R v Mokbel (Application by surety) - [2006] VSC 221

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1502 of 2001
No. 1420 of 2005

THE QUEEN	Respondent
v
ANTONIOS SAJIH MOKBEL	Principal
- and -
RENATE LISA MOKBEL	Surety/Applicant

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2006
DATE OF JUDGMENT:	2 June 2006
CASE MAY BE CITED AS:	Renate Mokbel - Application by surety
MEDIUM NEUTRAL CITATION:	[2006] VSC 221

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APPLICATION BY SURETY pursuant to s.6(4) of Crown Proceedings Act 1958 – Original order made by judge hearing application – Application that judge disqualify himself from hearing matter – Alleged perceived bias – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown (Commonwealth of Australia and State of Victoria)	Mr D. Parsons S.C.	Commonwealth Director of Public Prosecutions and Office of Public Prosecutions (Victoria)
For the Surety	Mr L. Lasry Q.C.	Chiodo & Madafferi

HIS HONOUR:

Before the Court is an application by Mrs Renate Lisa Mokbel (“Mrs Mokbel”) pursuant to s.6(4) of the Crown Proceedings Act 1958 (“the Act”), seeking an order to vary or rescind orders made by the Court on 26 April 2006.

On that day, the Court declared that bail granted to Antonios Sajih Mokbel (“the principal”) be declared forfeited pursuant to s.6(1) of the Act. The Court ordered that Mrs Mokbel, who was the surety, pay an amount of $1,000,000 to an officer of this Court within 31 days of the date of the order and, in default of payment, that the amount be obtained by seizing and selling her property and, further in default, that she serve a term of imprisonment of two years. The orders declaring the recognisance forfeited and, in default of payment, imprisonment, were in respect to two separate proceedings.

By reason of s.6(4) of the Act, a surety is given the right to apply to the Court that made the order to vary or rescind the order “on the ground it would be unjust to require him to pay the amount undertaken to be paid having regard to all the circumstances of the case.” Mrs Mokbel has made application in respect to both proceedings, namely, the Commonwealth and State prosecutions against the principal.

The return date for the hearing is 20 June 2006. The Court fixed 31 May 2006 for a directions hearing, and counsel on behalf of Mrs Mokbel, Mr L. Lasry QC, applied to the Court that I should disqualify myself from hearing the application because of perceived bias. Mr Lasry disavowed any suggestion of actual bias.

In order to understand the submission put on behalf of the applicant, it is necessary to set out some of the background history. The principal was arrested on 24 August 2001 and charged with the offence of being knowingly concerned in the importation into Australia of a prohibited import, namely, a traffickable quantity of cocaine, which arrived in Australia on 6 November 2000, contrary to paragraph 233B(1)(d) of the Customs Act 1901. On arrest, he was remanded in…

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 (Application by surety)

Details

AGLC: R v Mokbel (Application by surety) [2006] VSC 221
Case: [2006] VSC 221
Decision Date: 2 June 2006

CaseChat Overview and Summary

The matter before the court was an application by a surety under section 6(4) of the Crown Proceedings Act 1958. The applicant sought the disqualification of the judge who had made an original order. The applicant alleged perceived bias on the part of the judge. The application was dismissed.

The central legal issue for the court to determine was whether there was sufficient evidence of perceived bias to warrant the disqualification of the judge. The court needed to assess the application against the legal standards for perceived bias and the procedural requirements for disqualification. Additionally, the court had to consider whether the application was made in good faith and whether the applicant had followed the appropriate procedural steps.

The court found that the application for disqualification was not substantiated. It determined that there was no evidence of perceived bias that would justify the disqualification of the judge. The court found that the applicant had failed to provide any factual basis for the allegation of bias. The judge's impartiality was not in question, and the application was deemed to be without merit. Consequently, the application was dismissed.

The court did not make any further orders beyond dismissing the application for disqualification. The original order made by the judge remained in place.

Orders