R v Antonios Mokbel (Magnum) (Ruling No 1)

[2010] VSC 541

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SC 2009 1634

THE QUEEN

v

ANTONIOS SAJIH MOKBEL

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2010
DATE OF RULING:	25 November 2010
CASE MAY BE CITED AS:	R v Antonios Mokbel (Magnum) (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 541

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CRIMINAL LAW – Admissibility of evidence – Evidence accused a “fugitive” at time of alleged offence – Relevance – Exclusion under s 135 and s 137 Evidence Act.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	P Kidd & F Dalziel	Solicitor for Public Prosecutions
For the Accused	P Faris QC and M Mahady	Robert Stary & Associates

HIS HONOUR:

1. The accused is charged that at Melbourne in Victoria and at other places between 5 July 2006 and 5 June 2007 he trafficked in methylamphetamine in a quantity not less than a large commercial quantity.

1. The prosecution case is that between the dates specified the accused ran an enterprise engaged in the wholesale manufacture and distribution of raw methylamphetamine.  It is alleged that the accused was the principal of this enterprise.  Other persons who are alleged to have been part of the enterprise are Joseph Mansour and Bartholomew Rizzo, who are said to have been the organisers of the enterprise within Victoria, and two brothers, George Elias and Chafic Issa, who are alleged to have been “confidants” of the accused.  I mention those participants because of their relevance to the current matter in issue.  There are a number of other persons who are alleged to have been participants in the drug trafficking enterprise. 

1. The prosecution wishes to lead evidence directed towards establishing the following matters:

(a)In March 2006 the accused was on trial in the Supreme Court of Victoria when he absconded whilst on bail.  The trial continued in his absence and he was convicted and sentenced to a substantial term of imprisonment. 

(b)The accused initially hid in Victoria, and he was assisted in that regard by Elias and Issa.  He was then transported to Western Australia, again with the assistance of Elias and Issa.  In November 2006 he left Australia on a yacht named the “Edwina”.  The prosecution seeks to lead evidence which it says establishes that this yacht was, in part at least, acquired and made ready for the voyage using the proceeds of the drug trafficking enterprise, and that other expenses of the accused’s flight were met out of the proceeds of the drug trafficking enterprise.

(c)The accused arrived in Greece towards the end of 2006 and continued conducting the Victorian drug trafficking enterprise from Greece using dedicated mobile phones for that purpose.  Amongst the instructions he gave were instructions as to the disposition of the proceeds of the drug trafficking enterprise.  Amongst those dispositions were payments made to maintain him in Greece.

1. The prosecution case is set out in a Summary of Prosecution Opening dated 30 September 2010.  This ruling assumes knowledge of that summary.

1. Counsel on behalf of the accused object to the prosecution leading evidence of the accused’s trial, his absconding on bail, his conviction and sentence, the arrangements made for him to leave Australia, and the financing of those arrangements.[1] Counsel for the accused object on the grounds that the evidence is not relevant and, if it is held to be relevant, that it should nevertheless be excluded in the exercise of discretion under s 135 of the Evidence Act 2008 (“the Act”), or pursuant to s 137 of the Act.

   [1]The specific evidence objected to is that set out in the Summary of Prosecution Opening at [29]-[34], [40], [45], [55]-[60], [81], [218-297].

1. Counsel for the prosecution submit that the evidence is relevant in a number of ways.

1. First, it is submitted that the evidence will establish that the drug enterprise funded the accused’s flight from Australia.  This fact, it is said, affects the probability of the accused being the principal of that enterprise.  In the course of submissions counsel for the prosecution took me through some of the evidence in detail.  I will not repeat that exercise.  In large part it may be found in the prosecution’s written submission which is cross-referenced to the Summary of Opening which is in turn cross-referenced to the depositions.  Counsel for the prosecution particularly relied upon entries in computerised records referred to as “the Bill”.  These records are said to be the accounts of the drug trafficking enterprise.  Entries recording payments said by the prosecution to be referrable to the accused’s flight from Australia are in those accounts. 

1. The prosecution also submit that the evidence is relevant on other grounds.  First, it is said that without it, it would be impossible to make sense of the evidence as to how the various participants conducted themselves.  This ground was referred to generally as “context”.  Secondly, it is said to be relevant to establishing the nature of the relationships between key participants, and in that respect particular reliance was placed upon the nature of the relationship between the accused on the one hand and Issa and Elias on the other.  This ground was referred to generally as “relationship”. 

1. In relation to the context ground, it was submitted that the evidence is essential in order to understand why the accused conducted the drug trafficking enterprise remotely.  Without this evidence his physical absence is a factor which potentially weakens the prosecution case by suggesting his role was less than what it was.  It was also submitted that there will be evidence of a great number of particular incidents which can only be properly understood if the evidence that the accused was a fugitive is led.  These incidents concern the role of the intermediaries, initially the person referred to as Freddie and later Issa; discussions between the participants about the accused’s need to leave the country and how he was going to leave; arrangements made for communication between the accused and other participants in the drug trafficking enterprise after his departure using dedicated mobile phones; dispositions of proceeds from the drug trafficking enterprise to overseas destinations, particularly those designated in euros; and a number of other matters set out in the oral submissions.[2]

   [2]Particular reference was made to the matters referred to in the Summary of Prosecution Opening at [41], [45]-[54], [55], [57], [59], [60], [63], [194] and [295].

1. In relation to the ground of relevance referred to as “relationship”, emphasis was placed by counsel for the prosecution upon the role of Elias and Issa.  Those two are said to be shown by the evidence as being intricately involved in both the drug trafficking enterprise and the flight.  The prosecution wish to establish their very close association with the accused and the overlap between the accused’s flight and the drug trafficking enterprise as revealed by their activities.

1. Finally, it is submitted on behalf of the prosecution that the evidence of one of its principal witnesses, Mansour, is supported by the evidence objected to and will in many respects be incomprehensible or misleading without that evidence. 

1. The prosecution rely upon R v FDP[3]; R v Quach[4]; Harriman v R[5]; R v Sukkar.[6] The prosecution disavows reliance on the evidence for a tendency purpose. The accused was on trial for a drug trafficking offence. The prosecution does not intend to lead evidence of the offence for which he was on trial. No submission was made that s 97 of the Act applies.

   [3][2008] 74 NSWLR 645.

   [4][2002] 137 A Crim R 345.

   [5](1989) 167 CLR 590.

   [6][2005] NSWCCA 54.

1. In relation to relevance it was submitted on behalf of the accused that the issue of the accused’s “remoteness” from the enterprise could be appropriately dealt with by merely leading evidence that he was out of the jurisdiction at the relevant time, or was not in Melbourne at the relevant time.  It was also submitted that the relationships between the various parties would be amply revealed by evidence other than the evidence objected to, and in particular by evidence of intercepted phone calls.  Counsel for the accused did not address the specifics of the prosecution evidence but did submit that it was “so remote and tenuous (both in its various descriptions in ‘the Bill’ and in its links to Mokbel himself) that it has no probative value and therefore is not relevant to the facts in issue”.

1. Without suggesting that at any time counsel resiled from the submissions that the evidence was not relevant, significant reliance was placed in oral submissions upon the prejudicial effect of the evidence, the significant risk that it would be misused as tendency evidence by the jury, what was said to be the ineffectiveness of any direction in that regard, and the consequent need for the exercise of discretion to exclude the evidence under s 135 of the Act, or the requirement to exclude it under s 137.

1. The risk of misuse was exacerbated in this case, it was submitted, by the prejudicial publicity to which the accused had been subjected.  It was also submitted that the quantity of evidence sought to be led on these issues was out of proportion to any possible probative value and that the evidence would cause confusion and waste of time. 

1. The prosecution submitted that the evidence was of high probative value and that although there was a risk of prejudice that could be overcome by direction. The prosecution submitted that any truncated account of the accused’s whereabouts would be unsatisfactory and misleading. As to s 135 and s 137 of the Act, the prosecution referred to R v DG.[7]

   [7][2010] VSCA 173.

1. My conclusion is that the evidence objected to is relevant for each of the reasons contended for by the prosecution. 

1. In relation to the first way in which the prosecution says that the evidence is relevant, for present purposes it suffices for me to say that, upon the material I was taken to, the inference could be drawn that entries in “the Bill” record payments made for the accused’s flight from Australia.  When combined with other evidence, particularly the evidence as to what “the Bill” was, the objected to evidence could rationally affect the assessment of the probability that the accused was the principal of the drug trafficking enterprise conducted in Victoria by Mansour, Rizzo, Elias, Issa and others.  I do not accept the submission put on behalf of the accused that the evidence is too tenuous and remote to be relevant.

1. Further, the evidence is also relevant as it provides essential context to the other evidence about what occurred in Victoria.  Indeed, without the objected to evidence, in my view that other evidence would in certain key respects be either incomprehensible or positively misleading.  The significance of the accused’s remoteness generally and his absence overseas can only be fairly and accurately assessed if the reason why he was remote and why he was absent is understood.  Indeed, without that evidence the accused’s remoteness and absence overseas would, it seems to me, otherwise be a circumstance tending to minimise his role.  This is a situation, such as was referred to by Dixon J (as he then was) in O’Leary v The King,[8] where without the evidence objected to the conduct which is alleged to constitute the offence cannot be truly understood.  As was the case in R v FDP,[9] the evidence objected to explains why the parties did what they did and said what they did, and why contact was made between them in the way in which it was.  

   [8](1946) 73 CLR 556, 577.

   [9][2008] NSWCCA 317, [36]-[37]; (2008) 74 NSWLR 645, 654.

1. The evidence is also relevant because it reveals the character of the association between the accused on the one hand and Issa and Elias on the other, and because it explains the relationship and the method of dealing with Mansour and in that respect supports and renders comprehensible his account of events.  In this respect my conclusion is that the principles explained in Harriman v The Queen[10] also apply here.

   [10](1989) 167 CLR 590.

1. As to s 135, I am not persuaded that the probative value of the evidence is substantially outweighed by the danger that it might be unfairly prejudicial to the accused, misleading or confusing, or cause or result in undue waste of time. I accept that there is a risk of the evidence being misused for a tendency purpose which will need to be carefully addressed in directions to the jury. I will hear submissions from counsel in relation to that at an appropriate time. It may be that it will be necessary to address the issue of prejudicial publicity. Those matters can be appropriately dealt with by direction.

1. As to s 137, I do not consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused. The evidence does in my view have significant probative value. There is a risk of unfair prejudice, in the sense that the evidence might be misused for a tendency purpose, but that matter can and will be appropriately addressed by directions.

1. I accordingly overrule the objection.