JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11, 12 August 2009
DATE OF RULING	14 August 2009
CASE MAY BE CITED AS:	R v Mokbel
MEDIUM NEUTRAL CITATION:	[2009] VSC 342

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CRIMINAL LAW – Murder trial – Application by accused for permanent stay on basis of pre-trial publicity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney	Solicitor to Director of Public Prosecutions
For the Accused	Mr P Morrissey and Ms R Shann	Andrianakis & Associates

HIS HONOUR:

The accused, Antonios Mokbel, is charged on presentment with the murder of Lewis Moran at Brunswick in the evening of 31 March 2004. The trial has been listed to start before me shortly. Application has been made on behalf of the accused for a permanent stay of the proceeding against him. That application has been made on the basis that substantial adverse publicity about the accused, over the last decade, has been such as to deprive the accused of a fair trial of the charge against him.

Before I outline the nature of the publicity relied on by the accused, it is relevant first to set out, briefly, the nature of the Crown case against the accused, and thus to identify the principal issues in it.

In essence, the prosecution case is that the accused, together with one Carl Williams, counselled and procured AB to murder Lewis Moran. The murder took place in the evening of Wednesday 31 March 2004 at the Brunswick Club in Sydney Road, Brunswick. The Crown alleges that on that evening, AB, a lifelong criminal, his brother YZ and Evangelos Goussis, drove to Sydney Road. While AB remained next to the getaway car, Goussis and YZ entered the club. YZ stood guard at the door, while, it is alleged, Goussis approached Lewis Moran, who was then drinking at the club with a friend, Herbert Wrout. Goussis chased Moran, who sought to flee from the scene, and fatally shot him at close range. In the meantime, YZ shot, and seriously wounded, Wrout. The three men then made their escape. Subsequently, AB was charged with the murder of Lewis Moran, and also with the murder of another underworld identity, Lewis Caine. AB pleaded guilty to the murder of Lewis Moran. He will be the key Crown witness in the forthcoming trial.

In its case against the accused, the prosecution intends to lead evidence as to the background to the shooting of Lewis Moran. In particular, evidence will be called that, in the years leading up to 2004, there had been a spate of violent incidents between members of two rival groups of individuals in Melbourne. On the one hand, there was a group affiliated with Carl Williams. On the other, was a group known as the “Carlton Crew”, which included members of the Moran family, including Lewis Moran. A number of murders…

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 [2009] VSC 342
Case: [2009] VSC 342
Decision Date: 14 August 2009

CaseChat Overview and Summary

In the matter of R v Mokbel, the accused faced a trial for the crime of murder. The case was heard in the County Court of Victoria, where the defendant sought a permanent stay of proceedings on the grounds of pre-trial publicity. The defence argued that the extensive media coverage had tainted the potential jury pool, thereby compromising the fairness of the trial.

The central legal issue before the court was whether the prejudicial pre-trial publicity was so pervasive and inflammatory that it rendered a fair trial impossible. The court was tasked with assessing the extent of the publicity, its potential impact on potential jurors, and whether there were measures that could be taken to mitigate any prejudice. The defence had to demonstrate that the publicity had created a substantial risk that the accused could not receive a fair trial.

The court found that while the pre-trial publicity was indeed extensive, it was not of such a nature or intensity that it would inevitably lead to a biased outcome. The judge concluded that the potential for prejudice could be adequately managed through jury selection and directions. The court determined that a stay of proceedings was not necessary and that the trial could proceed with appropriate safeguards in place.

The court's decision was that the application for a permanent stay of proceedings was dismissed. The trial continued, with measures in place to ensure the integrity of the proceedings.

Orders