JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19 October; 16, 24 November; 15, 19, 20, 21 December 2011; 16, 19, 25, 30, 31 January; 17, 24, 27, 29 February; 1 March 2012
DATE OF RULING:	1 March 2012
DATE OF REASONS:	13 March 2012
CASE MAY BE CITED AS:	R v Mokbel (Change of Pleas)
MEDIUM NEUTRAL CITATION:	[2012] VSC 86	Second Revision: 2 August 2012

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CRIMINAL LAW – Application to change pleas of guilty – Evidence illegally obtained as search warrant affidavits not sworn – Principles applicable on applications to change plea – Admissibility of illegally obtained evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr P Kidd SC with Ms F Dalziel	Mr C Hyland, Solicitor for Public Prosecutions
For the Defence	Mr P Faris QC with Mr M Gumbleton	Robert Stary & Associates

HIS HONOUR:

On 18 April 2011 Antonios Mokbel was arraigned and pleaded guilty to one count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, a further count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, and a count of incitement to import a prohibited import. These charges respectively related to police operations referred to as Magnum, Quills, and Orbital. At the time of those pleas the prosecutor advised the Court that other pending drug matters, referred to by reference to police operations named Kayak, Landslip, Matchless and Spake would be discontinued. Counsel on behalf of Mokbel sought an adjournment for eight weeks in order to prepare plea material. The plea was further adjourned a number of times at the request of Mokbel’s legal advisers. It was eventually fixed for hearing on 18 October 2011.

In an entirely unrelated matter in the County Court the admissibility of evidence obtained under search warrants was being challenged on the basis that the purported affidavits relied upon when obtaining those warrants had been signed but not sworn or affirmed. On 29 September 2011 the County Court judge ruled one of the search warrants invalid, and made a subsequent ruling to the same effect in relation to another warrant. On 18 October 2011 the County Court judge ruled that the evidence obtained as a result of the relevant search warrants was not to be admitted. This ruling was made pursuant to s 138 of the Evidence Act 2008. The County Court judge made this ruling after hearing evidence from a number of officers of Victoria Police in relation to the purported affidavits signed in the particular case and in relation to police practices generally. A further ruling to the same effect was made in relation to other warrants in the same matter on 25 October 2011.

On 18 October 2011 senior…

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 Mokbel

Details

AGLC: R v Mokbel [2012] VSC 86
Case: [2012] VSC 86
Decision Date: 1 March 2012

CaseChat Overview and Summary

The case of R v Mokbel before the Supreme Court of Victoria concerned the application by the defendant, Mokbel, to change his pleas of guilty to various charges including conspiracy to commit murder and deprivation of liberty. The basis for the application was that the evidence against him was obtained illegally as the search warrant affidavits had not been sworn. The central legal issues before the court were whether the evidence obtained without the proper procedure should be excluded and if the principles governing applications to change pleas supported such an application.

The court examined the principles surrounding applications to change pleas, noting that such applications are generally disfavoured and are only granted in exceptional circumstances. The court also considered the admissibility of illegally obtained evidence, a principle established in Australian law that generally excludes such evidence to uphold the integrity of the judicial process. The court found that the illegality in the obtaining of the evidence did not constitute exceptional circumstances sufficient to warrant a change of plea. It was held that the irregularity in the execution of the search warrants did not taint the integrity of the entire investigation and the evidence obtained, and therefore the application to change pleas was refused.

The court's reasoning was grounded in the need to balance the rights of the accused with the public interest in the finality of criminal proceedings. The court determined that the irregularity in the search warrant process, while serious, did not rise to the level of an exceptional circumstance that would justify altering the plea. The admissibility of the evidence was upheld as it was deemed relevant and reliable despite the procedural flaw. As a result, the application to change the pleas was dismissed, and the original guilty pleas were maintained. The final orders of the court reflected this decision, confirming the defendant's pleas and proceeding with the sentencing phase of the trial.

Orders