R v H Mokbel (Ruling No 2) - [2009] VSC 547

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:	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…

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.

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Details

Case: [2009] VSC 547
Decision Date: 9 December 2009

CaseChat Overview and Summary

The case before the court involved an application by the defendant, H Mokbel, to have the conspiracy count stayed on the basis that it constituted an abuse of process. This application followed Mokbel's acquittal on associated charges and certain evidentiary rulings made by the court. The case was heard in the Supreme Court of Victoria.

The legal issues before the court included whether the prosecution of the conspiracy count, after the defendant had already been acquitted on related charges, constituted an abuse of process. The court was also required to consider whether there were any grounds to believe that the prosecution was unfair, given the prior acquittal and specific evidentiary rulings that had been made. The primary focus was on whether the continued prosecution of the conspiracy count was just and equitable under the circumstances.

The court comprehensively reviewed the legal precedents concerning abuse of process and the fairness of continuing prosecution after an acquittal. It found that the prosecution was not an abuse of process and did not unfairly prejudice the defendant. The court held that the conspiracy count involved distinct elements and evidence that were separate from those considered in the acquitted charges. The court also noted that the evidentiary rulings were made in the interest of justice and did not constitute an abuse. Consequently, the application to stay the conspiracy count was dismissed.

No further orders were made by the court beyond the refusal of the application to stay the conspiracy count. The conspiracy charge remained part of the proceedings against the defendant.

Orders