R v H Mokbel (Ruling No 2)
[2009] VSC 547
•9 December 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: | 19 and 23 November 2009 | |
DATE OF JUDGMENT: | 9 December 2009 | |
CASE MAY BE CITED AS: | R v H Mokbel (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 547 | |
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CRIMINAL LAW – Application to stay conspiracy count as an abuse of process – Unfairness to accused in prosecuting conspiracy count given prior acquittal and evidentiary rulings – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Champion SC | Solicitor for Public Prosecutions |
| For the Accused | Mr S Shirrefs SC and Mr M Dempsey | Grigor Lawyers |
HIS HONOUR:
I have previously made two rulings concerning proceedings against Mr Horty Mokbel. The first was made on 4 November 2009.[1] That ruling was made at a time when Mr Mokbel was being proceeded against on a presentment with two co-accused, Stephen Gavanas and Mohammad Khodr. The second ruling was delivered on 19 November 2009 in this proceeding.[2] This ruling assumes knowledge of those two rulings.
[1][2009] VSC 507.
[2][2009] VSC 529.
The effect of my earlier rulings was to limit the evidence which the prosecution would be permitted to call from the witness George Peters. In my first ruling I divided the evidence proposed to be called from Mr Peters into four parts.[3] I ruled that the prosecution could lead the evidence in parts 1, 2 and 3 but not that in part 4. In my second ruling I ruled that I would not exclude the evidence in part 2 in the exercise of discretion.
[3]The four parts are set out in the four numbered subparagraphs of paragraph [4] of [2009] VSC 507.
The evidence in part 2 concerns the introduction of Mr Gavanas to Mr Peters by Horty Mokbel with a request that Mr Peters teach Mr Gavanas to manufacture methylamphetamine using the P2P method. According to the material I was taken to, this occurred in Mr Gavanas’ presence. The evidence in part 4, which I ruled that the prosecution could not lead, concerned an arrangement which Mr Peters maintains was made between he and Mr Mokbel in about March 2005 to the effect that if Mr Peters trained Mr Gavanas as requested he would be remunerated or compensated, and also concerned the provision by Mr Mokbel of chemicals for the first cook at which Mr Peters trained Mr Gavanas.
The basis upon which I ruled that the prosecution could not lead evidence of the arrangement between Mr Peters and Mr Mokbel was because I considered that in doing so the prosecution would be calling into question Mr Mokbel’s acquittal on 3 October 2008 on a Giretti[4] count of drug trafficking during the period 1 November 2004 and 30 April 2006.
[4]Giretti v Giretti (1986) 24 A Crim R 112.
Consequent upon those rulings counsel on behalf of Mr Mokbel submitted that count 1 on the presentment, which alleges conspiracy to traffick between 1 May 2006 and 9 October 2006, ought to be stayed as an abuse of process.
In making the application for a stay reliance was placed upon the inherent jurisdiction of the court and in that regard reference was made to Walton v Gardner.[5] It was not contended that the position here is relevantly analogous to the position in Walton v Gardner. Rather, the general statements of principle, particularly in the judgment of Mason CJ, Deane and Dawson JJ,[6] were relied upon.
[5](1992) 177 CLR 378 (“Walton”).
[6]Walton, 392-394.
In the written submission on behalf of Mr Mokbel what was put was the following:
“Count 1 constitutes an abuse of process for the following reasons:
(i)the conspiracy charged in count 1 is the same arrangement or agreement allegedly formed between Mokbel, Peters and Gavanas in March 2005. Or at the very least is reasonably open that it is the same agreement.
(ii)the principles which flow from doctrines concerned with double jeopardy and the incontrovertible character of judicial decision not only preclude the Crown from seeking to lead evidence for a purpose which is inconsistent with them, but also precludes the Crown prosecuting what is in effect the same matter.
(iii)if the evidence ruled inadmissible by your Honour was before the jury in this trial, the jury would be required to acquit on count 1 if they found that the March 2005 agreement was the same as that charged in count 1, or that it is reasonably possible that it was.
(iv)the evidence having been ruled inadmissible by your Honour cannot be used in this trial for that purpose either by the Crown or by Mokbel.
In these circumstances the prosecution of count 1:
(a)offends the same principles that led to the Peters’ evidence being ruled inadmissible;
(b)results in a process that is demonstrably unfair;
(c)visits a gross injustice and unfairness upon Mokbel; and
(d)necessarily erodes public confidence in the administration of justice.”
In the course of oral argument these submissions were further refined. I attempted to encapsulate Mr Mokbel’s position. I suggested that it seemed to me the point being made was that the trial was unfair because the jury would not have before them as part of the Crown case evidence which would reveal a fatal flaw, being the inability to exclude the hypothesis that what happened in 2006 was pursuant to a March 2005 conspiracy and not the conspiracy alleged in count 1. Senior counsel for Mr Mokbel agreed that that was an accurate encapsulation of the complaint.[7]
[7]Transcript 165.
The prosecution submissions focused upon, what was perceived to be, an argument that count 1 should be stayed because it infringed the rule against double jeopardy, and much of the submission sought to demonstrate how the conspiracy which is alleged in count 1 is not a duplication of what had been alleged against Mr Mokbel in the earlier trial. Certain features of the case which the prosecution now proposes to conduct were stressed including what was said to be different chemical supply arrangements and the significance of the lease of Pascoe Street in May 2006. In written submissions the prosecution suggested that the conspiracy alleged in count 1 commenced or came into effect on about 1 May 2006, but in oral submissions that position was retracted from. The prosecution submitted that there was no relevant unfairness in the case proposed to be conducted on count 1. It was submitted that while I had ruled that the prosecution could not lead the evidence in part 4, the defence could do so, and the prosecution would not object to that.[8]
[8]Transcript 149-152.
My conclusion is that there is no relevant unfairness, and that count 1 should not be stayed.
There are three areas of the submissions made on behalf of Mr Mokbel which need to be addressed.
The first concerns Mr Gavanas’ involvement in the events in 2005. It may be the case that Mr Gavanas was a party to the arrangement which Mr Peters says he made with Mr Mokbel in about March 2005, but the material I have been taken to does not clearly reveal that to be so.[9] The evidence which I categorised in part 2 concerns events which Mr Peters says occurred in Mr Gavanas’ presence. It is not clear on the material I have been taken to that that is the case in relation to the arrangement which is the subject of part 4. This matter may not be significant, and, indeed, it may be that Mr Peters’ oral evidence, if given, would reveal that Mr Gavanas was or might have been a party to the arrangement in part 4. For present purposes, I merely make the point that the material I have been referred to does not clearly show that to have been the case.
[9]See the folder of marked up Peters’ materials handed up by senior counsel for the prosecution on 30/10/09.
Secondly, in the submissions made on behalf of Mr Mokbel there was an assumption that an inability to negate the existence of a relevant agreement in 2005 precludes a finding of guilt on the conspiracy count alleged.[10] In my view that does not necessarily follow.
[10]See for example Transcript 156-7.
The crime of conspiracy is complete as soon as the agreement is made, but it is a continuing offence, and it continues until the agreement is discharged by completion of performance or abandonment or frustration or by virtue of some other circumstance.[11] In a given factual situation it is possible for there to be a number of different conspiracies existing and operating concurrently and/or sequentially.[12]
[11]DPP v Doot & Ors [1973] AC 807, Reg v G.,F.,S. and W. [1974] 1 NSWLR 31 (“G.,F.,S. and W.”), Savvas v The Queen (1995) 183 CLR 1, Truong v R (2004) 223 CLR 122.
[12]Gerakiteys v The Queen (1984) 153 CLR 317 (“Gerakiteys”).
A count of conspiracy must allege one conspiracy and no more than one, and the prosecution must establish beyond reasonable doubt the conspiracy which is so alleged. If the evidence does prove that conspiracy, the accused should be convicted, even if the evidence discloses some other conspiracy as well. If the evidence does not prove that conspiracy, the accused should be acquitted, even if some other conspiracy is established.[13] Recently, in The Queen v Caldwell Weinberg JA said:
“If at the end of the case there was evidence upon which the accused could lawfully have been convicted of the conspiracy charged (even if there was also evidence of the existence of a different conspiracy), the trial judge was bound to allow the case to go to the jury. Their verdict is in no way tainted by the fact, if it be the case, that one or more other conspiracies might also have been distilled from the totality of the evidence led at the trial.”[14]
[13]Gerakiteys; R v Cox & Sadler (Ruling No 4) [2006] VSC 60 (“Cox and Sadler”) and The Queen v Caldwell [2009] VSCA 41 (“Caldwell”).
[14]Caldwell, [80].
For these purposes it is sufficient if what the prosecution proves is a conspiracy “not substantially different” from that alleged.[15]
[15]Re Saffron (No 1) (1988) 36 A Crim R 262, 295-6 and 299; Cox & Sadler, [14].
Conspiracy counts usually specify a period. This is usually the period in relation to which the prosecution says it can prove that the conspiracy alleged was subsisting.[16] In some particular circumstances specification of the alleged time of formation of the agreement may be necessary to adequately identify the scope of the conspiracy charged[17] but, subject to that qualification, it is not necessary to prove formation of the agreement “at some definite time”.[18]
[16]G., F., S. and W., 44.
[17]R v Theophanous (2003) 141 A Crim R 216.
[18]Nirta& Ors v R (1983) 51 ALR 53, 61.
Senior counsel for the prosecution in the course of his submissions was not consistent as to whether the specified period in count 1 means the entire period of the alleged agreement or a period during which the alleged agreement subsisted. That matter needs to be formally clarified.
The third area to be addressed is the significant one. It concerns the effect of my earlier rulings.
I do not consider that senior counsel for Mr Mokbel is correct when he characterises the effect of my earlier rulings as being that relevant material directed towards the issue of whether the prosecution can prove beyond reasonable doubt the conspiracy alleged will not be able to be put before the jury.
I have ruled the prosecution can not lead the evidence in part 4. The submission made on behalf of Mr Mokbel is that the evidence which I ruled that the prosecution can not lead can not be put before the jury in the course of Mr Peters’ evidence by the defence either. In my view this is not correct. If the defence wish to lead evidence from Mr Peters for the purpose of revealing what is contended to be a fatal flaw in the conspiracy count they will not be prevented from doing so by my earlier rulings.
It is necessary to review the authorities dealt with in my earlier rulings on the issue of evidence which controverts or calls in question an acquittal so as to clarify the applicable principle.
The first authority of importance is The Queen v Storey.[19]
[19](1978) 140 CLR 364 (“Storey”).
In Storey Barwick CJ said:
“The correct principle relevant to the admissibility in a subsequent trial of evidence given in an earlier trial which has resulted in an acquittal is, in my opinion, no more than this: that a verdict of acquittal shall not be challenged in a subsequent trial: the accused in the hearing of a subsequent charge must be given the full benefit of his acquittal on the earlier occasion. Evidence which was admissible to establish the earlier offence is, in my opinion, not inadmissible merely because it was tendered in the earlier proceedings: but it may not be used for the purpose of challenging, or diminishing the benefit to the accused of, the acquittal. Such evidence will be admissible provided it is relevant to the subsequent charge or to a defence to it but must only be allowed to be used to support that charge or negative a defence. Where evidence which would tend to prove the earlier charge or some element of it is admitted in the subsequent charge, the jury must be duly warned that they must accept the fact of the earlier acquittal and not use the evidence in any way to reconsider the guilt of the accused of the earlier offence or to question or discount the effect of the acquittal.”[20] (Emphasis is mine)
[20]Storey, 372.
In the same case Gibbs J (as he then was) said:
“From this survey of the authorities it will have been seen that there is a well established principle that a verdict of acquittal once given is binding and that the Crown cannot in subsequent proceedings seek to show that the accused was guilty of an offence of which he has previously been acquitted. Whether this principle is regarded as an extension of autrefois acquit, or as an application of the rule against double jeopardy, does not much matter. Since the Crown cannot challenge an acquittal, and the accused is to be taken as entirely innocent of the offence of which he was previously acquitted, it must follow that evidence will be inadmissible if its only relevance is to show that the accused was guilty of an offence of which he has been acquitted. … However evidence otherwise relevant is not rendered inadmissible by the fact that it may tend to show that the accused was guilty of an offence of which he has been acquitted. Where such evidence is admitted it will sometimes be necessary to warn the jury that the accused having been acquitted in the previous proceedings is to be taken as entirely innocent of the offence with which he was then charged. Such a warning will hardly be necessary if the question whether the accused has committed that offence is not raised in the later proceedings, and it would not be likely to occur to the jury to consider that question.”[21] (Emphasis is mine)
[21]Storey, 387-8.
Mason J (as he then was) said:
“Both these decisions establish, quite independently of the doctrine of issue estoppel, that the principle of res judicata as applied in criminal proceedings will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. … Compliance with the principle of res judicata does not in my view necessarily entail the exclusion at a subsequent trial of relevant evidence which might on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which he has already been acquitted. … [Reference was made to the decision in Sambasivam v Public Prosecutor, Federation of Malaya [1950] AC 458]. The ground of that decision implicitly acknowledged that the requirements of res judicata may be satisfied in an appropriate case by the admission of evidence of this kind accompanied by a precise instruction to the jury that the prior acquittal cannot be challenged and that the evidence for what it may be worth, is to be understood in this light.”[22] (Emphasis is mine)
[22]Storey, 396-7.
Jacobs J said:
“Consequently, every effort should be made at the later trial to avoid evidence in that later trial taking such a form that the jury could conclude therefrom that all the elements of the offence [a reference to the offence of which the accused has been acquitted] are proven; if despite those efforts the evidence for some reason or another comes to be admitted, then the clearest and most specific direction is required to be given to the jury that they must not reach the conclusion that all those elements are proven. The determination in the earlier trial that all the elements were not proven against the defendant must be accepted as a correct finding.”[23] (Emphasis is mine)
[23]Storey, 408-9.
Aickin J (with whom Stephen J agreed) said:
“I respectfully agree that the requirements of res judicata in this sense are not inconsistent with the admission of the evidence so long as it is made clear to the jury that the prior acquittal cannot be challenged and that the evidence must not be taken as showing or proving guilt on the prior charge. … It will in every case necessarily depend upon the particular circumstances whether such evidence may be given without the jury thinking that it is invited to overturn the previous acquittal. Where the evidence would involve a risk of prejudice which cannot be eliminated by a proper direction no doubt it should be rejected on general grounds. However in some cases at least the question will arise whether its rejection would tend to make the case unintelligible and to lead the jury into seeking some kind of an explanation for otherwise inexplicable events, which may be as likely to be prejudicial to the accused as to the prosecution. In such a case the evidence should be admitted and a proper explanation given to the jury as to the significance of the previous verdict.”[24] (Emphasis is mine)
[24]Storey, 424-5.
The passages quoted from the judgments in Storey reveal that the vice to be addressed is the explicit or implicit challenging of the previous acquittal. They also reveal that it is not the case that that vice can only be addressed by rigid exclusion of evidence which may have that unintended tendency. Four of the judges in Storey (Stephen, Mason, Jacobs and Aickin JJ) considered that the relevant vice in that particular case could properly have been addressed by admitting the evidence and giving an appropriate direction.[25]
[25]This point was referred to by Gaudron and Gummow JJ in The Queen v Carroll (2002) 213 CLR 635, 663 (“Carroll”).
In Garrett v The Queen[26] Barwick CJ said that it was the tendency of the evidence itself rather than the prosecution’s purpose in seeking to admit the evidence which was important.[27] But, to the extent that there is any inconsistency between what Barwick CJ said in Garrett and what was said in Storey, it seems to me that the High Court in The Queen v Carroll[28] made it clear that evidence having the “incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision” was not necessarily thereby inadmissible, as the abuse lies “in seeking to controvert an earlier verdict of acquittal”.[29]
[26](1978) 139 CLR 437 (“Garrett”).
[27]Garrett, 445.
[28](2002) 213 CLR 635.
[29]Carroll, 651 per Gleeson CJ and Hayne J. The joint judgment of Gaudron and Gummow JJ contains nothing inconsistent with this approach and McHugh J at 675 quoted and approved Barwick CJ’s analysis in Storey. In this context the decisions in Rogersv The Queen (1994) 181 CLR 251, R v Young [1998] 1 VR 402, and Washer v State of Western Australia (2007) 234 CLR 492 do not seem to me to assist.
Thus, if the defence takes the view that the evidence in part 4 should be led, not for the purpose of controverting or calling in question the acquittal, but for the purpose of revealing a flaw in the prosecution case on count 1, then that can be done. Because that evidence has the incidental effect of calling in question the acquittal, subject to any further submissions, I will give the jury an appropriate direction about giving the accused the full benefit of his acquittal.
Further, if the defence consider that, given my rulings, given the possible defence now foreshadowed, and as a matter of fairness, the prosecution should lead the evidence in part 4, I will hear submissions on that course. If that were to occur, subject to any further submissions, I would give an appropriate direction.
In the course of the hearing I also heard some submissions on the admissibility of evidence of the events of 6 to 9 October 2006 on the conspiracy count. A similar issue was the subject of more detailed submissions in what is now the separate proceeding against Mr Gavanas and Mr Khodr. The submissions made on behalf of Mr Mokbel adopted the submissions made on behalf of Mr Khodr and Mr Gavanas and then addressed some further matters. Senior counsel for the prosecution did not address substantive submissions to Mr Mokbel’s position on this issue. It seems to me that Mr Mokbel’s position needs to be separately addressed. The ruling I have made on the issue in the proceeding concerning Mr Gavanas and Mr Khodr may assist,[30] but the relevant issues are not the same. Accordingly, I will need to hear further submissions on that issue.
[30]R v Gavanas & Khodr (Ruling No 1) [2009] VSC 558T.
Further applications have also been foreshadowed. I will hear the parties as to the course to be followed from here. It seems to me that at some point before empanelment the following steps will need to be taken:
(1) The prosecution should file particulars of count 1 setting out:
(a) the nature and scope of the agreement alleged, specifying that the agreement is confined to manufacture by the P2P method, and clarifying the significance of the dates pleaded;
(b)the overt acts allegedly performed pursuant to the agreement;
(c)any further acts from which it is said that the agreement alleged should be inferred.
(2)The prosecution should file and serve a fresh opening, which is confined to the counts against Mr Horty Mokbel, and which reflects the particulars provided and the rulings made.
(3)Mr Mokbel should then file and serve a fresh defence response to the prosecution opening.
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