DPP v Mokbel & Ors
[2008] VSC 546
•5 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1693 of 2008
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| HORTY MOKBEL | First Respondent |
| ZAHAROULA MOKBEL | Second Respondent |
| WK PROSPECTING PTY LTD | Third Respondent |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 NOVEMBER 2008 | |
DATE OF JUDGMENT: | 5 DECEMBER 2008 | |
CASE MAY BE CITED AS: | DPP v MOKBEL | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 546 | |
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Crime – Confiscation Act 1997 – Whether restraining orders ceased to be in force on first respondent’s acquittal of charges laid in April 2007 – First respondent charged with other offences in July and December 2007 – Whether “related offences” – Whether further restraining order against the same person in respect of the same property but based on the subsequent charges could be made – Confiscation Act 1997, ss.8, 15(4), 16, 18, 23, 32(9) (10), 37(10)(11) and 58 (8)(9).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J. Kennan SC with Mr P. Doyle | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Respondents | No appearance |
HIS HONOUR:
On 17 November 2008, I made a restraining order under s.18 of the Confiscation Act1997 (“the Act”) in respect of certain property in which the respondent, Horty Mokbel, a person charged with a Schedule 2 offence, allegedly had an interest. As the application under s.16(2)(c) of the Act raised a novel issue, I stated that I would publish my detailed reasons at a later date. These are my reasons for making the order.
Background
On 13 April 2007, Mr Mokbel was charged with the following offences:
(a) between 1 May 2005 and 1 April 2006 did traffick a drug of dependence, methylamphetamine, in a quantity not less than a large commercial quantity applicable to that drug;
(b) between 23 April 2006 and 25 April 2006 did traffick a drug of dependence, methylamphetamine, in a quantity not less than a large commercial quantity applicable to that drug;
(c) between 1 February 2006 and 12 April 2006 did traffick a drug of dependence, phenyl-2-propanone, in a quantity not less than a commercial quantity applicable to that drug;
(d) between 23 April 2006 and 25 April 2006 did attempt to possess a drug of dependence, methylamphetamine; and
(e) on 13 April 2007, did deal with property, namely $9205, suspected of being proceeds of crime.
These five charges are hereinafter referred to together as “the April 2007 charges”.
On 28 May 2007, on the application of the Director of Public Prosecutions (“the Director”) in proceeding no. 1498 of 2007, I made a restraining order in respect of the following property in which Mr Mokbel allegedly had an interest:
(a) 20 The Grove, Coburg being the property more particularly described in Certificate of Title Volume 6464 Folio 648;
(b) 46 Kambrook Road, Caulfield North being the property more particularly described in Certificate of Title Volume 10282 Folio 635;
(c) Rear 48-54 Kambrook Road, Caulfield North being the property more particularly described in Certificate of Title Volume 10282 Folio 634;
(d) 105 Rene Street, Preston being the property more particularly described in Certificate of Title Volume 10272 Folio 402;
(e) 6 Dean Street, Preston being the property more particularly described in Certificate of Title Volume 8222 Folio 093;
(f) 123 Dromana Parade, Safety Beach being the property more particularly described in Certificate of Volume 7313 Folio 491; and
(g) 2001 BMW motor vehicle with registration number QSA 082.
I also appointed John Ross Lindholm of Ferrier Hodgson trustee of the six real estate properties, directed him to take control of those properties and empowered him to manage the properties, including leasing, maintaining, insuring or selling any of them if repayment of a loan secured over the property was in arrears.
The Director’s application was supported by an affidavit of Detective Sergeant James Coghlan sworn on 25 May 2007. In that affidavit reference was made to evidence which allegedly showed that Mr Mokbel was trafficking in methylamphetamine between May 2005 and April 2006. The application, pursuant to s.16(2)(c) of the Act, was based on the April 2007 charges.
On 25 July 2007, Mr Mokbel was charged with the following offences:
(a) between October 2006 and April 2007 did traffick a drug of dependence, methylamphetamine, in a quantity not less than a large commercial quantity applicable to that drug; and
(b) between October 2005 and April 2007 did possess substances, chemicals, equipment and apparatus relating to the manufacture of a drug of dependence, with the intention of using such items for the purpose of trafficking in a drug of dependence, namely, methylamphetamine.
These two charges are hereinafter referred to together as “the July 2007 charges”.
On 7 December 2007, Mr Mokbel was charged with the following offences:
(a) on and between May 2006 and October 2006 did traffick a drug of dependence, methylamphetamine, in a quantity not less than a large commercial quantity applicable to that drug; and
(b) between May 2006 and October 2006 did possess substances, chemicals, equipment and apparatus relating to the manufacture of a drug of dependence, with the intention of using such items for the purpose of trafficking in a drug of dependence, namely, methylamphetamine.
These two charges are hereinafter referred to together as “the December 2007 charges”.
On 28 May 2008, Hollingworth J made a restraining order in this proceeding in respect of 5,120,000 shares in Linc Energy Limited (“the shares”), registered in the name of WK Prospecting Pty Ltd (“WKP”), in which Mr Mokbel allegedly had an interest. The Director’s application was supported by an affidavit of Detective Senior Constable Timothy Robinson sworn on 23 May 2008. The only charges referred to in that affidavit were the April 2007 charges. It was noted that Mr Mokbel had pleaded not guilty to those charges and that the trial was set down for hearing in August 2008.
By a notice filed on 10 June 2008, WKP applied for an order excluding its interest in the shares from any restraining order. On 19 June 2008, Cavanough J, under s.20(7) of the Act, stayed WKP’s application until the April 2007 charges had been finally determined or withdrawn, or until further order.
On 3 October 2008, Mr Mokbel was acquitted of all of the April 2007 charges.
The Application
By an application filed on 9 October 2008, the Director sought a restraining order in respect of the following property in which Mr Mokbel allegedly had an interest:
(a) the parcel of 5,120,000 shares in Linc Energy Limited registered in the name of WK Prospecting Pty Ltd;
(b) the balance of the proceeds of sale, including accrued interest, of the property located at 20 The Grove, Coburg being the property more particularly described in Certificate of Title Volume 6464 Folio 648;
(c) the balance of the proceeds of sale, including accrued interest, of the property located at 46 Kambrook Road, Caulfield North being the property more particularly described in Certificate of Title Volume 10282 Folio 635;
(d) the balance of the proceeds of sale, including accrued interest, of the property located at the rear 48-54 Kambrook Road, Caulfield North being the property more particularly described in Certificate of Title Volume 10282 Folio 634;
(e) 105 Rene Street, Preston being the property more particularly described in Certificate of Title Volume 10272 Folio 402;
(f) 6 Dean Street, Preston being the property more particularly described in Certificate of Title Volume 8222 Folio 093;
(g) the balance of the proceeds of sale, if any and including accrued interest, of the property located at 123 Dromana Parade, Safety Beach being the property more particularly described in Certificate of Title Volume 7313 Folio 491; and
(h) 2001 BMW motor vehicle with registration number QSA 082.
An amended application was filed on 10 October 2008 which, in addition, sought orders appointing Mr Lindholm trustee of the two Preston properties. Similar powers to those referred to in my earlier order were also sought.
The matter came on before me in the Practice Court on 10 October 2008 as an ex parte application. Mr Kennan SC, who appeared on behalf of the Director, submitted that the restraining orders of 28 May 2007 and 28 May 2008 (“the earlier restraining orders”) were still in force, despite the acquittal of Mr Mokbel of the April 2007 charges, because the July 2007 charges and the December 2007 charges were related offences to the April 2007 charges. He referred to s.27(3)(b) and s.8 of the Act.
The first three sub-sections of s.27 deal with the duration of a restraining order. They provide as follows:
27 Duration and setting aside of restraining order
(1)If, at the end of the period of 48 hours after the making of a restraining order in reliance on the proposed charging of a defendant with a Schedule 1 offence or a Schedule 2 offence, the defendant has not been charged with the offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence, whether or not in the same Schedule as the original offence, the order ceases to be in force at the end of that period.
(2)A restraining order made on an application under section 16(2)(a) ceases to be in force on the expiry of 90 days after it is made unless an application for a civil forfeiture order in respect of the restrained property is then pending before the Supreme Court or the County Court.
(3)If, when a restraining order was made in reliance on the charging, or proposed charging, of a defendant with a Schedule 1 offence or a Schedule 2 offence or in reliance on the conviction of a defendant of such an offence—
(a)the charge is withdrawn and the defendant is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the withdrawal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force on the expiry of 7 days after the charge is withdrawn; or
(b)the defendant is acquitted of the charge and the defendant is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the acquittal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force when the acquittal occurs; or
(c)the conviction of the defendant of the offence is subsequently quashed, the restraining order (other than one referred to in subsection (2)) ceases to be in force when the appeal period expires unless a re-trial has been ordered at the time of the quashing of the conviction.
Section 8 of the Act contains the following definition of “related offences”:
8 Related offences
For the purposes of this Act, two offences are related to one another if they are founded on the same facts or form or are part of a series of offences of the same or a similar character.
Mr Kennan nevertheless submitted that I should make a restraining order in case it was later held that the subsequent charges were not “related offences” to the April 2007 charges. However, Mr Kennan very properly drew to my attention the decision of Smith J in DPP v Ali,[1] which arguably stood in the way of a further restraining order in respect of the same property as that dealt with in the earlier restraining orders based on the April 2007 charges. It therefore seemed to me to be appropriate to give notice of the application to interested parties so that they had the opportunity to be heard on these issues.[2] Accordingly, the further hearing was adjourned, but in order to preserve the position in the meantime, I made an interim restraining order to remain in force until the final hearing and determination of the amended application on 17 November 2008, or until further order.
[1][2008] VSC 167.
[2]See s.17 of the Act.
Although the relevant material was served on Mr Mokbel’s solicitors, on Mrs Mokbel personally and on WKP by personally serving Brahim Wakeem, a director of that company,[3] there was no appearance by any of these parties on 17 November 2008.
[3]See s.109X(1)(b) of the Corporations Act 2001.
Consideration of the Issues
The first issue to be decided is whether any of the July 2007 charges or the December 2007 charges is a “related offence” to any of the April 2007 charges. It seems to me to be clear that the July 2007 trafficking methylamphetamine charge (being the first of the charges set out in paragraph 6 above) and the December 2007 trafficking methylamphetamine charge (being the first of the charges set out in paragraph 7 above) are both related offences to the two April 2007 trafficking methylamphetamine charges (being the first two of the charges set out in paragraph 2 above) and to the April 2007 trafficking phenyl-2-propanone charge (being the third of the charges set out in paragraph 2 above). This is because they are “part of a series of offences of the same or a similar character”. All of these charges have the same or similar character, namely, trafficking a drug of dependence. Indeed, the wording of the July 2007, the December 2007 and the two April 2007 trafficking methylamphetamine charges is identical.[4] That is, they are offences of “the same … character”. The only difference between the wording of the July 2007 and the December 2007 trafficking methylamphetamine charges and the April 2007 trafficking phenyl-2-propanone charge is that the drug in question is different. Nevertheless, I consider that these charges have a sufficient resemblance or likeness[5] to each other to satisfy the requirement that they be offences of “the same or a similar character”.
[4]See the entry for the word “Same” in the Shorter Oxford English Dictionary, Third Edition.
[5]See the entry for the word “Similar” in the Shorter Oxford English Dictionary, Third Edition.
The word “series” is relevantly defined as meaning “a number of things of one kind … following one another in temporal succession”, or “a succession, sequence or continued course (of action or conduct, of time, life, etc)”.[6] Although, in my opinion, a high degree of continuity is not necessarily required for the charges to constitute “a series of offences”, the fact is that the December 2007 trafficking methylamphetamine charge allegedly commenced only five days after the three day period referred to in the second April 2007 trafficking methylamphetamine charge and only one month after the end of the eleven month period referred to in the first April 2007 trafficking methylamphetamine charge. Further, the July 2007 trafficking methylamphetamine charge allegedly commenced only six months after the end of that eleven month period (and immediately after the end of the six month period referred to in the December 2007 trafficking methylamphetamine charge).
[6]See the entry for the word “Series” in the Shorter Oxford English Dictionary, Third Edition.
Therefore, in my opinion, the requirements of s.27(3)(b) of the Act for the earlier restraining orders to cease to be in force were not satisfied in that they were made partly in reliance on the charging of Mr Mokbel with the first three of the April 2007 charges, being Schedule 2 offences, and by the time of his acquittal of those charges (and the other April 2007 charges), he had been charged with two related Schedule 2 offences. As stated above, they were the July 2007 trafficking methylamphetamine charge and the December 2007 trafficking methylamphetamine charge.
This means, in my opinion, that the earlier restraining orders are still in force. I consider that, as neither my order of 28 May 2007 nor Hollingworth J’s order of 28 May 2008 was expressed to be limited in time, without the terminating effect of s.27(3)(b) of the Act, the restraint imposed by the orders could only be lifted by a further order made pursuant to the reserved general liberty to apply.
Further, whilst it is true, as counsel for the Director pointed out, that nowhere in the Act is it spelt out in positive terms that if the terms of s.27(3)(b) are not satisfied then the restraining order continues in force, it seems to me that this consequence must be implicit. After all, if a restraining order were to cease to be in force once a person was acquitted of the charge or charges in reliance on which the order was made, and not able to be continued regardless of the existence of other charges, then there would have been no need to introduce the concept of a “related offence”.
My conclusion with respect to the various trafficking charges means that it is unnecessary, in my opinion, to consider the rather more difficult question of whether the July 2007 and the December 2007 possession charges (being the second of the charges respectively set out in paragraphs 6 and 7 above) were related offences to any of the April 2007 charges, but more particularly to the three trafficking charges. The answer to that interesting question must await another application.
I turn, then, to consider the question of whether a further restraining order should be made if, as I have found, the earlier restraining orders are still in force. Not surprisingly, the Director sought the making of a further order as a matter of caution, in case it was later held that the existing restraining orders had ceased to be in force on the acquittal of Mr Mokbel of all of the April 2007 charges.
As previously mentioned, Mr Kennan had drawn to my attention the decision of Smith J in Ali. In that case, a restraining order, in respect of a property owned by the respondent, was originally obtained under s.16(2)(c), the respondent having been charged with conspiring to traffick in a commercial quantity of methylamphetamine and conspiring to traffick in methylamphetamine. The drugs were alleged to have been manufactured at Mr Ali’s property, which he had leased to the co-accused. It was held at trial that Mr Ali had no case to answer, on the basis that the Crown could not prove that he knew and agreed to what was being manufactured at the property. Thus, the restraining order ceased to be in force (s.27(3)(b) of the Act).
Mr Ali’s co-accused were, however, convicted of conspiring to traffick in a commercial quantity of methylamphetamine, and Mr Ali did not dispute that there was evidence that drugs were manufactured at his property. The Director then sought a second restraining order in respect of Mr Ali’s property (and the rental income) pursuant to s.16(2)(a) (on the basis that the property was reasonably suspected of being tainted) in order to satisfy a civil forfeiture order.
Smith J held that in the circumstances of that case, a second application under s.16(2) of the Act was not permitted. His Honour referred to the failure of the Act to address the issue of whether subsequent applications for restraining orders may be brought and concluded:
Looking at the purposes of the Act and its complexity and detail, it may be said that Parliament in fact bore in mind the significant incursion by the Act into property and procedural rights. It has taken a cautious approach and has deliberately and carefully attempted to define four alternative, distinct and sequential categories of circumstances in which the key order, the restraining order, may be sought. Properly construed, they describe the only categories available. In addition, Parliament intended to permit only the one application for a restraining order against the same property. The only variation or departure permitted is that covered by s.15(4).[7]
[7][2008] VSC 167, [61].
I agree with the Director’s submission that on a close analysis of Smith J’s reasoning in Ali, it does not prevent the making of a further restraining order in this case. Clearly, the facts of the two applications are different. In Ali, the Director was seeking the making of a second restraining order, pursuant to s.16(2)(a) of the Act, against the same person and in respect of the same property, based on the same basic facts which had led to the making of the first restraining order, pursuant to s.16(2)(c) of the Act. The only difference was that instead of relying upon the fact that Mr Ali had been charged with a Schedule 2 offence, the Director was attempting to rely on the fact that a member of the police force suspected on reasonable grounds that Mr Ali’s property was tainted property in relation to a Schedule 2 offence.
In this case, the Director was seeking the making of a second restraining order, again pursuant to s.16(2)(c) of the Act, against the same person and in respect of the same property, but based on different Schedule 2 charges to those charges on which the first restraining order had been based and in respect of which Mr Mokbel had been acquitted.
I do not, with respect, disagree with Smith J’s conclusion that s.16(2) sets out four alternative situations, only one of which is applicable at any given time. As his Honour said:
Paragraphs (a), (b), (c), & (d) of s.16(2) are placed sequentially reflecting the normal progress of a police investigation into, for example, drug trafficking, and its ultimate resolution with conviction. As the investigation progresses, and greater certainty arises, the requirements in paragraphs (a) to (d) change from suspicion, to belief and to the fact of the property being tainted. The situation becomes one where the requisite belief can be asserted as opposed to suspicion. That sequential analysis is supported by s.15(4), a provision relied upon by counsel for the respondents. It provides that if a restraining order has been made on the basis of a police officer suspecting on reasonable grounds that the property is tainted (s.16(2)(a)) and, subsequently, a person is charged with a Schedule 2 offence in relation to which the restrained property or interest is tainted property (s.15(2)(c)), the restraining order can have added to it, or substituted, the purpose for which the property interest is restrained. This lends support to the conclusion that Parliament did not consider it appropriate, and therefore did not intend, that s.16(2)(a) be used or available where a person is subsequently charged or convicted.[8]
[8][2008] VSC 167, [52].
However, the reasons given by his Honour for concluding that only one application for a restraining order could be made in respect of the same property do not, in my respectful opinion, justify the same conclusion being reached in this case. First, his Honour referred to:
two well recognised and long accepted public policies that
·there be an end to litigation and
·no-one should be sued more than once.
A number of common law rules have been developed to give effect to those policies. One would expect Parliament to address such fundamental policies in legislation if it was intended to depart from them.[9] [Footnotes omitted]
[9][2008] VSC 167, [54].
As counsel for the Director submitted, the public policies concerning the finality of litigation and being sued twice are not applicable in the present context, where subsequent criminal charges concerning different conduct have been brought. Equally, the common law rules referred to by his Honour, such as issue estoppel, res judicata and abuse of process, are not relevant where the issue before the Court is whether a restraining order should be made on the basis of the later and different charges,[10] and where, in seeking the second restraining order, there is no ulterior or improper purpose or attempt to re-litigate a case already disposed of by an earlier proceeding.[11]
[10]See DA Christie Pty Ltd v Baker [1996] 2 VR 582, 599 (Hayne JA).
[11]See DA Christie Pty Ltd v Baker [1996] 2 VR 582, 603-4 (Hayne JA).
Secondly, Smith J referred to the fact that the Act addressed:
the issue of subsequent applications in relation to confiscation orders on three occasions. In all the circumstances it would be remarkable with such detailed and complex legislation for Parliament not to address the issue if it intended that subsequent applications could be brought.[12]
[12][2008] VSC 167, [54].
It should be noted that the three provisions referred to by his Honour, ss.32(9) and (10), 37(10) and (11), and 58(8) and (9), are concerned with subsequent applications for forfeiture and pecuniary penalty orders in respect of the same conviction or same offence. I do not consider that the inclusion in the Act of these provisions assists in resolving the question of whether subsequent applications for restraining orders against the same person in respect of the same property are nevertheless permitted where they are based on different Schedule 2 charges.
Thirdly, Smith J was of the view that “a fundamental, and ultimately fatal, problem” facing the applicant in Ali was that the applicant’s construction would expand the operation of confiscatory legislation[13] and, therefore, that “a strict approach should be taken and any ambiguities should be resolved against the applicant’s construction”.[14]
[13][2008[ VSC 167, [55].
[14][2008] VSC 167, [60].
His Honour was clearly correct, with respect, in pointing out that:
In addition, under the Act, the procedures for the forfeiture of property are deliberately draconian and reverse or remove what would otherwise be the procedural rights available under the common law for those affected.[15]
[15][2008] VSC 167, [55].
However, I do not consider that deciding that a further restraining order against the same person in respect of the same property is permissible, where it is based on different Schedule 2 charges, is going beyond the judicial function by filling gaps disclosed in the legislation or that it would:
involve the “usurpation of the legislative function under the thin disguise of interpretation”.[16]
[16][2008] VSC 167, [60] referring to Stephen J in Marshall v Watson (1972) 124 CLR 640, 649 quoting Lord Simonds in Magor & St Mellons RDC v Newport Corporation [1952] AC 189, 191.
On the contrary, it seems to me that to refuse to make such an order would be to frustrate the clear intention of the Parliament in passing the Act. I can see no reason why it should not be concluded that Parliament intended that a person charged at different times with different Schedule 2 offences should be subject to the draconian consequences flowing from a conviction of any of the latter offences even though that person may have been acquitted of the earlier charges. To conclude otherwise would, in my opinion, lead to absurd results. For example, where a restraining order had been made in respect of a person charged with growing marijuana in 2004 at a particular property owned by the accused but who was later acquitted, then there could be no restraining order made in respect of the same property when the same person was later charged with growing marijuana in 2008 at the same location. Another example would be where a restraining order had been made in respect of a motor vehicle owned by a person accused of drug trafficking[17] but who was later acquitted, then there could be no restraining order made in respect of the same motor vehicle when the same person was charged with murdering another person by running the victim down using that motor vehicle.[18]
[17]See sub-paragraph (c) of the definition of “tainted property” in s.3 of the Act.
[18]See sub-paragraph (a) of the definition of “tainted property” in s.3 of the Act.
It therefore seems to me, with respect, that when Smith J stated in Ali that “Parliament intended to permit only the one application for a restraining order against the same property,” he was deciding no more than that only one application for a restraining order was permitted against the same person in respect of the same property based on the same offence or the same facts giving rise to the same alleged offence.[19] That is, in my opinion, his Honour’s decision in Ali does not stand in the way of the making of a further restraining order against the same person in respect of the same property based on different Schedule 2 charges. Accordingly, I made the order sought by the Director.
[19]See his Honour’s reference to “situations involving the same litigants, the same property, the same offence and the same reliance on ‘tainted property’ ” at [2008] VSC 167, [54].
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