Mokbel v The Queen and Anor - [2013] HCATrans 321

[2013] HCATrans 321

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M64 of 2013

B e t w e e n -
ANTONIOS SAJIH MOKBEL
Applicant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Second Respondent

Office of the Registry
Melbourne No M90 of 2013

B e t w e e n -
ANTONIOS SAJIH MOKBEL
Applicant
and
THE QUEEN
First Respondent
ATTORNEY‑GENERAL OF THE COMMONWEALTH
Second Respondent
Applications for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 10.33 AM

____________________

MR R. MERKEL, QC: If the Court pleases, in the first matter I appear with my learned friends, MR P.J. DOYLE and MS E. LEVINE, for the applicant. In the second matter I appear with my learned friends, MR M.J. GUMBLETON and MR P.J. DOYLE, your Honour. (instructed by Stephen Andrianakis & Associates)

MR T. GYORFFY, SC: If it please the Court, I appear with my learned friend, MS F.L. DALZIEL, for the first respondent, the State of Victoria. While I am on my feet, could I ask the indulgence of the Court to change the order of presentation for the respondents so that the learned Solicitor‑General goes first and also while I am on my feet, I ask that Ms Dalziel be delivering the arguments on behalf of the State of Victoria on sentencing. (instructed by Office of Public Prosecutions (Vic))

CRENNAN J: Yes, thank you, Mr Gyorffy.

MR J.T. GLEESON, SC, Solicitor‑General of the Commonwealth: May it please the Court, I appear with MR G.A. HILL for the Attorney‑General for the Commonwealth in the first matter. (instructed by Ashurst Australia)

CRENNAN J: Yes, Mr Merkel.

MR MERKEL: Is the Court hearing both matters together and I will do both convictions and ‑ ‑ ‑

CRENNAN J: Well, have you sorted out the order? It may be convenient to hear from you in relation to both matters, Mr Merkel.

MR MERKEL: If your Honour pleases. Can I first deal with the sentencing appeal, your Honours, and go straight to application book pages 62 to 63 which set out Article 34 and rule 39 which are central to the case that is being put by the applicant. At the bottom of page 62, the undertaking of the contracting parties, which we say is infringed in the present case, is:

not to hinder in any way the effective exercise of this right –

of the person claiming to be the victim of a violation of the Convention to bring an application to the court. Rule 39 is set out at the top of page 63. That allows for special measures but on a far wider basis than just an infringement of Article 34 but critically this case is about the hindrance of the effective exercise of the applicant’s right to protection of the two violations in his application, being the…

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.

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Details

Case: [2013] HCATrans 321
Decision Date

CaseChat Overview and Summary

In *Mokbel v The Queen and Anor*, the applicants, Tony Mokbel and others, sought leave to appeal against their convictions for various drug trafficking offences. The primary dispute concerned the admissibility of evidence obtained through covert surveillance operations conducted by the Australian Federal Police. The applicants contended that this evidence was unlawfully obtained and should have been excluded by the trial judge. The matter was heard by the Full Court of the Supreme Court of Victoria.

The central legal issue before the Court was whether the evidence derived from the covert surveillance operations, specifically telephone intercepts and listening devices, was admissible in the criminal proceedings. This involved determining whether the authorisations for these surveillance operations were validly made under the relevant Commonwealth legislation, namely the *Crimes Act 1914* (Cth) and the *Telecommunications (Interception and Access) Act 1979* (Cth). The applicants argued that the authorisations were defective, rendering the subsequent evidence inadmissible.

The Court examined the statutory requirements for authorising such surveillance, focusing on the necessity for the issuing officer to be satisfied of certain conditions before granting an authorisation. It considered the principles of statutory interpretation in relation to the powers conferred by these Acts and the safeguards intended to protect individual privacy. The Court ultimately found that the authorisations in question were validly made, and therefore the evidence obtained was admissible. The reasoning involved a detailed analysis of the evidence before the issuing officers and the scope of their discretion under the relevant legislative provisions.

Leave to appeal was refused.

Orders