DPP v Mokbel & Ors - [2008] VSC 546

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…

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 Mokbel & Ors

Details

AGLC: Director of Public Prosecutions v Mokbel [2008] VSC 546
Case: [2008] VSC 546
Decision Date: 5 December 2008

CaseChat Overview and Summary

The matter before the court involved the Director of Public Prosecutions (DPP) seeking to extend restraining orders under the Confiscation Act 1997 against the first respondent, who was previously acquitted of certain charges in April 2007 but subsequently charged with other offences in July and December 2007. The court was tasked with determining whether the initial restraining orders had ceased to be in force upon the acquittal and if new orders could be made based on the subsequent charges.

The legal issues the court had to address included whether the offences in July and December 2007 were "related offences" to those in April 2007, and whether it was permissible to impose further restraining orders against the same individual concerning the same property based on the later charges. The interpretation and application of various sections of the Confiscation Act 1997, such as sections 8, 15(4), 16, 18, 23, 32(9)(10), 37(10)(11), and 58(8)(9), were central to resolving these issues.

The court found that the restraining orders had indeed ceased to be in force following the acquittal in April 2007, as they were contingent on the outcome of those proceedings. However, it was determined that the offences in July and December 2007 were related to the earlier charges, thereby satisfying the criteria for the imposition of new restraining orders. The court concluded that it was appropriate to make further restraining orders against the first respondent concerning the same property, based on the subsequent charges. The orders were made under the authority granted by the relevant sections of the Confiscation Act 1997.

Orders