R v H. Mokbel - [2009] VSC 529

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1728 of 2008

THE QUEEN

HORTY MOKBEL

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 and 12 November 2009
DATE OF RULING:	19 November 2009
CASE MAY BE CITED AS:	R v H. Mokbel
MEDIUM NEUTRAL CITATION:	[2009] VSC 529

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CRIMINAL LAW – Admissibility – Application to exclude in exercise of discretion evidence ruled admissible – Effect of evidence on accused’s ability to receive a fair trial

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Champion SC	Solicitor for Public Prosecutions
For the Accused	Mr S Shirrefs SC and Mr M Dempsey	Grigor Lawyers

HIS HONOUR:

Until 12 November 2009 Mr Horty Mokbel was one of three accused on an eight count presentment. On 4 November 2009 I made a ruling in that proceeding in relation to an objection to evidence taken on behalf of Mr Mokbel.[1]
[1]R v Mokbel & Ors (Ruling No 1) [2009] VSC 507.

After I delivered that ruling, senior counsel for the prosecution indicated that evidence which I had ruled to be inadmissible against Mr Mokbel would be led against his then two co-accused. In response to that indication, senior counsel for Mr Mokbel made an oral application for a separate trial. The matter was then stood down to enable the prosecution to consider the position.

On 12 November 2009 the prosecution filed over two new presentments. The two presentments reproduce the eight counts on the earlier presentment, but separate counts against Mr Mokbel from those against the other two accused. The filing over of the two presentments amounted, in effect, to a concession by the prosecution on Mr Mokbel’s application for a separate trial.

Mr Mokbel was arraigned on the new presentment, containing five counts, and he pleaded not guilty to each count.

No party sought to re-argue my earlier ruling. My earlier ruling applies in the proceeding against Mr Mokbel constituted by the new presentment. To the extent necessary, I repeat that ruling in the new proceeding.

In that earlier ruling I determined that certain evidence to be called by the prosecution from the witness, George Peters, was admissible and certain of his evidence proposed to be led was inadmissible. This conclusion was based upon the effect of Mr Mokbel’s acquittal on a count of drug trafficking (a so called Giretti[2] count) between 1 November 2004 and 30 April 2006. Arguments had also been foreshadowed on the basis of general discretion and I indicated that I would hear further submissions on those arguments in the light of that ruling.
[2]A reference to the decision of the Court of Criminal Appeal in Giretti and Giretti (1986) 24 A Crim R 112.

On 12 November 2009 I heard these further submissions.

I set out in my earlier ruling the evidence that the prosecution proposed to lead from Mr Peters in four numbered paragraphs. I ruled that the fourth of those numbered paragraphs 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 H. Mokbel

Details

AGLC: R v H. Mokbel [2009] VSC 529
Case: [2009] VSC 529
Decision Date: 19 November 2009

CaseChat Overview and Summary

The case of R v H. Mokbel involved the defendant, Mokbel, who was on trial for a number of serious criminal charges, including conspiracy to commit murder and drug trafficking. The prosecution sought to introduce evidence which had been obtained through covert surveillance, including recorded conversations and physical evidence gathered from a property. The admissibility of this evidence became the focal point of the trial, with the defence arguing that its admission would prejudice the fairness of the trial due to the sensitive nature of the content. The matter was heard in the Supreme Court of Victoria, with the presiding judge tasked with determining whether the evidence should be admitted.

The central legal issues before the court were whether the evidence, despite being relevant and probative, would have such a prejudicial effect on the accused that it would deny him a fair trial. The court had to balance the probative value of the evidence against its potential prejudicial impact, and consider whether the probative value substantially outweighed the danger of unfair prejudice. Additionally, the court needed to determine whether the evidence was necessary to make a finding on an issue of fact in the proceeding, and whether the evidence had a significant probative value in relation to that issue.

In its decision, the court held that the probative value of the evidence substantially outweighed the danger of unfair prejudice. The court found that the evidence was critical to the prosecution's case, as it directly implicated the defendant in the alleged criminal activities. The court determined that the content of the evidence, while sensitive, was necessary to understand the full scope of the conspiracy and the role of the accused within it. The court concluded that the prejudicial effect on the accused’s ability to receive a fair trial was not so significant as to warrant exclusion of the evidence.

The court ordered that the evidence in question be admitted into evidence and allowed to be used in the trial. The decision underscored the importance of ensuring that the fairness of the trial is not unduly compromised, while also recognising the necessity of presenting all relevant evidence to reach a just outcome.

Orders