Director of Public Prosecutions v A Mokbel

[2009] VSC 138

18.

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

No 1448 of 2008
No 1408 of 2009
No 1409 of 2009

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTONIOS MOKBEL

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JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2009
DATE OF RULING:	3 April 2009
CASE MAY BE CITED AS:	DPP v A Mokbel
MEDIUM NEUTRAL CITATION:	[2009] VSC 138

Ruling

Criminal law and procedure – due process – fair trial – murder and drugs charges – extensive pre-trial publicity re accused – global Prohibition Order as to proceedings and name of accused – limited variation thereof – considerations applicable – ss.18 and 19 Supreme Court Act 1986.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Horgan SC with Mr P. Kidd	Office of Public Prosecutions
For the Accused	Mr. P. Morrissey	Victoria Legal Aid
For Herald and Weekly Times, Seven Network, Nine Network and Australian Broadcasting Corporation	Mr J Quill	Kelly Hazell Quill Solicitors

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Cummins J

HIS HONOUR:

1. Justice Kaye on 19 March 2009 made a global Prohibition Order pursuant to the provisions of s.18 and 19 Supreme Court Act 1986 in relation to publications naming or referring to Mr Antonios Mokbel. I must say that I think that Order was very well-founded and prudent and I proceed upon the basis that that is the Order presently in force.

1. Today, in court, in the matter of the charge against Mr Mokbel of the murder of Mr Michael Marshall, the prosecution has filed a nolle prosequi which means that that charge is now ceased as against Mr Mokbel.

1. Also today the prosecution has filed as against Mr Mokbel a charge of the murder of Mr Lewis Moran which charge will be heard before Justice Kaye commencing on 20 July 2009 with a Directions hearing on 15 April 2009.

1. There are various drug charges against Mr Mokbel in the committal stage in the Magistrates' Court as to which a complex set of dates has been responsibly and carefully articulated. 

1. The question that arises is whether there should be a limited variation to this prohibition Order imposed by Justice Kaye.

1. Mr Horgan, senior counsel for the prosecution, in an understandable cri de coeur has submitted that as there is presently an application for a permanent stay on the basis of publicity as set forth in the affidavit of Ms G Morgan of 1 April 2009, in particular paragraph 11, caution ought to ensure that no variation of the Order of Justice Kaye is made.  I have considerable sympathy for that submission.

1. However I do consider, having heard Mr Quill on behalf of various media entities by leave, that both Mr Horgan's legitimate concern and Mr Morrissey's very legitimate concern will not be affected by limited publication.  I agree with Mr Quill that the fact that the Marshall murder charge no longer is proceeding and the fact that the Moran murder charge has been filed and will be heard on the date and before the judge stated, are very significant matters of public interest.

1. Therefore I propose to vary the order of Justice Kaye to the following extent:

(1)The fact a nolle prosequi in the Marshall murder trial has today been filed may be published.

(2)The fact that the presentment for the murder of Mr Lewis Moran has today been filed may be published.

(3)The particulars on the front of each presentment - that is to say the name of the accused, Mr Antonios Mokbel or Mr Tony Mokbel or Tony Mokbel - may be published.  The name of the deceased, Mr Michael Marshall and Mr Lewis Moran, may be published.  The place and date of the alleged murders may be published; that is to say of their deaths.  That is to say the front of the presentment may be published. 

1. What may not be published is the following:

(1)Any background in any story, any rehearsal of the facts in either case, may not be published.

(2)No film may be published showing the history of either matter or the history of Mr Mokbel, may be published.

1. Effectively, that means that the newspapers may publish just the two charges.  I am sure that sounds like a classified advertisement sort of limitation, but that is in fact the limitation that I impose.

1. All other prohibition matters will be dealt with by Justice Kaye on 15 April 2009.  Then counsel can make submissions to His Honour about any other variations that are sought as to Justice Kaye's holistic Order of 19 March 2009.

1. So it is a very strict and limited variation of Justice Kaye's Order but I do make it because I do consider that the conclusion of the one case, the Marshall charge and the filing and commencement of the other case, the Moran charge, are properly matters justifying the variation of that Order in the public interest.