Mwamba v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0208

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
TSHISWAKA KAYEMBE MWAMBA	Respondent

S APCR 2015 0209

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
MUALABA TRESOR MADJAGA	Respondent

S APCR 2015 0210

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
MBUYI MUTOMBO MWAMBA	Respondent

S APCR 2015 0211

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
PIERRE BLAISE MWAMBA	Respondent

S APCR 2015 0212

MBUYI MUTOMBO MWAMBA	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0213

PIERRE BLAISE MWAMBA	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0223

MUALABA TRESOR MADJAGA	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0228

TSHISWAKA KAYEMBE MWAMBA	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATES OF HEARING:	30 November and 1 December 2015
DATE OF JUDGMENT:	10 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 338
JUDGMENT APPEALED FROM:	DPP v Mwamba [2015] VCC 1388

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CRIMINAL LAW – Conviction – Applications for leave to appeal against conviction – Joint trial – Four accused – Kidnapping – Aggravated burglary – Joint criminal enterprise – Applications for separate trials refused – Evidence admissible against one accused not admissible against co-accused – Exercise of discretion – Discretion exercised correctly – Jury correctly directed – No miscarriage of justice – Applications for leave to appeal refused.

CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Interference by trial judge – Whether trial judge's interference was excessive – Whether trial judge reformulated prosecution case – Inferential reasoning – Whether trial judge laid out path of inferential reasoning not laid out by prosecutor – No undue interference by trial judge – No unfair prejudice to accused – No miscarriage of justice – Application for leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Kidnapping (5 charges) – Aggravated burglary – Whether convictions for three of the kidnapping charges unsafe and unsatisfactory – Convictions not unsafe and unsatisfactory – Application for leave to appeal refused.

CRIMINAL LAW – Sentence – Crown appeal – Kidnapping – Aggravated burglary – Four respondents sentenced to terms of imprisonment coupled with community correction orders – Serious offending – Whether sentences manifestly inadequate – Sentences manifestly inadequate – Residual discretion – Relevance of term of imprisonment being completed before appeal hearing – Relevance of term of imprisonment being completed immediately after judgment – Parity – Rehabilitation – Personal circumstances of respondents – Exercise of the residual discretion – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For Tshiswaka Mwamba	Mr J M Toal	Brian T D Cash
For Mualaba Madjaga	Mr D A Dann SC	Pica Criminal Lawyers
For Mbuyi Mwamba	Mr P K Kozlowski in S APCR 2015 0212 Mr L Hartnett with Mr P Doyle in S APCR 2015 0210	Revill and Papa Lawyers
For Pierre Mwamba	Mr S Holt QC with Mr P J Smallwood	Greg Thomas
For the Crown	Mr B F Kissane QC with Ms D Mandie	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA
KAYE JA:

Introduction

On 12 June 2015, following a 19-day trial in the County Court, Mbuyi Mwamba (‘Mbuyi’), Pierre Mwamba (‘Pierre’), Tshiswaka Mwamba (‘Tshiswaka’) and Mualaba Madjaga (‘Madjaga’) were each convicted of five charges of kidnapping and one charge of aggravated burglary. On 1 October 2015, following plea hearings conducted in June, August and September 2015, Mbuyi was sentenced to a term of imprisonment of 6 months followed by a community correction order (‘CCO’) of 18 months, Pierre was sentenced to a term of imprisonment of 12 months followed by a 2-year CCO, Tshiswaka was sentenced to a term of imprisonment of 8 months followed by a 2-year CCO and Madjaga was sentenced to a term of imprisonment of 4 months followed by a 12 months’ CCO.

Mbuyi and Pierre seek leave to appeal against their convictions — and Tshiswaka seeks an extension of time and leave to appeal his conviction — on the same, and sole, ground:

There has been a substantial miscarriage of justice that has resulted from the applicant’s trial being heard jointly with Madjaga’s trial.

Madjaga seeks an extension of time in which to seek leave to appeal, and leave to appeal, against conviction on the following grounds:

1.A substantial miscarriage of justice has occurred as a result of the undue intervention of the learned trial judge in the prosecution case.[1]
2.The guilty verdicts of the jury with respect to charges 5, 6 and 7 are unsafe and unsatisfactory in that any jury acting reasonably must have a reasonable doubt that the applicant was party to any agreement to kidnap the three children the subject of these three charges.

[1]Foreshadowed applications by Mbuyi, Pierre and Tshiswaka to add this ground, as a second ground of their applications for leave to appeal against conviction, were abandoned during argument.

In addition to the applications by Mbuyi, Pierre, Tshiswaka and Madjaga, the Director of Public Prosecutions has appealed against the sentences imposed on each of them on the grounds that the sentences imposed in respect of each charge are manifestly inadequate.

The Crown case at trial

The offences with which the accused were charged were all alleged to have taken place on Sunday 28 April 2013. The kidnapping charges (charges 2, 3, 5, 6 and 7) related to an occasion on that day when the four accused stopped a car being driven by Sidney Langa, and in which Mr Langa’s wife and three children were travelling (five charges for five victims). The aggravated burglary charge related to an event later in the day when all four accused were said to have entered the home of the wife of Mr Alain Lombo, Ms Adele Atatu.

At trial, the Crown called Mr Langa, Ms Jenny Bonsange (Mr Langa’s wife), Mr Longo and Ms Atatu. Mr Langa and Ms Bonsange gave evidence of the events on which the kidnapping charges were based. Ms Atatu gave evidence of the events on which the aggravated burglary charge was based. In addition, the Crown called Ms Stephanie Bell, Mr King Bell and Mr Alain Takwende. These witnesses gave evidence of threats they heard being made, on the same day, against Mr Longo by Pierre and Tshiswaka. The defence position at trial was that all seven of these witnesses were liars.

The Crown case as to the circumstances of, and surrounding, the alleged offending may be briefly summarised as follows. Mbuyi,[2] Pierre[3] and Tshiswaka[4] are brothers. Madjaga[5] is their cousin. All four were all born in the Democratic Republic of Congo. Due to persecution by the government and security forces, their families fled to the Republic of Congo, where they were supported by the United Nations for a period of time before settling as refugees in Australia.
[2]Also referred to at trial as Francis.
[3]Also referred to at trial as Casbah.
[4]Also referred to at trial as Betu.
[5]Also referred to at trial as Tresor.

All four accused were part of a small group known as the ‘Combattants’, of which there were approximately 15 members in Victoria. Pierre is the leader of the Australian Combattants. The Combattants oppose the regime of the current President of the Democratic Republic of Congo, Joseph Kabila. At all meetings, and while attending Combattant business, it was the practice of the Australian Combattants to wear military style camouflage clothing. Pierre, Mbuyi and Tshiswaka were all active members of the Combattants. Madjaga was a resident of Canberra and, while he was a member and shared the objectives of the organisation, he was not as directly involved in the activities of the Combattants in Melbourne.

In April 2013, the accused made a YouTube video in which they expressed opposition to Congolese musicians, who supported the Kabila government, touring Australia.

In response to that video, Mr Lombo was involved in making a video. The title was in Lingala — a language spoken in the Democratic Republic of Congo — but was translated into English as ‘Angry! Angry! Angry! Angry! One Congolese Australian challenges the combatant’. Mr Lombo was critical of the Combattant’s stance in relation to Congolese musicians.

As a result of the video, Pierre called Mr Lombo and they had a heated discussion. Tshiswaka and Mbuyi also called Mr Lombo. Mr Lombo was living in Perth at the time but told the Mwambas that he could meet them in Melbourne.

The Mwambas were not sure of Mr Lombo’s precise address in Melbourne. On 27 April 2013, they went to a block of apartments in the same street that Lombo lived, but could not find the address.

Around lunchtime on 28 April 2013, Mbuyi telephoned Mr Langa and enquired as to his whereabouts. Mr Langa was at his wife’s house in Caroline Springs — they were living separately at the time. After the phone call, Mr Langa told his wife, children (aged 6, 2 ½ and 1 ½ years old at the time) and Sarah Efolko — who was staying at the house — to get in the car. Shortly after they left, their car was intercepted by a car owned by Pierre, and carrying the four accused and a fifth man called ‘Fifa’. The accused were all wearing military attire. The car was parked in such a way that Mr Langa was prevented from driving away. The accused got out of the car and Mbuyi demanded that Mr Langa tell them where Mr Lombo lived.

Mr Langa and his family were frightened and intimidated by the actions of the accused and Mr Langa was compelled to show them where Mr Lombo lived. Tshiswaka then travelled with Mr Langa and his family in Langa’s car, and the other accused travelled in Pierre’s car. It took approximately 15 minutes for them to get to Mr Lombo’s house. Once Mr Langa showed the respondents where Mr Lombo lived, Mr Langa drove away. The kidnapping charges of which the accused were convicted were that of Langa, his wife Jenny Bonsange and their three children (charges 2, 3, 5, 6 and 7).

The Crown’s case on the charge of aggravated burglary (charge 8) was that, having been shown where Mr Lombo was said to live, the accused then arrived at Mr Lombo’s unit. They then entered the unit without permission. Pierre and Tshiswaka were both armed. One had a machete and the other a baseball bat. Mr Lombo’s wife, Ms Adele Atatu, was at home in the bedroom. She had just finished breastfeeding her baby and was wearing only underwear. Her daughter was playing outside and her brother-in-law was in his room listening to music. The four accused entered the unit. Ms Atatu was dragged out of bed, manhandled and threatened. Pierre demanded to know where Mr Lombo was. Ms Atatu was told to tell her husband to ‘back off’. The accused then left the unit and Ms Atatu called the police.

At trial, there was no dispute that all four accused were present when Mr Langa’s car was intercepted. While there was no dispute that the accused then went to the address shown to them by Mr Langa, there was a dispute as to whether any or all of the accused entered the premises of Mr Lombo and Ms Atatu. Specifically, Pierre gave evidence at trial that nobody entered these premises. While Mbuyi and Tshiswaka said in their records of interview that they did not enter the premises, neither of them gave evidence at trial. On the other hand, it was Madjaga’s case at trial (although he too did not give evidence) that he, along with his co-accused, entered the unit for a brief period before going back outside.

Conviction applications: Mbuyi, Pierre and Tshiswaka Mwamba
Overview of the applications for leave to appeal against conviction

Mbuyi, Pierre and Tshiswaka all seek leave to appeal against conviction claiming that a substantial miscarriage of justice resulted from their being tried with Madjaga.

As will be seen, we do not consider that the applications should succeed.

Prior to empanelment of the jury, each of the applicants Mbuyi, Pierre and Tshiswaka sought a separate trial, principally on the basis that Madjaga’s record of interview with police — which was not admissible against them — would cause prejudice to their cases that could not be cured by judicial direction.

It will be remembered that the three applicants, Mbuyi, Pierre and Tshiswaka, together with Madjaga and an unknown male, forced Mr Langa — who was with Jenny Bonsange, Sarah Efolko and children — to drive to and show them where Mr Lombo and Ms Atatu lived. The prosecution case was that Pierre threatened to injure Efolko if Mr Langa did not agree to show him the unit.

The applicants’ submissions

In support of each application it was submitted that, although Mbuyi, Pierre and Tshiswaka admitted going with co-accused to the unit where Mr Lombo and Ms Atatu lived, each denied entering the unit. By way of contrast, in his record of interview with police, Madjaga not only admitted entering the unit but asserted that all of them had done so. Madjaga’s record of interview was not admissible against Mbuyi, Pierre and Tshiswaka, but was, so it was argued, ‘acutely prejudicial’ to their defences. In particular, Madjaga’s interview — particularly as highlighted by the cross-examination of Ms Atatu by Madjaga’s counsel — bolstered Ms Atatu’s credit, first, as to whether Mbuyi, Pierre and Tshiswaka entered the unit; and, secondly, as to her evidence of being ‘half naked’. It was submitted that this was particularly prejudicial to the cases of Mbuyi, Pierre and Tshiswaka on the aggravated burglary charge (charge 8), because the prosecution’s case on that charge was reliant on the evidence of Ms Atatu. There was also the further risk that the jury would — consciously or unconsciously — take the contents of Madjaga’s interview into account when assessing the weight to be given to Mbuyi’s, Pierre’s and Tshiswaka’s respective records of interview.

Furthermore, it was submitted that the fact that Madjaga’s defence was different to that of Mbuyi’s, Pierre’s and Tshiswaka’s, came into ‘sharp focus’ when Ms Atatu was being cross‐examined by Madjaga’s counsel, leading to them (the Mwambas) seeking unsuccessfully to discharge the jury. During the cross-examination of Ms Atatu by Madjaga’s counsel there was, it was submitted, a deal of discussion between the trial judge and counsel — before the jury — about Madjaga’s record of interview, which had the net effect of bolstering Ms Atatu’s credit.

Although the judge gave two brief separate trial directions — one during and one after Ms Atatu’s evidence — and gave further directions in his charge, those directions, it was submitted, did not cure the prejudice that flowed to the applicants from being tried jointly with Madjaga.

Analysis

If an indictment names more than one accused, whether in the same charge or separate charges, the charge or charges against all accused must be tried together unless an order is made under s 193 of the Criminal Procedure Act 2009.[6] By virtue of s 193(3), however, the court may order that an accused, charged on the same indictment with another, be tried separately if ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’. But before a separate trial is ordered, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind not really amenable to nullification by judicial direction.[7]
[6]Criminal Procedure Act 2009, s 170(2). See also R v Grondkowski [1946] KB 369; R v Demirok [1976] VR 244 (‘Demirok’); R v Torney (1983) 8 A Crim R 437; Collie, Kranz and Lovegrove v The Queen (1991) 56 SASR 302 (‘Collie’); Webb v The Queen (1994) 181 CLR 41, 88–9 (Toohey J) (‘Webb’); R v Alexander and McKenzie (2002) 6 VR 53, 67 [31] (Winneke P); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) (‘Ferguson’).
[7]R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J); Ferguson (2009) 24 VR 531, 587 [310]. See also R v Gibb & McKenzie [1983] 2 VR 155 (‘Gibb’); R v Ditroia & Tucci [1981] VR 247.

The decision whether to order a separate trial is within the discretion of the trial judge. In Demirok, the Court of Criminal Appeal spelled out the matters of public interest which must be considered in all such cases:[8]

In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

[8]Demirok [1976] VR 244, 254 (Young CJ, Lush and Crockett JJ). See also Collie (1991) 56 SASR 302, 308–10 (King CJ). Compare Western Australia v Bowen (2006) 32 WAR 81, 90 [25]–[32] (Pullin JA).

The ground of appeal of each of Mbuyi, Pierre and Tshiswaka asserts that a substantial miscarriage of justice flowed from their being tried with Madjaga. As is usually the case, the trial judge declined to order a separate trial principally on the basis of the depositions. The common ground of appeal now invites this Court, however, to scrutinise the issue by reference to the whole of the record of the trial. But intervention by this Court is only warranted if the applicants satisfy the Court in their respective cases that, due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice.[9] Demirok again authoritatively sets out the manner in which the Court should proceed:[10]

When the judge’s exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge’s discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge’s decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge’s discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.

[9]Criminal Procedure Act 2009, s 276(1).

[10]Demirok [1976] VR 244, 251. See also Collie (1991) 56 SASR 302, 310.

We are unable to conclude either that the judge wrongly exercised his discretion; or, having regard to the whole of the record of the trial, that there has been a substantial miscarriage of justice occasioned to Mbuyi, Pierre or Tshiswaka by a joint trial with Madjaga.

In the course of cross-examination by counsel for Madjaga, the trial judge gave the following direction:

As I have explained to you, ladies and gentlemen, there are four separate trials taking place here. Each accused has a defence case and the evidence in relation to each accused is different. The defence cases are different as well and I will explain to you in due course how you will be required to consider that, but you will hear Mr Madjaga’s record of interview in the course of this trial and in that interview he states that he went into the house. The other accused, of course, do not say that. Now, that is not evidence in their case. It’s only in Mr Madjaga’s case.
He also states in that interview that Ms Atatu was half naked when they went into the house. That is evidence only in Mr Madjaga’s case, but the reason that I am trying to clarify what it is that [counsel for Madjaga] is attempting to examine with this witness is because her client admits going into the house and admits that Ms Atatu was half naked, so what is being examined here in relation to his credit is what took place after he went in to her house.

Later, after counsel for Madjaga ostensibly had completed her cross-examination of Ms Atatu, and after the prosecutor had commenced to re-examine the witness, the judge (in the absence of the jury) raised with counsel for Madjaga her failure — as perceived by the judge — to address various issues with the witness. In particular, the judge pointed out that counsel had failed to put to Ms Atatu anything that would support a submission to the jury that her client ‘was not acting in concert with the other accused, or aiding and abetting them’; and pointed to the fact that, even though Madjaga admitted in his record of interview that ‘he was in the house and present when these events occurred’, counsel had not suggested to Ms Atatu ‘that he didn’t do anything, he didn’t perform any act’. The judge further pointed out that, although Ms Atatu did not give ‘any direct evidence about him’, if Madjaga’s defence ‘ultimately is going to be that even though he was present he wasn’t intending to aid and abet and wasn’t a member of a joint criminal enterprise with the others’, counsel was obliged to cross-examine in such a fashion as to make those aspects clear. In the judge’s view, counsel needed to make Madjaga’s ‘defence’ clear. So much was accepted by counsel, as is evident from the following passage:

HIS HONOUR: Well, I think you’d better make your defence clear because the jury would be forgiven for thinking, having regard to your cross-examination, that you were challenging her in the same way the others were and - - -
[COUNSEL]: Well, I - - -
HIS HONOUR: You may or may not be. But in terms of how you propose to address the jury, their defence is they didn’t even go in.
[COUNSEL]: And my client’s defence is they went in for - - -
HIS HONOUR: He went in.
[COUNSEL]: All of two or three seconds and then got out.
HIS HONOUR: She [Ms Atatu] was half naked, she was crying, she was screaming.
[COUNSEL]: Someone said she was half naked, she - - -
HIS HONOUR: Well, he - - -
[COUNSEL]: I put to her that she was screaming, Your Honour.
HIS HONOUR: Yes, and crying.
[COUNSEL]: She was surprised and screaming.
HIS HONOUR: And crying. Your client says that she was crying, she was screaming, the men were all – they were all dressed in camouflage clothing and that he either saw or became aware that she was half naked. The fact that she was half naked on his version must have been seen by one of his co-offenders.
[COUNSEL]: I accept that. …

In the result, counsel for Madjaga embarked on further brief cross-examination of Ms Atatu which made clear that her client’s case was that all the men entered, but that her client entered the house ‘only very briefly’; and that one of the men said of Ms Atatu, ‘Oh, she’s half naked. Let’s go outside’. (Ms Atatu, it should be noted, denied these suggestions.) Before the further cross-examination, however, the trial judge had given another direction to the jury about there being separate trials taking place:

As I explained to you, there are four trials taking place here, ladies and gentlemen, and as you will hear as the interviews between each of the accused are played to you, the jury — as I’ve explained, that’s evidence only in the accused’s case, not in any other accused’s case. [In his] interview — as I’ve already observed in the directions I gave you earlier, [Madjaga] states that he did go into the house.
Now, it’s important that the significance of what he says and what might flow from that in terms of when he left and why he left is put to this witness to give her the opportunity of addressing what he says in his interview so you can then determine whether he was the member of a joint criminal enterprise, as alleged by the prosecution, to commit the offence of aggravated burglary.
Now, I’ll explain the significance of all of that to you at the conclusion of the case, but you do need to consider each case separately and that will mean you will need to consider what Mr Madjaga said in his record of interview. Now, this hasn’t been done. We’ve had a lot of cross-examination about other matters, but this hasn’t been done and it should be done and I’ve permitted [counsel for Madjaga] to do it. So the witness is going to come back and [counsel for Madjaga] is going to ask one or two other questions.

The two brief directions set out above, given in the course of the trial, made clear to the jury, first, that there were four separate trials taking place; secondly, that the case of each of the accused was different; thirdly, Madjaga’s record of interview was evidence only against him, not his co-accused; and, fourthly, the case of each of the accused needed to be considered separately.

Moreover, the trial judge gave conventional and proper directions to the jury in the course of his charge:

Now, as you know there are multiple accused in the case. There are four accused. The prosecution says each of them are guilty of the charges that they are faced with. Each of them say they are not guilty plainly of the charges that they’re faced with. So there are four trials being heard here, ladies and gentlemen. It’s very important that you consider what I’m about to now explain to you in that context.
It of course would be very inconvenient and a great waste of time and money to hold separate trials for each accused on different occasions in different courts, so they’re all being tried together. But they’re all charged together and all of these events arise out of one course of conduct.
You must be careful not to allow convenience to override justice. The parties are entitled to have the case against each accused considered separately. You must consider the evidence against each accused separately. I am sorry, I will start that again. You must consider the case against each accused separately in light only of the evidence that applies to that accused.

The judge then directed the jury that each charge needed to be considered separately, by reference to the evidence applicable to each particular charge. A little later he said that ‘there are six charges here so each charge needs to be considered separately as I have said and each charge against each accused needs to be considered separately’. And having cautioned the jury against using certain pieces of evidence admissible against Madjaga in considering the cases of the co-accused, the judge repeated that ‘in relation to the charges as I have said, you need to consider them separately in respect of the case against each accused who is charged with those offences’.

True it is that, in his record of interview Madjaga not only admitted entering the unit but asserted that all had done so, and, to that extent, the contents of the record of interview had the potential to prejudice the cases of Mbuyi, Pierre and Tshiswaka (they having denied that they entered the premises). It is also true that the essential differences between Madjaga’s case and those of his co-accused would have been highlighted by the manner in which the further cross-examination by Madjaga’s counsel took place. Moreover, there is some force in the submission that the conduct of Madjaga’s defence had the potential to bolster Ms Atatu’s account (both in relation to the entry by the men and as to whether she was ‘half naked’). Despite these factors, however, we have no reason to think that the jury would not have followed the judge’s directions — several times repeated — to consider the case of each of the accused separately, and in light only of the evidence admissible in the case of the particular accused under consideration.

The decisions of the Court of Criminal Appeal in Demirok and of this Court in Destanovic[11] are illustrative of the type of cases in which a trial judge might properly determine that co-accused be tried jointly, yet, in the circumstances of the trial as it ultimately unfolded, the appellate court is driven to conclude that a miscarriage of justice resulted from a joint trial.
[11]Destanovic v The Queen [2015] VSCA 113 (‘Destanovic’).

In Demirok, the applicant and his wife were charged on a presentment containing counts that the applicant had murdered Ibrahim Ozdemir, and that the applicant and his wife had wounded the deceased’s wife, Isminaz Ozdemir, at their flat at St Kilda. The applicant maintained that he had been at his home in Kensington — where he lived with his wife — when the victims were attacked in their flat at St Kilda. Initially, the applicant’s wife maintained the same version. In a further (third) interview, however, she gave an account consistent with the case put by the prosecution, including that, after departing from the victim’s St Kilda flat, she and the applicant had caught a taxi in a big wide street.

An application by the applicant and his wife to sever the presentment, or alternatively, that the applicant’s case be heard separately to his wife’s, was rejected by the trial judge. On appeal, the Court of Criminal Appeal held that, given the course of the trial, the course adopted by the trial judge resulted in unfair prejudice to the applicant, and a miscarriage of justice in his trial. The Court reached that conclusion based on several factors. First, the third statement made by the applicant’s wife to the police confirmed Mrs Ozdemir’s evidence. Secondly, the applicant’s wife made an unsworn statement to the jury that contradicted that third statement to the police, thereby giving the appearance to the jury that she was ‘… a liar in league with the applicant, her husband’.[12] Thirdly, the statement by the applicant’s wife that, after leaving the St Kilda flat, they caught a taxi in a wide street, buttressed otherwise weak identification of the applicant by a taxi driver who gave evidence that, on the same night, he had picked up a man and a woman as fares and taken them to Kensington. Fourthly, the Court held that the applicant was prejudiced by an erroneous direction to the jury that it would be entitled to take into account the applicant’s wife’s third statement to the police as supporting the evidence of Mrs Ozdemir against the applicant.
[12]Demirok [1976] VR 244, 254.

In Destanovic, the applicant and two co-accused, Vaotangi and Tangaloa, were each convicted of charges of aggravated burglary, intentionally causing serious injury and armed robbery. The only evidence implicating Destanovic in the offending was the identification of him by the victim, Jones, as a participant in the offences. Jones also identified the two co-accused, but in relation to each of them, there was an additional piece of evidence that tended to prove that he had been a participant. In particular, the police found a handgun on Tangaloa that was the handgun that was used in the incident. In his final address, the prosecutor submitted that the finding of the handgun on Tangaloa should enhance the jury’s confidence generally, and as to the reliability and honesty of Jones as a witness, which was relevant to the jury’s assessment of Jones’s evidence in the applicant’s case. Subsequently, during the judge’s charge, the jury asked a question to the effect whether it could be permitted to use the finding of the gun on Tangaloa in assessing the accuracy of Jones’s evidence relating to Destanovic. In response, the judge instructed the jury that they were entitled to look ‘holistically’ at all the evidence in assessing Jones’s evidence. The judge said that in its overall assessment of a witness, the jury was entitled to look at how the evidence of that witness fitted with the other evidence in the trial. The court held that that direction was erroneous, because it impermissibly permitted the jury to reason from an acceptance of evidence, inadmissible in Destanovic’s trial, to a finding of guilt against him. In those circumstances, Weinberg and Beach JJA held that a substantial miscarriage of justice had occurred arising from the joint trial of Destanovic with the other accused. Their Honours stated:

The judge rejected Destanovic’s application for a separate trial. He held that appropriate directions could be given to protect Destanovic against the risk of unfair prejudice. … we see no error in the judge’s rejection of Destanovic’s separate trial application, based on the situation as it existed at the commencement of the trial. No one could have anticipated, at that stage, the combination of events that subsequently transpired, including the prosecutor’s ill-conceived submission, and the jury’s question.
However, once the prosecutor invited the jury to reason in an impermissible fashion, thereby provoking the question that gave rise to the judge’s direction, the problem that presented itself could only have been overcome by a strong direction to the effect that they should not reason as the prosecutor had suggested. Alternatively, if the judge considered that the jury may have been irretrievably tainted by what the prosecutor had said, the position may have been reached where only a discharge would suffice.[13]

[13]Destanovic [2015] VSCA 113 [143]–[144].

For the purposes of these applications, Demirok and Destanovic are illuminating. They illustrate the type of case in which an appellate court might conclude that a substantial miscarriage of justice has occurred in a joint trial, in circumstances in which evidence against one accused is not admissible against the other accused. In each of those two cases, the circumstance that evidence, admissible against one accused, was not admissible against the other accused, was not of itself sufficient to justify the conclusion by the appellate court that there had been a substantial miscarriage of justice. Rather, in both cases, there were other particular circumstances, in addition to that factor, that caused the court to consider that, in view of the course of the trial, there had been a miscarriage arising out of the joint trial of the applicant with the co-accused.

In the present case, we do not consider that the admissions made by Madjaga, in his police interview, were such as to require separate trials, or to constitute a miscarriage of justice in the trial of the three applicants. There is the absence of a concatenation of prejudicial factors which were the hallmarks of Demirok and Destanovic. Indeed, it is readily apparent that the admissions made by Madjaga were only as to particular facts alleged by Ms Atatu, namely, that the accused entered her premises, and that she was partially undressed. Madjaga did not, in his interview, state or even imply that there had been any offending by the applicants. Thus the admissions made by Madjaga only gave limited support to Ms Atatu’s version of the events.

As we have mentioned, it could not be denied that the admissions made by Madjaga provided some support to Ms Atatu’s credibility. But such support was limited in value. On the other hand, Ms Atatu’s credibility was bolstered by other evidence, apart from the partial admissions made by Madjaga. Ms Atatu stated, in her evidence, that at 10.20pm on the Saturday night before the offending, the applicants attended at her house and attempted to enter it, but gave up and left. Two minutes later she made a call to ‘000’, which was recorded and played to the jury. On the day of the offending, Ms Atatu received a telephone call from her brother, Hemery Kandola Omba. He warned her that people were coming to her house and that she should lock the door. At that point the applicants entered her bedroom. Omba gave evidence that he telephoned Ms Atatu to tell her to lock the door, and that he heard a male voice yelling ‘where is your husband?’ and threatening to kill him.

Following the attendance of the accused at her home at 3.30pm, Ms Atatu telephoned ‘000’ at 3.35pm, and reported that men dressed like soldiers were outside her door, and they had come into her room when she was naked and one of them had a long knife. Ms Atatu’s mother, and her brother Kandola, attended the unit soon after the incident and observed Ms Atatu to be crying.

All of that evidence provides cogent support to the testimony given by Ms Atatu. By contrast, as we have stated, the admissions made by Madjaga were limited. The material relating to those admissions was one relatively small part of the trial which lasted for 21 days. In those circumstances, we consider that the prejudicial effect of the partial admissions made by Madjaga, in respect of the cases of each of the applicants, was limited. Further, in the course of the trial, and in his charge to the jury, the judge gave firm directions to the jury which, we consider, were sufficient to adequately ameliorate that prejudice.

Our system of criminal justice must operate on the assumption that, as a general rule, juries will understand and follow directions given to them by trial judges. And the experience of the Court is that juries do adhere to directions to consider the cases of co-accused separately, and only in light of the evidence admissible in the case of each. Kaye J observed in Mokbel:[14]
[14]R v Mokbel (2009) 26 VR 618, 636–7 [86] (‘Mokbel’).

The weight given by the courts to the effect of judicial directions to juries has been based on a number of considerations. First, it is fundamental to our criminal justice system that we assume and expect that juries will faithfully and carefully adhere to directions given to them by the presiding trial judge. That assumption is the basic underpinning of each criminal trial before a jury. As McHugh J stated in Gilbert v R:[15]
The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge’s directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one — accused, trial judge or member of the public — could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.

And later his Honour observed:[16]

In addition, it has long been the experience of trial judges in this State, and in this country, that jurors in criminal (and indeed civil) trials are particularly astute and conscientious in adhering to directions given to them as to their role, and as to the principles which they are to apply in determining their verdicts. It is important not to overlook, nor to underestimate, the capacity of juries and the increasing sophistication of them. The recorded cases are replete with statements by judges reflecting the experience of the common law courts that juries have consistently, for many decades, been particularly rigorous in the performance of their judicial roles. …

[15](2000) 201 CLR 414, 425 [31].

[16]Mokbel (2009) 26 VR 618, 638 [90] (footnotes omitted).

It would be naive, however, blindly to assume that a jury’s decision-making will always be immune from improper prejudice, or that in every case improper prejudice will be capable of cure by judicial direction. In cases where the effective amelioration of prejudice cannot be achieved by direction, it will be proper to sever an indictment. But accepting that — even in cases involving the joint commission of offences — there will be cases in which it is appropriate to order separate trials of co-accused, for example, where the evidence admissible against each of the accused is impossible (or, at the least, extremely difficult) to disentangle, and where the evidence admissible against one accused is highly prejudicial to the other; and further acknowledging that there will be cases in which the attendant prejudice is such that it may cause a jury to disregard the directions of a trial judge, in our view this is not such a case. In joint trials of co-accused it frequently occurs that the admissions against interest of one — whether in or out of court — have the potential to prejudice the case of another or others. That fact alone can neither justify a separate trial, nor lead to the conclusion that a substantial miscarriage of justice has been occasioned by there having been a joint trial.[17] As we earlier observed, it is only where the relevant prejudice is incapable of effective nullification by direction that the conclusion might be reached that there has been a substantial miscarriage of justice.[18] In our view, the directions given in this case were well capable of ameliorating any prejudice flowing to the cases of Mbuyi, Pierre and Tshiswaka from a joint trial with Madjaga.
[17]See, for example, Demirok; Collie; Webb; Gibb; R v Box and Martin [2001] QCA 272.
[18]See n 7 above.

While we would grant Tshiswaka the extension of time he seeks, the applications of Mbuyi, Pierre and Tshiswaka for leave to appeal against conviction should be refused.

Extension of time and conviction application: Mualaba Madjaga

Madjaga (who in this section of our judgment we will refer to as ‘the applicant’) applies for an extension of time within which to file a notice of application for leave to appeal against his conviction. That application was not opposed. The substantive application, on behalf of the applicant, is for leave to appeal against conviction on the two grounds set out above.

The application for extension of time

The applicant was sentenced on 1 October 2015. His application for leave to appeal against his conviction was filed on 29 November, 31 days after the expiration of the time prescribed by s 279 of the Criminal Procedure Act 2009. The application for an extension of time is supported by an affidavit sworn by the applicant’s solicitor. In that affidavit, it is deposed that, after the applicant was convicted (but before he was sentenced) trial counsel advised that the applicant should appeal against conviction, but that she would not be available to prepare the written case because of other commitments. As a result, other counsel was consulted, who undertook to prepare the relevant documents. Unfortunately, that member of counsel was unable to complete the necessary work for the preparation of the written case within the prescribed time. The applicant’s solicitor then took immediate steps to brief a different member of counsel who, with commendable expedition in the circumstances, prepared the relevant documentation.

The relevant factors that apply to an application for an extension of time include the length of the delay, the explanation for the delay, and (particularly where the delay is lengthy) whether the proposed appeal has some merit.[19] The applicant has clearly demonstrated an acceptable excuse for the delay, which, of itself, is not substantial. For reasons that follow, the grounds of appeal, sought to be relied on, could not be described as being devoid of merit. In those circumstances, the application for an extension of time will be granted.
[19]R v Darby (Unreported, Court of Criminal Appeal, Gowans, Lush and Crockett JJ, 2 May 1975); Jopar v The Queen [2013] VSCA 83 [60] (Priest JA); Roth (a pseudonym) v The Queen [2014] VSCA 242 [3] (Neave and Priest JJA).

We therefore turn to the two grounds on which the applicant seeks leave to appeal against conviction. Both of those grounds are concerned with the conviction of the applicant on the kidnapping charges contained in counts 2, 3, 5, 6 and 7 of the indictment. Before considering those grounds, it is convenient, first, to summarise, in a little more detail, the evidence that the prosecution sought to rely on in respect of those charges.

Kidnapping charges: the evidence

Mr Langa gave evidence that on Sunday 28 April 2013 he visited his wife (from whom he was then separated) at her home in Caroline Springs. Sarah Efolko was also residing there. While he was at the house, Mr Langa received a telephone call from Mbuyi that he intended to come and spend time with him. Mr Langa responded that he was not in the house at that time. Subsequently, Sarah Efolko stated that she received a call from Mbuyi, and that she had told Mbuyi that they were at the Caroline Springs house. As a result Mr Langa rushed his family, and Ms Efolko, into his vehicle.

Shortly after they left the house, Pierre’s vehicle, which was then driven by Mbuyi, collided with the front of Mr Langa’s vehicle. Mbuyi then alighted from Pierre’s vehicle, and approached Mr Langa’s vehicle. Mbuyi tried to take the key from the ignition of Mr Langa’s vehicle. Mr Langa resisted and was able to get hold of the keys. As a consequence, Mbuyi then hit him on the chest and said ‘be calm, don’t worry, be calm, I just needed the address’.

As a result, an argument occurred between Mr Langa and Mbuyi. By then Mr Langa had alighted from his vehicle. The other occupants of Pierre’s vehicle, namely Pierre, Tshiswaka, Madjaga and another person (who Mr Langa did not know) surrounded him in a circle, and told him that he needed to show them Ms Atatu’s house. Mr Langa was unable to return to his vehicle because he was surrounded by those persons. He then saw Tshiswaka go to his (Mr Langa’s) vehicle. At that time Pierre was speaking to Sarah Efolko telling her to show them Alain Lombo’s house. He said to her that if Mr Langa did not show them Alain’s house, ‘… we’re going to take you with us’. At that time, Mr Langa’s wife and his three children were crying. He said that each of the accused were wearing combat uniforms. As a result of their behaviour, Mr Langa agreed to drive from Caroline Springs to St Albans, and to show them the address that they required. During that journey, Tshiswaka was in Mr Langa’s vehicle, and the other accused (and the unknown person) were following in Pierre’s vehicle. After Tshiswaka alighted at Alain Lombo’s house, Mr Langa then departed the scene.

In cross-examination, Mr Langa agreed that as he got out of his vehicle, the other persons left their vehicle, and came over. They had a conversation. Mr Langa’s wife said ‘let’s just take them to the house’, and after Tshiswaka got in his car, Mr Langa agreed with his wife to drive to the house.

Ms Bonsange then gave evidence. She was very stressed in giving her testimony, which, as a result, was quite brief. She said that on 28 April 2013, Mr Langa visited her at her home in Caroline Springs. He told her not to answer the telephone because Mbuyi had already called him. Mbuyi’s wife then telephoned Ms Bonsange, and Ms Bonsange told her that they were not at home. However, Mbuyi telephoned Sarah Efolko and told her that he was coming to pick her up. As a result, they all left the house immediately in Mr Langa’s vehicle. When they were not far from the house they were intercepted by Pierre’s vehicle. The other occupants came out of Pierre’s vehicle and were talking with Mr Langa. Mbuyi came close to Mr Langa’s vehicle, and they were talking. Mr Langa was trying to drive off. At that time Sarah Efolko was sitting in the rear of the vehicle with the children. Ms Bonsange said that she remained in the vehicle. At one stage Tshiswaka entered their vehicle. Mr Langa then drove to Ms Atatu’s house. The other accused were in a vehicle that followed them. When they arrived at Ms Atatu’s house, Tshiswaka alighted from the vehicle, and Mr Langa drove off.

The only accused who gave evidence was Pierre Mwamba. He confirmed the contents of his record of interview, in which the kidnapping incident was not raised. In cross-examination, Pierre stated that he and his co-accused drove to Caroline Springs to meet Sarah Efolko. They saw Mr Langa’s vehicle two houses from where Sarah was living. Mbuyi got out of the car and approached Mr Langa’s driver’s side. Pierre stated that he did not see anything because his vehicle was facing the other way. He said that Mbuyi got out of the car and then he and Mr Langa walked to Pierre’s vehicle. As a result everyone got out of the car. They were all friendly, and they did not see Sarah Langa crying. He said that Tshiswaka was playing with the children in the back of the vehicle. Pierre was in his own vehicle. Ms Bonsange stated that there was no problem for Tshiswaka to get into Mr Langa’s vehicle. He said that Mr Langa’s vehicle then left with Sarah Efolko.

Application for leave to appeal: Ground 1

Ground 1 is concerned with the conviction of the applicant on the five charges of kidnapping, namely, charges 2, 3, 5, 6, and 7. The principal point relied on by the applicant is that, having intervened on a number of occasions during the trial to clarify how the prosecution put its case against each of the accused on the basis that they were acting in concert, the judge, in his final directions to the jury, then recast the manner in which the prosecutor had put the case to the jury in two important respects. First, it is submitted that the judge effectively recast the prosecution case as to the time at which the agreement, constituting the concert, was formulated by the accused. Secondly, it is submitted that the judge directed the jury as to a ‘path of inferential reasoning’ that could establish that the applicant knew that the children, referred to in charges 5, 6 and 7, were in Mr Langa’s vehicle, in circumstances where the prosecutor had not relied on such a path of reasoning in his final address. It was submitted that, by intervening in the prosecution case in that way, the judge significantly strengthened the prosecution case, so that his intervention has resulted in a substantial miscarriage of justice.

In support of that submission, counsel for the applicant relied on a number of passages from the transcript of the trial. It is necessary to summarise those passages in a little detail.

In his opening to the jury, the prosecutor put the Crown case, on the kidnapping charges, on the basis that each accused acted in concert, or aided and abetted each other, in the commission of those offences. At the conclusion of the evidence in chief given by Mr Langa, the judge asked the prosecutor to clarify how the kidnap counts were put against each accused. In particular, the judge asked the prosecutor to identify the act or acts of each accused by which it was alleged they were participants in the kidnap offences charged against them. The prosecutor responded that it was alleged that the accused were each acting in concert. The judge asked the prosecutor to clarify the act or acts that constituted the relevant actus reus of the offences, namely, that the accused took or carried the alleged victims away. The judge also asked the prosecutor to clarify whether it was alleged that the collision between the two vehicles was deliberate. The judge told the prosecutor that he was ‘on notice as to the need for precision’ in relation to those issues.

On the next day, during a break in the witness’s evidence, the judge observed to the applicant’s counsel that Mr Langa had not yet said anything about the applicant. The prosecutor responded that the witness said that the applicant was there and that he (Mr Langa) was surrounded by the men. The judge next expressed concern that he could not identify any evidence that all the accused were parties to a joint criminal enterprise to kidnap everyone in Mr Langa’s vehicle.

Pausing there, the matters referred to by counsel for the applicant do not, in our view, go beyond a judge seeking to identify, with some clarity, the manner in which the prosecution was putting its case against each of the accused. Such a process was appropriate, in order that ultimately the judge was able to accurately direct the jury as to the pieces of evidence on which the prosecution relied in support of its case against each of the four accused persons.

The next passage, relied on by the applicant, occurred after the cross-examination by counsel of the witness Adele Atatu. The judge raised concern as to the use by defence counsel of lengthy passages from the evidence of Ms Atatu in the committal proceedings as previous inconsistent statements by that witness. The judge was concerned that the inconsistent statements relied on might be used by the prosecution in evidence against the co-accused, unless he otherwise ordered. In the context of that discussion, the judge noted that Ms Atatu was the only witness who gave evidence about what happened in the aggravated burglary. He observed that the kidnapping counts were not strong, and the jury would have difficulties with the evidence of Ms Bosange and Mr Langa.

At the conclusion of the evidence of Pierre, the judge raised a number of issues with counsel. In particular, he sought to clarify the agreement that the prosecution alleged constituted the joint criminal enterprise between the parties, and the acts that were alleged to constitute the offence of kidnapping. The judge expressed concern about the matter, and remarked that he was ‘… going to be left to fix what’s going to be a mess’. The prosecutor stated that he was relying on the actions of Mbuyi in trying to prevent Mr Langa from leaving the scene, and the actions of all of the accused in surrounding Mr Langa when he alighted from the vehicle. He said that the prosecution also relied on the action of Tshiswaka getting into Mr Langa’s vehicle. The judge stated that the prosecution would only be able to rely on the action of one of the accused, as evidence of participation of the others in the kidnap, if there was reasonable evidence to support the co-accuseds’ participation in the joint criminal enterprise. In that respect, the judge was particularly concerned to ensure that the prosecutor should identify, in respect of each accused, the acts of participation by that accused in the particular kidnapping offence, or by which that accused communicated his encouragement and consent to the actions of the others in committing that offence.

The judge then delivered a ruling in relation to a submission earlier made by each accused, at the conclusion of the prosecution case, that there was no case to answer in relation to the counts of kidnapping. The submissions by counsel had principally been that there was no sufficient evidence that the victims had been deprived of their liberty by the use of force, or the threat of force, by the accused. The judge rejected that submission. In doing so, he identified the evidence that he considered supported the elements, first, that the accused had used force, and, secondly, that they had deprived the respective complainants of their liberty. Relevantly, his Honour stated:

… in my opinion, a substantial body of evidence is available that the accused were all parties to a joint criminal enterprise, used force to require Sidney Langa, Jenny Bonsange and Sarah Efolko to show them Alain Lombo’s address, and at all relevant times all accused knew that the children, also the subject of the kidnapping charges, were forcibly dealt with as well.

At the conclusion of the ruling, the judge told the prosecutor that he would need to particularise the evidence that he relied on in order to prove each of the five elements of the kidnapping charges.

Following the ruling, and during a delay in the trial pending the availability of the last witness to be called on behalf of Pierre, the judge further raised with counsel issues relating to the kidnapping charges. The judge asked the prosecutor to identify the basis upon which he was alleging that the accused each acted in concert. In response, the prosecutor stated that he was relying on the proposition that the agreement, constituting the concert, was entered into immediately before the commission of the offence.

Subsequently, after the conclusion of the last witness’s evidence, the judge again raised his concern that the prosecutor must be specific about the particular acts of each accused that were relied on in support of the kidnapping charges. He confirmed that the prosecutor would rely on the principle stated by the High Court in Tripodi,[20] namely, that the acts and declarations of each participant in furtherance of a joint criminal enterprise may be admissible against each other. The judge expressed concern as to how the prosecution intended to contend that the act of Tshiswaka, in getting into Mr Langa’s vehicle, was admissible against the other accused persons.
[20]Tripodi v The Queen (1961) 104 CLR 1.

There then ensued discussion between the judge and defence counsel, in which the judge expressed frustration with the prosecutor’s responses to those matters. Counsel for the prosecution stated that he relied on the actions of each accused in surrounding Mr Langa, of intimidating him, of the threat made by Pierre to Sarah Efolko in the hearing of Mr Langa, and of Tshiswaka in entering the vehicle. In the course of that discussion, counsel for Pierre, Tshiswaka and Mbuyi each stated that they understood what actions the prosecution relied on against their respective clients. Counsel for the applicant stated that she was in a similar position, but she would like to know what specific overt acts were alleged to have been done by her client in furtherance of the agreement that was said to constitute the concert between the accused persons.

The matters, that we have so far outlined, are relied on by counsel for the applicant as the prelude to the aspects of the judge’s intervention which are the basis of ground 1. The matters so far, in our view, do no more than reflect the judge’s concern that the prosecutor should specify, with precision, how the prosecution was putting its case against each of the accused persons.

It may well be that, in doing so, the judge was requiring a degree of precision that, in the circumstances of the case, was not necessary. We would think that the prosecutor provided sufficient particularity, in respect of the concert, and in respect of the acts of each accused in furtherance of the concert, by referring (as he sought to do) to the circumstances in which the offence was alleged to have been committed, including that: Pierre’s vehicle, containing the four accused, each wearing military uniform, intercepted Mr Langa’s vehicle; Mbuyi attempted to forcefully prevent Mr Langa from driving away; the four accused each surrounded Mr Langa in an intimidating manner after he alighted from his vehicle; Pierre threatened an occupant of Mr Langa’s vehicle; Tshiswaka entered Mr Langa’s vehicle; and the other three accused, in Pierre’s vehicle, followed Mr Langa’s vehicle on the journey to Mr Lombo’s residence. In such a case of concert, necessarily, the prosecution does not know when the underlying agreement between the accused persons was formed. Rather, the existence of the requisite agreement is established by inference from the actions of each of the accused which are said to take place in furtherance of the concert.

Nevertheless, the intervention of the judge, to the point that we have so far discussed, was not excessive or unnecessary in any manner unfairly prejudicial to the cases of any of the accused, including the applicant. On the contrary, if anything, as we have stated, the judge sought to require the prosecutor to specify aspects of the Crown case with more particularity than was necessary.

After the close of evidence, the prosecutor commenced his final address. He addressed a number of matters, including the context in which the evidence was to be considered, the alleged motive of each of the accused who participated in the offences, and the prelude to the offences. The prosecutor then referred to the topic of the liability of an accused person pursuant to a joint criminal enterprise. He submitted that the jury could find each of the accused guilty of the offences charged in counts 2 to 7 (and 10 and 11),[21] on the basis of a joint criminal enterprise. As the prosecutor commenced to outline that concept to the jury, the judge interrupted him and sent the jury into the jury room.
[21]Charges 10 and 11 were charges of threat to kill. It is not necessary to say anything about them in this judgment, other than to say that the jury was unable to agree about them and, after trial, the DPP filed notices of discontinuance in relation to them.

The judge then raised a technical matter as to a phrase used by the prosecutor in describing one aspect of the joint criminal enterprise. After the prosecutor clarified that matter, the judge asked him to specify the acts performed by each accused that were admissible in relation to the other accused in respect of each charge. The prosecutor commenced to do so, but the judge took issue with a number of the matters relied on by the prosecutor. In the course of that discussion, counsel for the applicant submitted that the prosecutor should make clear at what stage the accused made the agreement that was alleged to constitute the concert between the accused persons. The judge observed that the prosecutor had not yet made that clear.

The jury then returned to the court. The prosecutor returned to the topic of the telephone calls that were made to Mr Langa’s house by Mbuyi. He stated to the jury that it was at that point that the accused came to an agreement, before they reached Mr Langa’s house, to force Mr Langa or Ms Efolko or Ms Bonsange to direct them to Mr Lombo’s address. Thereupon the judge sent the jury out again. He asked the prosecutor what he meant by ‘direct’. The judge stated that that would not be sufficient to constitute the charge of kidnapping. The judge said ‘… I’m very troubled by this’.

The jury then returned again. The prosecutor told the jury that the agreement between the accused was that Mr Langa, Ms Efolko or Ms Bonsange would direct them to Mr Lombo’s address. In particular, the agreement was that those three persons would be taken away by force, if necessary, to show them where Mr Lombo’s address was. The prosecutor added that it was in pursuit of that plan that the four accused and Fifa drove to the house of Ms Bonsange and intercepted Mr Langa’s car. It was further in pursuance of that enterprise that Mbuyi tried to take Mr Langa’s car keys, put his hand on Mr Langa’s chest, and told him he wanted Mr Langa to help them find Mr Lombo’s address. The prosecutor also submitted that it was in pursuance of the agreement that all the other accused circled Mr Langa, Pierre then went into Mr Langa’s car and spoke to Ms Efolko, and Tshiswaka remained in the car while Mr Langa drove to Ms Atatu’s unit, with the three other accused following in Pierre’s car.

The prosecutor then made some submissions to the jury concerning the evidence. During that part of his address, the judge gave the jury another break. He criticised the prosecutor. The judge stated that the prosecutor had not ‘embraced’ the reasoning that he had set out in the no case ruling, in which he had identified the elements of the charge and the evidence available to support those elements. The judge stated that he also ‘set out in my reasoning how charges 5, 6 and 7 could be proved, because they’re children’. The judge stated that in his ruling he had said that the accused would have known the children were in the car and that it was part of their agreement. The judge observed, ‘… the jury are going to be puzzled as to how these charges are proved in relation to these children’.

The judge criticised the prosecutor for not saying ‘a single thing’ about the applicant. He said that he had told the prosecutor to identify how it was alleged that each accused participated in the commission of the crime. The judge then said ‘… you didn’t … which means I’m going to have to do it because you haven’t’. The prosecutor responded that he thought that he had complied with the judge’s request. The judge stated that he did not want to argue the case on behalf of the prosecution but ‘… regrettably it’s as clear as blancmange’. He said:

I don’t know how to fix this. I don’t know how many times I said this had to be done and it’s not being done, just refuse to do it, so I’m going to have to explain it to the jury. Not putting the case, but I’ll have to identify the evidence. I have to.

Counsel for Pierre then expressed concern that the jury might interpret such an explanation as the judge making a final address on behalf of the prosecution. The judge responded that he would try to keep it as neutral as possible. He said to the prosecutor:

So you either fix it or I discharge the jury or I fix it. They are the three options.

When the jury returned after lunch, the judge gave the jury short preliminary directions about complicity, and, in particular, the requirement that the prosecution prove the requisite intention on behalf of each accused. The prosecutor then resumed his address. He concluded the part of his address, that related to the kidnapping charges, as follows:

Just one other matter and that is in relation to the kids. The prosecution case is that the accused intended to kidnap, take away Sarah Efolko or Langa or Bonsange to ensure that they are directed to Lombo’s house by taking them away. The kids are there and we say that part of the agreement is to take away anyone who’s with them to ensure that their objective is met and we say therefore the kids are part of that agreement to kidnap.

The prosecutor then addressed the jury concerning the charge of aggravated burglary. At the conclusion of his address, and in the absence of the jury, the judge criticised the prosecutor in relation to how he had addressed the jury on that aspect of the case. Counsel for each accused expressed concern as to how the judge proposed to deal with the matter. In particular, they were concerned that the judge should not be perceived to be putting the prosecution case to the jury. The judge stated that he could not put it ‘… over and above how it has been put’. However, he stated that he was obliged to refer to the relevant evidence. He said that he would restrict the ‘reasoning’ available to the jury by reference to the way the case had been put by the prosecutor.

The judge then foreshadowed to counsel how he proposed to direct the jury on various aspects of the case. The judge noted that the prosecutor had submitted to the jury that part of the relevant agreement was that the accused would take away anyone who was with Ms Efolko, Mr Langa and Ms Bonsange. He noted that that meant that the jury would need to be satisfied that each accused knew of the presence of the three children in Mr Langa’s car. He said that, apart from the case of Tshiswaka (who entered Mr Langa’s vehicle), the jury would have to infer that the accused knew there were children in the car.

The judge then foreshadowed directing the jury that the agreement to kidnap the adults and the children was formulated when each of the accused got out of Pierre’s vehicle after Mr Langa’s vehicle was intercepted. Counsel for the applicant objected on the basis that the prosecutor had put to the jury that the relevant agreement was reached before Pierre’s vehicle intercepted Mr Langa’s vehicle. The judge acknowledged that that was correct. His Honour stated that he was unclear as to how the charge of kidnapping the three children could be proven against anyone except Tshiswaka. He said that the jury would have to be satisfied beyond reasonable doubt that the agreement included taking away anyone who was with the adults at the time it was entered into.

On the next day, counsel for the applicant made a submission that there was no case to answer in relation to all of the kidnapping charges against her client, as there was no evidence of the participation by her client in the agreement alleged by the prosecution. In support of that submission, counsel referred to the fact that the prosecutor, in his address, had put to the jury that the relevant agreement was entered into by the accused at the time in which the telephone calls were made to Mr Langa’s house. She submitted that there was no evidence that, at that time, the applicant was told, or knew about, the plan to intercept Mr Langa’s vehicle and kidnap its occupants.

The judge responded by pointing out that the critical time, for determining whether an agreement existed between the accused, was when Mr Langa’s vehicle was intercepted. The judge rejected counsel’s application, on the basis that there was sufficient evidence from which the jury could infer the existence of the concert. In particular, the judge referred to the fact that all of the accused went to Mr Langa’s house together, dressed in military clothing, that they all had a grievance against Mr Lombo, and that they all wanted to find out where his house was. Having ruled in that manner, the judge then stated that he was concerned about the charges relating to the children, but that, in the case of the applicant, the jury would be entitled to infer that he saw the children.

After further discussion, the judge stated that, although the prosecutor had put that the agreement was arrived at before Pierre’s vehicle set out for Mr Langa’s home, that was not relevant, and the agreement was arrived at at the time of the interception of Mr Langa’s vehicle. He stated that he was ruling that the agreement, relevant for the concert, was to be considered at the time the offending took place. He told counsel that, when considering the case of acting in concert, they would need to consider the acts performed from the time when the vehicle was intercepted, because that was when the kidnapping commenced.

The judge then dealt with an application on behalf of Mbuyi and the applicant that there was no case to answer in respect of charge 10 on the indictment. Counsel for Mbuyi then asked for the matter to be adjourned until the next day, because, he contended, the manner in which the judge proposed to direct the jury relating to concert was different from how the prosecution had outlined its case, and counsel needed time to prepare his address on that aspect of the case. The judge stated that there had been no change as argued by counsel. Counsel also observed that there had been no identification of the facts that the prosecution relied on to prove the relevant agreement.

After further discussion, the case adjourned for the day. On the next day, and on the following day, counsel for each accused made their final addresses.

The judge then commenced his charge to the jury. In the course of it, he gave the jury directions concerning the process of reasoning by inference. In that context, he explained, as an example of such reasoning, that the prosecution relied on an inference to prove that the applicant knew the children were in the vehicle. Later, in his charge, he again repeated that, while there was direct evidence that Pierre and Tshiswaka knew that the children were in the car, in relation to the other two accused (that is, the applicant and Mbuyi) the jury would have to rely on an inference from the fact that they were near the car and must have seen the children.

In this application, it is submitted that the judge, in that way, ‘laid out a path of inferential reasoning’ that could prove that the applicant knew the children were in the car, in circumstances where that path had not been laid out to the jury by the prosecutor.

The second aspect of the charge, which is relied on in support of ground 1, arises from the directions by the judge to the jury concerning the necessary elements of a joint criminal enterprise. The judge directed the jury, in that respect, that it must be satisfied that ‘immediately before’ the kidnapping, an agreement had been entered into to do what they did to commit the offence. The judge told the jury that it would need to consider, ‘at that point’, the evidence of the actions of each of the accused persons to infer whether or not there was an agreement of the kind alleged by the prosecution. The judge told the jury that the prosecutor had invited it to infer the existence of the agreement by reference to the evidence that applied to all of them. The judge again told the jury that the agreement had to be in existence at the time the offending took place.

It is submitted on this application that, in that respect, the judge directed the jury in relation to the timing of the formation of the agreement in terms that were not relied on by the prosecutor. In particular, it is submitted that, while the prosecutor had relied on an agreement that had been formulated before Pierre’s vehicle intercepted Mr Langa’s vehicle, the judge altered that timing, by directing the jury that the relevant agreement was alleged to have been made at the time of the interception.

Legal principles

In a criminal trial, the judge has a well-defined role. As the judge of the law, but not of the facts, it is the task of the judge to direct the jury on any principle of law that is relevant to the determination by the jury of its verdict or verdicts, to rule on issues relating to the admissibility of evidence or on matters of procedure relevant to the trial, and to ensure that the trial is conducted in a manner that is fair to both sides. As the independent arbiter in that respect, it is not for the judge to ‘enter the arena’ by assisting, or acting to the detriment of, any party. Of course, the judge is entitled to, and indeed should, intervene to clarify any matter that may be vague or confusing for the jury, and to ensure that the relevant issues are addressed in the trial. However, it is not for the judge to assume the role of a participant in the trial, whether intentionally or otherwise.

The principles were conveniently stated by Ashley JA in Waters v The Queen,[22] in which his Honour said:

The clear thrust of the authorities is that the judge has his or her particular role in the trial process. It is not for the judge to enter the arena — whether by (1) excessive questioning of witnesses; (2) directing, in substance, that a witness or prospective witness be asked a particular question; (3) seeking to influence one or other party to call a particular witness; (4) advancing an argument in his or her charge which was not advanced by counsel for the party which will or may benefit by the interruption; or (5) redirecting a jury that it might decide the case before it on a basis previously eschewed by the Crown and not the subject of address by counsel.[23]

[22][2011] VSCA 415 [103] (‘Waters’).

[23]Ibid [103]; see also R v Mawson [1967] VR 205, 208 (Winneke CJ, Adam and Barber JJ).

In the present case, the applicant relies on the decision of the court in Waters, and its earlier decision in R v Trifilo,[24] in support of the proposition that the recasting of the prosecution case, in the judge’s final directions to the jury, has resulted in a substantial miscarriage of justice.
[24][2009] VSCA 194 (‘Trifilo’).

In Waters and Trifilo, the court found that a miscarriage of justice had occurred because the trial judge, by excessive interference in the trial, had caused the prosecutor to significantly reformulate the prosecution case against the accused in a manner that was unfairly prejudicial to the accused.

In Waters, the applicant was charged on a number of counts of trafficking drugs. The principal charge (count 7) alleged that the applicant had trafficked in a large commercial quantity of MDMA. In opening, and for a significant part of the trial, the prosecution case was that the applicant had acquired approximately 10,000 MDMA tablets from a particular supplier, and that he had then trafficked that amount of drugs by on-selling them. As a result of a significant body of evidence adduced during the trial, the prosecution, with the encouragement, if not at the behest, of the trial judge, altered its case on count 7 to allege that the applicant had trafficked more than 20,000 MDMA tablets by making offers for sale, possession for sale, and sales of that quantity of the substance. The Court of Appeal held that the judge’s intervention, on multiple occasions, had induced the prosecution to alter its case in such a way as to result in two significant forensic disadvantages to the applicant, as a result of which there had been a substantial miscarriage of justice.

In Trifilo, the applicant was convicted of the theft of a motor car. There was evidence on which the jury was entitled to find that the applicant was in possession of the vehicle. The prosecution case against the applicant was based on an inference, and other evidence, that it was he who had stolen the vehicle. Ultimately, the prosecution had difficulty proving ownership of the vehicle, and that it had been stolen. Those elements, of the charge, were only established because the judge permitted the prosecutor to adduce inadmissible evidence. At the outset of the trial, the prosecutor had made it clear that the prosecution did not rely on the doctrine of recent possession. However, the trial judge overrode the view of the prosecutor, and directed the jury that the prosecution relied on that doctrine to establish the applicant’s guilt. The Court of Appeal held that there had been a miscarriage of justice, first, because of the admission of the inadmissible evidence relating to the ownership and theft of the vehicle, and, secondly, because of the intervention of the judge to recast the prosecution case in that manner. Redlich JA and Hansen AJA stated:

In this case the trial judge intervened to recast the manner in which the prosecution presented its case during the course of the trial. It is unnecessary to refer to previous occasions when this Court has emphasised the dangers of such a course. A real risk of a miscarriage of justice is created when a trial judge, without the consent of the parties, formulates a different way in which the prosecution put its case. It will ordinarily mean that one or more of the parties in the trial will then have to present or respond to a different case to the one that was intended or anticipated. In the unusual circumstances of this case, it was the prosecution who was irreparably prejudiced as a consequence of the trial judge’s unwarranted intervention.[25]
[25]Ibid [2]. See also R v GAS [1998] 3 VR 862; R v Lao (2002) 5 VR 129; R v Boros [2002] VSCA 181; R v SAB (2008) 20 VR 55; R v Iliovski (2002) 135 A Crim R 117; R v Nguyen [2006] VSCA 293; R v Abbouchi [2008] VSCA 171; R v Falcone (2008) 170 A Crim R 440; Bowling v The Queen (2013) 38 VR 97.

Analysis

Taking those principles into account, we return to the two particular aspects of the judge’s charge in respect of which it is contended on behalf of the applicant that the judge unduly intervened in the prosecution case in a manner that was unfairly disadvantageous to the applicant.

The first basis, upon which that submission is made, is that the judge ‘recast’ the time or stage at which the prosecution alleged that the accused men had entered into the agreement that was the basis of the allegation that they acted in concert in kidnapping the occupants of Mr Langa’s vehicle. The applicant submitted that, whereas the prosecutor in his final address said that that agreement was formulated before Pierre’s vehicle intercepted Mr Langa’s vehicle, the judge, in his charge, indicated to the jury that the time, at which the agreement was alleged to be formulated, was immediately before Pierre’s vehicle intercepted Mr Langa’s vehicle. It is submitted that that change in the prosecution case, as recast by the judge, increased the prospects of a conviction of the accused, because, if the agreement was alleged to have been made earlier, the prosecution would not be able to establish that the applicant was aware that Mr Langa’s vehicle would contain, in particular, the three children who are referred to in charges 5, 6 and 7.

At the time of sentencing, Pierre was married and had four children. He had worked in a range of occupations, and had also worked as a volunteer. Before coming to Australia, Pierre had completed secondary schooling, and had commenced studying medicine at university, before being subjected to the persecution to which we have referred. Pierre is now an Australian citizen.

At the time of sentencing, Tshiswaka was 31 years of age. He had a criminal history arising from six court appearances. He had four convictions for exceeding the prescribed concentration of alcohol while driving, and a number of other traffic convictions including driving while disqualified. Of significance in Tshiswaka’s case was that, at the time of the offending, he had just completed a community correction order of 12 months’ duration for the offences of unlawful assault, criminal damage, contravening a family violence intervention order, obtaining property by deception and obtaining a financial advantage by deception. The community correction order was conditional upon Tshiswaka receiving treatment for mental illness and undertaking a men’s behavioural change program. The court that imposed the community correction order had been informed in a psychological report that Tshiswaka suffered from schizophrenia.

Tshiswaka fled the Democratic Republic of Congo in 2000, and the judge accepted that his childhood and early teenage years were severely disrupted by reason of the persecution suffered by the Mwamba family in the Democratic Republic of Congo.[31] Tshiswaka was resettled in Australia as a refugee by the UNHCR in 2007. The judge noted that Tshiswaka had not obtained Australian citizenship and, if sentenced to 12 months’ imprisonment or more in relation to the present matters or in combination with Tshiswaka’s prior criminal history, Tshiswaka’s visa would be cancelled.[32]
[31]Reasons [32].
[32]Ibid.

In November 2009, prior to the commission of Tshiswaka’s more serious offences (including the offending for which he fell to be sentenced by the judge), Tshiswaka was admitted to the Werribee Mercy Psychiatric Unit suffering from psychosis. The evidence discloses that, following that admission, Tshiswaka has experienced mood disturbance and depression. Further, he was treated with the anti-psychotic drug, risperidone, before being discharged on a community treatment order in December 2009. In addition to these matters, Tshiswaka’s partner was, at the time of sentencing, suffering post natal depression. As a result of this, as the judge accepted, at the time of sentencing, Tshiswaka’s imprisonment was causing hardship for his partner.[33]
[33]Ibid [37].

At the time of sentencing, Mbuyi was aged 31 years of age (being Tshiswaka’s twin brother). Mbuyi had a prior criminal history from three court appearances, two of which were for exceeding the prescribed concentration of alcohol while driving. In June 2010, Mbuyi was placed on an adjourned undertaking for 12 months in relation to one charge of indecent assault. This charge arose out of conduct that occurred after Mbuyi went to a woman’s home with her after they had both been drinking alcohol. The magistrate imposed a condition of the bond that Mbuyi undertake a gender awareness program.

Like his brothers, Mbuyi suffered persecution in the Democratic Republic of Congo and fled in 2000. Mbuyi came to Australia in 2007 as a refugee supported by the UNHCR. After arriving here, he worked in a variety of occupations. The judge accepted that the trauma Mbuyi suffered as a result of persecution in the Democratic Republic of Congo was ongoing and that Mbuyi required support and counselling in the community.[34]
[34]Ibid [46].

At the time of sentencing, Madjaga was 24 years of age. He had no prior convictions or outstanding charges. Madjaga fell to be sentenced as a youthful first offender. Further, the judge accepted that Madjaga was a person of good character.[35]
[35]Ibid [49].

Like the Mwamba family, Madjaga and his family also suffered persecution at the hands of the government of the Democratic Republic of Congo. Madjaga’s father was executed by the military in that country when Madjaga was 11 years of age. The judge noted that, while Madjaga was a permanent resident of Australia, he was not an Australian citizen, and accordingly the character provisions of the Migration Act were also said to be engaged in his case.[36]
[36]Ibid [51].

Madjaga was educated in Australia to a year 11 level, and since leaving school had worked in warehousing, meat processing and security. The judge accepted that Madjaga suffered from chronic post-traumatic stress disorder stemming from the persecution he suffered, and the events he witnessed, as a young man in the Democratic Republic of Congo.

The plea hearing

The pleas for the respondents took place over three days, with a further brief plea hearing on the day of sentencing. Various character references were tendered, as were psychological reports relating to Tshiswaka and Madjaga.

A victim impact statement from Ms Atatu was tendered. The victim impact statement demonstrated the traumatic effect of the offending on her. In particular, Ms Atatu’s victim impact statement disclosed that her life had dramatically changed as a result of the respondents’ offending. She had previously fled her own country because of her fear of persecution and torture by the government. The respondents’ offending had seriously affected her sense of security that she had developed in Australia. In her victim impact statement, Ms Atatu said:

I feel very low, hopelessness, helplessness, embarrassed, shame, threatened, being dragged from the bed by the accuser [sic] in the presence of my children. The humiliation has damaged my life and reputation. I stress and always asking myself [sic] why this happened to me?

During the course of the plea hearings, the prosecutor accepted that the revocation of the visas of Madjaga and Tshiswaka were matters that the judge should take into account in sentencing, and that their sentences should be moderated because the burden of imprisonment would be greater on them in the knowledge that they have now lost the opportunity to settle in Australia. Additionally, the prosecutor accepted that a term of imprisonment coupled with a community correction order was within range for both Madjaga and Mbuyi (meaning that in each of their cases a sentence of imprisonment of less than two years, coupled with a community correction order was within range). However, in the cases of Pierre and Tshiswaka, the prosecutor’s submission was that, because of the objective seriousness of their offending, a sentence of more than two years’ imprisonment was required for each of them.

The judge’s reasons

The judge commenced his reasons for sentence with a description of the respondents’ offending.[37] The judge said that he was satisfied that Pierre and Tshiswaka were both armed when they entered Ms Atatu’s premises. Ms Atatu was breastfeeding her baby son in her bedroom, and her young daughter was playing outside the unit. The judge said he was satisfied that Pierre and Tshiswaka were both armed: one with a machete, and the other with a baseball bat. Ms Atatu was manhandled and threatened, before the respondents left the premises.
[37]Ibid [6]–[14].

The judge expressed the view that the conduct of the respondents was calculated to intimidate Mr Lombo and his family; and that the criminal conduct of the respondents was intended to silence those who actively opposed the respondents’ political activities in Australia. The judge noted that, with the exception of Mr Langa, the victims of this offending were women and young children, and the offending was cowardly and without any justification.[38]
[38]Ibid [15].

The judge then referred to Ms Atatu’s victim impact statement, before turning to the personal circumstances of each respondent.

In respect of Pierre, the judge noted that Pierre occupied a leadership position in the Combattant movement in Australia. The judge said that the offending before the Court occurred at Pierre’s direction. The judge referred to Pierre choosing to dress in military-style clothing. The judge concluded that Pierre had shown no remorse for his offending, and that Pierre’s moral culpability for his offending was high.[39] That said, the judge accepted that Pierre’s prospects of rehabilitation were reasonable, although the judge said that this would depend on Pierre accepting that his political objectives could only be pursued peacefully and lawfully.[40]
[39]Ibid [24].
[40]Ibid [27].

The judge then said:

Your case and the cases of your co-accused involve a complex balance of a number of prominent sentencing considerations and I have concluded that the balance will be best achieved in each case by the imposition of a term of imprisonment and a Community Correction Order to be commenced on the completion of the term of imprisonment.
The term of imprisonment in your case and the term and conditions of the Community Correction Order will be greater than that imposed on your co-accused because, in my opinion, the offending was instigated by you and the purposes for which the sentence is to be imposed in your case must reflect that fact. You also have a prior court appearance for an offence of violence.[41]

[41]Ibid [28]–[29].

In respect of Tshiswaka, the judge accepted that the principles set out in R v Verdins[42] were engaged ‘such that imprisonment may compound [Tshiswaka’s] psychological vulnerabilities and [would] also involve a greater degree of hardship for [Tshiswaka] than would otherwise be the case’.[43]
[42](2007) 16 VR 269 (‘Verdins’).
[43]Reasons [35].

The judge found that Tshiswaka played a prominent role in the offending and was, in effect, Pierre’s ‘lieutenant’. In the judge’s view, Tshiswaka’s moral culpability was not to be moderated by reason of his psychological history. Further, the judge concluded that the principles of general and specific deterrence should also not be moderated in Tshiswaka’s case.[44] The judge concluded that Tshiswaka had shown no remorse for his offending and no insight into the criminality of pursuing his political objectives by violent means. The judge expressed the view that any assessment of Tshiswaka’s prospects for rehabilitation must be approached with caution, and said that Tshiswaka required ongoing treatment and counselling and supervision in the community.[45]
[44]Ibid [36].
[45]Ibid [38]–[39].

As for Mbuyi, the judge accepted that the trauma Mbuyi had suffered as a result of persecution in the Democratic Republic of Congo was ongoing and that Mbuyi required support and counselling in the community. The judge said that Mbuyi had not demonstrated any remorse for his offending, and that Mbuyi’s prospects for rehabilitation, while reasonable, were also dependent upon Mbuyi accepting that his political objectives could only be pursued in a lawful and peaceful manner.[46]
[46]Ibid [46]–[47].

As to Madjaga, as we have already said, the judge accepted that Madjaga was a person of good character, who fell to be sentenced as a youthful first offender. With respect to Madjaga’s chronic post-traumatic stress disorder, the judge said that he accepted that imprisonment would compound this condition, and that the hardship Madjaga would experience would be the greater by reason of it. The judge also accepted that Verdins was engaged, but did not accept that Madjaga’s psychological condition should moderate Madjaga’s moral culpability or the application of the principles of general and specific deterrence. Additionally, the judge accepted that Madjaga’s prospects of rehabilitation were good, but the judge went on to say that Madjaga, too, must accept that his political objectives could only be pursued by lawful and peaceful means.

In the result, the judge sentenced each of the respondents to the terms of imprisonment and community correction orders that we have already set out. Each community correction order was made the subject of four special conditions: first, the undertaking of mental health assessments and treatment as directed; secondly, that each respondent be under the supervision of Corrections Victoria during the period of the community correction order; thirdly, that each respondent undertake programs to reduce the risk of reoffending; and fourthly, that each respondent perform unpaid community work (120 hours for Pierre, 90 hours for Tshiswaka, 70 hours for Mbuyi and 60 hours for Madjaga).

Governing principles

The principles concerning Director’s appeals have recently been restated by this Court in Director of Public Prosecutions v Zhuang.[47] The Director of Public Prosecutions may appeal against a sentence if he considers that there is an error in the sentence imposed and that a different sentence should be imposed, and he is satisfied that an appeal should be brought in the public interest. The Court must allow the appeal if satisfied that there is ‘an error in the sentence first imposed’, and that ‘a different sentence should be imposed’.[48]
[47][2015] VSCA 96 (‘Zhuang’).
[48]Sections 287 and 289(1) of the Criminal Procedure Act 2009. See also Zhuang [2015] VSCA 96 [39].

Where the error complained of by the Crown is one of manifest inadequacy, an appeal will not succeed unless the appeal possesses an additional quality that warrants intervention on a Crown appeal.[49] Intervention may be warranted where the manifest inadequacy of a sentence is such as to constitute or demonstrate the existence of error in principle.[50]
[49]Hudson v The Queen (2010) 30 VR 610, 627 [65]; Zhuang [2015] VSCA 96 [44].
[50]Zhuang [2015] VSCA 96 [44].

Notwithstanding the abolition of double jeopardy by s 289(2) of the Criminal Procedure Act 2009, the Court retains a residual discretion to dismiss a Director’s appeal. So much was made plain by this Court’s decision in Director of Public Prosecutions v Karazisis.[51] Further, as to the burden of persuasion with respect to the exercise of the residual discretion, the onus rests upon the appellant to persuade the Court that the discretion should not be exercised so as to lead to the dismissal of the appeal.[52]
[51]DPP v Karazisis (2010) 31 VR 634, 661 [119] (‘Karazisis’). See further, Zhuang [2015] VSCA 96 [45].
[52]Zhuang [2015] VSCA 96 [47].

The principles, relating to a ground of appeal based on ‘manifest inadequacy’, have been well defined by previous decisions of this Court. In Karazisis,[53] Ashley, Redlich and Weinberg JJA conveniently stated them as follows:
[53](2010) 31 VR 634.

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion that he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:[54]

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice’.[55]

[54]Lowndes v R (1999) 195 CLR 665, 671–672 [15].

[55]Ibid 662-3 [127]–[128] (citations omitted).

In Director of Public Prosecutions v Bright,[56] Redlich JA (with whom Chernov and Vincent JJA agreed) described the stringency of the test in the following terms:

The inadequacy of the sentence must be ‘clear and egregious’, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and ‘undermine public confidence in the administration of the courts to play their part in deterring the commission of crimes’.[57]

Analysis

[56](2006) 163 A Crim R 538.

[57]Ibid 542–3 [10] (citations omitted).

The maximum term of imprisonment for the offences of kidnapping and aggravated burglary is 25 years. Ordinarily, in the absence of substantial mitigating factors, a conviction for either of these offences attracts a sentence of imprisonment measured in years.[58] In the circumstances, the prosecutor’s concession, that a community correction order coupled with a term of imprisonment was within range for Madjaga and Mbuyi, was on any view a generous one. It seems likely that that concession then led the sentencing judge (by an understandable reference to considerations of parity) to then impose sentences on Tshiswaka and Pierre that, although they were more severe than those imposed on Madjaga and Mbuyi, also contained community correction orders.
[58]In respect of aggravated burglary, cf Hogarth v The Queen (2012) 37 VR 658 and the cases referred to in the tables at 675–693; DPP v Meyers [2014] VSCA 314. In respect of kidnapping, cf Hanna v The Queen [2014] VSCA 187; Young v The Queen [2015] VSCA 265 [79].

The Director contends that in sentencing the respondents, the judge failed to have sufficient regard to the maximum penalties; the nature and gravity of the offences; the impact of the offending on the victims; and to aggravating features including the commission of the offending in the presence of children, the use of weapons, carrying out the offending in a ‘military style’, carrying out the offending in company, and the high level of planning involved. When one reads the judge’s carefully expressed reasons for sentence, one can be in no doubt that his Honour took each of these matters into account in sentencing each respondent. That said, while there is nothing in the judge’s reasons that suggests that his Honour did not fully appreciate these matters, and also nothing to suggest that his Honour overemphasised the matters in mitigation that were required to be taken into account in respect of each respondent, we are persuaded that the sentences imposed were all manifestly inadequate so as to demonstrate the existence of an error in principle in the sentencing of each respondent. The real question in these appeals is whether the Director has persuaded us that we should not exercise the residual discretion to dismiss the appeals, notwithstanding our conclusions on the issue of manifest inadequacy.

So far as manifest inadequacy is concerned, the aggravated burglaries with which the respondents were convicted were serious examples of a very serious crime. The victims were a woman and her young children. Two of the offenders were armed with a baseball bat and a machete and the offending was carried out in company. The offending was truly frightening and has had serious consequences for the victims.

While the kidnapping offences may not have been at the most serious end of the spectrum (they not concluding with substantial periods of detention, as is often the case with kidnapping), they too involved elements calculated to instil real fear in their victims, who included a woman and three young children. Further, none of the respondents has shown any remorse for what the judge correctly described as completely unjustified and cowardly offending. While this, of course, is not a matter of aggravation, it is to be noted that none of the respondents were entitled to the mitigating benefit routinely accorded to offenders who show remorse.

The judge’s sentencing task was difficult in this case, because of the unusual circumstances of the offending. In most cases involving aggravated burglary in particular, the motive of the offender is either to steal from the premises that are entered, or to enact actual violence on the occupant or occupants of the premises. In this case, the end purpose of the offenders might be described as ‘political’, and they committed the aggravated burglary to achieve those ends.

The fact that the purpose of the respondents might be described in that manner is not a mitigating circumstance. It is unacceptable that those with ideological or political grievances or differences seek to enact their views in a manner that contravenes the law. In a liberal democratic country such as Australia, all citizens have ample opportunity to express and demonstrate their views and their differences in a peaceful and legal manner. Dissent is both tolerated and accepted. However, it must be understood that the courts will not extend leniency to persons who seek to resort to violent or criminal means to effectuate their political ends. Nor will the courts regard any such motivation as a basis for extenuation of the offending. Put simply, those who seek to persuade others to their own point of view, in the manner in which the respondents did in this case, must expect appropriate and proportionate punishment.

For those reasons, general deterrence, in a case such as this, must be accorded significant weight. In light of the gravity of the offending in this case, and notwithstanding the stringency of the test posited by the courts in respect of the ground of manifest inadequacy, we nevertheless cannot accept that the sentences imposed in this case were at all within the range of sentences sufficient to reflect the gravity of the offending, nor to appropriately vindicate the other purposes of sentencing, and, in particular, general deterrence.

We have reached that conclusion notwithstanding the important mitigating circumstances, attaching to each respondent, described by the judge in his thorough and careful reasons for sentence. Those mitigating circumstances were by no means inconsequential. While the traumatic circumstances experienced by each of the respondents, in the Democratic Republic of Congo, did not of themselves mitigate the moral culpability of the offending, nevertheless those circumstances do assist to explain why the respondents became involved in the offending that brought them before the court in this case. In addition, we are conscious that a term of imprisonment would be particularly burdensome on both Tshiswaka and Madjaga, in light of their psychological illnesses. We also take into account that, in each case, the community correction order, to be served by each respondent, does have a punitive element.[59]
[59]Boulton v The Queen [2014] VSCA 342.

As we have already noted, despite the abolition of double jeopardy in Crown appeals, in Karazisis it was made plain that the residual discretion reposing in this Court not to intervene even though error be shown survived the enactment of s 287 of the Criminal Procedure Act 2009.[60] Previously, it has been held that even where the sentencing judge has been shown to have fallen into error, and even if the original sentence is found on appeal to be manifestly inadequate, having regard to the principles of restraint which govern Crown appeals, this Court retains a discretion not to intervene.[61] Factors which might bear on the exercise of the residual discretion despite the demonstration of error include delay;[62] or where the Court is asked to impose immediate custody where non-confinement was originally imposed;[63] or where a sentence has been completed prior to the hearing of the appeal.[64] Similar considerations continue to guide the Court.
[60]Karazisis (2010) 31 VR 634, 661 [119] (Ashley, Redlich and Weinberg JJA; Warren CJ and Maxwell P dissenting). See also DPP v Werry (2012) 37 VR 524; DPP v Leys (2012) 296 ALR 96, 154 [178].
[61]DPP (Cth) v Carter [1998] 1 VR 601; DPP v Leach (2003) 139 A Crim R 64; R v Boxtel [1994] 2 VR 98.
[62]DPP v Singh (1999) 106 A Crim R 321; R v Myers (Unreported, Court of Criminal Appeal, 31 August 1993); R v Pont (2000) 121 A Crim R 302; Green v The Queen (2011) 244 CLR 462 (‘Green’), 479–80 [43] (French CJ, Crennan and Keifel JJ); Munda v Western Australia (2013) 249 CLR 600, 624 [72] (‘Munda’). See also F Rinaldi, Dismissal of Crown Appeals Despite Inadequacy of Sentence (1983) 7 Crim LJ 306.
[63]R v Soo (Unreported, VSCA, Tadgell, Phillips and Kenny JJA, 30 October 1997); DPP v Waack (2001) 3 VR 194; DPP v Joseph [2001] VSCA 151; DPP v BW [2007] VSCA 171; DPP v Wilson (2000) 1 VR 481; DPP v Fevaleaki (2006) 165 A Crim R 524, 530–1 [26] (‘Fevaleaki’).
[64]R v Smallacombe (Unreported, Court of Criminal Appeal, Crockett, Hampel and Coldrey JJ, 28 October 1993); DPP v Wilson (2000) 1 VR 481; Fevaleaki (2006) 165 A Crim R 524, 530–1 [24]; DPP v Daniel [2008] VSCA 76 [48]; Munda (2013) 249 CLR 600, 624 [72].

Madjaga completed his term of imprisonment on 12 October 2015. The Director, as he was legally entitled to do, filed these appeals on the 28^th and last day of the appeal period. At that time, Madjaga had been at liberty in the community, serving his community correction order, for some 16 days. Notwithstanding this Court’s attempts to list these appeals as soon as practicable, a consequence of the Director’s filing the appeals at the end of the appeal period was that, by the time of hearing, Madjaga had been at liberty in the community, and complying with the conditions of his community correction order for in excess of six weeks.

As part of Madjaga’s compliance with his community correction order, the rehabilitation regime put in place for him by the sentencing judge, by the provision of that community correction order, had commenced and was underway. During the hearing we received affidavit evidence, and the report of a psychologist, that testified to Madjaga’s compliance with therapy requirements, and the conditions of his community correction order. This material discloses that Madjaga has been, and continues to be, well-engaged in the rehabilitative and court-ordered processes. In those circumstances, it seems highly undesirable to us that the progress of Madjaga’s therapy and rehabilitation now be interrupted by returning him to custody. The benefit to the community in not interrupting the rehabilitation of a first offender who has served his term of imprisonment far outweighs any possible advantage in now interrupting that process and returning him to custody. Further, we are conscious that a return to prison for Madjaga would be particularly punitive given his psychological state. In all the circumstances, the Director has not persuaded us not to exercise the residual discretion to dismiss his appeal in relation to Madjaga.

Similar considerations apply with respect to Mbuyi in that, at the time of the hearing he was within days of being released from custody. Mbuyi is due to be released from custody tomorrow (11 December 2015).[65] The rehabilitative process contemplated by the community correction order made by the judge is imminent, if not in fact already started. An additional sentence of imprisonment imposed on Mbuyi now would be substantially more punitive, in these circumstances, than had that term of imprisonment been imposed at the outset. As in Madjaga’s case, interrupting the rehabilitative process that is imminent, or in place, would be highly undesirable.
[65]We were not able to deliver judgment in the present matters before today because of the need to investigate a fresh evidence ground that arose out of matters that were alleged to have occurred on the weekend before the hearing.

Slightly different, but related, considerations apply with respect to Tshiswaka and Pierre. The judge having carefully considered the respective differing roles and circumstances of each of the offenders, and the judge having sentenced the respondents so as to take account of these respective differences, we are not persuaded that it would now be right to alter the relativities between the sentences imposed upon Madjaga and Mbuyi on the one hand, and the sentences imposed upon Tshiswaka and Pierre on the other hand.[66] Further, in the unusual circumstances of these cases, we do not think it now right to deprive Tshiswaka and Pierre of their ability to participate in the rehabilitative programs that were contemplated by the sentencing judge, when he included community correction orders in the sentences that he imposed on them, and to which their co-offenders Madjaga and Mbuyi are now entitled.
[66]Cf Green (2011) 244 CLR 462, 478 [38]–[40] (French CJ, Crennan and Kiefel JJ).

There is an additional matter that concerns Tshiswaka. As we have noted, Tshiswaka has suffered from a serious psychiatric condition that was diagnosed before, and pre-dates, his offending. It would be particularly punitive, and of little benefit to the community, to interfere now with his sentence so as to increase its severity. Tshiswaka’s psychiatric condition is itself a reason for exercising the residual discretion not to increase the judge’s sentence in his case. That said, parity considerations of the kind to which we have already referred then lead as a consequence to a further reason for exercising the residual discretion in the remaining case of Pierre.

During the course of argument, counsel for the Director submitted that even if the Court did not increase the terms of imprisonment imposed by the judge, the Court could (or perhaps should) increase the length of the community correction orders. We reject that submission. We are unable to identify any rational basis for increasing the length of any of the community correction orders. The sentencing purposes for which such orders were made would not be enhanced by adjusting them as suggested by counsel for the Director.

It follows from what we have said above that the Director has not persuaded us not to exercise the residual discretion to dismiss each of these appeals.

Finally, we should say for the sake of completeness that, as we have found that the sentences imposed by the judge were manifestly inadequate, no regard should be had in future to them when considering the question of current sentencing practices for the offences of aggravated burglary or kidnapping.

Conclusion

The applications for leave to appeal against conviction made by Mbuyi, Pierre and Tshiswaka will be refused. Madjaga’s application for leave to appeal against conviction will be granted, but his appeal will be dismissed. The Director’s appeals against sentence will be dismissed.

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[2015] VSCA 338

10 December 2015