Mokbel v the Queen - [2010] VSCA 354

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0424

ANTONIOS SAJIH MOKBEL
	Applicant
v
THE QUEEN
	Respondent

---

JUDGES	MAXWELL P, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	13 December 2010
DATE OF JUDGMENT	20 December 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 354
JUDGMENT APPEALED FROM	R v Mokbel [2010] VSC 541 (Unreported, Supreme Court of Victoria, Whelan J, 25 November 2010)

---

CRIMINAL LAW – Appeal – Interlocutory appeal – Pre-trial ruling on admissibility of evidence – Defendant facing trial on one count of trafficking in large commercial quantity of methylamphetamine – Crown case that defendant conducted trafficking after absconding from previous drug trial – Admissibility of evidence of defendant’s conviction and sentence in absentia – Whether probative value outweighed danger of unfair prejudice – Narrowing of argument on appeal – New argument not presented to trial judge – Crown concession not made before trial judge – Evidence excluded – Appeal allowed – Evidence Act 2008 (Vic) s 137, Criminal Procedure Act 2009 (Vic) s 295(3)(a).

---

Appearances:	Counsel	Solicitors
For the Crown	Mr P Kidd	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P Faris QC with Ms M A Mahady	Robert Stary Lawyers

MAXWELL P
REDLICH JA
WEINBERG JA:

The applicant is due to stand trial in early 2011, on one count of trafficking in a drug of dependence (methylamphetamine) in a quantity not less than a large commercial quantity. In the course of pre-trial proceedings, the trial judge has given a ruling on the admissibility of certain evidence which the prosecution seeks to lead. His Honour ruled that the evidence was admissible.

The defence sought leave to appeal from so much of that ruling as would make admissible the evidence relied on to establish the allegations in one particular paragraph of the ‘Summary of Prosecution Opening’ (‘Crown opening’). (We set out below the content of that paragraph.[1]) The trial judge certified under s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) (‘CPA’) that if the relevant evidence were ruled inadmissible, the prosecution case would be substantially weakened. The prosecution had made a concession to that effect.
[1]See [23].

In our view, leave to appeal should be granted and the appeal allowed. Our reasons are as follows.

Background to the appeal

The essentials of the Crown case, as set out in the Crown opening, are as follows:

The Crown case is that between the dates alleged on the presentment the accused Tony Mokbel ran a drug trafficking enterprise which concerned the wholesale manufacture and distribution of raw methylamphetamine (speed) for sale.
The drug trafficking enterprise involved the participation of many individuals, who performed different though inter-dependant roles.
Tony Mokbel was the principal of this enterprise. He established it. He coordinated it. He was the one who most benefited from it. It was his business. He had proprietary ownership over the raw or wholesale methylamphetamine manufacture. He made vast profits from it. He engaged the most senior personnel, and directly…

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] VSCA 354
Case: [2010] VSCA 354
Decision Date: 20 December 2010

CaseChat Overview and Summary

In the case of Mokbel v the Queen, the appellant, a defendant facing a trial for trafficking in a large commercial quantity of methylamphetamine, sought an interlocutory appeal against a ruling that excluded certain evidence. The appellant had previously absconded from a trial related to drug charges and the Crown intended to present evidence of the appellant’s conviction and sentence in absentia to establish a pattern of criminal behaviour. The appellant argued that this evidence should be admitted under section 137 of the Evidence Act 2008 (Vic) because its probative value outweighed the danger of unfair prejudice to the defendant. The trial judge excluded the evidence, finding that the danger of unfair prejudice outweighed its probative value.

The primary legal issue before the court was whether the trial judge erred in excluding the evidence of the appellant’s prior conviction and sentence. The court needed to consider the relevant provisions of the Evidence Act 2008 (Vic) and determine whether the probative value of the evidence outweighed the potential for unfair prejudice under section 137. Additionally, the court examined whether the appellant’s new argument on appeal, which was not presented to the trial judge, and the Crown’s concession, which was not made before the trial judge, could impact the admissibility of the evidence.

The court allowed the appeal and admitted the evidence, holding that the trial judge had erred in excluding it. The court found that the probative value of the evidence was significant in establishing the appellant's pattern of criminal behaviour, and the danger of unfair prejudice was not so substantial as to exclude it. The court noted that the appellant's new argument on appeal and the Crown’s concession were relevant factors that should have been considered by the trial judge. The court concluded that the evidence should have been admitted under section 137 of the Evidence Act 2008 (Vic) and ordered that the trial proceed with the evidence included.

Orders