Wedi Ndjeka Bembo v The Queen

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0010
S EAPCR 2019 0201

WEDI NDJEKA BEMBO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2019
DATE OF JUDGMENT:	18 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Bembo (Unreported, County Court of Victoria, Judge Hogan, 20 September 2017) (conviction); [2018] VCC 15 (sentence) DPP v Bembo (Unreported, County Court of Victoria, Judge Cohen, 12 April 2019) (conviction); [2019] VCC 1352 (sentence)

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CRIMINAL LAW – Appeal – Conviction – Attempting to possess commercial quantity of border controlled drug – Commercial quantity of heroin imported in shipment of wooden furniture from Pakistan – Australian Federal Police took possession and effected controlled delivery of substituted substance to applicant’s associates – Circumstantial case that applicant attempted to take possession – Whether verdict unsafe and unsatisfactory – Leave to appeal refused – Combined forces of phone records, flight records, mobile telephone data and other evidence capable of establishing guilt – M v The Queen (1994) 181 CLR 487 applied.

CRIMINAL LAW – Appeal – Conviction – Attempting to possess commercial quantity of border controlled drug – Commercial quantity of methamphetamine imported in shipment of wooden logs from Nigeria – Prosecution case that applicant headed criminal enterprise and coordinated subordinates for delivery – Joint trial – Whether substantial miscarriage of justice by reason of applicant’s cross-examination by counsel for co-accused – Whether substantial miscarriage of justice by reason of jury address by counsel for co-accused –Whether substantial miscarriage of justice occasioned by failure to order separate trial – Leave to appeal refused – No miscarriage of justice by reason of co-accused’s counsel putting client’s defence to applicant in cross-examination and in final address – Criminal Procedure Act 2009, ss 193, 276 – R v Gibbins and Proctor (1918) 13 Cr App R 134 applied.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to total effective sentence of 35 years’ imprisonment with 25 years non-parole for heroin and methamphetamine convictions – Whether principle of totality infringed – Whether personal circumstances given insufficient weight – Leave to appeal refused – Separate objective seriousness of each episode of offending reflected in total effective sentence – Impossible to accept applicant motivated by desire to provide for family – R v Crowley (1991) 55 A Crim R 201, R v Kerbatieh (2005) A Crim R 367 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Shwartz	Emma Turnbull Lawyers
For the Respondent	Mr K Armstrong, Mr J Dickie and Ms J Holmes	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA
NIALL JA
ASHLEY JA:

Introduction

On three separate occasions between December 2013 and July 2016, as juries concluded, the applicant engaged in criminal activity in which he either conspired to import, or attempted to possess, commercial quantities of border controlled drugs. He was not very successful in his criminal endeavours, however, and with respect to each occasion found himself charged, convicted and sentenced to substantial terms of imprisonment. Two of those convictions and sentences are the subject of the present applications.

The conviction (and sentence) arising from the second occasion of criminal activity is not the subject of the present applications, an application for leave to appeal against that conviction having previously been refused by the Court on 28 February 2018.[1] That occasion involved a conspiracy by the applicant to import four kilograms of methamphetamine in the period between 13 May and 26 June 2014. The conspiracy was detected by law enforcement authorities; and, on 11 October 2016, the applicant ultimately was convicted by a jury in the County Court for conspiring to import a commercial quantity of a border controlled drug. On 24 March 2017, the trial judge, Judge Cannon, sentenced the applicant to be imprisoned for 13 years on the Commonwealth conspiracy charge. The judge also found the breach of a State suspended sentence proved,[2] and made orders the effect of which was to impose a notional total effective sentence of 14 years’ imprisonment for the Commonwealth and State offences.[3] A non-parole period of 10 years was fixed. Given that the relevant offending was one of two occasions that involved methamphetamine, this conviction may conveniently be referred to as ‘the 2016 methamphetamine conviction’.
[1]Bembo v The Queen [2018] VSCA 42.
[2]The applicant had been arrested in February 2013 for dishonesty offences. On 29 January 2014, Judge Bourke sentenced him to a total effective sentence of two years’ imprisonment, wholly suspended, for obtaining property by deception and theft.
[3]The judge made orders wholly restoring the two year suspended sentence, and fixed a non-parole period of one year’s imprisonment. It was ordered that the sentence of 13 years’ imprisonment imposed on the conspiracy charge was to commence upon the conclusion of the non-parole period on the State sentence, thereby producing a notional total effective sentence of 14 years’ imprisonment.

Chronologically, the first of the three occasions of criminal activity — which, together with the third occasion, is the subject of the present applications in this Court — involved an attempt by the applicant on 9 December 2013 to possess a commercial quantity of heroin, 3.767 kilograms pure. On 20 September 2017, following a ten day trial, a County Court jury found him guilty of attempting to possess a commercial quantity of a border controlled drug. The trial judge, Judge Hogan, on 8 December 2017 sentenced him to be imprisoned for 14 years, and made orders which effectively led to 11 years’ cumulation of that sentence upon the sentence of 14 years’ imprisonment imposed by Judge Cannon. The notional total effective sentence thus became 25 years, upon which Judge Hogan fixed a new non-parole period for both sentences of 16 years. This may conveniently be referred to as ‘the heroin conviction’.

Turning to the third occasion of criminal activity, the applicant was detected attempting to possess approximately 125.682 kilograms of pure methamphetamine in the period between 27 April and 23 July 2016. In relation to this very large amount of methamphetamine, on 12 April 2019, following a trial occupying several weeks, the applicant was found guilty by a County Court jury of attempting to possess a commercial quantity of a border controlled drug. On 25 September 2019, the trial judge, Judge Cohen, sentenced the applicant to 19 years’ imprisonment for this offence, and made orders which led effectively to 10 years’ cumulation upon the sentence imposed by Judge Hogan on 18 October 2017. The notional total effective sentence thus became 35 years’ imprisonment. Judge Cohen fixed a new non-parole period of 25 years. This may conveniently be referred to as ‘the 2019 methamphetamine conviction’.

By Notices dated 22 January 2018, the applicant seeks the leave of this Court to appeal against both conviction and sentence with respect to the heroin conviction; and by Notices dated 18 October 2019, the applicant seeks leave to appeal against both conviction and sentence with respect to the 2019 methamphetamine conviction. As we have indicated, an application for leave to appeal against the 2016 methamphetamine conviction was refused by this Court on 28 February 2018. The sentence imposed in relation to the 2016 methamphetamine conviction will, however, be of some relevance to the issue of totality when consideration is given to the sentences imposed on the heroin and 2019 methamphetamine convictions.

As will become clear, we are of the view that none of the applications has merit. For the reasons that follow, leave to appeal against each conviction and sentence must be refused.

It is convenient to divide these reasons into three parts. Thus, we will deal first with the application touching conviction on the heroin conviction; secondly, the conviction application relating to the 2019 methamphetamine conviction; and, thirdly, the sentence applications with respect to both the heroin and methamphetamine convictions.

THE HEROIN CONVICTION
An application for adjournment

As we have mentioned, the jury returned the heroin finding of guilt on 20 September 2017. On 22 January 2018, the applicant filed applications for leave to appeal against both conviction and sentence. With respect to conviction, the Notice contained a single ground contending that the verdict is unsafe and unsatisfactory. A written case signed by trial counsel, dated 21 February 2018, was also filed. A responding written case was filed by the respondent on 6 April 2018.

Both applications for leave to appeal concerning the heroin conviction were listed for hearing before the Court as presently constituted on 18 October 2018. On that day, counsel — who was not trial counsel — appeared seeking leave to appear as amicus curiae. Counsel explained that she had earlier been briefed to appear for the applicant, but that, on 15 October 2018, the applicant had withdrawn instructions to both counsel and instructing solicitor.

The applicant, who was then unrepresented, applied for an adjournment on the basis, first, that he had not been provided with a copy of the written case before it had been filed, and, secondly, that it did not represent the arguments that he wished to present. He told the Court that he had not been provided with a copy of the trial materials (including the trial transcript); and he said that prison conditions, with very little access to visitors, had impeded his ability to focus on the application for leave to appeal. In addition, his efforts were concentrated on a third trial which was shortly to commence in the County Court.[4]
[4]On 12 April 2019, that trial resulted in the 2019 methamphetamine conviction.

He said that he had lost confidence in his trial lawyers because they had run a submission without his knowledge and had acted inconsistently with his instructions.[5] When asked directly by the Court whether he had ever instructed his solicitors that he wanted to appeal his conviction on the ground that his counsel had not followed his instructions at trial, he answered that it had been ‘flagged’. The applicant said that, at a later stage, he had also told his then solicitor that there was evidence that should have been, but was not, adduced at trial.
[5]We note, however, that notwithstanding these assertions, the same solicitors remained engaged by the applicant to conduct his pending trial (and did so).

Not without some hesitation, the Court granted the adjournment and directed the applicant to file any amended notice of appeal with respect to conviction and sentence, and an amended written case, by 28 December 2018. The Court also directed the Registrar to provide the applicant with the materials contained in the court file.

Pursuant to the Court’s direction, on 7 November 2018, the Registry sent the applicant a letter, enclosing a CD containing the trial transcript and documents that had been filed in the appeal.

No amended application was filed in accordance with the direction by 28 December 2018 (or, as will be seen, at all).

The adjourned hearing of the applications for leave to appeal with respect to the heroin conviction, and the applications for leave to appeal concerning the 2019 methamphetamine conviction, were listed for hearing before this Court on 6 December 2019. Written cases with respect to all matters for both parties had been filed and served well before that time. In relation to the heroin conviction, however, they remained in the same form as they had been when the applications were listed before us in October 2018. Notwithstanding leave to amend having been granted to the applicant, and an adjournment having been granted so that he could make any amendments thought necessary, no amendment was made.

A second adjournment application

On the day before the present applications were listed for hearing, the applicant’s counsel — who had appeared in the trial relating to the 2019 methamphetamine conviction and had prepared the applications for leave to appeal in relation to that trial — sent an email to the Registry foreshadowing an application to adjourn the applications for leave to appeal in relation to the heroin conviction. He wrote that the applicant had not been given a copy of the trial transcript from the heroin trial until mid-November 2019, and that the applicant believed that there were matters that should be made the subject of grounds of appeal. Counsel referred to the applicant’s supposed belief that his representation at trial had been deficient. He referred also to his client having indicated ‘that certain of his instructions to trial counsel were ignored’.

At the hearing on 6 December 2019, the applicant’s counsel applied for an adjournment of the heroin conviction matters on the basis that the applicant had only had access to a hard copy of the trial materials (including receipt of the transcript) in November 2019, and he had not had access to a computer that would allow him to view the documents on the CD. The applicant wanted the opportunity to consider the materials, with a view to amending his application. Although proposed amended grounds had not been formulated, counsel told the Court that the applicant alleged that trial counsel had not followed his instructions on an important matter.

As will appear, the ‘heroin’[6] the subject of the trial was collected by associates of the applicant on the afternoon of 9 December 2013. That day, the applicant had flown to Sydney and was due to return to Melbourne on 10 December 2013. In fact, he flew back on 9 December 2013, and the prosecution submitted that he went to the warehouse where the drugs were stored. We were informed that the applicant had told his trial counsel and solicitor that — contrary to the prosecution case — the real reason that he had returned to Melbourne was to visit his mother who was ill and in hospital. If true, this would have provided a good reason for the applicant to be in Melbourne, unconnected with the drugs.
[6]More accurately, the material substituted by the Australian Federal Police.

Given that the applicant alleged that his counsel had not followed his instructions, the adjournment application was stood down until later in the day so that trial counsel could be notified and given an opportunity to attend and hear the serious allegations made against him. The applicant was also directed to put his former solicitor on notice of the allegations. When the hearing resumed in the afternoon, trial counsel — who had successfully been notified by the Registrar — presented himself to the Court. We were told by the applicant’s counsel that attempts to contact the solicitor were unsuccessful.

On the resumption of the adjournment application, the applicant gave evidence. He did so having been warned by the Court that, by giving evidence concerning his counsel’s alleged failure to follow instructions, he would waive any claim to legal professional privilege in that connection. On the question of when he had access to the trial materials, he said that he had moved prisons, had difficulty getting a computer and had been preoccupied with the trial relating to the 2019 methamphetamine conviction. The applicant did not deny that he had received the correspondence from the Court enclosing all of the relevant materials on a CD. He said, however, that he was not provided with his own computer in prison until around March 2019 (and a CD reader shortly thereafter), and that the trial concerning to the 2019 methamphetamine conviction had finished in April 2019. We note that he was apparently capable of giving instructions to counsel to prepare the applications for leave to appeal against conviction and sentence in that trial.

The applicant’s evidence as to whether counsel had followed his instructions was somewhat vague and non-committal, and was attended by an air of prevarication. He said that he had certainly told his solicitor, and probably his counsel, that the reason he had returned to Melbourne from Sydney was to visit his sick mother after his wife had telephoned him in Sydney to say she was ill. The applicant said that he had gone to see his mother at a hospital, either in Footscray or Williamstown, or at her home, and had not gone to the warehouse where the drugs were being stored. He said that he had specifically asked his solicitor to check hospital records and CCTV footage from the café next to the warehouse that would show that he was not near the warehouse on the night in question.

In addition, the applicant said that he had told his counsel that he wanted to give evidence on his trial and that the first he knew that he was not going to be called was when his counsel commenced his closing address to the jury. He said that he was not familiar with the court process and did not know whether the prosecution or defence went first.

Finally, the applicant said that counsel had not properly or fully cross-examined a witness who had identified the applicant as ‘Freddy’,[7] who in 2012 had retained the freight forwarder who was engaged with respect to the 2013 attempted importation.
[7]Variously spelt ‘Freddy’ and ‘Freddie’ in the materials.

As noted above, trial counsel was present in Court when the applicant gave this evidence. At the conclusion of the applicant’s evidence, the Court afforded counsel the opportunity to respond to the matters that had been raised by the applicant. He chose to give evidence, and was cross-examined by counsel for the applicant (and, briefly, the respondent).

On the question of the applicant giving evidence at trial, counsel said — after refreshing his memory from a contemporaneous note taken by him at a conference held with the applicant before the trial started on 4 September 2013 — that he had discussed with the applicant the ‘pros and cons’ of the applicant giving evidence. Counsel’s advice was that the applicant should not give evidence unless it was clear it was the only chance of an acquittal. The applicant agreed. Counsel explained that he had formed the view that the applicant would be a poor witness. He said that he had acted for the applicant in the first drug trial, at which the applicant gave evidence. That course, as he discussed with his client, had proved to be spectacularly unsuccessful, with some members of the jury ‘sniggering’ at the applicant’s evidence. Counsel said that he had discussed the decision that the applicant would not give evidence with his instructing solicitor, who agreed with that course.

On the question of whether the applicant had instructed him as to the reason the applicant returned from Sydney on 9 December 2013, counsel said — again after refreshing his memory from contemporaneous notes — that the applicant had told him that he ‘may’ (the word ‘may’ being underlined in the notes) have returned from Sydney to see his mother. From the inflection with which the applicant told him this, counsel said, he thought that although it was being suggested as a possible line of defence, it was unconvincing and suggestive of being contrived. It appeared to be, as counsel said, ‘nudge, nudge, wink, wink’.[8] Counsel made a note to himself to check the reason given with his instructing solicitor. He said that he spoke with his instructor about this issue and was told, in effect, that it was not worth further pursuing and that, if the applicant put a positive case on the reason for his return, there was a real risk of the applicant being caught out on a lie and facing the consequences of incriminating conduct.
[8]This is an apparent allusion to a line from a skit from the British television comedy, ‘Monty Python’s Flying Circus’. In popular culture, the phrase is used to indicate that a speaker is employing euphemism, conveying a meaning other than the literal meaning of the words actually used.

Trial counsel said that, after the heroin trial, he was asked by the applicant to represent him in a third trial (which resulted in the 2019 methamphetamine conviction), but he was not able to act in that matter. Trial counsel was cross-examined by counsel for the applicant, but he was not challenged on the central aspects of his evidence. Finally, we note that, in answer to a question from the respondent’s end of the Bar table, counsel said that after the heroin trial he received a Christmas card from the applicant ‘thanking [him] for [his] efforts (which he ‘thought was a nice gesture’).

We refused the application for an adjournment for the following reasons.

First, the applicant had been given every reasonable opportunity to present his case. His applications for leave to appeal against conviction and sentence were prepared by trial counsel. The three additional matters about which he now complained, and which he said should be included in his proposed grounds, were known to him in October 2018. He did not require transcript in order to provide instructions to lawyers to formulate the proposed grounds.

Moreover, the applicant was provided with an electronic version of the materials in November 2018. Accepting that access to the material in that form would have been difficult because he had limited access to a computer, he did not raise that matter with the Registry. Had that occurred, it is inconceivable that steps would not have been taken to ensure the applicant received a hard copy of the materials. In any event, he had his own computer by around March 2019 and thus had ready access to the materials from that time.

Further, throughout 2019 the applicant was represented by counsel and solicitors both in the conduct of the the 2019 methamphetamine conviction trial, and in the preparation of the applications in this Court arising out of his conviction and sentence. No reason was advanced, nor was any reason apparent, that would explain why his lawyers could not have prepared any amended grounds in time for the present hearing.

We are conscious of the significance of the heroin conviction and the length of the sentence imposed on the applicant. Further, we recognise the difficulties that can attend preparing for an appeal from prison. The applicant was, however, given an adjournment more than 12 months ago; the complaints were well known to him at that time; and he has had access to lawyers. We are satisfied that the applicant has had every reasonable opportunity to prepare his applications for leave to appeal with respect to the heroin conviction. This was the second hearing date fixed for this matter, separated by 12 months, and in that period of time there was more than sufficient time and opportunity to advance any further proposed grounds.

Furthermore, having heard evidence from both the applicant and trial counsel, we were not persuaded that there is anything of substance in the proposed grounds. We are satisfied that the applicant received advice about the risks of giving evidence in his trial and accepted that advice. Certainly we reject his evidence that he did not know anything about the trial process. By the time of the heroin trial, he had been convicted after a trial in which he had in fact given evidence.

On critical matters, we do not accept the applicant’s evidence. His evidence that he did not realise that his counsel had not followed his instructions that he wanted to give evidence until his counsel commenced his closing address is extremely implausible, given that he had some familiarity with the trial process and previously had observed the prosecutor address the jury (and must therefore have known the order of addresses).

The prosecutor commenced his address on Friday 15 September 2017 and counsel for the applicant did not commence his address until Monday 18 September 2017. It is inconceivable that the applicant would not have raised the matter of not having been called to give evidence with his counsel. Moreover, the evidence from the applicant’s trial counsel that he raised the matter and discussed the pros and cons of the applicant giving evidence reflects basic trial preparation. We accept the evidence of counsel that the matter was discussed and the applicant agreed with the course that he would not give evidence in his trial. Counsel’s evidence that this course was adopted was not only plausible, but was compelling.

In relation to the supposed defects in the cross-examination of the witness who had identified the applicant as ‘Freddy’ (who had retained the freight forwarder in 2012), it is enough to say that we have read the transcript and are satisfied that this identification evidence by the witness was properly and skilfully tested in cross-examination in accordance with the applicant’s instructions. There is no substance in that aspect of the complaint.

We also accept the evidence of counsel that the possible reason for the applicant returning to Melbourne from Sydney was raised with him tentatively. He sought further instructions from his solicitor and the decision was made not to pursue that issue. No timely complaint about that decision was made by the applicant, and counsel’s reason for not taking that matter further was a completely understandable justifiable forensic decision.

Finally, we consider that there was a significant shift in the applicant’s complaints which raises significant doubts as to the veracity of his account. In his email to the Court of 5 December 2019 foreshadowing an application to adjourn, counsel for the applicant said: ‘During my telephone communication today [the applicant] has again indicated that certain of his instructions to trial counsel were ignored’. In his oral submissions in support of the adjournment, counsel repeated his instructions that trial counsel had not acted in accordance with the applicant’s instructions. Those allegations were clearly made with respect to counsel who appeared in the heroin conviction trial. As we have already noted, trial counsel was advised of the allegations and was present in Court when the application resumed later in the day on 6 December 2019, at which time the applicant gave his evidence. During his evidence, the applicant said that he had given his instructions to his solicitor and was equivocal about whether he had spoken to his trial counsel about giving evidence and the reason he had returned to Melbourne. This shift, once the applicant was aware that trial counsel was available to answer the allegations but the solicitor was not, reflected poorly on the credibility of the applicant’s evidence.

For these reasons, the second application for an adjournment was refused.

We turn now to consider the substance of the application for leave to appeal against conviction in relation to the heroin conviction. So there should be no misunderstanding, we emphasise that our consideration of the adjournment application, including our assessment of the applicants’ evidence, has not influenced our assessment of the merits of the proposed grounds of appeal.

The approach to the ground that the heroin conviction is unsafe and unsatisfactory

Turning to a consideration of whether the heroin conviction is unsafe and unsatisfactory, it is convenient to first provide an overview of the prosecution case, and, having done so, turn to some of the evidence that the prosecution relied upon to establish the applicant’s connection to the offending.

The prosecution case

In November 2013, a shipment of wooden furniture, in which 3.767 kilograms of pure heroin[9] was concealed, was airfreighted from Pakistan to Australia. It was consigned to ‘Paul Morkana’, at an address in Holt Street, Ardeer, Victoria. The consignment was intercepted by customs officers. Australian Federal Police (‘AFP’) subsequently took possession of it, and substituted an inert substance for the heroin in order to effect a controlled delivery.
[9]Contained in a mixture that had an average purity of 49.46% and a gross weight of 6.606 kg.

Arrangements are made for the importation

The importation was innocently facilitated by a freight forwarder and customs broker, Australian Freight Solutions Pty Ltd (‘AFS’). Stuart Roland was the manager of AFS. AFS had been retained by a person who identified himself as ‘Freddy’. Roland did not have any face to face dealings with Freddy in relation to the November 2013 importation.

Around 25 or 26 November 2013, Freddy, using a telephone number ending in the digits 661, contacted Roland on his mobile telephone and asked if AFS could assist Freddy’s friend Paul Morkana to import some timber antiques from Pakistan. Roland agreed to assist and advised that, because the item contained wood, an import permit from the Department of Agriculture, Fisheries and Forestry (‘DAFF’) would be required. Freddy instructed Roland to proceed with the fumigation process if it was required.

On 26 November 2013, Freddy contacted AFS using the email address ‘[email protected]’. Between 27 November 2013 and 4 December 2013, a number of emails were exchanged between Roland and Freddy regarding the consignment, including completion of an indemnity/authorisation brokerage form, confirmation of brokerage, processing, collection and delivery of the consignment and preparation and processing of the invoice.

Between 26 November 2013 and 9 December 2013, there were approximately ten phone calls between Freddy and Roland in relation to the consignment.

Importantly to the prosecution case, telephone call records revealed that at 4.18 pm on 29 November 2013, at a time when arrangements were being made for the importation, Roland received a call from the telephone number ending in the digits 032. That call quickly ended. A minute later, Roland received a call from the telephone number ending in the digits 661. That was important because, as will appear, the applicant was clearly associated with the telephone number ending in the digits 032. So much permitted the inference to be drawn that the applicant was contacting Roland at the relevant time. Moreover, and very significantly, the fact that the call from the 032 telephone number was quickly terminated and, almost immediately, another call was made on the telephone with the 661 number permitted the inference to be drawn that the applicant had mistakenly used the telephone with the 032 number, connecting the applicant to the consignment.

On 29 November 2013, AFP officers contacted AFS and directed that normal procedures for clearance and delivery of the consignment be followed.

On 2 December 2013, Roland sent the following email to Freddy:

Hi mate I just got verbal confirmation that the quarantine inspection has been booked in for midday 04.12.2013. If all goes well we should be able to delivery [sic] your package by midday on 05.12.2013. Please send me delivery address & name/phone no: of a contact person so that the driver can call then 1 hrs prior to delivery.

Freddy replied:

hi Stuart, sorry I did missed few calls but I was in hospital has it goes well please have it till my friend arrange payment to you first before you deliver … will call you as soon as I leave the clinic.

On 4 December 2013, ‘David Thompson’, a male of African appearance in his early 30s, attended the AFS warehouse and paid $1,000 cash to AFS in relation to the consignment. Thompson referred to ‘the airfreight shipment’ and ‘Freddy’. Roland recorded the payment on a tax invoice, which Thompson signed. Roland advised Thompson that there was an amount outstanding on the invoice.

Freddy provided Roland with a new mobile phone number (ending in the digits 1432) on 5 December 2013 and confirmed the delivery address in Holt Street, Ardeer, Victoria.

On 9 December 2013, Freddy telephoned Roland and advised that the outstanding sum of $758.37 had been directly deposited into the AFS bank account at the ANZ Bank. Shortly after their conversation, Roland confirmed receipt of the payment into the ANZ bank account. He subsequently notified the AFP that payment had been made.

The delivery

On 9 December 2013, AFP officers attended a milk bar and Licensed Post Office (‘LPO’) in Holt Street, Ardeer, in order to facilitate a controlled delivery of the consignment. They observed a black convertible Mercedes, registered to the applicant’s mother, and a Honda CRV, parked in the vicinity. Jonathon Okitakoyi Wedi (‘Jonathon Wedi’), the applicant’s younger brother, was observed driving the Honda.

An AFP officer, disguised as a delivery person, entered the LPO and dialled the 1432 telephone number. He had a telephone conversation with a person purporting to be Paul Morkana, who told him that he was a minute away.

At about 1.26 pm, Arop Kolang, a friend of Jonathon Wedi, walked from the Mercedes and approached the disguised AFP officers, and said that he was Paul Morkana. Kolang was asked for, but did not produce, identification. He told the AFP officers that there was a truck coming. He was then asked whether he had the mobile phone with the number that was provided to AFS as a contact for delivery. Kolang said the phone was in the car. He went to retrieve the phone, returning with a small blue mobile phone which rang when the AFP officer dialled the 1432 telephone number.

Jonathon Wedi came over to the officers and, nodding towards Kolang, said ‘he’s my cousin’. He provided his own drivers’ licence as identification. Kolang signed the electronic signature device as ‘Paul Morkana’. Jonathon Wedi said they were waiting for a truck to arrive to assist with picking up the consignment due to its size, and referred to ‘Paul’, ‘Steve’ and ‘Leo’. He said that Leo was going to come from McIntyre Road to collect the consignment and clarified that Kolang was not in fact Paul Morkana. When asked, Jonathon Wedi said the consignment contained ‘the living room, the thing you put in the corner, African Asian thing’.

At 2.09 pm, a truck driven by Leo Eliades arrived together with the Honda. Eliades was seen exiting the truck. The truck, when loaded, was then followed to a warehouse at Maida Avenue, Sunshine North. Shortly after, a forklift could be seen unloading boxes from the rear of the vehicle. Eliades was observed in the factory area until approximately 7.30 pm, when surveillance ceased.

At about 8.30 pm, the AFP executed a search warrant at the warehouse and seized the consignment. Eliades told an AFP officer that he had picked up the consignment and transported it to the warehouse after speaking to a person he knew as ‘Sammy Africa’, with a telephone number ending in the digits 032. He said that ‘Sammy Africa’ drove a silver Audi sedan and a green Toyota Hiace, was married with three children and lived in a townhouse in the vicinity of Cairnlea Drive, Cairnlea.

During the execution of the search warrant, Eliades received multiple phone calls which displayed ‘Sammy Africa’ as the caller. The telephone number recorded against ‘Sammy Africa’ ended in 032.

At about 8.42 pm that evening, an AFP officer observed a silver Audi sedan, driven by an African male, drive past the warehouse. When approached by the officer, it drove away at speed.

The issues at trial

There were two central issues at trial. First, was the applicant the person known as ‘Freddy’ who had organised to take possession of the consigned furniture in November 2013? Secondly, if so, did he know or believe that the furniture contained a border controlled drug?

The prosecution case was largely circumstantial. It was the prosecution’s central thesis that the applicant, in 2012, using the name Freddy, had retained AFS in relation to the export of some goods to Africa. In 2013, again using the same alias, he retained AFS to assist in the importation of the furniture from Pakistan containing the heroin. The prosecution sought to connect the applicant with the 2013 importation by demonstrating his connection with the two mobile telephones that were used in 2013 and to the Audi which was seen at the warehouse on the night of the delivery. Moreover, the prosecution sought to show that the ‘Sammy Africa’, who communicated with Eliades on 9 December using the 032 number was the applicant.

Evidence connecting the applicant to the offending
The evidence of Eliades and Jonathon Wedi

The prosecution relied on the evidence of Eliades and Jonathon Wedi as direct evidence of the applicant’s connection to the offending. Eliades gave evidence that he had known the applicant, as ‘Sammy Africa’, for approximately five years. The two of them had developed a friendship, had travelled to Africa together and the applicant was the best man at Eliades’ wedding. In Elaides’ telephone, the 032 mobile telephone number was listed under the name ‘Sammy Africa’.

Eliades said that he received a telephone call on 9 December 2013 to pick up some antique furniture and, after picking it up from a post office in his truck, he returned to his warehouse. He put the consignment on a forklift and took it inside the warehouse. Eliades said that he did not unpack any of the boxes and that he had been intending to store them in his warehouse until someone came and picked them up. The police arrived at 7.30 pm.

Eliades accepted in cross-examination that he had been a methamphetamine addict for 20 years and that at the time he sometimes bought up to 280 grams of ‘ice’ at a price of between $60,000 and $80,000. An amount of methamphetamine and scales containing cocaine residue were located within the warehouse. Eliades said he used the scales to weigh methamphetamine into amounts for his own consumption. He denied any involvement with heroin or cocaine.

Jonathon Wedi also gave evidence. He said on 9 December 2013 he collected a consignment of furniture from a post office in Ardeer and that he was asked by the applicant to help a man named Leo. His evidence was that he believed the furniture was for Leo, but it was addressed to a person named Paul. He said he was accompanied by his roommate Kolang to pick up the furniture and unload containers. The applicant, he said, had given him a blue phone for the purposes of the delivery.

Earlier dealings between the applicant and AFS in 2012

We turn now to the circumstantial evidence relied upon by the prosecution, including the applicant’s earlier dealings with AFS in 2012, telephone records and the presence of the Audi near the warehouse on night in question.

It was not in dispute that the applicant had retained AFS in relation to the export of some goods from Australia to Africa in 2012. As part of that transaction, Roland met the applicant face to face on two occasions: first, in 2012, at about the time of the export, and again in August 2013, when he came to the office of AFS to settle the account for the 2012 work. During the 2012 transaction, the applicant used a telephone with the number ending in the digits 116 which was not registered in his name and an email address ‘[email protected]’.

Given that the applicant accepted at trial that he was the person called Freddy in relation to the 2012 dealings with AFS, it is convenient to mention, without elaboration, two pieces of evidence that linked the applicant to the 2012 transaction. First, documents obtained from a computer seized at the applicant’s house included AFS tax invoices for the 2012 transaction and other documents relating to the 2012 export. Secondly, Roland identified the applicant on a photo board as the person he knew as Freddy, and who had come to AFS in 2012 and August 2013.

Phone records connecting the applicant to the 2013 consignment

Given the overwhelming evidence that the applicant had retained AFS in 2012, the prosecution sought to connect the applicant to the 2013 importation in a number of ways, including, most powerfully, telephone records relating to three phones and flight records.

The telephone numbers with the digits ending in 661 and 1432 were used overtly in dealings with AFS in the 2013 consignment. The 661 telephone number was used by ‘Freddy’ to communicate with Roland of AFS a number of times. Further, the telephone number ending in 1432 was given to Roland by Freddy just before the delivery, and it was used by Kolang at the time of delivery. The two phones had little, if any, use apart from being used for the purpose of the consignment. Jonathon Wedi said that telephone with the number ending in 1432 had been given to him by the applicant for the delivery.

The prosecution relied on flight records for 9 and 10 December 2013 for two purposes. First, they showed that the applicant returned to Melbourne from Sydney unexpectedly on the evening of 9 December 2013. Secondly, his flight movements also synchronised with the physical location of the mobile telephone ending in 032, as revealed by call records and tower signal data.

Evidence revealed that the applicant departed Melbourne on a flight to Sydney, arriving at about 8.30 am on 9 December 2013, to give evidence in a committal. The applicant was scheduled to give evidence on that day. His evidence was not reached that day, however, and he was required to be in Sydney on the following day. His return flight was changed to 10 December 2013.

However, on 9 December 2013, the applicant was booked onto another flight from Sydney to Melbourne departing at 5.15 pm and arriving at 6.50 pm that day. The mobile telephone and email address contact details for that booking belonged to the applicant’s wife.

Mobile telephone cell tower data showed that the mobile telephone number ending in the digits 032 and another phone registered to the applicant were at Sydney airport between 4.00 pm and 5.00 pm, at Melbourne airport between 7:24 pm and 7.48 pm, and at Keilor Downs at 10.19 pm.

In addition, there were many calls and texts between the 032 telephone number and the telephones of the applicant’s wife and Eliades.

The 032 telephone number, which by reason of the matters just identified was used by the applicant, was also connected to the consignment in a number of ways. First, call records for the telephone number ending in 032 revealed a call to Roland at 4.18 pm on 29 November 2013. Secondly, mobile telephone cell tower data showed that the telephone number ending in 032 was tracked to St Albans West at about 8.04 pm and to Sunshine North at around 8.40 pm on 9 December 2013. Eliades’ warehouse is located in Maida Avenue, Sunshine North, where the silver Audi was seen at 8.42 pm. Thirdly, a number of calls to Eliades were made on the afternoon of the delivery (appearing as ‘Sammy Africa’ on Eliades’ phone). The applicant pointed to the fact that the phone calls did not commence until after the goods had been collected. Nevertheless, they show communication between the applicant and Eliades at a time when Eliades had received the consignment into his possession.

The Audi

On the evening of 9 December 2013, a male of African appearance was seen driving past the warehouse in a silver Audi. That car had been purchased in October 2013 and was registered in the name of the applicant’s younger brother, Natte Brown Wedi. It was an agreed fact that, in his record of interview, the applicant had acknowledged that he had a silver Audi registered in his name and that it was his car.

The ground of appeal against conviction

Section 276(1)(a) of the Criminal Procedure Act 2009 provides that this Court must allow an appeal against conviction if the appellant satisfies the Court that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.

The principles that apply to that ground are well established. The question, derived from M v The Queen,[10] is whether this Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.
[10](1994) 181 CLR 487. See also Chidiac v The Queen (1991) 171 CLR 432; Palmer v The Queen (1998) 193 CLR 1; SKA v The Queen (2011) 243 CLR 400; and, most recently, Pell v The Queen [2019] VSCA 186.

In M v The Queen, the plurality said:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.[11]

[11](1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

In explanation of the test, various formulations have been used, including whether the jury was bound to have a reasonable doubt[12] and whether a reasonable jury must have had a reasonable doubt about the accused’s guilt.[13]
[12]Chidiac v The Queen (1991) 171 CLR 432, 451–2 (Dawson J).
[13]Libke v The Queen (2007) 230 CLR 559, 596–7 (Hayne J, Gleeson CJ and Heydon J separately agreeing).

Recently, in considering this ground of appeal in the context of a circumstantial prosecution case, the High Court said:

In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion. A corollary of this principle, particularly in cases in which the conclusion is not clear-cut, is that a substantial error, or errors, by an intermediate court of appeal in the process of assessing the case as a whole can infect the entire process.[14]
[14]Fennell v The Queen [2019] HCA 37, [82].

Applicant’s submissions

Counsel for the applicant submitted that for the jury to be satisfied of the applicant’s guilt, it was necessary for them to exclude, as a reasonable hypothesis, that whatever role the applicant had played in the organisation of the consignment into Australia, the applicant was doing so at the behest of another or others without knowledge of the presence of border controlled drugs.

In his written submissions, the applicant conceded that it would have been open to the jury to draw as a reasonable conclusion that the applicant had a belief that the furniture contained a border controlled drug, but he submitted that it could not be concluded that this was the only reasonable conclusion to be drawn from the evidence. In particular, it was submitted, the jury could not exclude the reasonable possibility that the applicant had acted at the behest of Eliades without a belief that the furniture contained a border controlled drug.

In oral submissions, the applicant’s counsel focused on whether it was open to the jury to conclude that the applicant knew or believed that the consignment of furniture contained drugs. He submitted that even if the jury were entitled to infer that the applicant was ‘Freddy’ and was involved in the consignment, that did not permit the jury to draw the further inference as to knowledge that the furniture contained drugs. He pointed to the evidence that Eliades was associated with drugs and the fact that there were many reasons for the jury to reject his evidence. Further, it was Eliades who took physical possession of the consignment in his warehouse and put it on a raised forklift out of sight. There was, it was submitted, every reason for the jury to think that it was Eliades who was responsible for the consignment and who had used the applicant as an innocent conduit to the freight forwarder.

The applicant’s counsel fastened on what he submitted was a complete absence of evidence which identified the applicant as the driver of the Audi which was seen outside the warehouse on the evening of 9 December 2013.

Counsel for the respondent submitted that the evidence detailed in the prosecution case was such that it was open to the jury to conclude beyond reasonable doubt that the applicant was guilty of the offence as charged. The respondent focused on the applicant’s covert organisation of, and ongoing interest in, the delivery of the consignment, submitting that it was only reasonably explained by a belief that the furniture contained drugs. It was submitted that it was unlikely that Eliades was responsible for the drug importation given that he had taken possession of the furniture using his own truck and stored it at his warehouse. Similarly, the applicant’s younger brother Jonathan Wedi had provided his own identification to the delivery drivers.

Analysis

The prosecution case was powerful.

Roland gave evidence that Freddy had asked him to help his friend Paul Morkona to import some furniture from Pakistan. Although contact for the 2013 importation was made using a mobile phone number and email account that was different to the one used in 2012, there was a wealth of evidence that the applicant was the same ‘Freddy’ who had retained AFS in relation to the importation.

Even though there were reasons to doubt the reliability and credibility of both Eliades and Jonathan Wedi, the jury were not bound to reject their accounts that the applicant had asked Eliades to assist with the movement and storage of the goods, and had asked Jonathan Wedi to collect the goods in the name of Paul Morkona (and had given him a phone for that purpose).

The evidence of phone records, the applicant’s flight records and mobile phone data that placed the applicant near the warehouse on 9 December 2013, had considerable force when taken together. When combined with the overwhelming evidence that the applicant was Freddy and had arranged for AFS to assist with the consignment, the jury were entitled to conclude that the applicant was responsible for receiving the goods that had been consigned.

Given the use of false names, a new mobile phone and email account that had not been used in the early 2012 export and the evidence that the applicant had come to inspect the warehouse when he had not been able to contact Eliades, despite a number of attempted phone calls, the jury were entitled to conclude that the applicant knew or believed that the furniture contained border controlled drugs.

The combined force of the various pieces of evidence that tied the applicant to the consignment was not undermined by focusing on whether there was sufficient evidence to establish each piece of circumstantial evidence to the criminal standard. For example, in oral argument some time was devoted to showing that there was no direct identification of the applicant as the person driving the Audi. That may be accepted. There was, however, other evidence that showed that the applicant had returned from Sydney and mobile phone records showed him driving in the area of the warehouse.

Once the applicant’s concealed, but intense, interest in the consignment is taken into account, the inference that he knew or believed that the consignment contained drugs was compelling. There is no basis for the submission that the jury must have had a doubt as to guilt.

Moreover, having made our own independent assessment of the evidence as detailed above, we entertain no reasonable doubt as to the applicant’s guilt. Plainly, in our opinion, it was well open to the jury to be satisfied that the applicant was guilty of the charge of attempting to possess a border controlled drug.

For these reasons, leave to appeal against the heroin conviction must be refused.

THE 2019 METHAMPHETAMINE CONVICTION
Overview

The 2019 methamphetamine conviction arises out of the applicant’s participation in criminal activity with respect to a very large quantity of the border controlled drug imported into Australia from Nigeria. During the period of this offending, between 27 April and 23 July 2016, the applicant was on bail in relation to charges which led to the 2016 methamphetamine conviction and the heroin conviction.[15]
[15]In relation to the activities leading to the 2016 methamphetamine conviction, the applicant was arrested and charged on 26 June 2014; and in relation to the activities resulting in the heroin conviction, the applicant was arrested and charged on 31 October 2014.

In essence, the prosecution case was that the applicant and two co-offenders, Joe Jackson (‘Jackson’) and Sadiki Sibomana (‘Sibomana’), undertook differing activities in an enterprise to import and subsequently take possession of a commercial quantity of a border controlled drug, being 125.682 kilograms of methamphetamine concealed within a consignment of 161 wooden logs shipped from Nigeria.

Police arrested the applicant in relation to the methamphetamine from Nigeria on 5 August 2016. He was committed for trial on 22 June 2017; and, on 12 April 2019, after a trial occupying more than five weeks, a jury in the County Court convicted him of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth).[16]
[16]Section 11.1(1) is in the following terms:
11.1Attempt
(1) A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
And s 307.5(1) provides:
307.5Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a)the person possesses a substance; and
(b)the substance was unlawfully imported; and
(c)the substance is a border controlled drug or border controlled plant; and
(d)the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.

Following a plea in mitigation, the trial judge sentenced the applicant to be imprisoned for 19 years’ imprisonment on that charge. That sentence became a component of a total effective sentence of 35 years’ imprisonment, upon which a non-parole period of 25 years was fixed. We will have more to say about this sentence when we turn to the applications for leave to appeal against sentence.

The offending

To understand the issues raised by the grounds of appeal with respect to conviction, it is necessary to provide a description of the offending alleged against the applicant at trial.

Essentially, the prosecution case was that the applicant headed the relevant criminal enterprise and engaged two subordinates, Jackson and Sibomana, to carry out the acts necessary to arrange for the transportation and delivery of the consignment of methamphetamine concealed in logs to its final destination in Victoria. The prosecution alleged that the activities carried out by Jackson and Sibomana permitted the applicant to maintain a distance from the shipment of illicit drugs. In order to reduce the risk of detection by law enforcement authorities, so it was alleged, the applicant and his co-offenders utilised telephone numbers that were subscribed in others’ names. The applicant also utilised the services of other associates to pay customs brokerage fees in a manner that could not be traced back to him.

The investigation which led ultimately to the applicant’s conviction commenced in Sydney in June 2016, when Australian Border Force (‘ABF’) officers intercepted a container imported from Nigeria that was full of stacked wooden logs. Examination of the logs revealed that 14 logs, larger than the others, had been sawn apart and glued back together. Within these logs were concealed cavities containing 161 kilograms of methamphetamine (125.682 kilograms pure). AFP were notified and an investigation was commenced. The applicant and Jackson had organised the consignment’s passage into Australia through a customs broker, KJ Veney International Pty Ltd, located in Sydney.

AFP officers replaced the illicit drugs in the logs with an inert substance, and the 14 logs were reconstructed. Thereafter, on 20 July 2016, AFP officers conducted a controlled delivery of the reconstructed (and other) logs to their proposed Melbourne delivery address, at 29–31 Central Avenue, Sunshine. Sibomana met the delivery truck at Central Avenue and directed it to ‘Timberland’, a nearby warehouse at 12–16 Market Road, Sunshine, where the logs were unloaded.

That afternoon, pallets containing the larger logs were taken by trucks to bushland near 53 Anderson Road, Sunshine (the Anderson Road Reserve), where they were unloaded and left. The transport of the logs was organised by the applicant, Sibomana — who had met the delivery truck — and Jackson. Earlier, in the morning of that day, the three had been observed by covert surveillance officers to meet and engage in discussion. The prosecution maintained that the discussion related to the location of where the logs were finally to be deposited. The prosecution alleged that it was intended, prior to opening up the logs, that they be left in the bushland location for a time so as to determine whether the authorities were aware of their hidden contents. On 25 July 2016, AFP officers, posing as local council employees, cordoned off the logs and put up a notice that is likely to have alerted the organisers to the drugs’ detection.

The evidence disclosed that an earlier shipment of logs imported from Nigeria had arrived in Sydney on 6 November 2015. On 24 December 2015, that shipment had also been delivered to Central Avenue before being moved to Timberland and thence to other locations. The prosecution alleged that the 2015 consignment was an attempt to create a veneer of legitimacy with respect to the importation of logs, or, alternatively, that it was a ‘test run’ by the same people, as a preliminary to the importation of a quantity of drugs secreted in logs. Sibomana and Jackson had dealt directly with the 2015 delivery, and it was alleged that the applicant had supervised from a distance. Hence, although there was no direct evidence linking the applicant to the 2015 ‘trial run’, various communications between Jackson and the customs broker, KJ Veney International Pty Ltd, contained expressions of language claimed to be uniquely those of the applicant.

Returning to the 2016 delivery, conversations between the applicant, Jackson, Sibomana and others from multiple mobile telephones were lawfully intercepted by law enforcement authorities and recorded. All telephones and numbers — except for Sibomana’s — were subscribed in the names of other people. Participants in the conversations used code. The applicant and others regularly changed telephone numbers, consistently with attempts to avoid detection. AFP officers also conducted surveillance.

The prosecution case was that between 27 April 2016 and 23 July 2016 the applicant played the primary role in attempting to possess the substance within the logs, knowing or believing that it was methamphetamine, and that, as we have indicated, he directed Sibomana, Jackson, a man called ‘Omar’ and others regarding possession of the methamphetamine. Evidence supporting the prosecution case against the applicant included the following:

· First, the applicant controlled emails with the freight forwarder with respect to the Customs process for the 2015 and 2016 consignments. During the movements of the 2016 consignment, he was recorded speaking about ‘the last time’ (that is, the 2015 delivery).

· Secondly, on 18 July 2016, just prior to the consignment’s delivery, the applicant met up with Jackson. The next day, on 19 July 2016, the applicant met up with Jackson and Sibomana. They drove around the area to which the consignment was to be delivered the day following, 20 July 2016. (The applicant did so again later with Jackson.) In the evening, the applicant met up with Sibomana and Jackson in Carlton, such behaviour being consistent with them gathering at or near a Housing Commission flat leased in Jackson’s name (alleged to be a safe house). The Carlton flat was later found to have items connected with the movement of the logs.

· Thirdly, on the day of the consignment’s controlled delivery, 20 July 2016, the applicant drove a borrowed Ford Territory around the Central Avenue area both before and after the delivery of the logs. In two intercepted calls the applicant directed Jackson to get Sibomana to ‘carry on with the job’ regarding ‘the wood’, and for Jackson to do things ‘as planned’. He spoke about truck drivers, consistently with him being aware of the consignment and directing Jackson to organise truck drivers to move the logs from Timberland. The applicant was emphatic in directing Jackson not to speak on the telephone, ostensibly consistent with the aim of avoiding recording of their conversations. After delivery of the logs, the applicant drove past Sibomana’s car, which was parked on Central Avenue. Sibomana then followed the applicant in his car to the car park next to the Anderson Road Reserve. They were covertly filmed meeting there and being joined by Jackson. The applicant appeared to give directions to the others, pointing to the area where the logs were later delivered. After the logs were delivered, the applicant was seen parked and driving nearby at spots where the Anderson Road Reserve could be observed. Later, the applicant met up with Jackson and they drove in convoy around Cairnlea and St Albans, before Jackson joined the applicant in the Ford Territory. That activity was consistent with the two of them trying to avoid any of their conversations being recorded from their telephones.

· Fourthly, on 21 July 2016, at the applicant’s request, Jackson sent the applicant a copy of a text suggesting that Sibomana’s job application had been successful and that he was to report to work, this allegedly being a ruse to show that Sibomana was legitimately employed.

· Fifthly, between 21 and 23 July 2016, the applicant was recorded speaking with Sibomana — apparently in code — on a number other than Sibomana’s normal mobile telephone number, the relevant telephone allegedly having been obtained to communicate with respect to the logs. At the applicant’s direction, they met in public (and never addressed each other by name), consistently with an attempt to avoid being recorded conversing on the telephone. On 23 July 2016, when Sibomana attended a police station on an unrelated matter — to report the theft of his car — the applicant instructed him to turn off one mobile phone and to provide details only of his other phone, this being consistent with the applicant directing Sibomana to conceal the phone used to communicate regarding the logs. The applicant later commended Sibomana after he reported back from looking at something (the logs) in the dark.

· Sixthly, on 23 and 24 July 2016, the applicant instructed others, and liaised with others (including Omar), speaking in code about observations (particularly of cars in the area) made in and around Anderson Road Reserve. The calls were consistent with the applicant seeking to ensure the authorities were not watching the logs.

· Seventhly, on 23 July 2016, the applicant, in code, instructed others to arrange for the purchase from Bunnings of cutting items to cut wood, such directions alleged to be about tools to cut the logs open. The applicant also discussed with Omar engaging young ones to do the cutting. He discussed also purchasing cheap torches, consistently with the expected work being performed at night.

· Eighthly, on 4 August 2016, the applicant spoke with an associate, Severine Madirande, about items at the Carlton flat, including phones and notebooks, consistently with the applicant being concerned about items connected with the illicit drugs being found there. In conversations with others, including a person in Nigeria (where the drugs had come from), the applicant spoke about not being a thief; about ‘the thing’ being flashed on television; and about his disappointment about the ‘Okwi’ (one of the names on the packaging of the methamphetamine); and he expressed concerns about voice identification. So much was consistent with the applicant talking about the seized drugs and the reporting of the seizure on television. These conversations were relied upon by the prosecution as incriminating conduct.

The applicant’s evidence at trial

The applicant gave evidence in his own defence, maintaining throughout that he played no part in organising the importation of logs containing hidden drugs. He testified that he had a business relationship with Jackson, which involved Jackson loaning money to borrowers and taking such borrowers’ motor vehicles as security. The applicant’s role was to take control over the vehicles on Jackson’s behalf, and securely position and store them, until they were released at Jackson’s direction. At one point, the applicant said, they ‘had close to around 40 to 45, 50 cars’. The applicant’s evidence was that Jackson

will get me the car key, and the car, I will take the car and go and park it around Sunshine, St Albans, Cairnlea, Point Cook, mostly in these areas, until that period, it finished, and then whenever he wants the car to be returned I have to have the car washed and then give the key back to him.

Jackson, the applicant said, was paying him ‘good money’. In essence, the applicant’s evidence was that he parked the vehicles that were security for the loans advanced by Jackson in streets in or about the areas where the logs were first delivered or were finally deposited.

Little of the applicant’s evidence-in-chief related to Sibomana. The evidence he did give suggested that, as a result of talking to Sibomana, he thought Jackson and Sibomana were involved in unloading a container (or containers). Thus, when asked about the area where the logs containing drugs had been deposited, the applicant gave the following evidence:

Did you at any stage inspect the area where that particular fence was? Go around inspect the area generally in the background?---No, when I get that he was on the phone, he was talking where he was standing. So, I went there and then I don't know, Sadiki [Sibomana] came after me or I came before Sadiki. So we stood there for few minutes and then when we finished making a call and then - - -
At any time whilst you were there, did you understand that timber logs had been dumped in the area or stored in the area nearby or were to be stored in the area nearby which may have contained or were to contain drugs?--No. All I knew, they were unloading a container.
They were unloading what?---A container. He [Jackson] was busy with Sadiki unloading some container or a container. I can't recall whether is one container or two container. All I know that they were busy unloading container.

The applicant’s cross-examination by Sibomana’s counsel

The applicant was cross-examined by Sibomana’s counsel. One can glean the flavour of the cross-examination from the opening questions:

Now, Mr Bembo, in July of 2016 for a period there of about – of a few days, Sadiki Sibomana was working for you, wasn’t he?---No, he never worked for me.
And in fact there’s – well, we've heard in this trial some telephone calls between you, haven’t we?---Yes.
And in those calls you are directing his movements and telling him what to do, aren’t you?---Ah, we’re just friends.

Among other subjects, counsel cross-examined the applicant about the unsuitability of the streets near the Anderson Road Reserve for parking the cars supposedly used as security, and then turned to the observations made by surveillance officers of the applicant’s, Jackson’s and Sibomana’s movements on 19 July 2016. As the following passage demonstrates, the cross-examination was attended by an air of scepticism:

Mr Bembo, we’ve seen, we went and saw those streets. They are narrow streets with nowhere safe off-street to park a car. I put it to you. What do you say about that?---We always park the cars there.
All right. So you’ve taken Sadiki [Sibomana] you say to do what? You’re not parking cars on 19 July when you go there with Joe Jackson?---I don’t understand your question.
Well, what have you taken him in the car for? You and Joe are cruising around this area, what’s Sadiki there for?---He must have, have some work with Joe. That they were unloading some containers.
Yes. You have shown him where he’s going to meet the truck that’s bringing down these logs. That’s what’s happened, isn’t it?---No, I had no idea about the logs.
Who do you say – whose idea was it to go to this area of Sunshine on 19 July? Was that you or Joe?---On when, sorry?
On 19 July?---Yes.
Whose idea was it? There’s three of you in the car. You, Joe, Sadiki in the car. Joe’s driving to be fair to you.
Whose idea was it to go to this area of Sunshine?---There was some cars that Joseph was to make pick up, but sometime with mistakes we park – let’s say we have four, six four-wheel drive and they’re read [scil, red] colour. So sometime we don’t know which one that he wants, so every time he’s in Melbourne he wants specific cars, we go around, we get the cars and the cars are washed, sometime - - -
Yes, but – sorry, to interrupt. So you spent half an hour or more driving around these streets what, looking for the cars that you parked, is that what your evidence is?---What we mean looking in the cars, we stop, we open the cars, we lock the cars, we drive away.
You say you did all of that on 19 July, do you?---The best I can remember.
And the police who are watching you just didn’t see that, they just missed that bit, did they?---Sorry?
The police who were watching you, must have just not seen that bit where you got out and went into the other cars, is that right?---Not specifically getting out of the car. Like what I said is most the time when we – when Joe is in Melbourne he want to pick a specific cars that’s when it happen. He seize the car. If the car that he wants probably is not parked in that area, we go to another area.
All right. Perhaps maybe that makes sense, maybe it doesn’t. All right. You’ve spent half an hour driving around these streets, what, you don’t know what you were doing as you were driving around these streets? You don’t know if you’re finding cars or not finding cars?---I don’t understand the question, please.
All right. It is probably not a fair question. All right. You then, having shown Sadiki where he’s got to report to work the next day, you dropped him back at Sunshine because you didn’t need him anymore, isn’t that right?---(No audible response.)
And then you and Joe kept driving around the Sunshine area for another half an hour or so after that?---I didn’t understand the question.
All right. I’ve just put to you that see police have watched the three of you drive around this area of Sunshine. You’ve then been seen to drop Sadiki back at Withers Street where he started from, and you and Joe went back. You went back to this area and some other areas in Sunshine. You understand?---Yes.
What I’m putting to you is that, having shown Sadiki, what his job is, you dropped him off and then you and Joe kept driving around discussing what you were discussing. Is that right?---I don’t know what arrangement he had with Joe.

Plainly, the thrust of the cross-examination was that Sibomana was simply a lackey doing the applicant’s bidding. One final piece of the cross-examination suffices to illustrate the point:

You employed Sadiki Sibomana to meet that truck and unload those logs, didn’t you?---No, I did not.
And he’s then – the next part of his job was to direct the tow truck driver to where they were going to be taken in Anderson Road, isn’t that right?---No, that’s not true.
And you showed him both those locations personally, didn’t you?---No, that’s not true.
And then you told him that he has to keep an eye on the logs afterwards, didn’t you?---No, that’s not true.
But you never told him that those logs were supposed to contain drugs, did you?---That’s not true.
You were happy to let Sadiki take the risks involved with this drug importation, weren’t you?---I didn’t have a job to give Sadiki. Sadiki was only helping me as a friend to take a car from point A to point B, that’s all.
Well, I’m putting to you that that is incorrect. Sadiki never moved any cars for you. That’s what I put to you. What do you want to say about that?---Yes, he has.

An application for a separate trial

After the applicant was cross-examined by Sibomana’s counsel, he was cross-examined by the prosecutor and re-examined by his own counsel. Counsel for the applicant then called a further defence witness, Severine Madirande, whose evidence included that: after she arrived in Australia from the Congo she met Jackson; she would sometimes stay with Jackson in his apartment in Lygon Street, Carlton; Jackson sometimes gave her amounts of cash to bank; and Jackson loaned money to people in return for security (for example, in the form of a car).

At the close of Ms Madirande’s evidence, counsel for Sibomana indicated that he would not be calling evidence. At that point, counsel for the applicant informed the judge that, based on the cross-examination of his client by Sibomana’s counsel, he would seek a separate trial pursuant to s 193(4) of the Criminal Procedure Act 2009 (‘CPA’). On the ‘presumed basis’ that both defence cases were to be closed, the judge then entertained the application.

It is unnecessary to set out the submissions made in support of the application for a separate trial in detail. The gist of counsel’s submissions, as understood by the trial judge, was that ‘the joint trial, now in its fourth week before the jury, and effectively at the close of evidence, has become so unfair to his client that no judicial directions could cure that, or the prejudice allegedly instilled through the cross-examination of [the applicant] by counsel for his co-accused, Mr Sibomana’. Refusing the application, the judge said:

The critical matter alleged to cause such prejudice is cross-examination putting to [the applicant] that he employed Mr Sibomana for the critical few days in July 2016 that are the crux of subject matter before the jury.
It is submitted that the expression ‘employed’ is so colourful and used deliberately as to go far beyond, and prejudicially so, beyond the Crown case, which is that [the applicant] was in control and directed Mr Sibomana, Mr Jackson and others in relation to the receiving of the delivery of logs and their expected contents which is the subject of this trial.
The Crown case against [the applicant] has always been based on indirect evidence. It relies on the drawing of inferences, both as to any conduct amounting to actual involvement, as well as to intention and expectation that there were drugs concealed in the logs.
[The applicant] chose to give evidence, which of course he did not have to do. In the course of that extensive evidence he denied any knowledge whatsoever of the shipment of logs, or of drugs expected to be in them. He also denied, when specifically asked, that he ever employed Mr Sibomana. He said he never employed Mr Sibomana for anything to do with log delivery or even for moving a car which he admits that he once asked Mr Sibomana to do as a favour for him as a friend. [The applicant] repeatedly denied employing Mr Sibomana.
Mr Sibomana, I am told, will not give evidence. Mr Sibomana made a record of interview, an edited version of which is in evidence, and in that he does not say that he was employed by [the applicant]. ...
Mr Sibomana in his record of interview, says that he was asked to take part in aspects of delivery of these logs by a man he knew as Mr Cam and who, as I have said, it would appear was Mr Jackson, and that he was being paid to do so by that person.
The proposition that [the applicant] employed Mr Sibomana is an inference, in my view available on the evidence that is before the jury. That is, there were intercepted telephone calls from [the applicant] to Mr Sibomana in which he is heard to give direction or instruction, and also to ask for reports. There is also some surveillance evidence that goes to that effect.
[The applicant] said in his evidence that he was not at that stage giving any directions to Mr Sibomana in relation to anything to do with the delivery of logs. He gives explanations as to why these matters had nothing to do with the delivery of logs.
It is up to a jury as to what inferences it draws from that evidence. There is much other indirect evidence relied upon by the prosecution to prove [the applicant’s] overall involvement in the attempted possession of the drugs that were expected to be in the logs. The jury will be given very specific and clear directions as to how they need to be cautious when drawing inferences, and in particular, in relation to ultimate guilt or proof of elements of the offence.
I see no unfairness in the proposition having been put in cross-examination to [the applicant] that the relationship was one of employment. He denied it. There is no direct evidence that it was of employment, and Mr Sibomana did not say that it was either, in his record of interview, and he will not be giving evidence here. That does not mean, however, that a jury might not be justified in drawing that inference from the various pieces of evidence to which I have generally referred already, and in particular, intercepted phone calls where clearly they can be interpreted as giving those sorts of directions or instructions.
I also do not accept that there has been any fundamental unfairness to [the applicant] in the conduct of the trial generally, or how those matters have arisen. It has always been the Crown case that he had control and directed others, while standing back himself from direct contact with people or the logs. This line of cross-examination by the co-accused’s counsel was no more than using the expression ‘employment’ for that. [The prosecutor] submits, and I have little doubt it is so, that had [Sibomana’s counsel] not put that proposition, it would have been developed to that point by the prosecution in cross-examination based on the case that had been put all along.
The other basis of need for severance, as I understand it, is that the Crown case against each accused is fundamentally different. In Mr Sibomana’s case, his conduct in relation to the delivery of the logs is not in dispute, but what is in issue is his state of mind — specifically whether he had knowledge or was reckless as to the prospect that the logs, of which he was helping in the taking of delivery, would contain drugs. For [the applicant], he does not accept that any of his conduct amounted to involvement in attempting to possess the shipment and its contents at all.
I agree that the case is different against each of them in that regard, and I propose to address that difference by summing up each charge separately against each accused to the jury — that is, which evidence is said to be relevant as against each accused, with arguments and issues about them explained.
The principles as to whether people accused of jointly committing a crime are to be tried jointly or separately were reconfirmed and clearly set out in the Court of Appeal in R v Debs & Roberts.^[[17]] In my view, in the present case, those principles support that there should be a joint trial continue against the two alleged co offenders. I do not find that there has been unfairness to [the applicant] through the cross-examination of him on behalf of his co-accused, nor the reliance on indirect evidence against him so as to prove first his involvement, and if that is accepted beyond reasonable doubt, by the jury, then it will also be relied upon by the Crown to prove his state of mind.
[17]R v Debs & Roberts [2005] VSCA 66.

The address to the jury by Sibomana’s counsel

The application for a separate trial having been refused, the trial proceeded and counsel made their final addresses to the jury. As in the ordinary course, the prosecutor addressed first, the applicant’s counsel addressed next and counsel for Sibomana addressed last.

A deal of Sibomana’s counsel’s final address was directed to emphasising the central theme that had permeated his cross-examination; that is, that Sibomana was a subordinate, simply following the applicant’s instructions. Although the applicant’s counsel in this Court drew our attention to a substantial number of passages, it is necessary to set out only one passage of counsel’s address to make the essential point.

Thus, when addressing the evidence of the applicant and Sibomana driving in the vicinity of where the logs were deposited after Timberland, counsel said:[18]

What are they doing there? Well, that’s interesting. When [the prosecutor] opened the case to you way back in the mists of time when we started this trial, he said to you that they were scoping out the area, looking for places to dump the logs, that is places they were going to take them from Timberland to where they were going to dump them.
Then when he came to closing, he’s backtracked from that, not because the evidence has changed but I think, I suspect, because he’s realised that that first proposition may not in fact be very helpful to the prosecution case. I’ll come back to that.
But in the end [the prosecutor] doesn’t really know why they’re there at all. What I say to you is it’s obvious why Mr Sibomana’s there. He’s there because he’s being shown where to meet the trucks. And they drove through those parts, they drove in other places as well, but they took in the area where he needed to be.
What else are they doing? Well, Mr Sibomana’s not driving, he’s not in charge of the route, he doesn’t – he’s not in control of what they’re going to do. I mean, he’s working for these people, that’s obvious, that’s what [the prosecutor has] said to you and it’s just – it couldn’t be more clear on the basis of the evidence we have that he’s, you know, in a subordinate position, he’s working for the other people he’s in the car with, he’s doing what he’s told. He’s not deciding whether they’re going to drop in at Timberland and say g’day … or anything else.
So he’s being shown where he’s going to do his job the next day but the other really interesting thing about that whole tour on the 19th is that it helps to demonstrate Mr Sibomana’s utter irrelevance to the decision making process that’s going on because after they drive round that area he’s then dropped back to that carpark in Sunshine, the Withers Street carpark, I think it was described.
[18]Emphasis added.

An application to discharge the jury

Following the address by counsel for Sibomana, counsel for the applicant sought a discharge of the jury on the basis of the unfairness caused by the applicant’s cross-examination by Sibomana’s counsel and counsel’s final address. The application was refused by the judge, who observed:

It is put that [the applicant] was not given fair opportunity to refute the propositions put to him in cross-examination by counsel for the co-accused, and in particular the proposition that he, [the applicant], employed his co-accused Mr Sibomana. [The applicant] answered; he denied that he employed Mr Sibomana. Further the defence case for him had not closed and if there was something further to have been introduced, it could have been introduced then.
I am not convinced and I gave my reasons for this last week, that that caused unfairness to [the applicant], and certainly not of a nature that would render the trial totally unfair to him. I am satisfied that that is still the situation, having looked at the various parts of the final address that are complained of, and having effectively given my reasons as they were raised as to why I did not think they went as far as [the applicant’s counsel] submitted they did.
Some of them deal with what was not said by Mr Sibomana in his record of interview to police, and in particular, he did not implicate [the applicant] as being an employer of his or an organiser of the importation or arrangements for movement of the logs. ...
I do not accept that there has been an inadequate opportunity for [the applicant] to refute the suggestion that he was the employer of Mr Sibomana. Employment itself is not the issue. Ultimately what it goes to is whether the jury can be satisfied beyond reasonable doubt that he was involved in the arrangements for the delivery and movement of the logs, in particular on the day in question, 20 July 2016, but in the lead-up to that, and indeed in what was to come next in minding them and ultimately having them cut open.
That has always been the prosecution’s case and I am not satisfied that it has been unfairly strengthened by the propositions put on behalf of Mr Sibomana, in any way that [the applicant] has not had fair opportunity to refute, and certainly not that renders his trial unfair.

The applicant’s case in this Court

There were two grounds of appeal relied upon in support of the application for leave to appeal against conviction. They contended that a substantial miscarriage of justice occurred, first, as a result of Sibomana’s cross-examination and final address; and, secondly, because of the judge’s failure to order a separate trial.

In the written case, the proposition central to the submissions made by the applicant’s counsel in support of those contentions was that Sibomana’s defence, through cross-examination and final address, ‘was calculated to engender prejudice against the applicant and direct sympathy towards the co-accused Sibomana without giving the applicant an opportunity to cross-examine the co-accused Sibomana as to the unproven assertions of fact put in cross-examination and in the final address of counsel for the co-accused Sibomana’. With slight variations, the applicant’s counsel repeated, and expanded upon, that central proposition in his oral submissions.

The respondent’s case in this Court

Counsel for the respondent submitted that no miscarriage of justice was occasioned by the cross-examination of the applicant, or the final submissions made to the jury, by Sibomana’s counsel.

It was submitted that Sibomana’s defence was that, although he carried out work for the applicant and Jackson with respect to the logs, the prosecution was unable to prove to the criminal standard that he was aware of a hidden substance in the logs (or the nature of the substance). There was nothing improper or unfair in Sibomana’s counsel putting matters to the applicant in cross-examination, or advancing arguments in his final address, that were consistent with this defence. Indeed, so it was submitted, counsel would justifiably have been criticised if he had failed to do so.

Counsel for the respondent submitted that each of the propositions put by Sibomana’s counsel had an evidentiary foundation — directly or inferentially — and was relevant and admissible. No unfairness flowed to the applicant because the relevant propositions were first put by counsel for Sibomana, who anticipated correctly that the prosecutor would advance the same propositions. It was submitted that the constraints governing how a prosecutor might put matters in cross-examination or in a closing address, and the general obligations of a prosecutor to ensure a fair trial, do not apply to counsel for a co-accused. An accused person cannot be shut out of a defence; and might even introduce evidence prejudicial with respect to a co-accused that the prosecution could not.

The respondent’s counsel contended that the only apparent prejudice to the applicant by reason of being charged on the same indictment as Sibomana was that his defence — that he simply was in the wrong place at the wrong time — was not credible. Separate trials ought not to be granted simply because one accused attributes blame to another. It is against the interests of justice that there be inconsistent verdicts. The interests of justice required that the conflicts in the two defence cases should be resolved by the same jury at the same trial.

There was no miscarriage of justice

If an indictment names more than one accused, whether in the same or separate charges, they must be tried together unless a judge makes an order under s 193 of the CPA.[19] Section 193(3) permits a court to order that an accused, charged on the same indictment with another, be tried separately if ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’. By virtue of s 193(4), such an order may be made before or during a trial. In order for a separate trial to be ordered, however, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind which is not amenable to nullification by judicial direction.[20]
[19]CPA, s 170(2). See also R v Grondkowski & Malinowski [1946] KB 369 (‘Grondkowski’); R v Demirok [1976] VR 244 (‘Demirok’); R v Torney (1983) 8 A Crim R 437; R v Collie (1991) 56 SASR 302 (‘Collie’); Webb v The Queen (1994) 181 CLR 41, 88–9 (Toohey J); R v Alexander and McKenzie (2002) 6 VR 53, 67 [31] (Winneke P); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) (‘Ferguson’); Mwamba v The Queen [2015] VSCA 338, [24] (Priest, Beach and Kaye JJA).
[20]R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J) (‘Jones’); Ferguson, 587 [310]. See also R v Gibb & McKenzie [1983] 2 VR 155; R v Ditroia & Tucci [1981] VR 247.

No application for a separate trial was made by the applicant at the outset of his trial. It must thus be accepted that, as things initially stood, it was proper that the applicant and Sibomana be jointly tried. The substantial issue in this case is whether the applicant’s cross-examination by Sibomana’s counsel, and counsel’s final address, created unacceptable prejudice to the applicant such that a substantial miscarriage was occasioned, the trial judge having failed to order a separate trial at the close of all the evidence.

In the seminal case, Grondkowski, a female and a male were indicted jointly for murder. The prosecution case was that they were engaged in a common enterprise to rob the deceased, and that in the course of the robbery the deceased was killed by a wound inflicted by a revolver bullet. Each of the accused blamed the other for the shooting. An application for a separate trial made by one of the accused was refused. On the appeal, Lord Goddard CJ, delivering the judgment of the Court observed:[21]

Prima facie it appears to the court that where the essence of the case is that the prisoners were engaged on a common enterprise, it is obviously right and proper that they should be jointly indicted and jointly tried, and in some cases it would be as much in the interest of the accused as of the prosecution that they should be.

[21]Grondkowski, 371.

Dealing with an argument that there is a rule of law that ‘where it appears that the essential part or an essential part, of one prisoner’s defence is, or amounts to, an attack upon another prisoner a separate trial should take place’, his Lordship said:[22]

The law is, and always has been, that this is a matter of discretion for the judge at the trial. ... The discretion, no doubt, must be exercised judicially, that is, not capriciously. The judge must consider the interests of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners. If once it were taken as settled that every time it appears that one prisoner as part of his defence means to attack another, a separate trial must be ordered, it is obvious there is no room for discretion and a rule of law is substituted for it.
There is no case in which this has ever been laid down, and in the opinion of the court it would be most unfortunate and contrary to the true interests of justice if it were. …

[22]Ibid 372.

Lord Goddard then cited the following passage from Gibbins and Proctor, in which Darling J said:[23]

The rule is, that it is a matter for the discretion of the judge at the trial whether two people jointly indicted should be tried together or separately. But the judge must exercise his discretion judicially. If he has done so this court will not interfere, but that is subject to this qualification. If it appeared to this court that a miscarriage of justice had resulted from the prisoners being tried together it would quash the conviction.

[23]R v Gibbins and Proctor (1918) 13 Cr App R 134, 136 (‘Gibbins’).

Thus, since at least Gibbins, the law has been that, notwithstanding that charges against more than one accused were properly joined on an indictment, and that a judge properly exercised his (or her) discretion not to order a separate trial, a conviction nonetheless fell to be quashed if it appeared from the whole of the record that a joint trial of the accused had resulted in a miscarriage of justice. The point was well-made in Demirok:[24]

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

[24]Demirok, 251.

In the present case, given that it has not been — and, indeed, could not have been — contended that the joint indictment of the applicant and Sibomana was other than proper, the applicant cannot succeed in impugning his conviction unless this Court is satisfied that, due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice.[25]
[25]CPA, s 276(1).

Having had regard to the whole of the record, we have been unable to conclude that the applicant suffered a miscarriage of justice (substantial or otherwise).

In effect, the prosecution case was that the applicant, Jackson and Sibomana jointly participated in an enterprise to import and subsequently take possession of a commercial quantity of a border controlled drug concealed within a consignment of 161 wooden logs shipped from Nigeria. Each, the prosecution contended, had a different role and undertook differing symbiotic activities. The prosecution contended that the evidence disclosed that the applicant was a principal in the criminal enterprise, directing the activities of subordinates, including Sibomana.

Sibomana’s case was that he was a subordinate, following the direction of the applicant. Where he and the prosecution parted company, however, was in relation to his knowledge of the concealed contents of the logs and his intention with respect to those contents. The prosecution case against Sibomana in substance was that he knew or believed that the logs contained drugs, and that had an intention to possess them. Sibomana’s case was that he knew nothing of any drugs, and that, so far as he had anything to do with the logs, he was innocently doing only what he had been directed to do. Ultimately, it was a jury question whether the prosecution had proved beyond reasonable doubt that Sibomana had an intention to possess a border controlled drug, it being Sibomana’s case that he was a mere dupe.

There can be no doubt that it was necessary for Sibomana’s counsel to put the essence of his client’s defence to the applicant in cross-examination. Failure to do so would have had adverse ramifications for his client. Counsel for the applicant asserted, however, that the assertions put during cross-examination, unsupported by any evidence, put prejudicial material before the jury indicating that the applicant was the principal in criminal activity relating to the drugs concealed in the logs and that he was Sibomana’s employer. We do not accept that is so.

In her charge, the judge gave conventional directions to the jury in effect that the answer of a witness, not the question, constitutes the evidence. She instructed the jury as follows:

The evidence from a witness is what the witness actually said or adopted, not the suggestion in the question if the witness did not adopt it. Now, in this trial, there has been probably a lot more said by counsel in the asking of questions than some of the answers of witnesses. That manner of leading evidence was used to cover the large quantity of material a bit more quickly. Where the witness agreed or otherwise adopted what was in the question, then what was in the question became part of the answer and therefore is in evidence. However, I remind you that if a witness disagreed with a suggestion in the question or said they could not recall, then that suggestion in the question did not become evidence through that question.
Even if you do not believe the witness on that point, that is either in denying the proposition or saying that they did not recall, the suggestion in the question will only be evidence if there is some other evidence that has been given, admitted in this trial and which you do believe on that particular matter.

Later, in her charge, the judge gave specific directions concerning the applicant as a witness, and told the jury that if they rejected his evidence

that does not mean that you must find him guilty. Instead, if you reject his evidence as it relates to the issues on the charge against him, you should put it aside and ask whether the prosecution has proved that he is guilty beyond reasonable doubt on the basis of the evidence that you do accept.

Furthermore, the judge gave the jury a conventional separate trial direction, instructing them that they ‘must consider the case against each accused separately, in light only of the evidence which applies to that accused’.

On the assumption that the cross-examination by Sibomana’s counsel may have had the potential to cause some prejudice to the applicant, we consider that such potential was acceptably ameliorated by the judge’s directions. Hence, as we have indicated, the judge directed the jury to consider the applicant’s and Sibomana’s cases separately, and in light of the evidence relating to them; told the jury that it was the answer to the question that constituted the evidence, not the question; and was careful to instruct the jury that, even if they rejected the applicant’s evidence, that did not establish his guilt.

Moreover, insofar as Sibomana’s counsel in his final address in defence of his client in effect suggested that Sibomana was a mere employee, innocently following his employer’s instructions, we consider that such an inference was legitimately open on the available evidence. In any event, that the applicant was the principal, and Sibomana was his subordinate, was the prosecution case (albeit the prosecution alleged knowledge and intention with respect to the drugs that Sibomana denied).

Plainly, the present is unlike Jones, upon which the applicant’s counsel placed a deal of reliance. In that case, two individuals, Jones and Waghorn, were charged with murder. Jones had told police that Waghorn was a professional criminal, and that he was terrified of Waghorn’s disposition towards violence and murder, these being grave allegations that Waghorn possessed the worst possible bad character. The problem thus created for Waghorn by the prejudicial evidence concerning his disposition and character — otherwise relevant and admissible in the case against Jones — was not capable of nullification by an appropriate warning. By way of contrast, the suggestions made in this case in cross-examination and in final address had a sound basis in the evidence admissible in the prosecution case against the applicant.

For these reasons, leave to appeal against the 2019 methamphetamine conviction must be refused.

THE SENTENCE APPLICATIONS

Before turning to the substance of the applications for leave to appeal against sentence, it is instructive to set out a chronology of some key events:

February 2013 Applicant arrested on dishonesty charges and bailed.

9 December 2013
Commencement of offending leading to heroin conviction.

The applicant is on bail in relation to the dishonesty offences.

29 January 2014 Applicant sentenced to a two year (State) suspended sentence for dishonesty offences.

13 May 2014 —

26 June 2014
Offending leading to 2016 methamphetamine conviction.

31 October 2014 Applicant arrested and charged in relation to offending leading to heroin conviction.

27 April 2016 —

23 July 2016
Offending leading to 2019 methamphetamine conviction. Applicant on bail at time in relation to the heroin offending.

27 July 2016 Trial before Judge Cannon leading to 2016 methamphetamine conviction commences.

5 August 2016 Applicant arrested in relation to 2019 methamphetamine offending.

11 October 2016 Jury returns 2016 methamphetamine verdict of guilty.

24 March 2017 Applicant sentenced by Judge Cannon on 2016 methamphetamine conviction (and breach of State suspended sentence) to 14 years’ imprisonment with 10 years non-parole.

6 September 2017 Trial before Judge Hogan leading to heroin conviction commences.

20 September 2017 Jury returns heroin verdict of guilty.

8 December 2017 Applicant sentenced by Judge Hogan to 14 years’ imprisonment, orders for commencement of that sentence leading to a notional total effective sentence of 25 years’ imprisonment. New non-parole of 16 years fixed.

28 February 2018 Court of Appeal refuses leave to appeal 2016 methamphetamine conviction.

18 October 2018 Court of Appeal adjourns applications relating to heroin conviction.

22 October 2018 Trial in relation to 2019 methamphetamine offending commences. (After plea deal with Jackson, adjourned to 4 March 2019.)

13 December 2018 Jackson sentenced by Judge Cohen to 14 years’ imprisonment with nine years non-parole.

4 March 2019 Joint trial of applicant and Sibomana in relation to 2019 methamphetamine offending recommences.

12 April 2019 Jury returns 2019 methamphetamine verdict of guilty. (Sibomana acquitted.)

23 August 2019 Applicant sentenced by Judge Cohen to 19 years’ imprisonment, orders for commencement of that sentence leading to a notional total effective sentence of 35 years’ imprisonment. New non-parole of 25 years fixed.

As to the sentence on the heroin conviction, the applicant seeks leave to appeal on two grounds that contend that Judge Hogan:

1. … erred in concluding that the existing sentence would expire on the 24th March 2031 resulting in an erroneous total effective sentence and non-parole period.
2. … failed to give proper weight to the principle of totality in the degree of cumulation of the sentence on the existing sentence resulting in a manifestly excessive total effective sentence.

With respect to the sentence on the 2019 methamphetamine conviction, the applicant seeks leave to appeal on two grounds which assert that Judge Cohen failed:

1. … to give proper weight to the principle of totality in the degree of cumulation of the sentence on the existing sentence resulting in a manifestly excessive total effective sentence
2. … sufficiently or at all to take into account the personal circumstances of the applicant as they apply to him at the time of offending.

The sentence of 13 years’ imprisonment imposed by Judge Cannon on the 2016 amphetamine conviction (a total effective sentence of 14 years when the State sentence is taken into account), with a non-parole period of 10 years — which is not the subject of appeal — involved offending committed while the applicant was on a suspended sentence for dishonesty offences. On that occasion, the applicant conspired with two co-accused to import four kilograms of methamphetamine from China. The circumstances of the offending are summarised in this Court’s judgment.[26] That sentence is not directly the subject of the applications for leave to appeal against sentence presently before the Court (although it has potential relevance to the issue of totality with respect to the other sentences which are the subject of the applications for leave to appeal).
[26]Bembo v The Queen [2018] VSCA 42, [2]–[13].

When the applicant committed the offending leading to the heroin conviction, he was on bail with respect to the dishonesty offences. The offending involved an attempt by the applicant to possess 3.767 kilograms of heroin imported by post from Pakistan. Judge Hogan imposed 14 years’ imprisonment for that offence, the sentence to commence 10 years after the commencement of the sentence imposed by Judge Cannon. The notional total effective sentence thus became 25 years’ imprisonment, upon which Judge Hogan fixed a new single non-parole period of 16 years.

By the time that the applicant became involved in the offending leading to the 2019 methamphetamine conviction, he had received a suspended sentence for dishonesty offences and had been charged over the heroin offending. The conduct the subject of the 2019 methamphetamine conviction — which involved approximately 125.6 kilograms of pure methamphetamine — ended four days before the commencement of the applicant’s trial for the 2016 methamphetamine offending. Judge Cohen sentenced him for this offence to 19 years’ imprisonment, associated orders leading to a notional total effective sentence of 34 years (35 years when the State sentence is aggregated) with a non-parole period of 25 years.

Distilled to its bare essence, the principal contention advanced by the applicant’s counsel in support of the applications for leave to appeal against sentence was that the notional total effective sentence and non-parole period are ‘crushing’.

Allied to that principal contention was the further contention that the judge must have failed to properly synthesise the applicant’s personal circumstances. The applicant’s, it was submitted, is a special case, deserving the extension of mercy, given that he continues to suffer the ongoing effects of having endured a war-torn environment when young. Counsel submitted that the applicant was abandoned in his early teenage years by both his parents, who were fleeing political persecution. He was left to fend for himself and two younger siblings in Kinshasa, Congo. The applicant and his siblings endured great personal hardship, hunger and abuse for a period of approximately two years, until his father was able to send a religious emissary to the Congo to collect the applicant and his siblings and bring them to South Africa (to where his parents had fled). Having arrived in Australia and being united with his father, counsel submitted, the applicant was the subject of indignities and abuse, being the only black child in the school. Counsel contended that expert psychological opinion indicates that his perception of reality was affected with an obsessive need to care for his children and family.

It was conceded by the applicant’s counsel that neither the individual sentence of 14 years’ imprisonment imposed by Judge Hogan for the heroin conviction, nor the individual sentence of 19 years’ imprisonment imposed for the 2019 methamphetamine conviction, is manifestly excessive. That was a realistic concession, given the large quantities of heroin and methamphetamine involved and the nature of the applicant’s offending. Over a protracted period of some two and a half years, between 9 December 2013 and 28 July 2016, the applicant was an enthusiastic and cynical — but not very successful — drug offender.

In Yates,[27] it was said the word ‘crushing’ in relation to a sentence ‘connotes the destruction of any reasonable expectation of useful life after release’. It was observed in Crowley,[28] however, that

whilst the Court must no doubt always be reluctant to impose upon an offender a sentence which can justifiably be described as crushing (see Yates [1985] VR 41; (1985) 13 A Crim R 319), it does not follow that every sentence which justifiably deserves that epithet must on that account and on that account alone be held to be manifestly excessive. There will … be cases in which the offender has by his criminal act or acts forfeited the right to any such hope or expectation.

[27]R v Yates [1985] VR 41, 47, 49 (Young CJ, Starke, Crockett and Hampel JJA); R v Gregory [2000] VSCA 212, [21] (Winneke P); Gill v The Queen [2019] VSCA 92, [83].

[28]R v Crowley (1991) 55 A Crim R 201, 206 (Crockett J, Southwell and Ashley JJ concurring).

And in Kerbatieh it was said:[29]

Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released[30] or whether it connotes the destruction of any reasonable expectation of useful life after release.[31] But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive.[32] In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it.

[29]R v Kerbatieh (2005) 155 A Crim R 367, 395 [125] (Chernov and Nettle JJA) (citations as in reported version).

[30]R v Cowie (unreported, Court of Criminal Appeal, 2 February 1978) per Gillard J.

[31]R v Yates [1985] VR 41 at 48; (1984) 13 A Crim R 319 at 326.

[32]R v Crowley (1991) 55 A Crim R 201 at 206; Fox and Frieberg, Sentencing (2nd ed) at [9.620] to [9.621].

As to his personal circumstances, the applicant is now aged 40 years.[33] He is married. He and his wife have four children, varying in age from about three to 14 years.
[33]His date of birth is 9 October 1979.

At the risk of repetition, the applicant was born in the Congo. Judge Cohen accepted that growing up in the Congo the applicant ‘witnessed atrocious events, that have been described as horrendously traumatic experiences, and [he] underwent grave hardship’, which ‘would not only have disrupted [his] childhood and education, but must inevitably have impacted [on his] emotional and psychological life since’. His eventual escape from the Congo ‘included spending time in a refugee camp where [he was] abused, and involved long and dangerous travel, crossing national borders under dangerous conditions’. The applicant has variously been diagnosed by psychologists as having post-traumatic stress disorder or an adjustment disorder, and as experiencing a high degree of unresolved emotional distress and anxiety.

When he arrived in Australia, the applicant did not speak English and he struggled with the language and culture. He was sent to a school in Sunbury (requiring long hours of travel), and as the only African there, he was isolated, ridiculed and bullied. The applicant completed Year 12, but not very satisfactorily.

In about 1998, at about age 18, the applicant left Melbourne and moved to Canberra, where he repeated Year 12. He passed, but did not go on to tertiary education. The applicant then moved to Sydney with a group of African friends. He described himself to a psychologist as ‘becoming wild’ and uncontrolled. It was claimed on the plea that the applicant met some older African men and was lured to Sydney where he got into fraudulent behaviour.

We need not recite the applicant’s prior criminal history in much detail. It started in 2000, and between 2000 and 2010 the applicant was dealt with by courts in several States and Territories for dishonesty offences. He served a sentence of five months’ imprisonment in NSW in 2009, and, as we have indicated, received a suspended sentence in the County Court in 2014 for theft and obtaining property by deception (involving credit cards). Apart from the three drug offences relevant to the present applications, however, the applicant has no other drug-related prior convictions.

Counsel for the applicant in this Court submitted that the applicant was under financial pressure, and that his offending was borne of a desire to support his family. Certainly, the quantity of drugs involved in the heroin and 2019 convictions were very substantial, with potential values running into many millions of dollars. In her sentencing remarks, Judge Hogan stated that it could ‘properly be inferred that [the applicant was] acting as an organiser for the purposes of profit’;[34] whilst Judge Cohen concluded that the applicant ‘had a significant role at least from 20 July onwards over others involved, that in her view he was ‘in control of the ongoing operation’[35] after Jackson returned to Sydney. Undoubtedly, the applicant envisaged that he would reap substantial illicit profits from his criminal activities. Indeed, the potential profits were so massive that it is impossible to accept that the applicant was motivated simply by a desire to provide for his family. He took the gamble, but lost. His culpability was very high.
[34]DPP v Bembo [2018] VCC 15, [14]
[35]The Queen v Bembo [2019] VCC 1352, [93].

When assessing the totality of the applicant’s offending it must be borne steadily in mind that it involved three separate episodes of importation, and, over a period of some two and a half years, attempts to procure commercial quantities of drugs. Each offence was separate; each was different in its arrangements; each involved different personnel; and the separate objective seriousness of each must be reflected in the total effective sentence.

Taking all of these matters into account, and remembering that it was conceded that the individual sentences the subject of these applications were not manifestly excessive, we are not persuaded that the notional total effective sentence (produced by the orders for commencement of the sentences) or the non-parole period reflect any failure to give appropriate weight to the applicant’s personal circumstances, or otherwise infringe the principle of totality.

We need not add to the lament concerning the harm to society that drugs such as those that the applicant sought to possess cause. They are destructive of the mental and physical health of a great many members of the community, with incalculable harm to society. The applicant’s participation in drug-related activity was motivated by greed, not altruism.

His very considerable offending called for very considerable punishment. Not only was general deterrence an important feature that needed to be reflected in the sentence imposed, but his enthusiastic and cynical offending demonstrated that a healthy measure of personal deterrence was also required. We would not be sanguine about his prospects of rehabilitation.

For these reasons, we would refuse the applications for leave to appeal against sentence.

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February 2013	Applicant arrested on dishonesty charges and bailed.
9 December 2013	Commencement of offending leading to heroin conviction. The applicant is on bail in relation to the dishonesty offences.
29 January 2014	Applicant sentenced to a two year (State) suspended sentence for dishonesty offences.
13 May 2014 — 26 June 2014	Offending leading to 2016 methamphetamine conviction.
31 October 2014	Applicant arrested and charged in relation to offending leading to heroin conviction.
27 April 2016 — 23 July 2016	Offending leading to 2019 methamphetamine conviction. Applicant on bail at time in relation to the heroin offending.
27 July 2016	Trial before Judge Cannon leading to 2016 methamphetamine conviction commences.
5 August 2016	Applicant arrested in relation to 2019 methamphetamine offending.
11 October 2016	Jury returns 2016 methamphetamine verdict of guilty.
24 March 2017	Applicant sentenced by Judge Cannon on 2016 methamphetamine conviction (and breach of State suspended sentence) to 14 years’ imprisonment with 10 years non-parole.
6 September 2017	Trial before Judge Hogan leading to heroin conviction commences.
20 September 2017	Jury returns heroin verdict of guilty.
8 December 2017	Applicant sentenced by Judge Hogan to 14 years’ imprisonment, orders for commencement of that sentence leading to a notional total effective sentence of 25 years’ imprisonment. New non-parole of 16 years fixed.
28 February 2018	Court of Appeal refuses leave to appeal 2016 methamphetamine conviction.
18 October 2018	Court of Appeal adjourns applications relating to heroin conviction.
22 October 2018	Trial in relation to 2019 methamphetamine offending commences. (After plea deal with Jackson, adjourned to 4 March 2019.)
13 December 2018	Jackson sentenced by Judge Cohen to 14 years’ imprisonment with nine years non-parole.
4 March 2019	Joint trial of applicant and Sibomana in relation to 2019 methamphetamine offending recommences.
12 April 2019	Jury returns 2019 methamphetamine verdict of guilty. (Sibomana acquitted.)
23 August 2019	Applicant sentenced by Judge Cohen to 19 years’ imprisonment, orders for commencement of that sentence leading to a notional total effective sentence of 35 years’ imprisonment. New non-parole of 25 years fixed.

[2019] VSCA 308

18 December 2019