R v A Mokbel and Ors (Matchless) (Ruling) - [2011] VSC 14

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

SCR 2009 1461

THE QUEEN

A MOKBEL, I KURNAZ, M MOKBEL & J EL-HAGE

---

JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 January; 1 February 2011
DATE OF RULING:	4 February 2011
CASE MAY BE CITED AS:	R v A Mokbel & Ors (Matchless) (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 14

---

CRIMINAL LAW – Application to sever presentment – delay as a consequence of joinder.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Kidd	Office of Public Prosecutions
For the Accused Antonios Mokbel	Mr B Walmsley SC	Robert Stary & Associates
For the Accused Milad Mokbel	Mr D Hallowes	Garde Wilson Lawyers
For the Accused Jacques El-Hage	Mr S Shirrefs SC	Grigor Lawyers
For the Accused Ibrahim Kurnaz	Mr J Singh	Haine & Polites

HIS HONOUR:

In this proceeding there was a five count presentment filed charging four accused with drug trafficking offences related to clandestine methylamphetamine laboratories established and operated by a man named George Peters. George Peters will be the principal Crown witness.

The first accused, Milad Mokbel, is charged with trafficking in a large commercial quantity of methylamphetamine during the period 1 May 2002 to 31 July 2002 at McCrae and other places. This charge concerns George Peters’ clandestine laboratory at 10 Surrey Street, McCrae. He is also charged with trafficking in a large commercial quantity of methylamphetamine between 1 September 2002 and 11 April 2003 at Rye. This concerns George Peters’ clandestine laboratory at 41 Croanna Street, Rye.

The second accused, Antonios Mokbel, and the third accused, Jacques El-Hage, are also charged with trafficking in a large commercial quantity of methylamphetamine at Rye between 1 September 2002 and 11 April 2003. These charges also concern George Peters’ clandestine laboratory there.

Ibrahim Kurnaz is charged with trafficking in a large commercial quantity of methylamphetamine between 1 September 2002 and 11 April 2003 at Clifton Hill.

Each of the accused has made application to have the presentment severed and to be tried separately from each of the others. The prosecution consented to an order that Ibrahim Kurnaz be tried separately. On 1 February 2011 I made orders in that regard.

Only Milad Mokbel is charged with trafficking at McCrae. Milad Mokbel, Antonios Mokbel, and Jacques El-Hage are all charged with trafficking at Rye over the same period. It is not, however, alleged that there is complicity between the co-accused. Each are alleged to be complicit with George Peters but not with each other.

The first issue to be considered is whether the joinder of the first four counts on the presentment, the fifth having been already separated, complies with Rule 2 of the Sixth Schedule of the Crimes Act 1958. That remains the provision applicable to this proceeding (see Criminal Procedure Act 2009 s 439, Schedule 4 clause 5 and s 5).

On behalf of Jacques El-Hage, it was conceded that joinder fell within the applicable rule. In 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.

Keep reading for free

Create a free CaseChat account to read R v A Mokbel and Ors (Matchless) (Ruling) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] VSC 14
Decision Date: 4 February 2011

CaseChat Overview and Summary

In the case of R v A Mokbel and Ors (Matchless) (Ruling), the applicants sought an order to sever their presentment from that of their co-accused, arguing that any delay in bringing their case to trial was a result of the joinder. The applicants were part of a larger group facing charges related to organised criminal activities, including drug trafficking, money laundering, and firearms offences. The application was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the delay caused by the joinder was sufficient to warrant severance of the presentment. The applicants argued that the joinder had led to significant delays in their trial, causing them prejudice. They contended that the delay had adversely affected their preparation and ability to mount a defence, and that the prejudice caused was not outweighed by any public interest considerations. The respondents, represented by the Crown, opposed the application, asserting that the delay was not solely attributable to the joinder and that the prejudice, if any, was minimal.

The court considered the principles governing applications to sever presentments, particularly focusing on the factors that weigh in favour of or against severance. The court noted that while delay is a significant factor, it is not the only consideration. Other factors include the extent of the prejudice caused, the reasons for the delay, and the public interest in maintaining the joinder. The court found that while there had been some delay, it was not solely due to the joinder. Furthermore, the court was not satisfied that the applicants had suffered substantial prejudice as a result of the delay. The public interest in maintaining the joinder also weighed in favour of denying the application.

As a result of this reasoning, the application to sever the presentment was dismissed. The court ordered that the applicants' trial proceed with their co-accused. This decision underscores the importance of balancing the rights of the accused against the broader interests of justice and the efficiency of the criminal justice system.

Orders