DPP v Antonios Mokbel - [2001] VSC 403

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001

In the Matter of s.18A Bail Act 1977

Director of Public Prosecutions (Victoria)	Appellant
v
Antonios Mokbel	Respondent

- and -

Director of Public Prosecutions (Commonwealth of Australia)	Appellant
v
Antonios Mokbel	Respondent

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2001, 1 October 2001
DATE OF JUDGEMENT:	1 October 2001
DATE OF REASONS FOR JUDGMENT:	19 October 2001
CASE MAY BE CITED AS:	DPP v Antonios Mokbel
MEDIUM NEUTRAL CITATION:	[2001] VSC 403

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Appeal – bail – appeals pursuant to s. 18A Bail Act 1977 by State and Commonwealth Directors of Public Prosecutions from Magistrate’s order granting bail – drug trafficking – appeals allowed – considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions (Victoria)	Mr B. Morgan-Payler QC with Ms G. Cannon	DPP (Victoria)
For the Director of Public Prosecutions (Commonwealth)	Mr A. Howard QC with Mr S. O’Sullivan	DPP (Commonwealth)
For the Respondent	Mr C. Dane QC with Mr G. Lyon	Kenna Croxford & Co.

HIS HONOUR:

On 28 September 2001 before me were two appeals, respectively by the Victorian Director of Public Prosecutions and the Commonwealth Director of Public Prosecutions, pursuant to s. 18A Bail Act 1977 and each filed on 20 September 2001, from orders by a Magistrate made on 7 September 2001 granting bail to the Respondent, Mr Antonios Mokbel. I heard the appeals together, on 28 September 2001 and 1 October 2001 and on 1 October 2001 I allowed the appeals, revoked the orders below for bail, and committed the Respondent to custody to await his trial. I now publish my reasons for those decisions.

On 24 August 2001 the Respondent was arrested by Victorian police and charged with 11 offences contrary to the Drugs, Poisons and Controlled Substances Act 1981. On the same day, at the Melbourne Magistrates’ Court the Respondent was charged by an Australian Federal police officer with one count of being knowingly concerned in the importation into Australia of a prohibited import, namely a trafficable quantity of cocaine, contrary to s. 233B(1)(d) Customs Act 1901. At the Magistrates’ Court appearance on 24 August 2001 no application for bail was made by the Respondent. On 5 September 2001 the Respondent applied to the Magistrates’ Court for bail on the State and Commonwealth matters. The bail hearing occupied three days. On 7 September 2001 the Magistrate granted the Respondent bail upon terms I shall later recite. On 20 September 2001 the Victorian and the Commonwealth Director of Public Prosecutions filed in this Court notices of appeal pursuant to s. 18A Bail Act 1977 from the Magistrate’s order of 7 September 2001.

The principles governing appeals pursuant to s. 18A Bail Act 1977 are well known. Such appeals are not de novo hearings but are appeals strictly speaking. In a most helpful review (if I may say so) the Full Court of the Supreme Court of this State…

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.

Continue reading DPP v Antonios Mokbel

Details

AGLC: DPP v Antonios Mokbel [2001] VSC 403
Case: [2001] VSC 403
Decision Date: 19 October 2001

CaseChat Overview and Summary

The case involved an appeal by the Director of Public Prosecutions (DPP) against a magistrate's decision to grant bail to Antonios Mokbel, a person accused of drug trafficking. The appeals were heard by a court constituted under section 18A of the Bail Act 1977 (Cth), which allows for the appeal of bail decisions by both state and Commonwealth DPPs. The central issue before the court was whether the magistrate's decision to grant bail was appropriate, given the serious nature of the charges against Mokbel.

The legal issues that the court had to address included whether the magistrate had correctly assessed the risk that Mokbel would reoffend, whether the potential danger to the community was adequately considered, and whether the evidence presented justified a departure from the presumption against bail in serious criminal cases. The court also needed to examine whether the bail conditions imposed by the magistrate were sufficient to mitigate the risks identified. The arguments put forth by the DPP emphasised the gravity of the drug trafficking charges and the potential for Mokbel to reoffend if granted bail.

In its decision, the court found that the magistrate had not sufficiently weighed the seriousness of the charges and the potential for Mokbel to reoffend. The court held that the magistrate had erred in assessing the risk to the community and in determining the appropriate bail conditions. As a result, the appeals were allowed, and the orders granting bail were quashed. The court concluded that, given the nature of the charges and the potential for reoffending, Mokbel should not have been granted bail unless stringent conditions were imposed, which the magistrate had failed to do. The court's decision underscored the importance of careful consideration of all relevant factors in bail decisions, particularly in cases involving serious criminal allegations.

Orders