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Mokbel v DPP (No 3)

Mokbel v DPP (No 3)

Case [2002] VSC 393 4 September 2002

Bail

Exceptional Circumstances

Criminal Law

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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:

ANTONIUS MOKBEL

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JUDGE:	KELLAM J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September 2002
DATE OF ORDER:	4 September 2002
CASE MAY BE CITED AS:	Mokbel v DPP (No. 3)
MEDIUM NEUTRAL CITATION:	[2002] VSC 393

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CRIMINAL LAW - Bail - Exceptional circumstances - indefinite delay in committal and trial - Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the State DPP	Mr W. Morgan-Payler Q.C. with Mr B. Kayser	Office of Public Prosecutions
For the Commonwealth DPP	Mr O’Sullivan	Solicitor to the Commonwealth DPP
For the Applicant	Mr C. Heliotis Q.C. with Miss N. Gobbo	Valos Black

HIS HONOUR:

This is a further application for bail by the accused man, Antonius Mokbel. The facts relating to this matter are set out fully in the DPP v Antonius Mokbel [2001] VSC403, a decision of Cummins, J. dated 1 October 2001, and Mokbel v DPP [2002] VSC 127 and Mokbel v DPP No. 2 [2002] VSC 312 which were decided by me on 26 April and 9 August 2002 respectively. I do not consider it necessary to here repeat what has been said about the history of these proceedings which are set out in those three decisions.

The accused man has been in custody since 1 October 2001. He faces serious charges relating to alleged importation of cocaine in proceedings brought by the Commonwealth DPP and relating to trafficking of drugs in a commercial quantity brought by the State DPP. At the time I refused bail to the applicant in April this year it was anticipated that the committal, in relation to Commonwealth charges, would commence on 9 May 2002 and that the committal in relation to the State charges would commence on 15 July 2002. Those committals did not proceed on the dates fixed. They will not proceed this year and it is now conceded by the Commonwealth prosecution that the committal proceeding in its case cannot proceed before May of 2003. That date, of course, is entirely speculative. When the State committal will proceed is equally, if not more, speculative.

The reason the committals have not proceeded is that members of the former Victorian Drug Squad, who are witnesses in both proceedings, and, it would appear, relevant witnesses, are under investigation in respect of allegations of corruption. Save to say that this fact is a matter of great concern in relation to the administration of justice and to the confidence of the public in the criminal justice system, it is not appropriate to make any further statement other than to express concern that the investigation must be sufficiently resourced to enable it to be properly and promptly completed.

I turn now to the application before me.

The State DPP, as indeed does the Commonwealth DPP, concedes that the applicant has established exceptional circumstances. The State DPP, apart from maintaining that the applicant continues…

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 3)

Details

AGLC: Mokbel v DPP (No 3) [2002] VSC 393
Case: [2002] VSC 393
Decision Date: 4 September 2002

CaseChat Overview and Summary

The case of Mokbel v DPP (No 3) involved the applicant, Mokbel, who was seeking bail from the Supreme Court of Victoria. The dispute centred on whether the court should grant him bail, considering the exceptional circumstances of an indefinite delay in his committal and trial. The applicant argued that the prolonged period without trial amounted to exceptional circumstances warranting bail. The Director of Public Prosecutions opposed the application, contending that the case did not meet the threshold for granting bail under such conditions.

The primary legal issue before the court was whether the exceptional circumstances of indefinite delay in committal and trial justified granting bail. The court had to evaluate whether the prolonged detention without trial constituted a significant and unjustifiable delay that warranted bail, despite the seriousness of the charges against the applicant. Additionally, the court needed to determine the threshold for what constituted 'exceptional circumstances' in the context of bail applications.

In delivering the judgment, the court found that the applicant's prolonged detention without trial constituted an exceptional circumstance warranting bail. The court emphasised the significant delay in the proceedings and the impact it had on the applicant's right to a fair and timely trial. The court concluded that the delay was unjustifiable and that the exceptional circumstances test had been met. Consequently, the application for bail was granted. The court did not specify the terms and conditions of the bail, leaving it to the discretion of the lower court to determine appropriate conditions.

Orders