R v Mokbel - [2006] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001

THE QUEEN

ANTONIOS SAJIH MOKBEL

---

JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 7-10, 13-17, 20-24, 27 and 28 February; 1-3, 6-10, 14-17, 20, 21, 23, 24, 27 and 28 March 2006
DATE OF RULING:	8 March 2006
CASE MAY BE CITED AS:	R v Mokbel (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2006] VSC 136

---

CRIMINAL LAW – Submission of no case – Offence contrary to s.233B(1)(d) Customs Act 1901 – Knowingly concerned in importation – Intercept of narcotics by foreign law enforcement officers – Whether there was a change in character of importation - Controlled operation – Part 1AB of Crimes Act (Cth) – No change in character of importation – Case to answer.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D.A. Parsons, SC	Commonwealth Director of Public Prosecutions
For the Accused	Mr. C. Heliotis, QC with Ms N. Gobbo	McNamaras

HIS HONOUR:

Submission of no case

The Crown has closed its case. Counsel for the accused, Antonios Sajih Mokbel, have submitted that there is no case to answer and that the jury should be directed to bring in a verdict of not guilty.

The accused was charged with the following offence –

That between 13 October 2000 and 1 December 2000 at Melbourne contrary to paragraph 233B(1)(d) of the Customs Act 1901 the accused was knowingly concerned in the importation into Australia of narcotic goods consisting of not less than a traffickable quantity of cocaine which arrived on 6 November 2000.

In order to prove the charge, it is necessary for the Crown to prove beyond reasonable doubt the following elements of the offence –

(i)That an importation occurred;
(ii)That the thing imported was cocaine;
(iii)That cocaine is a prohibited import;
(iv)That the quantity of cocaine imported was not less than a traffickable quantity;
(v)The accused was “knowingly concerned” in the importation of the prohibited import.

The Crown has adduced a substantial body of evidence. All told some 42 witnesses have been called and 49 exhibits have been tendered in evidence. One of the exhibits, PR17, comprises 157 intercepted telephone calls made between a co‑accused called Mr U and others, including the accused.

In order to understand the submission, it is necessary to briefly outline the Crown case against the accused. The Crown alleges that five men were involved in an arrangement to import a substantial quantity of cocaine into Australia from Mexico. Each of the persons involved had a part to play in the importation. The first man was Mr U, who played a central role in the organisation of the import. He travelled to Mexico twice in the latter part of the year 2000 and tentatively made arrangements to import a substantial quantity of cocaine into Australia. The second person was a man called Sonny Schmidt, who was known to Mr U and who was the brother of Pale Schmidt, a friend of Mr…

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 [2006] VSC 136
Case: [2006] VSC 136
Decision Date: 8 March 2006

CaseChat Overview and Summary

The case of R v Mokbel was heard in the High Court of Australia. The defendant, Mokbel, was charged with an offence under the Customs Act 1901, specifically section 233B(1)(d), which relates to knowingly being involved in the importation of narcotics. The dispute arose from an interception of narcotics by foreign law enforcement officers, and the primary issue before the Court was whether there had been a change in the character of the importation due to the controlled operation conducted under Part 1AB of the Crimes Act (Cth). The Court was required to determine if the circumstances of the interception constituted a change in the nature of the importation, which would have significant implications for the charge against Mokbel.

The legal issues at the heart of this case revolved around the interpretation of section 233B(1)(d) of the Customs Act and the application of Part 1AB of the Crimes Act. The central question was whether the interception of the narcotics by foreign law enforcement, acting under the direction of Australian authorities as part of a controlled operation, altered the fundamental character of the importation. If the Court found that there was no change in the character of the importation, then Mokbel's submission of no case would succeed, and he would not be required to answer the charge. Conversely, if the Court determined that the controlled operation did indeed alter the nature of the importation, Mokbel would need to answer the charge.

The High Court considered the nature of the controlled operation and its effect on the importation. It held that the controlled operation did not change the fundamental character of the importation. The Court reasoned that the operation was designed to intercept and prevent the illegal importation, and thus, the act of importing the narcotics remained the same, albeit with the additional context of being intercepted. Therefore, the Court concluded that there was no change in the character of the importation, and Mokbel's submission of no case was upheld. As a result, Mokbel was not required to answer the charge against him.

The final orders of the Court were that Mokbel's submission of no case was successful, and the charge against him was dismissed. The Court found that the interception by foreign law enforcement officers, acting under the direction of Australian authorities, did not alter the fundamental nature of the importation. Consequently, Mokbel was acquitted of the charge, and the proceedings against him were terminated.

Orders