Mokbel v DPP - [2002] VSC 127

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001

IN THE MATTER of an application for bail by ANTONIOS MOKBEL

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JUDGE:	Kellam J
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27 and 28 March 2002
DATE OF JUDGMENT:	26 April 2002
CASE MAY BE CITED AS:	Mokbel v DPP
MEDIUM NEUTRAL CITATION:	[2002] VSC 127	Revised 27 June 2002

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Bail – further application for bail – submission that new facts or circumstances exist – drug trafficking – briefs of evidence delivered disclosing witnesses – whether or not absence of "informer" from witness list is a new fact or circumstance – change in financial circumstances‑delay – Bail Act 1977 ss.4(2)(aa),18(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Redlich QC with Ms N. Gobbo	Valos Black & Associates
For the Director of Public Prosecutions Victoria	Mr W. Morgan-Payler QC with Miss G. Cannon	Office of Public Prosecutions Victoria
For the Director of Public Prosecutions Commonwealth	Mr S. O'Sullivan	Director of Public Prosecutions Commonwealth

HIS HONOUR:

On 24 August 2001, Antonios Mokbel ("the applicant"), was arrested by Victorian police and charged with 11 offences contrary to the Drugs Poisons and Controlled Substances Act 1981. On the same day he was charged by an Australian Federal Police officer with one count of being knowingly concerned with an importation into Australia of a prohibited import, namely, a traffickable quantity of cocaine, contrary to s.233B(1)(d) of the Customs Act 1901.

On 5 September 2001, the applicant applied to the Magistrates' Court for bail on both the State and the Commonwealth matters. The bail hearing occupied three days and on 7 September 2001 the magistrate granted the applicant bail upon a surety of one million dollars together with stringent conditions as to reporting together with other conditions. A notice of appeal was filed in this Court by the Victorian State and the Commonwealth Directors of Public Prosecutions pursuant to s.18A of the Bail Act 1977 from the magistrate's order of 7 September 2001.

The matter came on for hearing before Cummins J on 1 October 2001, upon which date Cummins J allowed both appeals against the decision of the magistrate. On that date the applicant was committed to custody to await his trial. Subsequently, on 19 October 2001, Cummins J handed down written reasons for his decision. (See DPP v Antonios Mokbel [2001] VSC 403.)

The judgment of Cummins J (at pp.2-4) contains a useful summary of the background to the arrest of the applicant and I quote:

"The State charges comprehended a substantial chronological period: 12 October 2000 to 24 August 2001. The Commonwealth charge comprehended a quantity of pure cocaine almost 1,000 times greater than the traffickable quantity of 2 grams (Schedule VI Customs Act 1901), and more than six times the "commercial quantity" as defined by the Drugs Poisons and Controlled Substances Act 1981, Part 3, Schedule XI. A Victoria Police operation and task force had been monitoring the activities of…

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 Mokbel v DPP

Details

AGLC: Mokbel v DPP [2002] VSC 127
Case: [2002] VSC 127
Decision Date: 26 April 2002

CaseChat Overview and Summary

The case involved the appellant, Mokbel, who had previously been denied bail and was now making a further application. The dispute centred around whether new facts or circumstances existed that warranted a reconsideration of the bail decision. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the absence of an "informer" from the witness list constituted a new fact or circumstance that would warrant a re-evaluation of the bail application, and whether a change in financial circumstances and the delay in applying for bail were also relevant considerations.

The court examined the criteria outlined in the Bail Act 1977, specifically sections 4(2)(aa) and 18(4), to determine if the absence of the informer was a new fact or circumstance. The court found that the absence of the informer was not a new fact or circumstance because it was not a development that occurred after the initial bail application. The court also considered the change in financial circumstances and the delay in applying for bail but found these factors did not meet the threshold required to warrant a reconsideration of the bail decision. The appeal was dismissed.

The court concluded that the appellant had not demonstrated new facts or circumstances that would warrant a reconsideration of the bail decision. The absence of the informer, the change in financial circumstances, and the delay in applying for bail were not sufficient grounds to alter the original decision. The Supreme Court of Victoria upheld the denial of bail for the appellant.

Orders