Shams (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0158

ZAFAR SHAMS (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	McLEISH, ORR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2024
DATE OF JUDGMENT:	6 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 260
JUDGMENT APPEALED FROM:	DPP v Shams (a pseudonym) [2023] VCC 1479 (Judge Tinney)

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CRIMINAL LAW – Appeal – Conviction – Competence of counsel – Applicant convicted of statutory kidnapping (two counts), contravention of intervention order intending to cause harm or fear (three counts), causing reckless injury (two counts), and conduct endangering life – Counsel elicited evidence of further uncharged violence by applicant during cross-examination of complainant – Whether rational and forensic basis for cross-examination – Counsel failed to put matters to complainant in cross-examination in breach of rule in Browne v Dunn (1893) 6 R 67 – Directions given to jury as to weight to be given to matters not put in cross-examination – Whether counsel’s closing address contained poorly conceived arguments – Whether substantial miscarriage of justice – Leave to appeal refused.

R v Birks (1990) 19 NSWLR 677; TKWJ v The Queen (2002) 212 CLR 124; Browne v Dunn (1893) 6 R 67, applied; Nudd v The Queen (2006) 225 ALR 161; MWJ v The Queen (2005) 222 ALR 436; Hofer v The Queen (2021) 274 CLR 351; R v Manunta (1989) 54 SASR 17; R v Thompson (2000) 21 VR 135, referred to.

CRIMINAL LAW – Appeal – Sentence – Applicant convicted of statutory kidnapping (two counts) – Sentences of 7 years’ imprisonment on each charge with 2 years’ cumulation – Applicant removed his two children to Pakistan without the consent or knowledge of their mother – Applicant returned to Australia without children – Children 12 months old and two years old respectively – Significant premeditation and planning – Applicant obtained access to children by deception – Applicant subject to intervention order at time of the offending – No criminal history – Whether sentences manifestly excessive – Leave to appeal refused.

Sentencing Act 1991, s 5(2)(b).

Dalgliesh (a pseudonym) v The Queen (2017) 262 CLR 328; Clarkson v The Queen (2011) 32 VR 361; DPP v Macarthur [2019] VSCA 71, applied; Tonkin v The King [2023] VSCA 194; Roe v The Queen [2021] VSCA 54; Huynh v The Queen [2020] VSCA 222, referred to.

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Counsel
Applicant:		Mr T Kassimatis KC with Ms A Balkin
Respondent:		Ms K Hamill
Solicitors
Applicant:	Papa Hughes Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

MCLEISH JA
ORR JA
KAYE JA:

The applicant pleaded not guilty to an indictment which contained 12 charges. The jury, empanelled on the trial, returned guilty verdicts on eight of the charges, namely, charges 2, 5 and 10 (contravention of a Family Violence Intervention Order intending to cause harm or fear for safety), charges 4 and 7 (recklessly causing injury), charge 8 (conduct endangering life), and charges 11 and 12 (statutory kidnapping). The jury found the applicant not guilty of charge 1 (common assault), charges 3 and 6 (intentionally causing injury, alternatives to charges 4 and 7), and charge 9 (threat to kill).
Following a plea presented on his behalf, the applicant was sentenced to a total effective sentence of 10 years and 6 months’ imprisonment, with a non-parole period of 7 years and 6 months. That sentence was constituted as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment C2013365.1
2	Contravention of an intervention order intending to cause harm or fear (contrary to s 123A(2) Family Violence Protection Act 2008)	5 years’ imprisonment	8 months’ imprisonment	2 months
4	Causing injury recklessly (contrary to s 18 Crimes Act 1958)	5 years’ imprisonment	8 months’ imprisonment	3 months
5	Contravention of an intervention order intending to cause harm or fear (contrary to s 123A(2) Family Violence Protection Act 2008)	5 years’ imprisonment	8 months’ imprisonment	2 months
7	Causing injury recklessly (contrary to s 18 Crimes Act 1958)	5 years’ imprisonment	10 months’ imprisonment	3 months
8	Conduct endangering life (contrary to s 22 Crimes Act 1958)	10 years’ imprisonment	2 years 4 months’ imprisonment	2 months
10	Contravention of an intervention order intending to cause harm or fear (contrary to s 123A(2) Family Violence Protection Act 2008)	5 years’ imprisonment	10 months’ imprisonment	2 months
11	Kidnapping (contrary to s 63A Crimes Act 1958)	25 years’ imprisonment	7 years’ imprisonment	Base
12	Kidnapping (contrary to s 63A Crimes Act 1958)	25 years’ imprisonment	7 years’ imprisonment	2 years
Total Effective Sentence:		10 years 6 months’ imprisonment
Non-Parole Period:		7 years 6 months
*Pre-sentence Detention declaration pursuant to s 18(1) of the Sentencing Act 1991:*		307 days

The applicant seeks leave to appeal against conviction. The application for leave to appeal contained three proposed grounds, namely:
Ground 1: A substantial miscarriage of justice occurred due to the trial judge misdirecting the jury concerning the elements of statutory kidnapping, in particular the element concerning detention of the children.
Ground 2: There was a substantial miscarriage of justice occasioned by:
a)the prosecutor inviting the jury to use evidence of incriminating conduct when that evidence had not been admitted as such; and
b)the jury being given no direction about incriminating conduct as mandated by section 21 of the Jury Directions Act.
Ground 3: There was a substantial miscarriage of justice occasioned by a combination of errors in the presentation of the applicant’s defence at trial, including:
a)The applicant’s counsel eliciting further evidence of other uncharged violence committed by the applicant when there was no rational forensic reason to do so;
b)The applicant’s counsel failing to comply with the requirements of Browne v Dunn on numerous occasions, resulting in the prosecutor making a submission and the trial judge giving a direction to the jury concerning the failures;
c)The applicant’s counsel failing to take exception to the prosecutor’s invitation to the jury to use evidence as incriminating conduct;
d)The applicant’s counsel making poorly conceived arguments in his closing address to the jury which were damaging to the defence case;
e)The applicant’s counsel failing to take exception to the trial judge’s direction on kidnapping.
At the commencement of the hearing of oral submissions, counsel for the applicant abandoned grounds 1 and 2, and the related aspects of ground 3, namely, grounds 3(c) and (e).
The applicant also seeks leave to appeal against sentence on one ground, namely:
Ground 1: The individual sentences and orders for cumulation imposed on charges 11 and 12 (and therefore the total effective sentence) are manifestly excessive in all the circumstances, and particularly taking into account the applicant’s lack of criminal history.

Background circumstances

The applicant and Zareen Laila[1] married in Pakistan. They subsequently migrated to Australia, and had two children. Their son, Farid,[2] was born in November 2016, and their daughter, Rizwana,[3] was born in August 2018.
[1]A pseudonym. Section 166 of the Family Violence Protection Act 2008 prohibits a person from publishing, or causing to be published, a report of a proceeding, or about an order made in a proceeding, under that Act if the report contains certain identifying particulars.
[2]A pseudonym.
[3]A pseudonym.
After their arrival in Australia, the relationship between the applicant and Ms Laila deteriorated. Between 2016 and 2018, the applicant was alleged to have physically assaulted Ms Laila on two occasions, namely, once in 2016, when she was pregnant with their son, and once in May 2018, when she was pregnant with their daughter. After the second occasion, police were contacted, and a Family Violence Safety Notice was issued, listing Ms Laila as the protected person. An interim Family Violence Intervention Order was subsequently made, prohibiting the applicant from engaging in family violence against Ms Laila and her son, but permitting him to continue to have contact with them. A further interim Family Violence Intervention Order was made in November 2018, which prohibited the applicant from engaging in family violence against Ms Laila and her son.

Alleged offending

On 25 April 2019, the applicant attended Ms Laila’s home late in the evening. An argument took place, concerning the applicant’s lack of fidelity. In the course of the argument, the applicant beat, choked and slapped Ms Laila, and pulled her hair. On the following day, she sought medical treatment for her injuries. That conduct, by the applicant, was the subject of charges 2 and 4.
On 27 April 2019, the applicant again attended Ms Laila’s home after work. The children were present. Another argument took place between the couple, in the course of which the applicant demanded that he be given the PIN to Ms Laila’s phone. When Ms Laila refused, the applicant responded by beating, slapping and choking her, to the point that she lost consciousness. At one point, the applicant pulled Ms Laila by the hair, and dragged her around in the house, injuring her ankle. That conduct was the subject of charges 5, 7 and 8.
On 8 May 2019, a Family Violence Intervention Order was made by the Sunshine Magistrates’ Court for a period of two years. The order was made by consent of the parties, and without any admission by the applicant of the allegations. It prohibited the applicant from having any contact with, or being within five metres of, Ms Laila or the two children.
Notwithstanding the conditions of that order, the applicant and Ms Laila had a number of conversations about reconciling their differences. The applicant wanted Ms Laila and the children to return with him to Pakistan, but she declined to do so.
The prosecution case, which the jury accepted, was that in the period leading up to 29 August 2019, the applicant took a number of steps in order to enable him to take the two children with him to Pakistan without the consent of Ms Laila. In particular, he created a statutory declaration, dated 26 June 2019, which purported to be from Ms Laila, giving the applicant permission and authority to obtain a passport for Rizwana, which he later amended by hand to create a permission and authority to obtain a passport for Farid. On 23 July 2019, the applicant made a false report that Farid’s passport had been lost. On 1 August 2019, the applicant, in company with the two children, flew to Canberra where, using the false documentation, he applied for Pakistani passports for each of the two children. The applicant then purchased a ticket for a return flight, departing to Pakistan on 29 August 2019. Subsequently, on 20 August 2019, he booked one-way tickets for each of the two children to travel with him to Pakistan on the same flight.
On 29 August 2019, the applicant made arrangements with Ms Laila for him to take the two children. They met at a medical centre in Glenroy. Ms Laila’s evidence was that she agreed to let the applicant have access to the children for the afternoon only, as it was their daughter’s first birthday.
After the handover in Glenroy, the applicant took the two children to the airport, where they boarded a flight from Melbourne to Pakistan via Colombo. That conduct, by the applicant, was the subject of charges 10 to 12. The children used the Pakistani passports, which had been obtained for them by the applicant. The prosecution case was that he obtained those passports secretly and fraudulently, including by the use of the statutory declarations, purportedly signed by Ms Laila before a Justice of the Peace, granting permission for the applicant to apply for the passports.
Ms Laila became concerned when the two children had not been returned home. She unsuccessfully attempted to contact the applicant. She then learnt that the applicant and the children had left the country. As a consequence, Ms Laila contacted the police. The applicant and the children arrived in Karachi, Pakistan on 30 August 2019.
Subsequently, the applicant returned to Australia without the children on 30 October 2019. He was arrested and interviewed by police. During the interview, the applicant maintained that he had taken the children to Pakistan with the consent of Ms Laila, and that there had been an exchange of money between them as part of that agreement. He also stated that Ms Laila had told him that their son’s passport was lost and that he had applied for a new passport for their son and a first passport for their daughter with her permission.
At the trial, the prosecution relied on tendency evidence, comprising the applicant’s conduct alleged in each of the charges on the indictment, as well as the earlier assaults, which were alleged to have occurred between 2016 and 2018.
At the trial, the applicant gave evidence in his defence. He denied assaulting or threatening Ms Laila, other than on one occasion when he pushed her to protect their son. The applicant maintained that he had taken the children to Pakistan with the agreement of Ms Laila.

Summary of evidence

Although the proposed grounds of appeal against conviction are quite confined, it is nevertheless necessary to summarise the evidence in a little detail, in order to give appropriate context to those grounds.
The principal witness for the prosecution was Zareen Laila.
In her evidence, Ms Laila confirmed that she married the applicant in Pakistan, and after they came to Australia they had two children together, namely, Farid and Rizwana. She said that, when she was about four months pregnant with Farid, in about June 2016, she and the applicant had an argument, in the course of which the applicant slapped her, grabbed her neck, pushed her in the back, and sat on her. Ms Laila said that, about two months after that incident, she went to Pakistan, but she returned to Australia in January 2017.
Ms Laila further stated that in about May 2018, when she was about five months pregnant with Rizwana, she and the applicant were having arguments concerning the applicant’s ‘affairs’. In the course of an argument, the applicant slapped, choked and beat her badly, which resulted in bruises to some parts of her body. Ms Laila contacted the applicant’s brother. She also contacted 000 for help, and the police became involved. As a result, an intervention order was made.
Subsequently, the applicant told Ms Laila that she had tarnished his name and image beyond repair, and that the only solution was to return to Pakistan.
Following the birth of Rizwana in August 2018, the intervention order remained in place. However, Ms Laila decided to try to repair her relationship with the applicant. They subsequently recommenced living together.
Ms Laila then described the incident in March 2019, that was the subject of charge 1, on which the applicant was acquitted. Ms Laila said that, on that occasion, she and the applicant had an argument at home, which ended up with the applicant hitting her. She said that he strangled her, slapped her face, dragged her over the floor and ripped her clothes off her so that she was naked. He then filmed her on his mobile phone.
Ms Laila then described the incident that took place on 25 April 2019, that was the subject of charges 2, 3 and 4. On that occasion, the applicant came home late from work. They then started to argue, and the applicant choked her neck, slapped her face, grabbed her head with his arm, and choked her. She said that the applicant used to choke her whenever they had an argument. Ms Laila was crying and screaming. As a result of the incident, she suffered pain to her wrist and palm, and the applicant’s brother took her to the hospital for an X-ray of her hand.
A couple of days later, on 27 April 2019, after the applicant arrived home, he started to collect his belongings. He demanded that Ms Laila give him her phone. When she refused, he snatched the phone from her, and asked her for the pass code or password. Ms Laila refused to give that information to him, as a consequence of which he became violent. The applicant strangled her, and hit her, pushing her onto the couch, where she became temporarily unconscious. In the course of the incident, the applicant swore at Ms Laila, saying ‘bad things’ to her. In addition, the applicant pulled and dragged Ms Laila around, and he pulled her by the hair into the main room. During the incident, Ms Laila was screaming and yelling, and she told the applicant she would contact the police. In response, the applicant went into the kitchen and took hold of a knife. He said that he was going to kill Ms Laila. He then turned the knife towards himself.
The argument continued, during which the applicant packed a significant amount of his belongings and said that he was going to leave. When the applicant went out to his car, Ms Laila locked the door to the house. The applicant then threatened her and demanded that she open the door. As he was doing so, he broke the lock of the door, breaking the handle off it. Ultimately, he departed from the premises.
As a result of the incident, Ms Laila sustained bruising to her upper arms and her neck. In addition, in the course of the incident, the applicant had dragged her into the main room and, in doing so, her leg had become stuck in the door. As a result, her leg also sustained injury. The applicant’s conduct on that date was the subject of charges 5, 6, 7, 8 and 9.
The day after this incident, Ms Laila’s friend Rukhsana Sadia[4] took her to the police station. A nurse examined her injuries. After she went to the police station, the applicant stopped living with her.
[4]A pseudonym.
Subsequently, Ms Laila sought to reconcile with the applicant for the sake of the children. The applicant responded that the only way that he would do so was if the family returned to Pakistan, but Ms Laila refused to do so.
On 29 August 2019, which was Rizwana’s first birthday, Ms Laila agreed to permit the applicant to take the two children out for the day. He told her that they would be going some distance that day, and he mentioned Phillip Island. She thought they would be back by dusk. When the applicant did not return with the children, Ms Laila tried to contact him. However, the applicant did not respond. She then started contacting people connected to him. At about midnight, one of them told her that the applicant had taken the children with him to Pakistan. She could not believe it. She had her son’s passport, and she never applied for a passport for her daughter.
When Ms Laila was shown the document that purported to be a statutory declaration she had made, giving permission for the applicant to apply for a passport for her daughter on her behalf, she said she had never seen it before and had never signed any document like this. She gave no such permission.
Over the month or so after the applicant took her children to Pakistan, Ms Laila repeatedly tried to contact the applicant. She sent a large number of audio and text messages, and she also sent him a video message, begging him to return. He did not respond. She then travelled to Pakistan to attend court to apply for the return of her children. Ultimately, after approximately one year, her children were returned to her care.
In cross-examination, Ms Laila said that she did have possession of her son, Farid’s, passport, but she did not have Rizwana’s passport. She said that the applicant had said to her on a number of occasions that if she wanted to improve the situation and patch up their marriage, they should go back to Pakistan with the children.

Ms Laila agreed that the main issue, between herself and the applicant, was that she believed that he was being unfaithful to her. She had checked his phone, and had noted that he had contact with many women in Pakistan and Bangladesh, and also in Australia. She agreed that, as a result of her belief that the applicant was being unfaithful, there had been a number of arguments, and she said that they resulted in physical fights. She denied that, in the course of those arguments, she had become violent towards the applicant. She said that on one occasion when the applicant was coming towards her to hit her, she had a bottle in her hand, and she threw it towards him.
Ms Laila also agreed that she did not want the applicant to leave her. She had told him that he should stay for the welfare of the children and themselves. However, he always imposed the same condition, that they should go back to Pakistan. Ms Laila, in that respect, denied the suggestion, put in cross-examination, that she had agreed that the applicant could take the children back to Pakistan. She said, ‘This has never happened’.
In that context, counsel for the applicant put to Ms Laila that the applicant had told her that he would send money to his mother, who would then give it to her brothers. Ms Laila denied that proposition.
Counsel then cross-examined Ms Laila as to when the applicant first assaulted her. In answer to that question, she said, ‘2018 — 2017 — 2018’. She then said, ‘In fact in 2016 too, when I was pregnant with my first child’. In that context, counsel put to Ms Laila a statement, that she had made to the police on 28 April 2019, in which she had said that, ‘6 March 2019 [the applicant] has begun to beat me, this usually occurs on a weekly basis’. Ms Laila denied that in that part of her statement she had alleged that the violence by the applicant only commenced from March 2019. She said that the intervention order had been in place before then, and that she had reported an assault to the police in May 2018.
Counsel then cross-examined Ms Laila about the incident of 27 April 2019. Counsel put to Ms Laila that the applicant had not grabbed her phone from her on that date. Ms Laila responded that that proposition was incorrect, and said that the applicant did snatch her phone. She said that the argument commenced in low voices, as the children were asleep. However, as it progressed, it became a ‘full blown argument’, which ended in violence on the part of the applicant. When asked whether she had attacked the applicant verbally with allegations that he was having affairs, Ms Laila said that she had been pleading with the applicant and that she could not tolerate him cheating on her with other women. She said that he had been hurting her and abusing her in many ways. She agreed that she became angry when the applicant hit her and treated her badly.
Counsel then put a number of propositions to Ms Laila, which Ms Laila rejected. They included: that on 4 May 2018, the applicant did not assault her; that on a couple of occasions, the applicant pushed Ms Laila to fend her off, as she was attacking him; that she made an agreement with the applicant to send money to Pakistan to be given to her family there; that the applicant did not assault Ms Laila in 2016; that on that occasion she was taken to hospital by ambulance because she had injured herself attempting to shift a couch; that the applicant had never hit her or assaulted her; that the alleged assaults on 25 and 27 April 2019 did not occur; that on 27 April 2019, the applicant was not at the house; and that she was telling untruths, when she alleged that the applicant had a knife or knives in his hand on 27 April 2019.
Counsel also put to Ms Laila that, in her statement to the police, there was no mention that the applicant had pulled her by the hair during the alleged assault on 27 April 2019. In relation to evidence by Ms Laila that the applicant had removed her clothing and filmed her while she was naked, counsel suggested that that had occurred on a previous occasion, and by consent. Ms Laila denied this and said that she stood in front of him angrily without clothes on a different occasion, earlier in their relationship.
Finally, counsel returned to the issue of the children’s passports. He put to Ms Laila that she had the passports of both Farid and Rizwana in her possession. Ms Laila denied that proposition, and said she only had Farid’s passport. She denied telling the applicant that she had lost any passport. She also rejected the proposition that she had told the applicant to go and apply for new passports for himself and Farid.
Brooke Harris, who was employed by the Human Relations section of the Kings Group, gave evidence. She said that based on the records of Kings Group, in April 2019, the applicant was employed by that corporation as a company driver, performing duties in respect of the ‘Woolworths contract’. Ms Harris said that on 27 April 2019, the applicant worked, in that capacity, between 2:13 pm and 6:25 pm.
Senior Constable Joshua Langmaid was stationed at the Wyndham North Police Station in April 2019. Senior Constable Langmaid gave evidence that on 28 April 2019, Ms Laila attended the police station at about 1:30 pm. Ms Laila was distressed and crying, and she appeared to have markings on her neck and face. She told Senior Constable Langmaid that she had been assaulted on 25 April and again on 27 April 2019. Senior Constable Langmaid conducted a ‘soft interview’ with Ms Laila. In his evidence, he identified photographs of Ms Laila’s injuries, which were then tendered as exhibits. As Ms Laila was a victim of family violence, Senior Constable Langmaid applied for an intervention order.
In cross-examination, Senior Constable Langmaid confirmed that Ms Laila had indicated that she had sustained two bruises on each arm, abrasions on her ankle, and an abrasion on her face. She said that during the assaults, her neck had been targeted, and that is how she thought that the injuries in that area had been sustained.
Detective Acting Sergeant Navdeep Dhindsa was on duty at the Sunshine Police Station on 30 August 2019. At the time, he was a constable on watchhouse duties. At about 6:40 am, Ms Laila attended the police station. She looked particularly stressed. Ms Laila told Detective Dhindsa that her husband had breached an intervention order and had taken her children overseas. Ms Laila was very distressed and emotional, and she was having difficulty speaking. Initially, Detective Dhindsa spoke with Ms Laila in the English language, but Ms Laila was having difficulty doing so, because of her emotional state. Accordingly, they then conversed in Urdu. Ms Laila said that she was particularly concerned about her daughter, who she was still breastfeeding. She was also concerned about her son.
Detective Dhindsa took a statement from Ms Laila and contacted the Australian Border Force, who confirmed that the applicant had taken the children overseas on a flight to Sri Lanka. Detective Dhindsa also took a statement from Mohammad Salman Khan, who was accompanying Ms Laila. Subsequently, the matter was handed over to Detective Acting Sergeant Melanie King, who was the informant in the matter.
In pre-recorded evidence, Suhail Sikandar[5] explained that he was a friend of Ms Laila’s brother, Arif, who was living in Karachi, Pakistan. On the morning of 4 May 2018, Mr Sikandar received a telephone call from Arif, requesting him to assist Ms Laila. In response, Mr Sikandar commenced to drive to Ms Laila’s home. While he was en route, Ms Laila telephoned him. She was crying. She said that the applicant was hitting her, and she asked Mr Sikandar to telephone the police. Mr Sikandar could hear an aggressive male voice in the background. When he arrived at Ms Laila’s premises, the door was opened by the applicant. Ms Laila was in the bedroom. Mr Sikandar said that her face was red, and her arm looked as though someone had grabbed her on it. In addition, her glasses were broken. Ms Laila was crying. Mr Sikandar said that Ms Laila came out of the bedroom, into the loungeroom, and she and the applicant were arguing with each other. The police then arrived, and Mr Sikandar made a statement, which he signed on that date.
[5]A pseudonym.
At that point in his evidence, Mr Sikandar was then permitted to have reference to his statement. Having done so, he said that he asked the applicant what was going on, and the applicant responded, ‘We had an argument with each other, and I hit her’. Ms Laila said to Mr Sikandar that the argument concerned the applicant having an affair.
In his evidence, Mr Sikandar said that on previous occasions, Ms Laila had told him that the applicant had hit her. On one such occasion, very late at night, Ms Laila had called Mr Sikandar and said that she and the applicant were having an argument, and that the applicant was hurting her. Ms Laila asked Mr Sikandar to come and help her, which he did. Mr Sikandar said he thought that the police also attended the premises on that occasion. He also recalled an earlier occasion, some four years previously, but on that occasion, the police were not called. On that occasion, Mr Sikandar had attended the applicant’s home, and he noticed that Ms Laila’s glasses were broken.
Detective Senior Constable Peter Willetts was attached to the Melbourne Family Violence Investigation Unit in 2019. Detective Willetts gave evidence that on 1 May 2019, he assisted Senior Constable Dodson (see [57] below) with an interview of the applicant. Following the completion of the interview, at the request of the applicant, Detective Willetts took photographs of him. The applicant claimed to Detective Willetts that he had cuts on his arms that had been caused by Ms Laila. The photographs were tendered in evidence. The applicant also said to Detective Willetts that on 27 April 2019, he was working, and he said that he would provide a payslip to corroborate his account.
Rukhsana Sadia also gave pre-recorded evidence. Ms Sadia said she had been a friend of Ms Laila since about 2018. She gave evidence that on 27 April 2019, at about 4:00 pm or 5:00 pm, Ms Laila telephoned her. Ms Laila was crying, and she was stressed. She said that the applicant had beaten her up in front of her children. Ms Laila said that she was bleeding and she could not walk properly because of one of her feet. Ms Laila asked Ms Sadia to drive her to the police station. As a result, Ms Sadia drove to Ms Laila’s house. When she arrived there, she observed bruises around Ms Laila’s neck, one of her feet was swollen, and she was not walking properly.
Ms Sadia drove Ms Laila and her two children to the Wyndham North Police Station. After they had left the police station, Ms Sadia drove Ms Laila to the doctor, and then she drove her home.
Adele O’Hehir also gave pre-recorded evidence. Ms O’Hehir was a Forensic Nurse Co-ordinator, employed by the Victorian Institute of Forensic Medicine. On 1 May 2019, Ms O’Hehir examined Ms Laila on referral by Victoria Police. On examination, Ms Laila complained of injury to her ears, of a sore neck, blurred vision, difficulty and pain on swallowing, and injury and bruises to her arms and to her ankle. Ms Laila told Ms O’Hehir that she had been slapped to the face and head, and grabbed by the neck to the extent that she had blacked out. Ms Laila reported two episodes of strangulation. She said that during the incident, she was dragged inside by the hair, and her right leg became caught in the door. Ms Laila also stated that, four weeks before the incident, her husband had made a video of her breasts and vagina. In addition, she reported a history of physical abuse during her second pregnancy at 22 weeks’ gestation.
Ms O’Hehir observed a bruise on the left side of Ms Laila’s neck. She identified a lump on the right side of the neck, and an area that was tender to touch. Ms O’Hehir considered that the history recounted by Ms Laila, of losing consciousness, was consistent with her being strangled. In addition, the injuries, which Ms O’Hehir observed, including swelling to the right side of the neck and bruising to the left side of the neck, as well as Ms Laila’s difficulty and pain on swallowing, were consistent with strangulation. Ms O’Hehir also observed bruises to Ms Laila’s arms, which she said were consistent with blunt force trauma.
Detective Senior Constable Aiden Dodson was on secondment to the Westgate Family Violence Investigation Unit in April 2019. Detective Dodson gave evidence outlining the sequence of various orders that were made against the applicant.
On 4 May 2018, police issued a first Family Violence Safety Notice against the applicant. On 7 May 2018, the Sunshine Magistrates’ Court granted a Family Violence Intervention Order against the applicant, which was served on him at court. Subsequently, after an incident that occurred in June 2018, police, on 9 June 2018, sought to vary the intervention order by a complaint and warrant process that was served on the applicant on 10 June 2018. On 14 November 2018, a further Family Violence Intervention Order was granted by the Sunshine Magistrates’ Court. It named Ms Laila, Farid and Rizwana as the affected family members. The order contained one condition, that the applicant was not permitted to commit family violence against those named protected persons. Detective Dodson confirmed that that order was served on the applicant.
On 28 April 2019, after further allegations of family violence were made, police made an application to vary the intervention order. The process was served on the applicant on 1 May 2019. A final formal intervention order was made on 8 May 2019. The affected family members were, again, Ms Laila and the two children, Farid and Rizwana. The order contained conditions, that the applicant not have any contact or communication with Ms Laila and the two children, that he not approach or remain within five metres of them, and that he not approach or remain within two metres of Ms Laila’s residential address. The applicant was present in court at the time of the hearing of the application for that order, and, without making any admissions, he consented to the order.
Detective Dodson stated that, on 29 April 2019, he was on duty, and was tasked to investigate a complaint, made by Ms Laila. He attended Ms Laila’s address and took photographs. He also made arrangements to have Ms Laila medically examined at the Victorian Institute of Forensic Medicine. Detective Dodson arranged for the applicant to attend Werribee Police Station, where he was arrested and given his caution and rights. A video recorded interview was conducted with the applicant in the presence of Detective Willetts, and a recording of the interview was played to the jury.
Muhammad Mehmood gave evidence that was pre-recorded. At the time, Mr Mehmood was living in Karachi.
Mr Mehmood said that he and Ms Laila had had a number of discussions, concerning Ms Laila’s relationship with the applicant. On one occasion, in 2017, when Ms Laila was about two months pregnant with Farid, she telephoned Mr Mehmood and said that the applicant had had a fight with her, and she had suffered injuries as a result. Ms Laila told Mr Mehmood that the applicant had threatened to kill and hurt her. The conversation took place by way of a video call with Ms Laila. She later told Mr Mehmood that her hands were swollen, and that she had injuries on her neck and back. Mr Mehmood said that he told the applicant to stop hitting Ms Laila, that they were married and they should live together. Mr Mehmood said that the applicant was screaming and shouting, and saying things to Ms Laila like, ‘I’ll kill you, I’ll hurt you’. On the following day, Ms Laila telephoned Mr Mehmood and said that she had gone to stay at a friend’s place.
Mr Mehmood said that on a number of occasions, he had contacted a friend, Suhail Sikandar, and asked him to check up on Ms Laila, because the applicant was hitting her. On one occasion, the applicant had thrown Ms Laila out of the house and she had nowhere to live.
Mr Mehmood then gave evidence that, in August 2019, Ms Laila telephoned him and said that the applicant had taken the children for their daughter’s birthday, but he had not returned them in the evening. Mr Mehmood advised Ms Laila to contact the police. Mr Mehmood said that he had never been contacted by the applicant concerning removing the children from Australia, and that he did not know that that was going to happen before Ms Laila had contacted him about it. Mr Mehmood also denied that, at any time, he had talked about getting money from the applicant or his family in exchange for permission for the applicant to remove the children from Australia to Pakistan.
Dr Ravishankar Tiwari was a medical practitioner at a medical clinic in Hoppers Crossing in April 2019. On 28 April 2019, Ms Laila consulted Dr Tiwari. She reported that she had had a fight with her husband on the previous evening, and that he had gagged her, slapped her multiple times to the head and face, and pushed her to the floor. Ms Laila complained of generalised body pain. On examination, Dr Tiwari noted that Ms Laila had tenderness to the left temporal side of the scalp. Dr Tiwari observed abrasions to the left side of her neck, and noted that Ms Laila had difficulty swallowing. She also had bruises to the left upper arm and to the right upper arm, and an abrasion on the right ankle.
Detective Senior Constable Antarpreet Bajwa was stationed with the Family Violence Command Taskforce. Detective Bajwa is proficient in a number of languages, which include Hindi and Punjabi. In March 2020, at the request of Detective King of the Westgate Family Violence Unit, Detective Bajwa examined a series of text messages on the applicant’s mobile telephone, in order to ascertain whether there were any conversations between the applicant and Ms Laila concerning the children being taken to Pakistan. Having examined the applicant’s mobile phone, Detective Bajwa stated that he was unable to find any messages in which Ms Laila granted permission, or made an agreement, for the applicant to remove the children to Pakistan. Detective Bajwa noted that, subsequent to 29 August 2019, there were messages from Ms Laila, expressing her distress concerning the removal of the children from Australia.
The next two witnesses in the trial were Muhammad Ahmed and Muhammad Hamid. They were both living in Karachi, and their pre-recorded evidence was played to the jury.
Muhammad Ahmed said that after the applicant had taken the two children to Pakistan, Ms Laila spoke to him on the telephone. Ms Laila told Muhammad Ahmed that the applicant hit her, that he was bringing the children to Pakistan, and that he had lied to her about that. Muhammad Ahmed confirmed that no-one in his family circle had accepted payment from the applicant, or his family, for the removal of the children to Pakistan.
Muhammad Hamid said that he first learnt that the children had been taken to Pakistan after they had arrived there. Muhammad Hamid said that he had not received any payment from the applicant, or his family, in exchange for bringing the children to Pakistan.
Muhammad Khan was an acquaintance of the applicant and Ms Laila. He gave evidence that at 12:15 am on 30 August 2019, Ms Laila messaged him, asking to speak to him. When Mr Khan telephoned her, Ms Laila told him that she was worried, because the applicant had taken the children away, that it had been quite a long time since he had done so, and that she had not had any contact from him. Ms Laila asked Mr Khan to contact the applicant, or his brother. In response, Mr Khan attempted to telephone both the applicant and his brother. Subsequently, the applicant’s brother returned Mr Khan’s telephone call, and told him that the applicant had gone to the airport, taking the children with him, and that they were going to Pakistan. When Mr Khan conveyed that information to Ms Laila, she started to cry.

The last witness for the prosecution was the informant, Detective Acting Sergeant Melanie King. For the purposes of these reasons, it is not necessary to summarise most of Detective King’s evidence, which consisted, amongst other matters, of tendering a number of documents. Detective King confirmed that the applicant and the two children had left Australia on 29 August 2019, and, transiting through Sri Lanka, had arrived in Pakistan on the following day. Subsequently, on the application of Ms Laila, the Federal Court made a recovery order for the children to be returned to Australia. Detective King then made contact with the family of the applicant, with the assistance of the Australian High Commission and the Australian Federal Police, in order to attempt to negotiate the return of the children. On 30 October 2019, Detective King received notification from the Australian Federal Police that the applicant was due to re-enter Australia on that date. Accordingly, two of Detective King’s colleagues attended Melbourne Airport, where they arrested the applicant. A formal record of interview was conducted at the Werribee Police Station, and the recording and a transcript of the interview were tendered through Detective King.
In the interview, the applicant said that he had taken the children to Pakistan with the agreement of Ms Laila. He said that he and Ms Laila had separated, and he had been requesting a divorce from Ms Laila. Ultimately, the applicant agreed to pay Ms Laila $40,000 (22,000 lakhs in Pakistani currency), and in exchange, Ms Laila agreed that the applicant could take the children to Pakistan. The applicant recorded the conversation with Ms Laila, in which he claimed that that agreement was made, and that recording was tendered in evidence. In the interview, the applicant said that he paid more than half the agreed sum to Ms Laila’s family in Pakistan, and that Ms Laila assisted to arrange passports for the two children. In that respect, the applicant’s explanation of precisely what Ms Laila did was quite confused, but that may have been due to language difficulties. He repeated that he paid 22,000 lakhs in Pakistan to his parents, and that his parents then gave that money to Ms Laila’s mother in Pakistan. The applicant said that the last payment, of the agreed amount, was made to Ms Laila’s sister.
At the conclusion of the prosecution case, the applicant himself gave evidence. He said that on 29 August 2019, he took the children to Pakistan with the agreement of Ms Laila. The applicant said that, in exchange, he made some payments ‘over to Pakistan’. The applicant said that he had taken the children to Pakistan because they were not being taken care of properly by Ms Laila. When he raised his concern with Ms Laila about her care for the children, she responded by becoming aggressive. The applicant said that Ms Laila kept accusing him of having an affair with girls in Bangladesh, which he denied. He said that he never talked to her in a raised voice. However, on one occasion, on 4 May 2018, when Farid was sleeping next to him, Ms Laila took hold of Farid and threw him to the other corner of the bed. In response, the applicant pushed her. He said that that was the only occasion that he had touched Ms Laila in any argument.
The applicant said that after that incident, he did not want to continue living with Ms Laila. She continued to accuse him of having an affair in Bangladesh.
The applicant denied that he assaulted Ms Laila when she was pregnant in 2017. At that time, she was not happy and she wanted to return to Pakistan to deliver the baby. At one point, she lifted up a heavy couch, which caused her to have pain in the stomach. As a consequence, the applicant telephoned the emergency number, 000, and he took Ms Laila to hospital. The applicant then clarified that that incident occurred in June 2016. Following that incident, Ms Laila returned to Pakistan for a period.
The applicant was then shown the exhibit, tendered by the prosecution, which showed that on 27 April 2019, he was at work between 2:13 pm and 6:25 pm. He said after completing that job, he had received a call from the office, asking him to do another driver’s job, which he did at 7:13 pm. The applicant said that he had given Detective King documentation relating to that additional job.
The applicant denied that he had ever stripped Ms Laila of her clothes and photographed her. He said that he was not living with Ms Laila in 2018. In December 2018, she contacted him. She agreed that she would return to Pakistan with the applicant and the children, when the applicant’s visa expired in January 2019.
The applicant denied the incident in March 2019 that was the subject of charge 1, on which the applicant was acquitted.
The applicant’s evidence in response to the allegations of violence on 25 and 27 April 2019 is somewhat difficult to follow. The applicant initially said that nothing happened on 25 April 2019. He then described an occasion, when he was sleeping at their home, when Ms Laila took possession of his telephone, inserted the password and found messages from a girl. When the applicant awoke, Ms Laila accused him of cheating on her. She then became aggressive and pushed him. In response, the applicant packed his belongings. As he did so, Ms Laila physically remonstrated with him. The applicant then left the address, and he said that he did not want to return again.
On that day, Ms Laila was accusing him of ‘different things’, and she had physically pushed him and grabbed his shirt. The applicant took hold of her arm and pushed her back.
When shown the photographs taken by Senior Constable Langmaid on 28 April 2019, the applicant explained that Ms Laila had grabbed him by the collar, she was screaming at him, and he took hold of her arm in response.
The applicant said that he was working at Kings Group on 27 April 2019. When asked about Ms Laila’s allegation that her foot had become caught in a door during an altercation on that date, as a result of which she suffered injury to the ankle, the applicant said that all he recalled was that he tried to leave the premises, but Ms Laila was trying to hold him, and she took hold of the door and broke the lock of the door. The applicant then clarified that this had occurred on 25 April, and he said that nothing happened on 27 April. He said that on 25 April, he left the premises in the afternoon.
The applicant denied that he ever drew a knife on Ms Laila, and spoke of an occasion when Ms Laila took out a knife. He said on that occasion he was leaving the home, and Ms Laila did not wish him to do so. She kept abusing him, and accusing him of having affairs with call girls. The applicant got angry and went to the kitchen to drink some water, and then Ms Laila came to him and took a knife and starting hitting him with it. While doing so, she abused him and threatened him.
The applicant again denied that he attended at the home on 27 April 2019 and denied assaulting Ms Laila.
In respect of his departure from Australia on 29 August 2019, the applicant said that he took the children to Pakistan with the agreement of Ms Laila. He said that in fact it was Ms Laila’s idea. It was pre-planned that she would drop the children at the airport, but on the same morning, she said she could not go there and, as a result, she arranged for the applicant to pick the children up from near the Glenroy Station. The applicant was a bit suspicious of Ms Laila at that time, so he took a video of their interaction. The applicant explained how he arranged for the two children and himself to have passports, and that he booked the tickets for them. The applicant said that he and the two children took a taxi from the Glenroy Station to the airport.
The applicant further said that it was in July 2019 that Ms Laila agreed that he could take the children to Pakistan. She asked him for money for allowing him to do so.

Application for leave to appeal against conviction

Ground 3 — legal principles

Ground 3 contends that there was a substantial miscarriage of justice as a consequence of three errors by counsel at trial.
The principles that apply to a ground of appeal that is based on alleged incompetence of trial counsel, are well-established.
First, in examining the conduct of counsel at trial, it is important to keep in mind that, in a criminal trial, counsel necessarily must make a number of tactical and other decisions in conducting the defence of an accused person. It is not uncommon that such decisions, which, at the time, might seem appropriate, with the wisdom of hindsight prove to have been of disadvantage to the accused. The principles, relating to the incompetence of counsel at trial, do not apply to such decision-making processes by counsel, which, commonly, are made instinctively, and often spontaneously, in response to issues that arise in the course of a trial.
Secondly, in a case in which it is contended that counsel erred, or was incompetent, in a material respect, the critical question is whether, as a consequence, there has been a substantial miscarriage of justice.[6] Ordinarily, the question is whether, as a result of the conduct of counsel, the accused person has been deprived of a chance of acquittal that was fairly open, or otherwise has been deprived of a fair trial.
[6]Criminal Procedure Act 2009, s 276.
In R v Birks,[7] Gleeson CJ stated the principles in terms which have been quoted, and relied on, in numerous authorities since, namely:
The relevant principles, may be summarised as follows:
1.A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates.
2.As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence.
3.However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of ‘flagrant incompetence’ of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.[8]
[7](1990) 19 NSWLR 677 (‘Birks’).
[8]Ibid 685 (McInerney J agreeing at 692).
In TKWJ v The Queen,[9] the High Court was concerned with the question whether the trial of an accused person, on charges of sexual offences, miscarried as a result of the decision by counsel not to adduce character evidence that was available. In considering that question, Gleeson CJ, in effect, repeated the views his Honour had expressed in Birks, in the following terms:
It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.[10]
[9](2002) 212 CLR 124; [2002] HCA 46.
[10]Ibid 130–1 [16].
In separate reasons, Gaudron J outlined the principles that apply to the ground of appeal under consideration in this case:
There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given. The second reason is that, ordinarily, it is not possible to know what was in defence counsel’s brief.
Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel’s conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether “no substantial miscarriage of justice has actually occurred”. In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration.
The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question ‘deprived the accused of a chance of acquittal that was fairly open’. The word ‘fairly’ should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open.
One matter should be noted with respect to the question whether counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
As already indicated, if there is a defect or irregularity in the trial, the fact that counsel’s conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel’s conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice.[11]
[11]Ibid 132–3 [24]–[28] (citations omitted).
In similar terms, McHugh J expressed the applicable principles as follows:
Where an appellant contends that the conduct of his or her counsel has caused a criminal trial to miscarry, however, the appellant carries a heavy burden. This is a consequence of the adversarial nature of our legal system and the role and function of counsel. Criminal trials are not inquisitions. They are contests ‘in which the protagonists are the Crown on the one hand and the accused on the other’. Ordinarily, a party is held to the way in which his or her counsel has presented the party’s case. …
In some cases, the conduct of counsel may be such that it has deprived the accused of a fair trial according to law. If the conduct of counsel has resulted in an unfair trial, that of itself constitutes a miscarriage of justice. If, for no valid reason, counsel fails to cross-examine material witnesses or does not address the jury, for example, the accused has not had the trial to which he or she was entitled. In such a case, the failure of counsel to conduct the defence properly is inconsistent with the notion of a fair trial according to law. It cannot be right to insist that the appeal can succeed only if the court thinks that counsel’s conduct might have affected the verdict. To require the accused to persuade the court that the conduct might have affected the verdict comes close to substituting trial by appellate court for trial by jury. No matter how strong the prosecution case appears to be, an accused person is entitled to the trial that the law requires. In principle, therefore, where the trial has been unfair, the accused should not have to show that counsel’s conduct might have affected the result.
But in other cases — perhaps the majority — the conduct of counsel — although irregular — will not necessarily deprive the accused of a fair trial. Not every error makes the trial unfair. Nevertheless, the irregular conduct of counsel may have affected the outcome. And a miscarriage of justice always occurs when there is a significant possibility that a material irregularity at the trial has resulted in the conviction of an accused person.
...
The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, ‘whether counsel has been negligent or otherwise remiss … remains relevant as an intermediate or subsidiary issue’. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel’s conduct result in a material irregularity in the trial? Second, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, ‘it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence’. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
In what circumstances then, will the appellant be able to discharge the heavy burden of establishing that counsel’s conduct constituted a material irregularity amounting to a miscarriage of justice? Where the appellant can show that counsel has conducted the trial with flagrant incompetence, it is likely that the appellant will have established a material irregularity in the conduct of the trial that will provide the stepping stone to a finding of a miscarriage of justice.[12]
[12]Ibid 147–50 [74], [76]–[77], [79]–[80] (citations omitted); See also Nudd v The Queen (2006) 225 ALR 161, 183 [83], 187 [100] (Kirby J); [2006] HCA 9; Saricayir v The Queen [2018] VSCA 319, [81]–[88] (Kaye, T Forrest and Ashley JJA); Borg v The King [2024] VSCA 65, [31]–[36] (Priest, Taylor and Kaye JJA).
Bearing in mind those principles, we now turn to the three alleged errors by defence counsel that are relied on in support of ground 3.

Ground 3(a) — Eliciting further evidence of other uncharged violence by applicant

Ground 3(a) contends that the applicant’s counsel elicited evidence of other uncharged violence, committed by him, when there was no rational forensic reason to do so.
That aspect of ground 3 is directed to a part of cross-examination of Ms Laila, in which, in answer to questions by counsel, Ms Laila stated: that the applicant had been violent to her in 2016, when she was pregnant with her first child, by punching, strangling and hitting her; that the applicant was violent to her from 2016 ‘right through to’ 2019; that, as a consequence, she had endured a miserable life for most of the time with the applicant during that period; and that, after she had reconciled with him in 2019, he was violent to her every day or every week. In addition, at trial, the applicant’s counsel also put to Ms Laila a portion of her statement, in which she had said that she had seen the applicant hit their son, and that the applicant then beat her when she challenged him about that conduct.

Counsel for the applicant (who was not trial counsel) noted that those parts of the cross-examination of Ms Laila were apparently directed to eliciting an inconsistency in her evidence about the timing of the alleged assaults. However, ultimately, no such inconsistency was established, and, instead, a significant volume of very prejudicial evidence was adduced before the jury.
In response, counsel for the respondent submitted that the line of cross-examination, embarked on by counsel at trial, did have a forensic basis, in that defence counsel was seeking to explore apparent inconsistencies in the account, given by Ms Laila, relating to the deterioration of her relationship with the applicant. In addition, defence counsel was seeking to support an argument that Ms Laila would not have remained with the applicant, and would not have behaved in the manner in which she did by verbally confronting him, if he had engaged in the acts of family violence, which she claimed to have occurred over a substantial period of time.
Counsel submitted that, although that cross-examination might not ultimately have been as effective as it was intended to be, nevertheless, it did not demonstrate incompetence by defence counsel, but, rather, it was part of a forensic decision, made by counsel at trial.

Ground 3(a) — analysis and conclusion

It is evident that at least one purpose, for which defence counsel embarked on the cross-examination in question, was in fact misconceived. Shortly after that part of the cross-examination of Ms Laila, the trial judge temporarily halted the pre-recording of the evidence, and drew to counsel’s attention the fact that the statement, by Ms Laila, to which the cross-examination was directed, also stated that the applicant had been violent to their son, Farid, and to herself in the past.
To that extent, it is apparent that counsel did make a material error in the cross-examination of Ms Laila.
However, counsel also used the evidence, that he had elicited from Ms Laila, for a second, and more substantial, forensic purpose. In particular, counsel relied on that evidence, in final address, in support of the submission, that if the applicant had been violent to her in the way that she had claimed, she would not have constantly confronted him with allegations that he had been engaging in extra-marital relationships. Counsel submitted, to the jury, that Ms Laila’s conduct in doing so demonstrated that she was ‘quite unafraid of him’, and that every time the issue of his infidelity arose, she would confront the applicant with it, and she would be angry with him about it.
In considering this aspect of the conduct by defence counsel, it is important to bear in mind that the question is not whether the decision, made by counsel, to raise the applicant’s previous acts of violence to the complainant, was a decision which other trial counsel might make, or whether, with the wisdom of hindsight, the better course would have been not to embark on that line of questioning in cross-examination. It is evident, from the manner in which counsel did ultimately rely on the evidence that he adduced in cross-examination as to previous acts of violence by the applicant to Ms Laila, that that evidence did have a legitimate forensic purpose in seeking to impugn Ms Laila’s credibility as a witness.
In that context, two points are of particular relevance. First, the cross-examination by counsel was undertaken in circumstances in which the prosecution had already adduced evidence of other uncharged acts of violence, by the applicant, towards Ms Laila. As the judge instructed the jury, that evidence was led by the prosecution, to give context to the evidence of Ms Laila concerning the events that were the subject of charges 1 to 9, and, in addition, it was also admitted as tendency evidence, to demonstrate a tendency or pattern of behaviour, by the applicant, to act in an aggressive and violent manner to Ms Laila, and to commit family violence.
Further, in the context of the trial, it was necessary for defence counsel to attempt to impugn the credibility of Ms Laila as a witness. The decision of the jury on each of the charges was essentially dependent on its assessment of the credibility of Ms Laila and the applicant. The difficulty confronting counsel was that, in a number of respects, Ms Laila’s evidence was supported, at least in part, by other independent evidence. The account, given by Ms Laila, was, in almost all material respects, inconsistent with the account, given by the applicant, in his evidence. In such a case, the options open to counsel, in cross-examination, to undermine the credibility of Ms Laila were limited. The inconsistency, which counsel sought to establish in the line of cross-examination going to the question, did potentially have the capacity to undermine Ms Laila’s credibility, notwithstanding that it also involved the disadvantage of introducing further acts of violence, by the applicant, towards Ms Laila. In such a case, the question, whether to embark on such a line of questioning, involved the exercise of a forensic decision by counsel in the context and atmosphere of the trial at the time.
In those circumstances, it could not be concluded that the decision, by counsel, to undertake that aspect of cross-examination of Ms Laila was incompetent to the extent that it deprived the applicant of a fair trial of the charges against him.

Ground 3(b) — Repeated failure to comply with Browne v Dunn

In support of ground 3(b), counsel for the applicant noted that, at various points during the cross-examination of Ms Laila, the trial judge had paused the recording of her evidence, and had discussed with defence counsel what matters he had so far failed to put to the witness as required by Browne v Dunn.[13] In particular, there were a number of occasions on which either the judge, or the prosecutor, raised the question about aspects of the defence response to the prosecution case which had not been put to the witness.
[13](1893) 6 R 67 (‘Browne v Dunn’).
Counsel for the applicant noted that, notwithstanding those prompts by the judge, and by the prosecutor, defence counsel failed to put a number of matters to Ms Laila, including:
(a)that there was an arrangement for Ms Laila to drive the children to the airport on the day of their departure;
(b)that Ms Laila had provided the applicant with various documents, to enable him to obtain travel documents in Canberra;
(c)that Ms Laila had created a separate letter of authority in relation to obtaining the children’s passports.
Counsel submitted that the failure by defence counsel to put those matters to Ms Laila in cross-examination constituted a significant lack of compliance, by counsel, with the rule in Browne v Dunn, which resulted in a material disadvantage to the defence by the applicant of the charges against him.
In that respect, counsel noted that, when the applicant gave evidence, the prosecutor cross-examined him about the failure, by his counsel, to put such matters to Ms Laila. Ultimately, at the close of evidence, the prosecutor sought that the judge give a direction to the jury in respect of the failure of defence counsel to comply with Browne v Dunn. As a consequence, the judge gave a direction, by which the jury was invited to have regard to the breaches of that rule in considering the weight to be given to the assertions made on behalf of the applicant.
In response, counsel for the respondent submitted that, to the extent that there had been a failure to comply with the Browne v Dunn principle, that failure could not be attributed to incompetence by defence counsel. In particular, it was noted that the applicant, at trial, appeared to have provided instructions to counsel, which were inconsistent with statements that he had made previously, including to the police, and which were also inconsistent with other material in the case.
For example, counsel noted that, in his evidence-in-chief, the applicant had said that the original arrangement, on 29 August 2019, had been for Ms Laila to drop the children off at the airport, and that he had made a video of the handover, because he was suspicious of Ms Laila’s last minute change of plans regarding both the time and location of the handover. The applicant had made no mention of this plan in his record of interview, and defence counsel informed the judge that he was not aware of any such plan at the time that he cross-examined Ms Laila. Similarly, the applicant’s evidence, that he travelled to Canberra with both children to get the passports, and that his wife had dropped them at Melbourne Airport, was not mentioned in his record of interview and appeared to come as a surprise to defence counsel.
Further, counsel noted that the judge gave a limited direction in relation to the Browne v Dunn principle, and it was not suggested at trial that the failure of defence counsel to put certain matters to Ms Laila occurred as a result of recent invention on behalf of the applicant.

Ground 3(b) — analysis and conclusion

The principle, relating to the cross-examination of a witness in a proceeding, that is commonly referred to as the rule in Browne v Dunn, is well-established. The rule is fundamentally grounded in fairness, based on the principle that if a witness’s evidence is to be contested or contradicted, that witness should be given a fair opportunity to respond to any evidence, which might be given, contradicting his or her testimony.[14]
[14]Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ, McInerney J agreeing at 692); R v Morrow (2009) 26 VR 526, 539 [48] (Redlich JA, Lasry AJA agreeing at 550 [88]); [2009] VSCA 291.
In a criminal trial, in view of the onus of proof resting on the prosecution, the rule in Browne v Dunn does not necessarily apply in the same manner in respect of the conduct of the case of an accused person.[15]
[15]MWJ v The Queen (2005) 222 ALR 436, 440–1 [18]–[19] (Gleeson CJ and Heydon J), 449 [41] (Gummow, Kirby and Callinan JJ); [2005] HCA 74; Hofer v The Queen (2021) 274 CLR 351, 361–4 [29]–[37] (Kiefel CJ, Keane and Gleeson JJ); [2021] HCA 36; R v Manunta (1989) 54 SASR 17, 23–4 (King CJ, Bollen J agreeing at 29); R v Thompson (2008) 21 VR 135, 157 [111]–[112] (Redlich JA); [2008] VSCA 144.
In the present case, as counsel for the applicant has pointed out, on a number of occasions in the course of his cross-examination of Ms Laila, the trial judge, and, on one occasion, the prosecutor, raised with defence counsel the requirement that he comply with the rule in Browne v Dunn and put to the witness matters which were contained in the defence response to prosecution opening that had been filed before the commencement of the trial. A review of the transcript indicates that defence counsel did, in most instances, address to the witness in cross-examination those matters that were raised by the judge (and by the prosecutor). In addition, as our summary of the cross-examination of Ms Laila makes apparent, it is clear that defence counsel did, in a number of respects, specifically put to Ms Laila a number of propositions, on which the applicant’s case was based, and to which Ms Laila responded.
At the conclusion of evidence, the prosecutor raised with the judge that, nevertheless, counsel for the applicant had failed to comply with the requirements of Browne v Dunn in a number of respects. The judge indicated that he would give a direction, concerning the weight to be given to evidence, that had been affected by the breach of the rule in Browne v Dunn.
In her final address, the prosecutor noted that Ms Laila had not been asked, and that it had not been put to her:
(a)that she was going to drive the children to the airport on 29 August 2019;
(b)that she had met the applicant on 1 August and provided him with signed and witnessed documents and his passport; and
(c)that she had provided two separate letters of authority to the applicant, to enable him to obtain passports for the two children.
The prosecutor submitted that the jury should therefore give ‘very little or no weight’ to those three aspects of the applicant’s evidence, and she invited the jury to ‘put them aside’.
In similar terms, the judge, in his charge to the jury, commenced his directions on that topic by informing the jury that it ‘did not have great prominence’ in the addresses and ‘nor should it have’. The judge then noted the three matters, in respect of which the prosecutor had submitted that defence counsel had failed to comply with the rule in Browne v Dunn. His Honour then instructed the jury as follows:
The fact is though that as a result of those matters not being put to [Ms Laila], well [Ms Laila] was denied the opportunity to respond to these various challenges and you were deprived of the opportunity of hearing her evidence in response and seeing her reaction to those suggestions. You may take this fact into account when assessing the weight that you give to the assertions that were not put to her.
I am not suggesting that this is a matter of any real importance to your task. No doubt had those matters been put, they would have been rejected as she was adamant that there was no such agreement in existence and she had no knowledge of any passports being obtained. I suppose all it really means is you have been deprived of seeing her reaction and response to those suggestions had they been put to her.
It is quite apparent that each of the three matters, on which the jury was directed, and which are the subject of ground 3(b), were not put to Ms Laila in cross-examination. The first question, which thus arises, is whether the failure to put those matters to Ms Laila was due to any fault or error by defence counsel.
In respect of the first matter — the arrangement that Ms Laila would drive the children to the airport on 29 August 2019 — it is relevant that the applicant, in his interview with police, did not mention that matter, when questioned by the police, concerning his removal of the two children from Victoria to Pakistan.
After defence counsel had questioned the applicant concerning the events of 25 April and 27 April, he then commenced the next topic, in evidence-in-chief, by asking the applicant whether there was an agreement that he and Ms Laila should meet on 29 August. The applicant responded by stating that it was Ms Laila’s idea that they should meet, and he then said, in his evidence, that was so ‘because it was pre-planned on 29 August that she was supposed to drop the kids at the airport’. The applicant then said that, on the morning of 29 August, Ms Laila had contacted him, and told him that she could not come to the airport, and that she would meet him, with the children, at Glenroy Station.
As we have noted, in his police interview, the applicant did not say that Ms Laila had initially agreed to drive the children to the airport on the day of their departure. Rather, in the interview, he said that the original plan with Ms Laila was that he would meet her near Glenroy Station. He said that Ms Laila had suggested they meet at that location, because he would be in trouble (in breach of the intervention order) if they met at her home.
Thus, the evidence given by the applicant, of the original agreement, that Ms Laila would accompany him and the children to the airport, contradicted the account that he had given to the police, and was a material change in his account of the circumstances in which Ms Laila delivered the children to him on 29 August.
After the applicant gave evidence concerning the ‘airport arrangement’, counsel then asked him if he had been seeing the children since 27 April. The applicant responded by saying that he had seen them, and that he had taken the children to Canberra. Defence counsel then asked the question: ‘Hang on, you took them to Canberra?’, to which the applicant responded in the affirmative.
Defence counsel asked the applicant when he did so. The applicant responded that he had done so on 1 August ‘for the passport’, and he added that, in fact, Ms Laila had dropped them off at the airport to go to Canberra for that purpose. The applicant added, ‘We went to the Canberra with all the documents, we applied for the passport, we come back, then I dropped the kids … close to her house’.
At the next jury break, the judge asked defence counsel if he had put to Ms Laila the arrangements to which the applicant had just referred in his evidence. Defence counsel responded that he did not know (that is, the applicant had not told him) that it had been arranged for Ms Laila to drive the applicant and the children to the airport on 29 August. The judge then asked defence counsel if he had put to Ms Laila that she had had ‘some involvement’ in the trip to Canberra on 1 August. Defence counsel responded in the negative. When asked why he had not done so, he said he did not think that it was relevant, because ‘I didn’t think there was any end to it’.
In those circumstances, and based on counsel’s responses to the questions put to him by the judge, it could not be concluded that counsel had failed to put to Ms Laila questions, concerning the airport arrangement, on which he had been given specific instructions by the applicant.
The question whether the applicant had instructed defence counsel on the second and third matters, which are the subject of ground 3(b), is less clear. However in that regard, a number of points are relevant.
First, the applicant’s account concerning those matters in the record of interview was quite confused and disjointed.
Secondly, the applicant’s explanation, concerning the circumstances in which he obtained passports for the two children, was inconsistent, in a number of respects, with other evidence. In particular, in the interview, the applicant stated that he first applied for a passport for Rizwana, and, subsequently, he applied for a passport for Farid, using different documents recording Ms Laila’s permission each time. In that respect, as the prosecutor pointed out in cross-examination, there were a number of difficulties with that account, including the fact that the permission documents retained by the authorities in connection with each application were each lodged on the same date and in each instance consisted of a version of the statutory declaration dated 26 June 2019 purportedly made by Ms Laila.
Thirdly, it is quite apparent that the applicant was a person who changed his account concerning other relevant matters in his evidence, including the first matter that is the subject of ground 3(b).
Taking those matters into account, we are not persuaded that it has been demonstrated that the applicant’s counsel at trial had (and therefore failed to act on) clear instructions about either the second or third matters, that are the subject of ground 3(b), at the time at which he was cross examining Ms Laila.
It follows, then, that it is not at all clear that the applicant had instructed counsel then acting on his behalf of any of the three matters, which are relied on in support of ground 3(b). Accordingly, it could not be concluded that the fact that those matters were not put to Ms Laila in cross-examination was due to any error, oversight or omission by defence counsel.
Further, it is quite apparent that, notwithstanding that the issue of Browne v Dunn was raised by the judge with defence counsel (in the absence of the jury) on a number of occasions during the trial, the matters now relied on in support of ground 3(b) formed only a minor part of the arguments, made by the prosecutor, in respect of the offences that were the subject of charges 10, 11 and 12 on the indictment. The directions, given by the judge to the jury, were, quite correctly, limited, and were carefully designed to ensure that the jury did not give inappropriate weight to the fact that those matters were not specifically addressed with Ms Laila in cross-examination.

For those reasons, we are not persuaded that there was any failure, or incompetence, by defence counsel in respect of the matters that are the subject of ground 3(b). Nor are we persuaded that the issue relating to the lack of compliance with Browne v Dunn did result, or could have resulted, in a miscarriage of justice, or adversely affected the applicant’s right to a fair trial of the charges against him.

Ground 3(d)—Arguments to jury

In support of ground 3(d), it was submitted that, in his closing address, the applicant’s counsel advanced a number of arguments to the jury, which were poorly conceived, and which were likely to have damaged the defence case.
In that respect, counsel noted that the applicant’s counsel, at trial, sought to impugn Ms Laila’s credit on the basis that it was inherently unlikely she would have continued to confront the applicant, if he had assaulted her in the manner in which she described. It was submitted that the terms in which counsel addressed that argument might have been such as to incite the jury against the applicant, by reminding them of the evidence of the applicant’s violent conduct towards Ms Laila.
Counsel also noted that defence counsel, at trial, undermined the applicant’s case that Ms Laila had consented to the removal of the children from the jurisdiction, by advancing a proposition to the jury that, although Ms Laila had consistently avoided the applicant’s request for him to take the children to Pakistan, ‘she never said no’.
Counsel also referred to submissions, by defence counsel, that suggested that Ms Laila’s behaviour towards the applicant was unduly harassing, which was a matter which, even if it were true, was no more than an exercise in ‘victim blaming’, and did not advance a defence to the charges.
Finally, counsel noted that, in final address, defence counsel had advanced submissions to the jury that the applicant did not gain any advantage by removing the children from the jurisdiction, because, as their father, he was doing no more than ensuring that his children’s wellbeing was properly taken care of. Counsel noted that, in the jury discussions that had preceded final address, defence counsel had mentioned to the judge that he intended to make such a submission, and the judge had warned defence counsel that if that submission were made in final address, he would instruct the jury that it was incorrect as a matter of law.
In response, counsel for the respondent submitted that, whilst some of the arguments advanced in final address by defence counsel might not have assisted the applicant’s case, nevertheless, the defence case was readily apparent from counsel’s closing to the jury, namely, that the jury should not be satisfied of the charges involving physical violence and associated offending, because the account given by Ms Laila could not be accepted, and that the jury should not be satisfied that the removal of the children to Pakistan occurred otherwise than by mutual agreement.
Counsel for the respondent noted that the applicant, at trial, faced the difficulty of an overwhelmingly strong prosecution case. In addition to Ms Laila’s evidence, there was a substantial body of complaint evidence, and objective evidence that supported the prosecution case on the kidnapping charges. It was submitted that the alleged errors, made by defence counsel, and relied on on this application, could not fairly be said to have rendered the trial unfair, or to have deprived the applicant of a prospect of acquittal that was fairly open.
Ground 3(d)— analysis and conclusion
As counsel for the respondent correctly acknowledged, the final address, made by defence counsel at trial, could not be described as particularly persuasive. It contained some submissions, which were unlikely to find favour with the jury, and, as such, would not have assisted the case for the applicant.
On the other hand, it is necessary to keep in mind that defence counsel’s address was made in circumstance in which the prosecution had a very strong, if not overwhelming, case on each of the charges on which the applicant was convicted, and, in particular, on the two charges of kidnapping (charges 11 and 12).
Following the incidents of 27 April 2019, Ms Laila immediately contacted her friend, Rukhsana Sadia, who drove her to the Wyndham North Police Station, where she made a complaint of violence against the applicant. On the following day, 28 April 2019, Dr Tiwari examined Ms Laila, and noted injuries that were consistent with her complaint. On 1 May 2019, Ms O’Hehir, of the Victorian Institute of Forensic Medicine, also examined Ms Laila, and also noted injuries consistent with Ms Laila’s description of the assault on her by the applicant.
The evidence in support of the two kidnapping charges was even more powerful. When the applicant did not return the two children home on the evening of 29 August 2019, Ms Laila contacted multiple people expressing her concerns, because the applicant had removed the children and not returned them. Ms Laila also telephoned Muhammad Mehmood, and told him that the applicant had taken the children for her daughter’s birthday, but had not returned them in the evening. At 6:40 am on the next morning, 30 August 2019, Ms Laila attended Sunshine Police Station, where she reported to Detective Acting Sergeant Dhindsa that the applicant had breached an intervention order and had taken the two children overseas.
That evidence was entirely inconsistent with the applicant’s claim that Ms Laila had consented to the removal of the children from the jurisdiction. As the evidence of Detective Bajwa made clear, a subsequent examination of text messages on the applicant’s telephone did not reveal any messages in which Ms Laila had granted permission, or made an agreement, for the applicant to remove the children to Pakistan.
The applicant’s claim that Ms Laila had consented to the removal of the children was, to say the least, highly improbable. The two children were very young, aged two years and one year respectively. Rizwana was still breastfeeding. Until the removal of the two children from Australia, Ms Laila had been the primary carer of the two children. There was no support for the applicant’s suggestion that she was other than a good and caring mother to them. It is almost inconceivable that she would have consented to the children being removed from her care, and taken out of the jurisdiction to Pakistan.
In those circumstances, and in the face of such a powerful prosecution case, it is understandable that defence counsel had a limited range of submissions, which he could properly advance in final address.
As noted, some of the arguments, made by defence counsel, were unlikely to have assisted the case of the applicant. However, counsel did sufficiently put to the jury the two key elements of the applicant’s response to the prosecution case. First, as we have noted in considering ground 3(a), counsel submitted to the jury that the conduct of Ms Laila, in repeatedly raising with him her allegations of extramarital affairs, was inconsistent with her claim that he was repeatedly violent to her. That submission was made in support of the proposition that the jury should have a reasonable doubt about the complainant’s evidence relating to the four incidents that were the subject of charges 1 to 9.
Secondly, counsel submitted to the jury that it should not be satisfied, beyond reasonable doubt, that Ms Laila did not consent to the removal of the two children from the jurisdiction to Pakistan. In the face of an overwhelming prosecution case on charges 11 and 12, counsel did marshal an argument that Ms Laila had been ‘playing a game’ over the children, in promising that they would go back to Pakistan, and at no time specifically saying to the applicant that the children were to remain in Australia and not return to Pakistan.
Taking those matters into account, we are not persuaded that the final address, made by defence counsel, was deficient to the extent that it resulted in a miscarriage of justice, or that it deprived the applicant of a fair trial of the charges against him.

Ground 3 — summary of conclusions

For the foregoing reasons, none of the three matters, relied on by the applicant, in support of ground 3, constituted or involved such incompetence by trial counsel that the applicant was deprived of a fair trial of the charges against him. Nor are we persuaded that those matters, either individually, or taken in combination, were such as to deprive the applicant of a chance of acquittal on any of the charges, that was fairly open to him.
For those reasons, there was no substantial miscarriage of justice and the application for leave to appeal against conviction must fail.

Application for leave to appeal against sentence

Applicant’s background and plea

The applicant was born on 15 December 1990. He was raised in Pakistan, where he was educated. He attended university in Karachi and graduated with a Degree in Business Administration.
The applicant came to Australia in 2012. He married his wife, Zareen Laila, and, as noted, there were two children of the marriage. As the evidence revealed, by 2018, at the latest, the marriage had a number of difficulties, and the couple separated.
The applicant was employed in a number of different capacities and, after the birth of his children, he was the sole breadwinner for the family. He has no previous convictions. His visa to remain in Australia was cancelled, and he intends, on the completion of his term of imprisonment, to return to his parents in Pakistan.
In March 2022, the applicant sustained an injury to his leg, which required surgical intervention. Subsequently, he has continued to suffer a degree of pain from the injury.
On the plea, a number of character references, compiled by family and friends, were tendered, attesting to the applicant’s positive character traits.

Reasons for sentence

Ground 1 of the application for leave to appeal against sentence is directed to the sentences imposed on charges 11 and 12, the offences of statutory kidnapping. Accordingly, it is only necessary to summarise those parts of the judge’s reasons for sentence that are relevant to the sentences imposed on the applicant on those charges.
The judge’s reasons for sentence were detailed and comprehensive.[16]
[16]DPP v Shams (a pseudonym) [2023] VCC 1479 (‘Reasons’).
In considering the seriousness of the two kidnap charges, the judge noted that the applicant, at the time, was subject to a Family Violence Intervention Order, which precluded him having contact with his children.[17] The judge described, in some detail, the steps, which the applicant took, in order to plan and carry out the removal of the two children from Australia to Pakistan. They included: making a false report that his son’s passport had been lost; having a false ‘statutory declaration’ purporting to be his wife’s permission for him to obtain a passport for his daughter; attending in Canberra and falsely representing to the passport application authority that his son’s passport had been lost; using the false statutory declaration in respect of his daughter; booking his children’s one-way flights to Pakistan; filming the circumstances in which his wife permitted him to have access to the children on 29 August, which the judge considered was done by the applicant to ‘shore up’ his position in advance of committing the crimes of kidnapping his children; deceiving his wife as to the reason why he was seeking access to the children on that date; and then removing the children to Pakistan.[18] The judge further noted that the applicant’s daughter, Rizwana, was still breastfeeding at the time that he kidnapped her, and that, by removing her from her mother’s care, he had deprived her of her mother’s milk.[19]
[17]Reasons, [31].
[18]Ibid [33]–[40].
[19]Ibid [43].
The judge rejected the applicant’s claim, that his wife had consented to the children’s removal from the jurisdiction, as being ‘ridiculous’.[20]
[20]Ibid [48].
Having outlined the applicant’s personal circumstances, the judge considered the issue of his prospects of rehabilitation. In that respect, his Honour noted that the applicant has no previous convictions, and he was able to rely on his past good character, which is relevant.[21] In respect of the issue of risk of further offending by kidnapping, the judge noted that, as the applicant would no longer be in the jurisdiction, that risk was of little moment.
[21]Ibid [80].
The judge characterised the two offences in question in the following terms:
As to the kidnapping, well it was not spontaneous offending. It was very calculated, premeditated and cruel. I have set out earlier in my reasons many of the details spelling out the degree of planning, calculation and secrecy that you engaged in. I will not repeat it all now. Some of the references speak of your exceptional integrity, your compassion, empathy, kindness and unwavering moral compass. Well all those things were conspicuously absent as you took the children in the way that you did. It was a terrible thing to do, both to your wife and to the children. The kidnap in each case represents a serious example of the offence. That is so notwithstanding that I do acknowledge it is not the usual type of conduct picked up by this provision. The children were just that. They were children. One just under 3. One a 12-month-old baby who was breastfed. The level of planning and cunning involved in it is highly relevant notwithstanding your counsel’s odd submissions to the contrary. These steps that you took, the degree of planning and the premeditation are matters of significant aggravation. It was in my judgment, I have mentioned this earlier, an exercise in possession and control, almost as though of property. You took them because you could and you did not care who you hurt in the taking, either them or their mother. It was all the same to you. This was serious stuff indeed and in the context of an order protecting them.[22]
[22]Ibid [84].
In considering the purposes of sentencing in this case, the judge noted that it was important that the sentence imposed on the applicant be sufficient to properly denounce his conduct, and to deter the applicant from engaging in similar offending again. The judge considered that general deterrence was an important purpose (in respect of the offences overall), in view of the unacceptable prevalence of family violence in the community.[23]
[23]Ibid [92].
Finally, the judge took into account current sentencing practices, but he noted that each case is different, and that he must exercise his sentencing discretion, based on the circumstances of the particular case.[24]
[24]Ibid [96].

Application for leave to appeal sentence — submissions

In support of the proposed ground of appeal, that the sentences imposed on charges 11 and 12 were manifestly excessive, counsel for the applicant noted that the judge recognised that the applicant’s offending did not fit the usual factual setting for the offence of kidnapping, which ordinarily involves kidnapping accompanied by a demand for payment or some other ransom. In that respect, counsel noted that a number of features, which commonly accompany the crime of kidnapping, were absent in this case, which include: a violent and forceful taking; other conduct (threats and assaults) placing the victim in fear; physical restraint of the victim; the use of weapons to compel compliance by the victim; offending in company with others; a context of other criminal activity, such as drug trafficking; and the particular offender having a criminal history.
Counsel accepted that the conduct, by the applicant, was the cause of serious concern for Ms Laila. However, it was submitted, the gravamen of the offence of kidnapping is the loss of liberty by the victim of the offence, and not the loss of custody by the parent of the victim. Counsel noted that the applicant did not violently take the children, he did not assault or threaten them, and he had no previous convictions.
Counsel relied on three previous decisions of this Court in respect of sentencing for the offence of statutory kidnapping, namely, Tonkin v The King,[25] Roe v The Queen,[26] and Huynh v The Queen.[27] Counsel noted that, in each of those cases, the sentences imposed on the offender were less than the sentence of 7 years’ imprisonment, that was imposed on the applicant for each of charges 11 and 12.
[25][2023] VSCA 194 (‘Tonkin’).
[26][2021] VSCA 54 (‘Roe’).
[27][2020] VSCA 222 (‘Huynh’).
Accordingly, counsel submitted that the sentences, imposed on the applicant on charges 11 and 12, were each manifestly excessive.
In response, counsel for the respondent accepted that the circumstances of the offending were unusual, and that there are few instances of sentences involving the kidnap, by a parent, of his (or her) young children. Counsel submitted that, notwithstanding that the kidnappings in this case were not attended by violence, force or threats, nevertheless, they were serious instances of the offence of kidnapping. The offending was attended by a significant degree of planning, which commenced, at the latest, on 26 June 2019, when the false statutory declaration, relating to the passport application for Rizwana, was witnessed by a Justice of the Peace. As recognised by the judge,[28] the motivation for the offending was to punish Ms Laila, rather than to have the opportunity to remain as a parent of the children. Thus, it was submitted, the offending was an exercise, by the applicant, of power, control and domination, and it was committed in the face of the intervention order, which prohibited the applicant having contact with the children.
[28]Reasons, [31].
Counsel further noted that the intention — and the practical effect — of the offending was to remove the children from this country to a distant location, which resulted in the children having no contact with their mother for a period of one year.
Counsel further submitted that it is relevant that charges 11 and 12 occurred in the context of the preceding instances of family violence, so that the sentencing purpose of general deterrence was of particular weight in the determination of the applicant’s sentence. Further, it was submitted, the judge was correct to take into account the effect of the kidnapping on Ms Laila, and also to conclude that the offending must have had an impact on each of the two children.[29]
[29]Ibid [56].
Counsel submitted that the matters pertaining to the personal circumstances of the applicant, which were put in mitigation, were quite modest, being limited to the applicant’s previous good character and lack of criminal history.
In those circumstances, it was submitted, the sentences imposed by the judge were appropriate and could not be concluded to be manifestly excessive.

Application for leave to appeal against sentence — analysis and conclusion

In order to succeed on the proposed ground of appeal, that the sentences imposed on the applicant on charges 11 and 12 were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge. In other words, it must be demonstrated that the sentences were so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error is identified in his Honour’s reasons for sentence.[30]
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157; DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
The starting point for that analysis is that there were a number of serious aspects of the offending.
First and foremost, it involved the removal, by the applicant, of two very young children, aged two years and one year respectively, from the care and protection of their mother, who, at the time, had sole custody of them. At the time, Rizwana was breastfeeding, and it would appear that the applicant made no provision to assist her to transition to milk formula.

Secondly, the offending involved the removal, by the applicant, of the children over a considerable distance overseas, essentially well beyond the reach of their mother and of the Australian authorities. There was no evidence that the applicant intended, at any point, to return the children to their mother in Australia. Indeed, the applicant’s evidence at trial was to the effect that he had taken the children to Pakistan for them to live there with him and his family.
Thirdly, the offending, by the applicant, was premeditated and carefully planned by him. In that respect, over a period of at least two months, he took a number of steps to prepare and obtain the necessary documentation that would enable him to take the children out of the jurisdiction.
Fourthly, and importantly, the conduct of the applicant, in removing the children, involved a gross and reprehensible breach of the trust reposed in him by Ms Laila, the mother of the children. In essence, the applicant exploited Ms Laila’s sense of decency, to persuade her to permit him to have access to the children, on the pretext, which he gave, of wishing to spend time with them on the first birthday of their daughter, Rizwana. That pretext, obviously convincingly practised by the applicant on Ms Laila, enabled him to have access to the children, and to have sufficient time to convey them to the airport, board an aeroplane, and leave the jurisdiction.
Each of those matters individually, and, in particular, collectively, have the effect that the offending in this case, that was the subject of the two kidnapping charges, constituted a serious instance of that criminal offence.
In view of the circumstances in which the offending was perpetrated, the sentencing purposes of general deterrence and denunciation must assume, and be given, particular prominence in the determination of the applicant’s sentences for both charges. In essence, it was necessary for the judge to impose sentences that were sufficient to properly express the condemnation, by the court and the community, of the applicant’s conduct, and to constitute a clear and firm message that any person, who might be minded to engage in such offending, will, on apprehension, lose his or her right to remain at liberty in society for a substantial period of time. It is only in that way that the courts can adequately play their role in preventing further repetitions of conduct such as that engaged in by the applicant, and thereby protect young and vulnerable children from such conduct.
As noted, in submissions, counsel for the applicant relied on three previous decisions of this Court involving the sentencing of offenders for the offence of statutory kidnapping, namely, Tonkin, Roe, and Huynh. The facts and circumstances of each of those cases were quite different to the present case, involving the relatively short-term kidnap of an adult victim for the purposes of monetary extortion.
Certainly, the sentences imposed in those cases, and, in particular, in Huynh and Tonkin, were markedly less than the sentences imposed on the applicant on charges 11 and 12. However, as the High Court emphasised in Dalgliesh (a pseudonym) v The Queen,[31] while s 5(2)(b) of the Sentencing Act 1991 provides that current sentencing practices are a relevant consideration to be taken into account in the determination of the sentence in each case, nevertheless, that factor is only one of a number of matters, which must be taken into account in the exercise of the sentencing discretion in each particular case.[32]
[31](2017) 262 CLR 428; [2017] HCA 41.
[32]Ibid 434 [5]–[9] (Kiefel CJ, Bell and Keane JJ), 453–4 [82] (Gageler and Gordon JJ).
Further, as this Court has noted on a number of occasions, some caution must be exercised in identifying the appropriate sentencing range by reference to previous decisions. In the context of sentencing, no two cases are alike. The exercise of the sentencing discretion, in each case, is necessarily the product of a synthesis involving giving weight to, and balancing, a number of different, and frequently conflicting, factors, which can and do vary considerably between individual cases. Accordingly, while the sentences, imposed in the present case, might be more substantial than those imposed in the three cases on which the applicant relies, that factor does not, in the circumstances of this case, demonstrate that the sentences imposed were manifestly excessive.
It may also be noted that the sentences imposed in this case sit comfortably with the observation of Priest JA in Hanna v The Queen that ‘sentences of imprisonment exceeding seven years, to a shade under 10 years, are not uncommon generally for kidnapping and associated offending’.[33]
[33][2014] VSCA 187, [88] (Maxwell P agreeing at [1] and Neave JA agreeing at [2]).
The applicant did have available some mitigating circumstances, which the judge took into account. He had no previous convictions, had a good work history, and a number of favourable character references were tendered on his plea.
Nevertheless, taking those factors into account, we are not persuaded that the sentences imposed on the applicant were manifestly excessive. As we have discussed, the offences each had a number of serious aspects attached to them, and were such that the sentencing purposes of general deterrence and denunciation must be given substantial weight. Taking into account those matters, and bearing in mind the maximum sentence prescribed for the offence is 25 years’ imprisonment, it could not be concluded that the sentences imposed on the applicant were wholly outside the range of sentencing options available to the judge.
Nor are we persuaded that the orders for cumulation were manifestly excessive. The offences, that were the subject of charges 11 and 12, were each individual offences, and it was appropriate that there be a material period of cumulation ordered in respect of them.
For those reasons, the application for leave to appeal against sentence must be refused.

Summary of conclusions

For the foregoing reasons, the application for leave to appeal against conviction, and the application for leave to appeal against sentence, must each be refused.

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[2024] VSCA 260

6 November 2024