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

v

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

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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

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

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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:

1. 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. 

1. 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. 

1. 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. 

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

1. 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. 

1. 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. 

1. 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).

1. On behalf of Jacques El-Hage, it was conceded that joinder fell within the applicable rule.  In the written submission filed on behalf of Antonios Mokbel it was not conceded that joinder fell within the rule, but in the course of oral submissions this issue was described as not being “a significant bone of contention” and it was submitted that the offences “can perhaps fit under that umbrella and be, as a matter of strict technicality, joined under that procedure”.  The burden of the argument made orally concerned the discretion to sever.  On behalf of the accused Milad Mokbel, a submission was made that the joinder was not proper on the basis that the factual nexus is insufficient. 

1. In R v Gregory (Ruling)[1] I set out what seemed to me to be the applicable legal principles and the principal authorities in relation to the joinder rule.  I will not set those principles out again but I proceed on the basis there set out.  In the circumstances of this case, I supplement those authorities with an authority referred to by counsel for Antonios Mokbel, R v Assim[2], a decision of five judges in the English Court of Criminal Appeal.  The decision in that case was approved by the House of Lords in In Re Clayton[3].  For present purposes those decisions confirm that accused who are not alleged to have been complicit with each other can be joined on one presentment provided there is sufficient nexus to warrant it. 

   [1][2009] VSC 358.

   [2][1966] 2 QB 249.

   [3][1983] 2 AC 473.

1. It is not alleged that the three accused remaining on this presentment acted in concert or were otherwise complicit in each other’s offences but the offences are factually related and in my view they are sufficiently related to fall within Rule 2.

1. It was in relation to the exercise of the discretion to sever that the oral argument before me was almost entirely concerned.

1. On behalf of the three accused it was submitted, in substance, that a joint trial will result in prejudicial inadmissible evidence being led.  It was submitted that this problem could not be appropriately addressed by judicial directions and was exacerbated by the circumstance that the principal Crown witness will be a person who is an accomplice, separately, with each accused.  It was also submitted by the accused other than Antonios Mokbel that association with him was prejudicial due to the extensive publicity he had received.  The prosecution submitted that these issues could be appropriately addressed by direction and also submitted that, in any event, it was inevitable that a substantial body of material concerning each of the other accuseds would be led on any separate trial.

1. The prosecution has filed a detailed summary of opening but the accused have not filed responses as yet.  Notwithstanding the absence of responses, significant parts of the submissions made on behalf of each accused were premised on assertions as to what would and would not be in issue in the trial or trials.

1. On issues of cross-admissibility, counsel sought to make good their submissions before me, by illustrations and examples.  In the circumstances, I do not consider that a conclusion justifying the exercise of the discretion to sever can be reached on that basis. 

1. The principles which are applicable where an issue arises concerning what I may call cross-admissibility in the severance context were set out by me in R v Gregory (No 2)[4].

   [4][2009] VSC 509.

1. Counsel for Jacques El-Hage and Milad Mokbel made submissions in support of the exercise of a discretion to sever on a further basis.

1. Antonios Mokbel is facing a series of trials in this Court.  The prosecution has submitted that a particular trial, referred to as “Magnum” (SCR 2009 1634), should proceed first.  At present that is the course being pursued.  It is not possible to say when that trial will be completed.  It was submitted that if Milad Mokbel and Jacques El-Hage remain on the one presentment with Antonios Mokbel not only will they be without a definite trial date but it is impossible to say when they will have a definite trial date.  It was put that this situation justified the exercise of the discretion to sever; particularly given that the offences are alleged to have been committed a long time ago, that they have already been awaiting trial for a considerable period; and that, even if the evidence overlaps, it is not alleged that they were complicit with Antonios Mokbel.  The submissions in this respect relied upon both the common law position in relation to delay as addressed in Jago v District Court of NSW[5], and upon the right to be tried without unreasonable delay in s.25(2) of the Charter of Human Rights and Responsibilities. As I understand the submissions, it was not being put that unreasonable delay had already occurred, or would inevitably occur, but rather that, as Brennan J (as he then was) put it in Jago, the circumstances here required the Court to “…so mould [its] procedures as to avoid unnecessary delays”.

   [5](1989) 168 CLR 23.

1. I accept the submissions made on behalf of Milad Mokbel and Jacques El-Hage on the issue of delay. If it is necessary to sever the presentment in order to give Milad Mokbel and Jacques El-Hage a fixed trial date, I will do so.  Having discussed the matter with the principal judge in the criminal division, I can indicate that if the counts against Milad Mokbel and Jacques El-Hage are severed from the count against Antonios Mokbel, the trial or trials can be heard in this Court. 

1. For the reasons I have given I make the following ruling and give the following directions:

(a)I rule that the joinder of the four counts against Antonios Mokbel, Milad Mokbel and Jacques El-Hage complies with Rule 2 of the Sixth Schedule of the Crimes Act 1958.

(b)I direct that each accused file and serve his defence response to the summary of the prosecution opening by 4.00 pm on 21 February 2011.

(c)I adjourn the further hearing of the applications to sever the presentment to the directions hearing on 28 February 2011.

1. I will hear the parties on whether any further directions should be made at this stage.