Mokbel v DPP (Vic) & DPP (C'th) - [2007] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 1502 of 2001
No 1420 of 2005

RENATE LISA MOKBEL

Appellant

DIRECTOR OF PUBLIC PROSECUTIONS (VIC)

First Respondent

– and –

DIRECTOR OF PUBLIC PROSECUTIONS (C’TH)

Second Respondent

---

JUDGES:	MAXWELL P and VINCENT and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2007
DATE OF ORDER:	28 June 2007
REASONS FOR JUDGMENT:	14 September 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 195

---

CRIMINAL LAW – Forfeiture of bail – Relief – Appeal against trial judge’s refusal to rescind or vary previous financial undertaking proffered by appellant – Principles governing exercise of discretion – Crown Proceedings Act 1958 (Vic) s 6(4) – Appellant found to be a witness without credibility – Apprehended bias – Whether trial judge should have disqualified himself – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C G Juebner	Lewenberg & Lewenberg
For the First Respondent	Mr T Gyorffy with Mr T J McLean	Ms A Cannon, Solicitor for Public Prosecutions
For the Second Respondent	Mr S G O’Bryan, SC with Mr S O’Sullivan	Solicitor for the Commonwealth DPP

MAXWELL P
VINCENT JA
ASHLEY JA:

On 14 December 2006, Gillard J refused an application by the appellant that orders earlier made by him under s 6(1) of the Crown Proceedings Act 1958 (Vic) be varied or rescinded. An appeal came on before this Court on 28 June 2007. After hearing argument, the appeal was dismissed, with the Court informing the parties that our reasons for judgment would be delivered at a later date.

The matter arose against the following background.

On 26 November 2004, Antonios Sajih Mokbel was committed for trial on a number of Commonwealth charges relating to the importation and trafficking of drugs of addiction. Bail was fixed on the provision of his own undertaking and a surety of $1,000,000.

The appellant, who is the sister-in-law of Mr Mokbel, on the same day, signed an undertaking in respect of his appearance at trial. This was supported by an affidavit sworn by her, containing statements to the effect that her real estate consisted of a dwelling house at 11 Downs Street, Brunswick which was worth not less than the amount required as surety. It later emerged that the property was registered in the name of J R Mokbel Pty Ltd, a company that held the property as trustee of a discretionary trust. The appellant was the sole director and shareholder and a beneficiary under the trust.

On 15 February 2005, in relation to State charges, the appellant again signed an undertaking in respect of Mokbel’s appearance at trial. It was supported by an affidavit to similar effect.

The principal remained on bail during his subsequent trial[1] until, in the course of his final address, an application was made by the prosecutor for its revocation. Gillard J, the trial judge, decided, on Friday 17 March 2006, in conformity with a practice that has become relatively common over recent years, that bail would continue…

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 (Vic) & DPP (C'th)

Details

AGLC: Mokbel v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (C'th) [2007] VSCA 195
Case: [2007] VSCA 195
Decision Date: 14 September 2007

CaseChat Overview and Summary

The matter under consideration in Mokbel v DPP (Vic) & DPP (C'th) involved the appellant, Mokbel, who appealed against the trial judge's refusal to rescind or vary a previous financial undertaking. The appellant sought relief in relation to his bail, which was forfeited due to concerns about his credibility as a witness and potential bias in the trial judge. The case was heard in the Supreme Court of Victoria, which had appellate jurisdiction over the matter.

The central legal issues before the court were whether the trial judge had erred in refusing to rescind or vary the financial undertaking, and whether the trial judge should have disqualified himself due to apprehended bias. The appellant argued that the trial judge should have recused himself due to concerns about bias, and that the trial judge had incorrectly exercised his discretion under the Crown Proceedings Act 1958 (Vic) s 6(4). The appellant also contended that he was a credible witness and that the trial judge's findings to the contrary were erroneous.

The court considered the principles governing the exercise of discretion by the trial judge in relation to the financial undertaking, as well as the issue of apprehended bias. The court found that the trial judge had not erred in refusing to rescind or vary the financial undertaking, as the appellant had not demonstrated any error in the trial judge's exercise of discretion. The court also found that the trial judge had not been biased, and that there was no basis for his disqualification. The court held that the trial judge's findings regarding the appellant's credibility as a witness were not erroneous. Consequently, the appeal was dismissed.

No further orders were made by the court beyond the dismissal of the appeal. The court upheld the trial judge's decisions and found no grounds for the appellant's claims of error or bias.

Orders