Mokbel v Director of Public Prosecutions (Cth)

[2020] VSCA 325

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0180

ANTONIOS SAJIH MOKBEL	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 December 2020
DATE OF JUDGMENT:	15 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 325
JUDGMENT APPEALED FROM:	R v Mokbel [2006] VSC 119 (Gillard J)

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CRIMINAL LAW – Appeal - Conviction – Second appeal – Fresh and compelling evidence - – Crown concession of substantial miscarriage of justice – Crown submission that appeal should be allowed – Acceptance of Crown concessions – Appeal allowed – Conviction quashed and sentence set aside – Criminal Procedure Act 2009, s 326A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms R Shann with Ms A J Beech and Ms S Seoud	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Ms R Orr QC with Mr M Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
BEACH JA:

1. On 31 March 2006, following a trial, the appellant, Antonios Mokbel, was found guilty of one charge of being knowingly concerned in the importation into Australia of a prohibited import, a trafficable quantity of cocaine, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). He was sentenced to 12 years’ imprisonment, with a non-parole period of 9 years.[1]

   [1]R v Mokbel [2006] VSC 119.

1. On 11 February 2010, the Court refused an application for leave to appeal against conviction and sentence.[2]  On 10 December 2010, the High Court refused an application for special leave to appeal from that decision.[3]

   [2]R v Mokbel [2010] VSCA 11; (2010) 30 VR 115.

   [3]Mokbel v The Queen [2010] HCA Trans 329.

1. The appellant has now served the entirety of the sentence imposed upon him in 2006.  He remains in custody as a result of additional sentences imposed upon him, in relation to other convictions, in 2012.

1. On 19 August 2020, the appellant filed a notice of application for leave to second appeal against conviction, relying upon s 326A of the Criminal Procedure Act, which came into force in November 2019.  The ground relied upon by the appellant was as follows (omitting particulars):

Fresh and compelling evidence establishes that there has been a substantial miscarriage of justice in relation to [the conviction]. 

1. The fresh and compelling evidence particularised in the notice related to the activities of Nicola Gobbo, in her role and conduct as a police informer at a time during which she acted for the appellant as a barrister.

1. In her response to the appellant’s written case, the Commonwealth Director of Public Prosecutions made the following factual concessions:

Between 16 September 2005 and 21 March 2006, that is when Ms Gobbo was both a registered informer and representing [the appellant] in relation to this trial, Ms Gobbo:

(a)suggested to Victoria Police ways in which Victoria Police could investigate [the appellant] (in relation to offending other than the offending the subject of [this proceeding]);

(b)provided Victoria Police with information about Ms Gobbo’s suspicions and beliefs as to [the appellant’s] ongoing offending and the identity and conduct of his criminal associates;  and

(c)provided Victoria Police with her views as to [the appellant’s] prospects in the trial.

1. The Commonwealth Director submitted that the application for leave to appeal should be granted, the appeal allowed, and the conviction set aside.  Those submissions were made on the basis of the factual concessions set out above. In essence, the Director conceded that there was fresh and compelling evidence in relation to Ms Gobbo’s activities, which established that there had been a substantial miscarriage of justice in relation to the appellant’s trial.

1. Having read and considered the material for ourselves, we concluded that the concessions made by the Commonwealth Director were appropriate and that the orders she submitted should be made were also appropriate.  Accordingly, we made orders this morning granting leave to the appellant to ‘second appeal against conviction’, allowing the appeal, quashing the conviction and setting aside the sentence imposed. 

1. As we have already observed, the appellant has now served the entirety of the sentence imposed upon him in 2006.  An issue remains between the parties as to whether this Court should, in those circumstances, order an acquittal or a retrial. That issue has been reserved by the Court, pending further submissions. Senior counsel for the Commonwealth Director informed the Court during oral submissions that the Director has already decided that the appellant will not be retried. 

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