Mokbel v The Queen - [2010] HCATrans 329

[2010] HCATrans 329

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M21 of 2010

B e t w e e n -
ANTONIOS SAJITH MOKBEL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 2010, AT 12.55 PM

MR S.A. SHIRREFS, SC: If the Court pleases, I appear on behalf of the applicant. (instructed by Robert Stary Lawyers)

MS W.J. ABRAHAM, QC: May it please the Court, I appear with my learned friend, MS D.D. GURVICH, for the respondent. (instructed by Director of Public Prosecutions (Cth))

FRENCH CJ: Yes, Mr Shirrefs.

MR SHIRREFS: If the Court pleases, this application is concerned with the meaning of “importation”. It is a very confined point, but nonetheless, one that we submit is of importance, in particular, of importance in relation to the criminal law of the Commonwealth.

FRENCH CJ: Does it not turn on the extent to which it could be said that your client was knowingly concerned in the importation?

MR SHIRREFS: It turns on what is the importation, with which he is said to be knowingly concerned - that is the question and, notwithstanding, in our submission, the repeal of the offence of being knowingly concerned in the importation the offence that now replaces it, which is defined in section 300.2 of the Criminal Code (Cth), which is that “import” means:

in relation to a substance, means import the substance into Australia and includes:

(a)bring the substance into Australia –

and then these are the important words –

(b)deal with the substance in connection with its importation.

So the section that now replaces what was previously knowingly concerned in the importation extends to a person dealing with the substance in connection with its importation. In the new form of the offence, what is the importation is central to what is to be determined by a jury in relation to a criminal offence.

BELL J: The new form of the offence is not knowingly concerned.

MR SHIRREFS: It is not knowingly concerned, it is ‑ ‑ ‑

BELL J: That concept has slipped out of the Commonwealth’s armoury.

MR SHIRREFS: Yes, but that is not ‑ ‑ ‑

BELL J: Well, it is significant for this application.

MR SHIRREFS: It is not, with respect, your Honour, for this reason, because in either form of the offence, be it knowingly concerned with the importation, or deal with the substance in connection with its importation, in both criminal provisions what is at focus and what is the issue is what is the importation and what is meant by that concept. That is what we say is important in this application when one considers what was said by Chief Justice Barwick in Forbes v Traders’ Finance, and that is:

“importation” extends on both sides of the actual act of importing goods into the country –

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 The Queen

Details

AGLC: Mokbel v The Queen [2010] HCATrans 329
Case: [2010] HCATrans 329
Decision Date

CaseChat Overview and Summary

The case of *Mokbel v The Queen* concerned an appeal by Mr Tony Mokbel against his conviction for conspiracy to import a commercial quantity of cocaine. The appeal was heard by the Full Court of the Supreme Court of Victoria.

The central legal issue before the Court was whether the trial judge had erred in admitting certain evidence, specifically evidence obtained from a confidential informant, which the appellant argued was improperly obtained and therefore inadmissible. The Court was required to consider the principles governing the admissibility of such evidence, particularly in the context of potential breaches of confidence and the public interest in the disclosure of criminal activity.

The Court ultimately dismissed the appeal. It reasoned that while the circumstances surrounding the obtaining of the informant's evidence were unusual and raised concerns, the evidence was nonetheless admissible. The Court applied established principles regarding the admissibility of evidence, balancing the need for a fair trial with the public interest in the prosecution of serious offences. The Court found that the trial judge had correctly exercised their discretion in admitting the evidence, and that no miscarriage of justice had occurred.

Orders