014, some eight days later, and while the applicant was still in custody, a second search was conducted of the applicant’s premises. The purpose of the second search was to seize mobile phone handsets that had been photographed but not seized in the first search. A quantity of methamphetamine was found in the garage in the second search. The methamphetamine had a gross weight of 14.3 grams.
The conversation of 20 May 2014
One of the intercepted communications sought to be led by the prosecution was a telephone conversation of 20 May 2014 (‘the 20 May 2014 conversation’) between the applicant and one of his co-accused. The portion of the telephone intercept transcript relevant to this application reads as follows:
[Applicant]: mmmmm Guess what Papi?
[Co-accused]: Yeah what
[Applicant]: No, (inaudible) somebody order something last night
[Co-accused]: Yeah
[Applicant]: Some Sierra Leone man
[Co-accused]: Yeah
[Applicant]: He order something brown
[Co-accused]: Yeah
[Applicant]: Figure the he give me Papi, two rubbish
[Co-accused]: Yeah
[Applicant]: I cannot lie to you, two rubbish. He still arranged 2.
[Co-accused]: Yeah
[Applicant]: I say 2 is 2 k g s, the first time is plenty, trust me on that one arrange two.
[Co-accused]: yeah, yeah I had dream man, I had to call you let you know I had a dream, yeah my head, I had a dream where you standing in the rain, (inaudible) I was there (inaudible) … with you.
A little later in the same conversation the co-accused referred to both ‘Bruce Lee’ and ‘Mandela rubbish’. We will return to the 20 May 2014 conversation, and complaints the applicant makes about the transcript of it, when we deal with proposed grounds 2 and 3 of the present application.
The first appeal
In his first application for leave to appeal, the applicant advanced two proposed grounds of appeal as follows:
1.The trial judge erred in admitting evidence that methamphetamine was found at the residence of the applicant, thereby causing a substantial miscarriage of justice.
2.The trial judge erred in admitting evidence of other drug sales by the applicant, thereby causing a substantial miscarriage of justice.
Proposed ground 1 (upon which leave was ultimately given, but the appeal was dismissed) related to the finding of the 14.3 grams of methamphetamine in the applicant’s garage eight days after the initial search had failed to locate any drugs. Proposed ground 2 (upon which leave to appeal was refused) related to the passage of the 20 May 2014 conversation extracted above.
First appeal: proposed ground 1
In arguing proposed ground 1 in his first application for leave to appeal, the applicant submitted that the probative value of the evidence of the methamphetamine found on 4 July 2014 was extremely limited because the inference that the methamphetamine had been in the garage on 26 June 2014 was a ‘tenuous’ one.[6] The applicant submitted that the evidence of the very comprehensive nature of the first search conducted on 26 June 2014, and the much less comprehensive nature of the search conducted on 4 July 2014, substantially detracted from any inference that the methamphetamine found on 4 July 2014 had been in the garage on 26 June 2014. It was submitted that the more likely inference was that the methamphetamine had been placed in the applicant’s garage by some other person after the applicant was arrested on 26 June 2014. Specifically, in support of proposed ground 1 of the applicant’s first appeal, the applicant submitted:
[T]he circumstances which meant the probative value ‘at its highest’ was extremely low was the evidence given as to the two searches, particularly the evidence of the very comprehensive nature of the search conducted on 26 June 2014 and the much less comprehensive nature of the search conducted on 4 July 2014; the absence of any identifiable connection between the methamphetamine found in the garage and the South African methamphetamine which, on the prosecution case, was of such poor quality that an alternative source in China was being sought; the small quantity of the methamphetamine found in the garage which was said to be ‘consistent with domestic retail drug trafficking’ and not the conspiracy alleged; and the absence of any forensic evidence connecting the applicant, by way of fingerprints or DNA, to the methamphetamine found in the garage. …
The evidence was said to be unfairly prejudicial because, notwithstanding that the deficiencies in the evidence could all be explored before the jury, there was a risk that the jury would engage in ‘circular’ reasoning in that they would rely on the evidence in the intercepted phone calls, and the other evidence relied upon by the prosecution, to conclude that the methylamphetamine found on 4 July 2014 had been there on 26 June 2014.[7]
[6]First Appeal Reasons [33].
[7]Ibid [34]-[35].
In granting leave on proposed ground 1, but dismissing the appeal, this Court said:
If it was concluded that the methamphetamine in the garage belonged to the applicant, this would render more likely the proposition that the subject matter of the covert arrangements was a border controlled drug. It renders it more likely both because it reveals the applicant’s interest in possession of the drug, as in Davidson, and because the particular drug was of a purity which was lower than would normally be expected in Australia and was lower than the expected purity of crystal methamphetamine imported from China. This latter consideration was significant given the terms of the intercepted communications.
The judge was right to characterise this evidence as ‘one piece’ of a ‘jigsaw’ constituting the prosecution’s circumstantial case.
The judge was conscious of the potential shortcomings in the evidence. But, taken at its highest, it was open to the jury to find that the methamphetamine was there on 26 June 2014 but was missed in the search, and it was then open to conclude that the methamphetamine was the applicant’s. That was probative in the manner explained.[8]
[8]Ibid [51]-[53].
The Court then concluded that the danger of any unfair prejudice did not outweigh the evidence’s probative value, saying:
Taken at its highest, in combination with the other evidence, the jury could conclude the methamphetamine was the applicant’s. In the context of a circumstantial case of this kind that process of reasoning would not constitute misuse of the evidence or prejudice in the relevant sense.[9]
First appeal: proposed ground 2
[9]Ibid [54].
In arguing proposed ground 2 in his first application for leave to appeal, the applicant contended that the parts of the 20 May 2014 conversation which he sought to have excluded were ‘clearly only referable to domestic drug trafficking’.[10] This Court, however, held that the relevant passage was relevant and admissible because it contained references to the problem with the ‘rubbish’; and also because it was relevant to the nature of the relationship between the applicant and his co-accused, and their shared understanding of the terms used by them, and the characteristics of the Bruce Lee product and the Mandela product.[11]
[10]Ibid [56].
[11]Ibid [59].
Second and subsequent appeals
The right of a person to appeal on a second or subsequent occasion is provided for in s 326A of the Act. Section 326C then deals with what an applicant must establish in order to obtain leave to appeal under s 326A; and s 326D identifies how a second or subsequent appeal is to be determined. Sections 326A, 326C and 326D relevantly provide:
326A Right of second or subsequent appeal against conviction
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person’s right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
(2)…
326C Determination of application for leave to appeal under section 326A
(1)The Court of Appeal may grant leave to appeal under section 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2)…
(3)In this section, evidence relating to an offence of which a person is convicted is—
(a) fresh if—
(i) it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
(4)Evidence that would be admissible on a second or subsequent appeal is not precluded from being fresh or compelling only because it would not have been admissible in the earlier trial of the offence that resulted in the conviction.
326D Determination of second or subsequent appeal against conviction
(1)On an appeal under section 326A, the Court of Appeal must allow the appeal against conviction if it is satisfied that there has been a substantial miscarriage of justice.
(2)In any other case, the Court of Appeal must dismiss an appeal under section 326A.
In Roberts v The Queen,[12] after referring to the High Court’s decision in Van Beelen v The Queen,[13] this Court identified 11 relevant principles in relation to ss 326C and 326D. These 11 principles were subsequently summarised by this Court in Meade v The Queen,[14] as follows:
[12](2020) 60 VR 431 (‘Roberts’).
[13](2017) 262 CLR 565 (‘Van Beelen’).
[14][2021] VSCA 74.
1.[Section 326C] manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which satisfies an appellate court that there has been a substantial miscarriage of justice.
2.The right to seek leave to appeal is additional to, and to be contrasted with, the mechanism of executive referral in the case of a petition for mercy. The leave requirement is intended to prevent successive meritless applications.
3.The statutory preconditions for the grant of leave under the new legislation may be compared and contrasted with the statutory provisions governing the grant of leave in the ordinary case.
4.The notion of fresh evidence as opposed to new evidence reflects an underlying concept commonly applied by appellate courts.
5.The fresh evidence must have the qualities prescribed by s 326C(3). It will not be sufficient for the purpose of leave to establish that it is reasonably arguable that the evidence has these qualities.
6.The onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met.
7.The words ‘reliable’, ‘substantial’ and ‘highly probative’ are to be given their ordinary meanings. In that context, the Court in Roberts quoted a passage from Van Beelen. Amongst other things, in that passage the High Court observed that:
The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding.
8.The Victorian legislation has a component not present in the South Australian statute [considered by the High Court in Van Beelen], being that evidence is ‘compelling’ if it would have eliminated or substantially weakened the prosecution case.
9.Section 326C has the further condition that it is in the interests of justice that the fresh evidence be considered on appeal.
10.The notion of a substantial miscarriage of justice is not limited to consideration of evidentiary questions but may embrace questions of irregularity in the trial.
11.The concept of the ‘interests of justice’ in the context of the grant of leave is not to be conflated with the ultimate issue of whether there has been a substantial miscarriage of justice.[15]
[15]Ibid [7].
As was said in Zhong v The King,[16] the provision for a second or subsequent appeal is not simply an opportunity for a person who has been unsuccessful in seeking to appeal against their conviction to have a second attempt. A second or subsequent appeal is an exceptional proceeding, because leave to bring such an appeal is tightly restricted by the Act. The Court may only grant leave if it is satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.[17] It is therefore not determinative that the proposed appeal may have reasonable prospects of success, for example. As the relevant provisions of the Act show, the gateway to a grant of leave to bring a second or subsequent appeal is much narrower.[18]
[16][2023] VSCA 35 (‘Zhong’).
[17]Section 326C(1) of the Act.
[18]Zhong [2023] VSC 35, [13].
Applicant’s material in support
In support of his application for leave to bring a second appeal, the applicant relied upon:
•a document headed ‘Re-amended Written Case for the Applicant’;
•a document headed ‘Conspiracy Appeal Final Argument & Special submission inter-connection cases’, dated 6 March 2023;
•a document headed ‘Extra Argument for Conspiracy Appeal, dated 11 March 2023;
•affidavits affirmed by the applicant’s former solicitor, Gamini Jayasinghe, on 24 September 2020, 17 August 2021 and 26 October 2021;
•an affidavit sworn by the applicant on 9 February 2023; and
•three documents purporting to be transcripts of telephone intercepts.
In his first affidavit, Mr Jayasinghe exhibited a statement of Richard Mabiala dated 26 October 2018, and an affidavit sworn by Mr Mabiala on 2 December 2019. In his statement, Mr Mabiala said that he was a pastor who lived next door to the applicant at the time the applicant’s premises were originally searched by police. At that time, Mr Mabiala had living with him one Joe Jackson. Mr Mabiala’s home was searched at about the same time as the applicant’s house was searched. Mr Mabiala’s statement then continued as follows:
10.After the police left, I spoke to Joe. I said to Joe words to the effect of “this is the first time the police have ever turned up to my place in my life” and “if you have any things here that are illegal or know of anything happening here that is illegal, I want you to take it and move out”. Joe was apologetic but did not give any details about why the police were searching my property.
11.Joe then went to help Wedi’s wife to clean up his garage as a result of the police search. When he came back I said to him “why do you spend so much time there” and “where have you been?”. He said “I was helping the neighbours to fix the garage, as the police messed it up”.
12.A few days later, Joe went back to Sydney. He stayed for about two weeks. When he came back he said to me “I have applied for government housing in Melbourne, and they are giving it to me”. Joe then planned to move, but was living with me in the meantime.
13.About 5 days after the police first searched the property, the police returned to search Wedi’s houses [sic] again. Wedi’s wife said to me that the police found what they believed to be drugs and multiple small mobile phones, and the police took them.
14.When Joe returned from Sydney, I told Joe about what Wedi’s wife had told me. Joe was in disbelief and said “why did they come back?” I said “police can come back anytime they want”.
15.A few days months [sic] later, I had to return to Congo as my mother was ill. During this time, Joe was living at my house with my son Christopher.
16.While I was away, my son called me and told me that the police wanted to search my house again. He told me that the police contacted him and wanted to come and open the house. Chris was in school and so the police broke the door. I asked Chris “where is Joe?” and he said that Joe left 2 days prior. I was concerned as I left Joe to look after Chris, as Chris was 17 years old.
17.I returned from Congo about one or two weeks later. When I returned I learned that Joe had been arrested in Sydney. I called Joe’s wife, who explained that police had come to her house in Sydney and she was also surprised at the search and that Joe was arrested.
18.About one week after I came back Joe contacted me from prison by phone. Joe asked me to come and visit so he could talk.
19.After I was approved to visit Joe in prison, I visited him with the intention to provide counselling and spiritual advice. I asked Joe “why did you not tell your wife” and he said “I did not want her to know anything”.
20.I would visit Joe a couple of times a month. Joe asked me to pray for him as he was in a bad situation. He was asking me things like “if someone was hiding something, what would God do?” I said to him “The Bible says if you confess your sins in truth, God is righteous and faithful to forgive you. You need to open up.”
21.On another visit, Joe said to me “I want you to pray for me, I want to tell you something but I want you to keep it to yourself’. I agreed. He said “remember what happened at Wedi’s house? I kept some small stuff there. The police found it. It was for personal use. I kept it there because you told me not to keep it at your house.” He told me that he originally denied that it was his, but he now seeks forgiveness. I said to him that I would pray for him, but I would eventually contact Wedi’s wife and seek forgiveness.
While much of Mr Mabiala’s subsequent affidavit was in the same terms as his statement, there was a significant difference in relation to Mr Jackson’s alleged admission. In the statement (extracted above), the admission was that Mr Jackson ‘kept’ some small stuff ‘there’ at the applicant’s house and ‘[t]he police found it. It was for personal use’, whereas, in his affidavit, Mr Mabiala deposed:
I put some small stuff in Wedi’s garage after the police searched the house for the first time. The police found it when they searched the house a second time. It was for personal use. I can’t believe the police came back a second time.
Procedural history
The application for leave to bring a second appeal was filed in this Court on 25 September 2020. At that time, the applicant was represented by solicitors and counsel. The application has then had a somewhat tortured history, involving multiple listings. Eventually, the applicant terminated his solicitors’ retainer. Counsel continued to act for the applicant pro bono, but that retainer was terminated shortly prior to the hearing. Multiple attempts to fix the application for hearing in 2022 were unsuccessful, largely (if not solely) because the applicant was not then prepared to run his application and/or was in the process of amending or supplementing the documentation he relied upon in support of the application.
The application was fixed for hearing in June 2022. That hearing was, however, adjourned at the request of the applicant. At that time, the applicant was having difficulty securing the attendance of Mr Jackson to give evidence, and was also concerned about his ability to secure the attendance of Mr Mabiala to give evidence.
In October 2022, on the application of the applicant, this Court made orders pursuant to s 318 of the Act that Mr Mabiala and Mr Jackson attend and be examined before the Court on 23 March 2023, the date upon which the application was then fixed for hearing.
The hearing
On 23 March 2023, the application came on for hearing. The applicant’s previous pro bono counsel (Mr Shwartz) announced an appearance ‘as a friend of the Court at this stage’. It was apparent that the applicant proposed to appear for himself, but that Mr Shwartz would conduct the examination of Mr Mabiala and Mr Jackson.
While Mr Mabiala and Mr Jackson were each separately represented by counsel who appeared pro bono, as it was the applicant who sought to put fresh and compelling evidence before the Court, it fell to Mr Shwartz to lead the evidence from the two witnesses.
Mr Shwartz led evidence from Mr Mabiala, who was then cross-examined by counsel for the respondent, before then being re-examined by Mr Shwartz. Mr Shwartz then led evidence from Mr Jackson. Mr Jackson, who is currently serving a term of imprisonment,[19] denied having any conversation with Mr Mabiala of the kind alleged by him.
[19]As to the circumstances leading to Mr Jackson’s incarceration, see DPP (Cth) v Jackson [2018] VCC 2141, and in particular [1]-[5], [79].
The adjournment application
After Mr Mabiala and Mr Jackson gave evidence, Mr Shwartz made further submissions to the Court, as a friend of the Court. The purpose of these submissions was to support an application the applicant wished to make for an adjournment so that he could be given access to the audio recordings of the telephone intercepts relied upon by the prosecution at trial. After Mr Shwartz made these submissions, the applicant then made submissions himself in support of his application for an adjournment. The applicant’s submissions referred to a number of matters that occurred before trial, at trial and after trial, and which were of concern to him.
After hearing the applicant, we refused the application for an adjournment, saying we would provide our reasons for that refusal in our ultimate reasons for judgment.
The applicant sought the adjournment in order to investigate further his complaints about the telephone intercept evidence led against him at trial. He wished to put further evidence before the Court about the accuracy of various transcripts and translations, and to prepare additional arguments that he might make once the translations were in a form acceptable to him.
The applicant’s application for an adjournment was without merit.
First, for reasons which we will develop below in dealing with the application for leave to bring a second appeal, we were not persuaded that any of the matters raised by the applicant could have led to the production of any evidence which could not, in the exercise of reasonable diligence,[20] have been adduced by the applicant at trial.
[20]See s 326C(3)(a)(ii) of the Act.
Second, we were not persuaded that any adjournment then given to the applicant would have resulted in any step being taken by him which might have enhanced his prospects of success on his application for leave to bring a second appeal.
Finally, consistent with the procedural history set out above, we considered that the applicant had already been provided with ample opportunity to adduce material in support of his application in circumstances where his application had been on foot since 25 September 2020.
Proposed ground 1: the alleged confession by Mr Jackson
Under proposed ground 1, the applicant contended that there was fresh and compelling evidence which established that the 14.3 grams of methamphetamine found in his garage during the second search on 4 July 2014 had nothing to do with him. He submitted that this new evidence showed that the drugs found during the second search belonged to Mr Jackson, having been put in the applicant’s garage, by Mr Jackson, after the first police search on 26 June 2014. Thus, it was submitted that the evidence of the police finding those drugs should never have been admitted at trial and, as a consequence, a significant (if not substantial) part of the prosecution’s circumstantial case was undermined.
Mr Mabiala’s evidence
We have already described the contents of Mr Mabiala’s statement made on 26 October 2018, and his affidavit sworn on 2 December 2019. In his statement, Mr Mabiala said that Mr Jackson said that he ‘kept’ some ‘small stuff’ at the applicant’s house, during some unspecified period, and which had been found by police; whereas, in his affidavit, he deposed to Mr Jackson having said that he put ‘some small stuff in the garage’, between the times of the first and second police searches.
In evidence-in-chief, Mr Mabiala was not asked to confirm the correctness (or otherwise) of his statement or his affidavit. Indeed, he was not asked any question about either document. Instead, Mr Mabiala gave evidence that he visited Mr Jackson, while he (Mr Jackson) was in custody, on a number of occasions. He was then asked and answered the following questions:
Did you have a conversation with him, Jackson, and did he make some form of confession to you?---Correct, yes.
Can you tell the Court in your own words what was the confession he told you?
---Yeah, he told me after going there to visit him was a while and then, ah, he tried to, ah - because I was going there for - to do some counselling and some advice, spiritual advice, just to encourage him for what happened to him. And then after a while and then, ah, we’d been talking and he tried to tell me, ah, what happened exactly. Ah, when the - when the - the - he was in, ah, Bembo’s garage, what happened, he - that's when he told me.What did he tell you happened in the garage? What did he say?
---Well, he say after a while - he said to me first of all - he was asking, um, just, ah - telling me, ah, what, ah - because he was requesting a prayer and he told me, ah, what really can - if, ah, somebody’s hiding things, what will happen and I've been giving some advice, telling, ‘No, ah, if you are hiding things, the way things is going - because, ah, only God can help you in all situation you are going to. But for you to get a mercy off God you need also to open yourself and then to - to say the truth, you know? Even you cannot say anything, but, ah, before God you can never hide anythings’, and this kind of conversation, I’ve been talking to him. And after what he say, no, ah - you can remember what happened to, ah, Sam’s house and then, um, the time the police come to search the house and they didn’t find anythings, but, ah, ‘I put my stuff - I put some stuff there, ah, which was, ah, a small stuff, ah, for myself. And then I hide it there with that, knowing the police will come again in the second time to search the house’. I say, ‘Oh, really?’ Ah, and then that was the problem. He tried to say to me, ‘I don’t know what, ah - what you’re supposed to do’. I say (indistinct words) is - was trying to find, um, a way to - to talk to Bembo’s, ah, wife, how to explain to him. Yeah, that was, ah, just this kind of conversation we being having time with him.What did you understand him to mean when he said ‘stuff’? What stuff was he talking about?---Yeah, he talked about, um, the small drugs, drugs (indistinct) something he was just use - used by himself. Me, myself, also I’m very, ah, surprised because I didn’t know he was using this kind of stuff. And then, ah, he told me, ‘Just my stuff I been using’, this drug. And then, ah, ‘I was hiding that, ah, to Bembo’s garage’, and then, ah, (indistinct) when the police will come back and to search the place. Yeah, that, ah - that only the - the main issue he was telling me.
So this conversation about stuff in the garage, was this before the police came back? This did you understand ‑ ‑ ‑?---No. No, no, no, no. He told me that after the police come back.
Did he actually indicate to you what the stuff was? Did he say what the stuff was?---Yeah, he said, like, it’s a small drug, drugs. Drugs. Because I don’t know it, ah - but it was drugs. He said to me drugs, but is all the things he been using himself just, ah, to strength himself, what he said.
Mr Mabiala was cross-examined about when Mr Jackson’s alleged confession was made to him. He was unable to give any real answer to questions about the time at which the confession was made to him. For example, Mr Mabiala was asked and answered the following question:
Can I ask you again, how long after they searched your house - are we talking months, or are we talking years when you later had the conversation with
Mr Jackson?---Come again.How long after they searched your house did you have the conversation with Mr Jackson when he was in gaol?---They search my house before I was there. The second time they come to search my house I was not there.
How much time went by before you then had the conversation with Mr Jackson?---I didn’t go - I was going there to pay him a visit for most of the time. I was going there and I cannot tell you exactly how long it was.
I’m not asking you to tell us exactly, I’m asking you to give us your best estimate. Is it days, weeks, months, years, what?---No, I was going there for most of the time. All the place they booked him I was going there. I don’t know exactly months, years, days, but I was going there.
In cross-examination, Mr Mabiala was asked how he knew the applicant. He said that the applicant was the son of a pastor who he was working with. He agreed that he was close to this pastor and the applicant. He denied, however, that his evidence of Mr Jackson confessing to him was a lie.
In re-examination, he was asked and answered the following questions:
Reverend, when you made your - you swore an affidavit how seriously did you consider making an affidavit and what effect that has? When you made the affidavit - when you swore or made an affidavit on the Bible how seriously did you consider that?---Yeah, I consider the Bible is - is my truth, you know, if I swear before the Bible I supposed to believe what I’m talking about. I can never swear in the Bible, because if I do that I suspect I disregard my religion, or if I trust my religion, I believe only that’s when I rely on that.
Mr Jackson’s evidence
In evidence-in-chief, Mr Jackson said that he had known the applicant ‘since 2014 I think’. Mr Jackson said that from the end of 2014 to the middle of 2015, he lived next door to the applicant and the applicant’s wife. He was asked whether he remembered an occasion when the applicant was arrested. He said he did not. Ultimately, his alleged confession to Mr Mabiala was put to him. He denied having had any conversation with Mr Mabiala of the kind alleged by him. He was asked whether, on the occasions that Mr Mabiala came to visit him in gaol, he had any discussion with Mr Mabiala about the applicant. He said:
If we discussed Bembo then it was only family, this is how you family was [sic] and things like that, but not he himself [sic].
Mr Jackson having denied, in evidence in chief, all suggestions that he had made any confession to Mr Mabiala about keeping or putting drugs in the applicant’s house or garage, the respondent chose not to cross-examine Mr Jackson.
Proposed ground 1: consideration
The evidence of police finding 14.3 grams of methamphetamine in the applicant’s garage during the course of the second search was led at trial as part of the prosecution’s circumstantial case against the applicant. The inference the jury was invited to draw was that these drugs had been present in the applicant’s garage at the time of the first search, and the presence of the drugs supported the prosecution case that the applicant had been involved in a conspiracy to import a commercial quantity of a border controlled drug. No such argument could have been accepted by the jury if there was a reasonable possibility that the drugs did not belong to the applicant, but had been put in his garage by some other person after the first search and arrest of the applicant.
Under proposed ground 1, the applicant sought to rely upon the evidence of Mr Jackson and Mr Mabiala to undermine the original prosecution case that the 14.3 grams of methamphetamine found during the second search belonged to him. In order to rely upon that evidence, it must be fresh and compelling within the meaning of s 326C of the Act. It may be accepted for present purposes that the evidence sought to be relied upon by the applicant is fresh within the meaning of the section. The central issue under proposed ground 1 is whether the evidence is compelling.
Having observed both Mr Mabiala and Mr Jackson give evidence, we formed the view that neither was a particularly credible witness. Mr Mabiala had difficulty responding with any precision to questions asked of him. At times, he appeared unwilling to engage with particular questions. As best we could discern, he appeared to be concerned not to say anything that might harm the applicant’s prospects of success on his proposed appeal. On the other hand, while Mr Jackson was more forthright and direct in denying any suggestion that he had made the alleged confession to Mr Mabiala, he did not present as a witness who could be completely trusted.
Assuming, but without deciding, that Mr Mabiala’s evidence is admissible (and would be admissible on a retrial) under s 66(2) of the Evidence Act 2008,[21] we are not persuaded that the evidence the applicant wishes to lead of Mr Jackson’s alleged confession is reliable. Indeed, we consider the evidence to be unreliable in that it is neither credible nor a trustworthy basis for fact-finding.
[21]As to the necessity or otherwise for Mr Jackson to give evidence about the representation he allegedly made to Mr Mabiala, before Mr Mabiala can give evidence of that representation under s 66(2) of the Evidence Act, see R v Brooks (No 3) [2017] NSWSC 261, [10].
First, we find Mr Mabiala’s account of the alleged confession to be inherently improbable. The notion that Mr Jackson might have been troubled (on moral, religious or other grounds) to the point of confessing to Mr Mabiala, in circumstances where he now denies having made any such confession, appears to us to be highly unlikely. If Mr Jackson was initially moved to confess storing his small quantity of drugs in the applicant’s garage, one might ask why he would now deny doing that or making the alleged confession.
Second, the idea that Mr Jackson would take the trouble to store a relatively small quantity of methamphetamine in the garage of somebody else’s home — rather than keeping it close to himself — seems unlikely; as does Mr Jackson’s purported reason for doing so (i.e. he had been told by Mr Mabiala that he could not have ‘any things here [in Mr Mabiala’s home] that are illegal’).
Third, notwithstanding Mr Mabiala’s assertion in his affidavit that Mr Jackson said that he could not believe that the police came for a second time, it seems to us unlikely that anyone would seek to store or hide illicit drugs at premises which had so recently been the subject of a detailed police search, and which had resulted in the arresting, charging, and taking into custody, of the occupier of those premises.
In order for fresh evidence to be compelling, it must be both reliable and substantial. For the reasons given above, the evidence sought to be relied upon by the applicant is not reliable, such that it fails to meet the requirement of being compelling.
It is unnecessary in such circumstances to consider whether the evidence meets the other criteria in s 326C(3)(b) (namely that it is substantial and either highly probative or evidence which would have eliminated or substantially weakened the prosecution case if it had been presented at trial).
It follows that proposed ground 1 must be rejected.
Proposed grounds 2 and 3
Under proposed grounds 2 and 3, the applicant made various complaints about the conduct of his counsel at trial; things said by the prosecutor during the course of the trial; the trial judge’s handling of particular matters; some of the transcripts of the telephone intercepts; a number of translations/interpretations of the telephone intercepts; and the fact that he was not provided with the services of independent interpreters.
In support of his complaints concerning the interpretation and transcription of telephone intercepts, the applicant sought to put before us the three documents purporting to be transcripts of telephone intercepts, referred to at [26] above. Before proceeding further, it is necessary to say a little more about the conduct of the trial — particularly in relation to the telephone intercept evidence.
The telephone intercept evidence at trial
As we have said, at trial, a significant number of telephone intercepts were tendered in evidence. The intercepts related to conversations in various languages, including English and Lingala. Three interpreters were called as part of the Crown case:
•Bill Birindwa, an interpreter and translator in Lingala and Swahili;
•Varmah Dulleh, a translator in the languages of Mandingo and Liberian Pidgin English; and
•Nicola Savage, an interpreter and translator in the French language.
The applicant’s complaints in this Court primarily concern the Lingala translations provided by Mr Birindwa. Additionally, the applicant makes complaint about the transcription of the 20 May 2014 conversation.
20 May 2014 conversation
Relying upon material obtained from an independent interpreter in relation to the 20 May 2014 conversation, the applicant contends:
•The words, ‘He order something brown’, attributed to the applicant, should be ‘He orders something but ...’; and
•The words ‘I say 2 is 2 k g s, the first time is plenty, trust me on that one arrange two’, attributed to him, should be, ‘I say 2 is 2 plenty, is the first time I say trust me on that. One arrange two’.
At trial, the jury were provided with a jury book containing transcripts of the telephone intercepts. Both during the course of the trial, and in her Honour’s charge, the judge gave the jury directions about the telephone intercept evidence and the transcripts. Relevantly, the judge said:
Firstly, in relation to the transcripts of the listening device [sic] material, you were given the transcripts in order to help you follow the recordings as they were being played. Insofar as transcriptions of English words or conversation is concerned, it is the recording that is the evidence, not the transcripts. The transcript is just an aid.
However, the transcripts or parts of the transcripts which were prepared by the three translators, subject to any changes that they may have conceded in their evidence, are evidence in this trial as they have been adopted as being true and correct, and they were tendered into evidence. You understand that obviously the transcripts in that case are a part of the evidence that you can consider, but also subject to the cross-examination of the particular translators concerned.
In relation to the parts of the transcripts where there is English spoken, if what you read in the transcript differs from what you heard on the recording, the evidence is what you hear on the recording, not what is in the transcript. If the words you hear are different from those you read in the transcript, or if the speakers you hear are different from those identified in the transcript, or if there are words that are just not picked up in the transcript and you can hear in the recording - you have heard some submissions about what those might be - it is for you to decide who was speaking and what was said.
Critically, the 20 May 2014 conversation was one conducted between the applicant and his co-accused in English. The recording was played to the jury. As the jury was correctly directed by the judge, the evidence of the 20 May 2014 conversation was the recording which was played — not the transcript which is now disputed.
In her charge to the jury, the judge noted that competing submissions had been made by the parties about the contents and correctness of various portions of the telephone intercept transcripts. For completeness, we should note that during the course of his evidence at trial, the applicant also gave his version of what was said, and the meaning of what was said, in the telephone intercepts.
Lingala translations: applicant’s complaints
On this application, the applicant made a number of complaints about the interpretation and translation of what was said in Lingala in the telephone intercepts. His first complaint related to references to the language ‘French Lingala’. He said that there was no such language: there is the French language, and the Lingala language. Some of the transcripts referred to the language being interpreted as ‘English/French/Lingala’; whereas others referred to the language as ‘English/French Lingala’. The applicant was particularly critical of Mr Birindwa’s answer given to the following question at the commencement of his evidence:
What about French Lingala, have you spoken that for what period of time — can you speak French Lingala?---Oh yes ... .
The applicant’s criticism of Mr Birindwa, however, was based upon the above partial answer to the question he was asked. Mr Birindwa’s full answer was:
Oh yes, I can speak French because I did all my primary education and my secondary education and my university education in French and Lingala is the official — I mean the military language, the musical language in the country; I learnt it. And as part of my education at university, I did Lingala.
All right. In the transcripts, it’s described as — the language is described as “French Lingala”. Is there a difference between Lingala and French Lingala?
---Well, there is no difference. Well, when we say “French Lingala” — I think it should be Lingala which is mixed by — with French … .Other complaints made by the applicant about interpretations and translations included:
•words meaning ‘four young men/or guys’ being incorrectly translated as ‘four little boys’;
•the Lingala word ‘masta’ being incorrectly translated as ‘master’, rather than ‘friend/mate’;
•the Lingala word ‘nye’ being incorrectly translated as ‘police’; and
•the allegedly incorrect translation of Lingala words as ‘a stone one, it is coming from Thailand’, which should have been translated as ‘single pieces of big stone (diamond/ruby) that is coming via Thailand’.
Lack of an independent interpreter at trial
There having been issues at trial between the parties about the interpretation of the telephone intercepts, the trial judge raised with trial counsel the issue of why the defence did not have their own interpreters. Counsel for a co-accused responded by saying:
All I can say in response, Your Honour, is that there’s a scarce legal aid dollar ... and there is a vast inequality of resources on the prosecution side of the Bar table as compared to what’s available to the defence.
In this Court, the applicant submitted that the failure to provide him with funding to retain independent interpreters resulted in a substantial miscarriage of justice. In response, the respondent contended that this complaint did not enliven the jurisdiction of this Court to give leave to bring a second appeal in accordance with s 326C of the Act. The respondent then contended that, in any event, an email from the applicant’s trial counsel sent to the prosecution prior to trial recorded that the applicant had listened to the Lingala conversations in the telephone intercepts and had issues with specific identified conversations.
Other complaints
Under proposed grounds 2 and 3, the applicant complained that his trial counsel silenced him during the course of the trial ‘by telling him; to be calmed, do not upset the trial judge by more objections and because there is already a lots [sic] of appeal points to win it all’. The applicant’s trial counsel and solicitor were also criticised by the applicant as having engaged ‘in the legal abuse of process by ignoring the applicant’s first appeal instruction [sic]’.
The applicant criticised language used by the prosecutor; various statements made by the prosecutor; and the prosecutor’s failure to use the word ‘alleged’ when he made particular contested statements. These complaints ranged from the prosecutor’s opening, to matters occurring during the course of the trial and to the prosecutor’s final address.
While the applicant made complaints about the trial judge’s conduct of the proceeding, the complaints against her Honour were more limited than those made against the prosecutor and trial counsel. The primary complaint appeared to be that, while the judge may have answered a particular jury question in terms that were literally correct, the judge ‘did not cure the curiosity of the jury’.
Proposed grounds 2 and 3: consideration
Proposed grounds 2 and 3 are without merit. The requirement that a second or subsequent appeal be supported by fresh evidence means that an applicant cannot simply contest things said or done at trial, as if on a first appeal, especially by revisiting informed forensic decisions made at trial. With the possible exception of the three documents purporting to be transcripts of telephone intercepts upon which the applicant based much of his argument, the applicant neither produced nor identified any fresh and compelling evidence, relating to proposed grounds 2 and 3, that should, in the interests of justice, be considered on an appeal.[22]
[22]Section 326C(1) of the Act.
The applicant submitted that he could not afford the necessary translations and was not able to listen to all the taped conversations as a result of constraints arising from being in custody. But the accuracy of the translations was an issue of which the applicant and his counsel were aware at trial and, as the respondent pointed out, the applicant’s counsel, acting on specific instructions, raised with the prosecutor the accuracy of specified translations. Mr Birindwa was cross-examined about his translations. In those circumstances, the correctness or otherwise of the translations was a live issue at trial.
We are not satisfied that, with the exercise of reasonable diligence, the evidence in the applicant’s three new documents could not have been adduced at trial. If the applicant or his counsel had wished to pursue the issue of the translations further than circumstances then allowed, reasonable diligence would have required that the difficulties the applicant was allegedly facing be at least raised at that time, but the matter proceeded. We are therefore unable to conclude that the evidence in the new documents is fresh. Additionally, and in any event, we are not persuaded that the applicant’s new translations are either highly probative in the context of the issues in dispute at trial; or that they would have eliminated or substantially weakened the prosecution case if they had been presented at trial.[23] The identified discrepancies were of limited significance. In respect of the transcription of the subject matter of a transaction as ‘something brown’ and ‘2 kgs’, the relevant words were in English and it was a matter for the jury, not evidence (fresh or otherwise) of what was said.
[23]See s 326C(3)(b)(iii)(A) and (B) of the Act.
Thus there is no fresh and compelling evidence which might justify this Court granting the applicant leave to bring a second appeal in relation to either proposed ground 2 or proposed ground 3.
The applicant’s complaints about the conduct of his trial counsel, the prosecutor and the trial judge do not give rise to any basis upon which this Court might grant the applicant leave to commence a second appeal. Again, these complaints are not founded on any evidence which might satisfy the fresh and compelling evidence requirements of s 326C of the Act. That said, we should say for completeness that we were not persuaded by the applicant that there was any merit in any of the various complaints made by him about the conduct of his trial counsel, the prosecutor or the judge.
Some of the applicant’s submissions were simply a re-agitation of issues that were contested at trial. Others might have been the subject of the applicant’s first appeal, had he or his then lawyers chosen to agitate them in that proceeding. As we have already said, the short answer to these complaints is that they were not supported by any evidence of the kind required by s 326C of the Act. Moreover, and as also has been said before,[24] there is no statutory provision giving the appellant the right to a second appeal on any basis outside that specified in Part 6.4 (which contains ss 326A and 326D) of the Act.
[24]Glascott v The Queen [2022] VSCA 158, [91].
It follows that proposed grounds 2 and 3 must be rejected.
Conclusion
The applicant’s application for leave to commence a second appeal must be refused.
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