Mokbel v DPP (No 3)
[2002] VSC 393
•4 September 2002
| 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 to present an unacceptable risk, makes no other submission. The Commonwealth prosecution also contends that the risk if the applicant is granted bail, continues to be unacceptable.
Mr O'Sullivan has put before me evidence which was not previously before me. That evidence is that a co-accused person has now stated that he will give evidence against the applicant. Mr O'Sullivan relies upon an affidavit of Mr Jarrod Ragg, a federal agent who asserts that he has been told by the co‑accused that the applicant has made threats against him. Mr Ragg was cross-examined before me about these matters. As to these matters it must be said that there are risks if the applicant is released, as indeed I have already concluded and stated in my decision of 9 August 2002. However, whether or not this risk is unacceptable requires to be balanced against the period that the applicant will otherwise spend in custody awaiting trial. In this regard, there is also to be brought into account the precautionary measures that can be taken by way of conditions.
As to intimidation of witnesses, it should be noted that the co-accused is in custody. The authorities are responsible for his safety. It might be added that the threat of intimidation of witnesses might just as well be undertaken by indirect means whilst the applicant remains in custody, if he was so inclined, or by his co-accused, all of whom have been bailed, as by the applicant in the event of his being granted bail. It should be observed that no other civilian apart from the co-accused who is in custody is likely to give evidence against the applicant.
If bail is not granted the applicant will not come to committal until he has been incarcerated for a period of at least 18 to 19 months. There appears to me to be a high probability that he will not come to trial in less than three years from his arrest even if the committals take place at the earliest possible time in May 2003.
As I said in the course of handing down my decision on the last application for bail on 9 August 2002, our society will not, and should not, tolerate what is effectively the indefinite detention awaiting trial of persons such as the applicant whilst an investigation such as that currently underway takes place.
The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial; that is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay.
This view, as I said previously, appears to me to be supported by the decision of Crockett, J. in R. v. Petrebon, (unreported) 13 January 1988.
There is a significant issue of principle before the court in relation to this application.
As Vincent J said in R v Medici (unreported 27 September 1993), this is not an occasion “for the court to act as Pontius Pilate by washing its hands of the matter”. As I have said previously, it is not sufficient to say “we will wait and see”. The community will not tolerate the indefinite detention of its citizens with no prospect of charges being tried within a reasonable period. Accordingly, despite the nature of the offences with which the applicant is charged, and despite the serious reservations that I have expressed about the granting of bail, the situation facing the applicant cannot be allowed to exist indefinitely.
For those reasons I propose to grant bail subject to strict conditions.
The application in relation to the State charges shall be granted and bail will be fixed in the defendant's undertaking with sureties to a total value of $1 million. Special conditions are that the defendant report to the police station at Coburg. Frequency of attendance shall be twice daily; time of attendance between 8.00 a.m. and 12.00 p.m. and 5.00 p.m. and 9.00 p.m.; to reside at 36 Canberra Street, Brunswick; to notify the informant within 24 hours of any proposed change of address and change of reporting station as directed by the informant; to surrender any passport held and not to apply for any other; not to attend any point of international departure, and not to contact witnesses for the prosecution other than the informant. That is the State matter.
In the Commonwealth matter the application is granted. Bail is fixed in the defendant's own undertaking. There is a surety fixed on bail on the State proceedings. The defendant is to report to Coburg police station twice daily, between 8.00 a.m. and 12.00 p.m. and 5.00 p.m. and 9.00 p.m.; to reside at 36 Canberra Street, Brunswick; to notify the informant within 24 hours of any proposed change of address and change of reporting station as directed by the informant; to surrender any passport held and not to apply for any other; not to attend any point of international departure; not to contact witnesses for the prosecution other than the informant; not to contact co‑accused Banda, S. Schmidt, P. Schmidt and Carras, and I suppose the court order should note that sureties are fixed in relation to whatever number the state proceeding is .
I will leave the surety on the State proceedings and put a note on the other order that sureties have been fixed and that, as I see it, it is a joint surety in respect of both prosecutions.
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