Wedi Ndjeka Bembo v The Queen - [2018] VSCA 42

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0077

WEDI NDJEKA BEMBO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WHELAN, BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 January 2018
DATE OF JUDGMENT:	28 February 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 42
JUDGMENT APPEALED FROM:	DPP v Wedi Ndjeka Bembo (Unreported, County Court of Victoria, Judge Cannon, 11 October 2016 (Conviction))

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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Conspiracy to import commercial quantity border controlled drug – Applicant’s property searched twice – Drugs found on second search – Whether trial judge erred in refusing to exclude evidence of drugs found on second search – Whether probative value of evidence outweighed prejudicial effect – Leave to appeal granted – Appeal dismissed – Decision not to exclude correct and not productive of substantial miscarriage of justice – IMM v The Queen (2016) 257 CLR 300 applied – Evidence Act 2008 (Vic) s 137.

CRIMINAL LAW – Conviction – Application for leave to appeal – Whether trial judge erred in refusing to exclude telephone conversation concerning domestic drug trafficking – Evidence relevant and admissible – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr M Fitzgerald	Dr Martine Marich & Associates
For the Respondent	Mr L Crowley	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WHELAN JA:

On 11 October 2016 the applicant was found guilty after a trial of conspiracy to import a commercial quantity of a border controlled drug. On 24 March 2017 the applicant was sentenced for that offence, and was dealt with for breach of a prior suspended sentence. The applicant now seeks leave to appeal against his conviction on the following proposed grounds:

1.The trial judge erred in admitting evidence that methamphetamine was found at the residence of the applicant, thereby causing a substantial miscarriage of justice;
2.The trial judge erred in admitting evidence of other drug sales by the applicant, thereby causing a substantial miscarriage of justice.

The respective cases at trial

The prosecution case was that the applicant had, with two co-accused, used overseas contacts to arrange the importation of high-purity methamphetamine from Guangzhou, China. Four kilograms of methamphetamine were to be imported, using two couriers who had been recruited by a co-accused upon the instructions of the applicant. Each courier was to carry two kilograms of methamphetamine in a suitcase. The couriers had been told that they would be transporting important documents, such as false passports, to Australia.

The two couriers left Australia but did not return from China. There was no evidence as to what had become of them.

The prosecution case was substantially based upon intercepted communications between the applicant, the co-accuseds, and other parties. Some portions of the intercepted communications revealed that the applicant was involved in trafficking methamphetamine within Australia. One such portion of an intercepted communication, being a telephone conversation between the applicant and a co-accused on 20 May 2014,[1] is the subject matter of…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] VSCA 42
Decision Date: 28 February 2018

CaseChat Overview and Summary

Wedi Ndjeka Bembo sought leave to appeal against his conviction for conspiracy to import a commercial quantity of a border-controlled drug. The case was heard in the High Court of Australia. The primary issue was whether the trial judge erred in refusing to exclude evidence of drugs found during a second search of the applicant's property. The secondary issue was whether the probative value of this evidence outweighed any prejudicial effect.

The court examined the evidence in light of the statutory provisions and relevant case law, particularly IMM v The Queen (2016). It considered whether the trial judge's decision to admit the evidence was correct and whether it resulted in a substantial miscarriage of justice. The court found that the evidence was relevant and admissible under the Evidence Act 2008 (Vic) s 137, and that the trial judge's decision to admit it was correct. Consequently, the application for leave to appeal against the conviction was granted, but the appeal itself was dismissed. Additionally, the court considered a second issue regarding the admissibility of a telephone conversation concerning domestic drug trafficking, finding it relevant and admissible, and thus refused leave to appeal on this point.

The final orders of the court were that leave to appeal against the conviction was granted, but the appeal was dismissed. The court also refused leave to appeal regarding the admissibility of the telephone conversation.

Orders