Mokbel v DPP (No 2) - [2002] VSC 312

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

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
DATE OF HEARING:	15 and 16 July 2002
DATE OF JUDGMENT:	9 August 2002
CASE MAY BE CITED AS:	Mokbel v DPP (No. 2)
MEDIUM NEUTRAL CITATION:	[2002] VSC 312

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BAIL – Further application for bail – Drug trafficking - Submission that new facts or circumstances exist – Delay in committal by reason of investigations into alleged corruption of police - Delay as an exceptional circumstance - Unacceptable risk -- Bail Act 1977 ss.4(2)(aa), 4(2A), 4(2)(d), 8(c)(ii), 18(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. Heliotis with Ms N. Gobbo	Valos Black & Associates
For the Director of Public Prosecutions Victoria	Mr W. Morgan-Payler Q.C. with Ms M. Williams	Office of Public Prosecutions Victoria.
For Inspector De Santo (Ethical Standards Department of Victoria Police)	Mr G.J. Maguire	Victorian Government Solicitor

HIS HONOUR:

This is a further application for bail made by Antonios Mokbel (“the applicant”). The history of this proceeding is set out in detail in DPP v Antonios Mokbel [2001] VSC 403, and in Mokbel v DPP [2002] VSC 127. The most recent of those two decisions involves a decision to refuse bail which was handed down on 26 April 2002.

Currently the applicant is remanded in custody and awaiting committal and trial in relation to two separate proceedings. The first such proceeding relates to 18 charges related to alleged drug offences brought by the Victorian Director of Public Prosecutions (“the State prosecution”). The second such proceeding relates to a charge brought by the Commonwealth Director of Public Prosecutions that the applicant was knowingly concerned in the importation into Australia of a traffickable quantity of cocaine (“the Commonwealth prosecution”).

At the time of the handing down of the decision refusing the applicant bail in relation to both the State prosecution and Commonwealth prosecution on 26 April 2002, it was anticipated that the committal in relation to the Commonwealth prosecution would commence on 9 May 2002 and that the committal in relation to the State prosecution would commence on 15 July 2002.

The Commonwealth prosecution, for reasons which have not been explained to me, did not commence on 9 May 2002 but is now fixed to commence on 16 October 2002. It should be observed that the application for bail now made before me is in relation to the State prosecution only and not in relation to the Commonwealth prosecution.

On the occasion of the previous application for bail by the applicant, it was clear that the State prosecution intended to proceed to committal and trial without relying upon the evidence of an informer who had had a number of conversations with the applicant. These conversations upon which the State prosecution intends to rely were taped covertly in the course of the investigation. In addition, it was then apparent that the…

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 (No 2)

Details

AGLC: Mokbel v Director of Public Prosecutions (No 2) [2002] VSC 312
Case: [2002] VSC 312
Decision Date: 9 August 2002

CaseChat Overview and Summary

The application for bail was brought by the accused, Mokbel, against the Director of Public Prosecutions. The matter was heard in the Supreme Court of Victoria, where the accused sought to be released on bail pending his trial for offences related to drug trafficking. The court was required to consider whether new facts or circumstances had arisen that warranted a reconsideration of the accused's bail application, particularly in light of the significant delay in the committal process due to ongoing investigations into alleged police corruption.

The legal issues before the court centred on whether the delay in the committal process constituted an exceptional circumstance warranting a reconsideration of the bail application, and whether the accused posed an unacceptable risk to the community if released on bail. The court considered the relevant provisions of the Bail Act 1977, including sections 4(2)(aa), 4(2A), 4(2)(d), 8(c)(ii), and 18(4), which outline the criteria for granting bail and the factors to be considered in assessing the risk posed by the accused.

The court held that the delay in the committal process did not constitute an exceptional circumstance that warranted a reconsideration of the bail application. The court found that the delay was due to investigations into alleged police corruption, which did not impact the accused's right to a fair trial. Furthermore, the court found that the accused posed an unacceptable risk to the community if released on bail, given the serious nature of the drug trafficking offences and the potential for reoffending. The court rejected the accused's application for bail and ordered that he remain in custody pending his trial.

No further orders were made by the court.

Orders