R v H. Mokbel
[2009] VSC 529
•19 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1728 of 2008
| THE QUEEN |
| V |
| 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 inadmissible on the ground that it would call into question Mr Mokbel’s acquittal, but that the first three numbered paragraphs were not inadmissible on that ground. Senior counsel for Mr Mokbel submits that the evidence in paragraph 2 should be excluded in the exercise of discretion. This ruling assumes a knowledge of the earlier ruling and in particular the four numbered paragraphs to which I have referred.
The basis upon which senior counsel for Mr Mokbel argued for exclusion on discretionary grounds was not because the evidence, in itself, had a prejudicial effect which outweighed its probative value. Rather, what was put was that admission of the evidence in paragraph 2 would mean that Mr Mokbel would be unable to receive a fair trial.
Senior counsel for Mr Mokbel characterised the decision to admit the evidence in paragraph 2 and to exclude the evidence in paragraph 4 as constituting an “artificial division” of Mr Peters’ account of what occurred in 2005 concerning the training of Mr Gavanas. Senior counsel for Mr Mokbel submitted that that artificial division meant that in order to test, and to dispute, Mr Peters’ evidence in paragraph 2 it would inevitably be necessary to address the matters which had been excluded in paragraph 4. A corollary of this, it was submitted, would be that all of the issues which were the subject of the trial where Mr Mokbel had been acquitted would inevitably be revealed. It was submitted that revealing to the jury the fact that Mr Mokbel had been acquitted in 2008 would be prejudicial, even if a judicial direction was given in appropriate terms about the need to give Mr Mokbel the full benefit of that acquittal. The submission was that once the evidence in paragraph 2 was led he, as counsel for Mr Mokbel, would have to make an unfair choice between inhibiting his cross-examination of Mr Peters so as not to reveal the earlier trial and acquittal, or attacking Mr Peters’ credit without inhibition thereby revealing the prejudicial matter being the earlier trial and the acquittal.
Senior counsel for Mr Mokbel further developed the submission by referring to the fact that there will be other evidence about the events in 2005 from Mr Scarpetti and that when that evidence is added to the evidence of Mr Peters in paragraph 2, which has been ruled to be admissible, the jury will inevitably engage in speculation which will traverse the acquittal.
It was submitted that the artificial division also means that Mr Peters will not be revealed to be an accomplice of Mr Mokbel’s in the activities in 2005 and that this would affect the warning which would need to be given about his evidence.
The further submission was made that the division would have the effect of enhancing Mr Peters’ credit as he may also not be revealed as a person who has made many allegations against Mr Mokbel and who has obtained a discount on sentences imposed upon him as a result.
On behalf of the prosecution it was submitted that the substance of the contention now made amounted to no more than saying that counsel for Mr Mokbel would face a difficult forensic choice. It was submitted that that was not a ground for excluding relevant and admissible evidence. Reference was made to the decision in R v Storey[3] where it was made clear that the jury could and should be given directions as to the effect of an earlier acquittal if that was necessary to ensure fairness. It was submitted that the High Court in Storey specifically recognised that there are circumstances where that must occur and where that is the appropriate way to address the position.
[3][1978] 140 CLR 364 (“Storey”).
I do not consider that the evidence I set out in paragraph 2 should be excluded in the exercise of a general discretion to ensure that the accused has a fair trial.
Much of the submissions of senior counsel for Mr Mokbel rested on the proposition that my earlier ruling led to an “artificial division” of relevant evidence. It is certainly true that it does lead to a division of Mr Peters’ evidence, but unless Mr Peters is to give a full account of all of the events in 2005, and perhaps earlier as well, some division is unavoidable. As soon as objection was taken on the basis that Mr Peters’ evidence would traverse the acquittal, it was inevitably necessary to consider which (if any) aspects of Mr Peters’ evidence would relevantly traverse or call into question the acquittal and which would not.
For the reasons which I set out in my earlier ruling, a particularly significant aspect of that consideration is the nature of the count of which Mr Mokbel was acquitted and the way in which that trial was conducted. As I indicated in my earlier ruling, given the nature of the count of which Mr Mokbel was acquitted and the way in which the earlier trial was conducted, even the evidence I set out in paragraph 4 was not inevitably inconsistent with the verdict of acquittal and could well have been characterised as constituting a single “instance”, which was not inconsistent with acquittal on a Giretti count. Given the importance of ensuring that an accused does get the full benefit of his acquittal, which includes not permitting the prosecution to run a case which calls into question that acquittal, I nevertheless ruled that that evidence is inadmissible when sought to be led by the prosecution.
It seems to me that the characterisation of the ruling which I have already made as constituting an “artificial division” does not assist. There must be division, whether characterised as artificial or not. The division which I have made in my earlier ruling is imposed only upon the prosecution. The prosecution can go only so far into the events involving Mr Peters in 2005 as does not call in question Mr Mokbel’s acquittal.
It is true that the admission of the evidence in paragraph 2 means that senior counsel for Mr Mokbel will need to carefully consider how he approaches Mr Peters’ evidence. Mr Peters’ credit can be attacked in a great variety of ways, as was demonstrated by his cross-examination in the earlier trial. His credit can be attacked on the basis of alleged general dishonesty and criminality over many years, on the basis of alleged specific instances of dishonesty in relation to court proceedings unrelated to Mr Mokbel, and in relation to a number of specific aspects of evidence he has given or statements he has made about Mr Mokbel. Senior counsel for Mr Mokbel will need to decide how it is best to approach the limited evidence which I have ruled that the prosecution can lead from Mr Peters against his client. If he considers it to be necessary to traverse matters which, on analysis, may lead the jury to speculate and call in question his earlier acquittal, I will direct the jury in the terms to which the High Court has referred so as to ensure that there is no unfairness as a result.[4]
[4]Storey, 397 per Mason J 425-5 per Aickin J; Washer v State of Western Australia (2007) 234 CLR 492, 506.
As to the submission that the inclusion of paragraph 2 may lead to a position where Mr Peters will not be revealed to be an accomplice or will otherwise not attract an appropriate direction or warning, I do not accept that that position cannot be adequately addressed. There are two matters of relevance in this connection. First, Mr Peters’ evidence in paragraphs 1 and 3 alone may be sufficient to attract an accomplice warning. Witnesses who attract an accomplice warning are not just those who are participants in the offences alleged against the accused. I will of course address that issue after hearing submissions on it. Secondly, the Court of Appeal has recognised that witnesses who may not technically be accomplices can attract a warning to the same effect as an accomplice warning if their involvement in the relevant events warrants it.[5] I do not accept that paragraph 2 should be excluded in the exercise of discretion because its inclusion will potentially compromise my ability to give the jury an appropriate direction about Mr Peters.
[5]R v Mitchell [2006] VSCA 289 at [67].
I accept the submission for the prosecution that the evidence is relevant and admissible and should not be excluded in the exercise of my discretion.
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