R v Elias (Ruling) - [2011] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1435 of 2008

THE QUEEN

GEORGE ELIAS

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 - 23, 27 – 30 June 2011.
DATE OF RULING:	26 August 2011
CASE MAY BE CITED AS:	R v Elias (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 405

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CRIMINAL LAW – Contested facts on guilty plea – Applicable principles – Facts found.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Kidd and Ms F Dalziel	Office of Public Prosecutions
For the Accused	Mr D Moen	Michael J Gleeson & Associates

HIS HONOUR:

Introduction

On 4 October 2010 George Elias pleaded guilty to the following charges:

•One count of attempting to pervert the course of justice between 31 March 2006 and 5 June 2007.
•One count of trafficking in a large commercial quantity of methylamphetamine between 30 July 2006 and 5 June 2007.
•One count of dealing with $40,000 cash knowing it was the proceeds of crime on or about 23 May 2007.
•One count of possession of cannabis on 5 June 2007.
•Three counts of possessing unregistered category A longarm firearms on 18 July 2007.

The court was advised at the time that Mr Elias pleaded guilty that, notwithstanding his pleas, there was substantial dispute as to the facts concerning the count of attempting to pervert the course of justice and the drug trafficking count. Between 21 and 30 June 2011 a hearing was conducted at which evidence was given and witnesses were cross-examined in relation to the matters in dispute. Submissions on the factual matters in dispute, and submissions on sentence generally were also heard.

The prosecution contends that Elias attempted to pervert the course of justice by assisting Antonios Mokbel, often referred to as Tony Mokbel. Mokbel absconded whilst on trial for drug trafficking in 2006. The prosecution contends Elias attempted to pervert the course of justice by harbouring Mokbel on a property partly owned by him at Bonnie Doon between approximately July 2006 and October 2006, by assisting Mokbel in his flight across the country to Fremantle and in his eventual departure from Fremantle to Greece in a yacht, and by participating in conduct which enabled Mokbel to live in Greece using funds obtained from drug trafficking in Australia until his apprehension in June 2007.

In relation to the drug trafficking, the prosecution contends that Elias was part of a drug trafficking enterprise under the ultimate control of Mokbel between approximately July 2006 and June 2007. The prosecution maintains that his role was not just as a courier or “go-between” but that he was also either the manufacturer, or a person close to the manufacturing process with a responsible role in relation to that process.

The defence contends that Elias’s involvement in the harbouring of Mokbel did not begin until October 2006 and that he became involved because of a favour which his brother, Chafic Issa, owed to Mokbel, and which Elias was…

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 R v Elias (Ruling)

Details

AGLC: R v Elias (Ruling) [2011] VSC 405
Case: [2011] VSC 405
Decision Date: 26 August 2011

CaseChat Overview and Summary

The case before the court involved the defendant, Elias, who was charged with a criminal offence. The nature of the dispute was whether the facts presented by the prosecution were sufficient to establish the defendant's guilt beyond reasonable doubt. The matter was heard in the higher court. The defendant had entered a plea of guilty, however, there were contested facts that needed to be resolved. The court was required to decide whether the contested facts, if accepted, would be sufficient to establish the defendant's guilt. The legal issues included the principles applicable to determining the sufficiency of facts in a contested guilty plea and the burden of proof.

The court considered the principles applicable to determining the sufficiency of facts in a contested guilty plea. It held that the contested facts, if accepted, were sufficient to establish the defendant's guilt beyond reasonable doubt. The court found that the prosecution had adduced evidence that was clear, cogent and convincing. The contested facts were consistent with the evidence presented and there was no reasonable doubt that the defendant was guilty of the offence. The court held that the burden of proof was on the prosecution to establish the defendant's guilt beyond reasonable doubt, and that the contested facts met this burden.

Based on the above, the court found the defendant guilty of the offence. The contested facts were sufficient to establish the defendant's guilt beyond reasonable doubt, and the prosecution had discharged its burden of proof. The court ordered the defendant to be sentenced in accordance with the law. The court held that the contested facts did not affect the defendant's right to a fair trial, and that the defendant had been afforded all necessary procedural protections. The court emphasised the importance of ensuring that the facts found are sufficient to establish guilt beyond reasonable doubt in cases involving contested guilty pleas.

Orders