R v Mokbel, Finn and Finn (Spake) (Ruling)

[2011] VSC 17

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

SCR 2009 1408

THE QUEEN

v

MOKBEL, FINN & FINN

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATES OF HEARING:	31 January; 1 February 2011
DATE OF JUDGMENT:	4 February 2011
CASE MAY BE CITED AS:	R v Mokbel, Finn & Finn (Spake) (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 17

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CRIMINAL LAW – Application to sever presentment – Delay as a consequence of joinder.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr  P Kidd	Office of Public Prosecutions
For the Accused Antonios Mokbel	Mr Thomas SC	Robert Stary & Associates
For the Accused Wayne and Matthew Finn	Mr S Shirrefs SC	Garde-Wilson Lawyers

HIS HONOUR:

1. In this proceeding there is a thirteen count presentment filed charging three accused with drug trafficking and other offences related to premises at Toolern Vale and at Springvale.

1. The first accused, Antonios Mokbel, is charged with trafficking in a large commercial quantity of methylamphetamine and trafficking in MDMA at Toolern Vale between 19 December 2003 and 19 March 2006 (counts 1 and 2).  The relevant property at Toolern Vale was owned or occupied by a person named Kevin Richardson.  Mr Richardson is the principal Crown witness on these counts.  He is alleged to have been personally involved in the manufacture. 

1. The second accused, Wayne Finn, is charged with trafficking in methylamphetamine on two occasions in 2005 at Richardson’s Toolern Vale property.  Antonios Mokbel is alleged to have conducted one continuous business enterprise at Toolern Vale throughout the charged period in the manufacture of methylamphetamine.  It is alleged that Wayne Finn himself manufactured methylamphetamine on two occasions as part of the business which Mokbel was allegedly conducting (counts 3 and 4). 

1. Thus, counts 1 to 4 concern activities at Richardson’s property at Toolern Vale. 

1. Counts 5 to 13 are counts against Wayne and Matthew Finn (seven jointly – counts 5, 6, 7, 8, 9, 10 and 11, and two separately – count 12 against Wayne Finn and count 13 against Matthew Finn).  These counts concern a factory allegedly occupied by Wayne and Matthew Finn in Springvale.  It is alleged that trafficking in methylamphetamine and MDMA was undertaken by Wayne and Matthew Finn at Springvale between 1 January 2005 and 7 November 2007 (counts 5 and 6).  There are then seven counts (counts 7 to 13) concerning substances, equipment, money and a handgun found at the Springvale property when police executed a search warrant on 7 November 2007. 

1. On the prosecution case, there are a number of connections between the activities at Toolern Vale and those at Springvale.  The first and most obvious one is the alleged involvement of Wayne Finn.  It is clear that that will be a matter of dispute.  The identification of Wayne Finn as being a participant in activities at Toolern Vale is in issue.  It is part of the prosecution case that an inference can be drawn that Wayne Finn was the person who undertook illegal activities at Toolern Vale relying upon, amongst other things, items found at Springvale.  The prosecution case is that drug manufacturing equipment at Toolern Vale was transferred to Springvale.  It is also their case that, in addition to Wayne Finn, Abdullah Radi and Graeme Smith were involved in both operations.

1. Antonios Mokbel has applied to have the two counts against him (counts 1 and 2) severed from the counts against Wayne Finn and Matthew Finn (counts 3 to 13).  Wayne and Matthew Finn for their part seek a trial of their counts (3 to 13) separate from Antonios Mokbel’s counts (1 and 2).

1. Pursuant to a direction I made, counsel on behalf of Antonios Mokbel and counsel on behalf of Wayne and Matthew Finn each filed written outlines of their submissions. The outline filed on behalf of Antonios Mokbel did not raise any issue as to the appropriateness of joinder under the applicable provision, which in this case continues to be Rule 2 of the Sixth Schedule of the Crimes Act 1958 (see Criminal Procedure Act 2009 s 439, Schedule 4 Clause 5, and s 5). In the written submission filed by counsel for Wayne and Matthew Finn, the issue of whether counts 3 and 4 are properly joined with counts 5 to 13 was referred to, but otherwise no submission was advanced based upon compliance with Rule 2 of the Sixth Schedule.

1. Notwithstanding this position, the prosecution outline addressed the issue of joinder.  This then prompted some oral submissions on that issue by counsel for Antonios Mokbel and for Wayne and Matthew Finn.

1. It is perhaps unsurprising that the matter was dealt with in this manner.  It was accepted by counsel for the three accused that the first four counts were properly joined.  The relief which they seek is not separation of the Springvale counts (1-4) from the Toolern Vale counts (5-13), but rather separation of the counts against Antonios Mokbel (1 and 2) from the counts against Wayne and Matthew Finn (3-13).  Arguments as to the joinder rule cannot produce the outcome they seek.

1. Notwithstanding that position, it is necessary for me to address compliance with Rule 2 of the Sixth Schedule of the Crimes Act 1958.  My conclusion is that the 13 counts are properly joined under that rule.  Counts 1 to 4 are relevantly founded on the same facts.  Counts 5 to 13 are also founded on the same facts.  Counts 1 to 4 on the one hand and counts 5 to 13 on the other are in my view part of a series of offences of the same or a similar character.  In this respect I refer to the authorities I set out in R v Gregory (Ruling)[1], and to my ruling in the matter of R v A Mokbel & Ors (Matchless)[2] which was argued in the same hearing as these applications. 

   [1][2009] VSC 358.

   [2][2011] VSC 14 (“Matchless”).

1. The real substance of the applications made on behalf of the three accused on these applications concerns the discretion to sever.  In this regard the submissions reflected those made in the Matchless proceeding.  Relevantly, my conclusions are the same. 

1. On the basis of the submissions made to me, I cannot reach a conclusion that the discretion to sever should be exercised because prejudicial material, not admissible against particular accuseds, which cannot be appropriately addressed by judicial direction, will be led in a joint trial.  The reasons why this is so are the same as those which I set out in my ruling in the Matchless proceeding.  Counsel for the accused assert that prejudicial inadmissible material will be led.  Counsel for the prosecution asserts that there is very substantial overlap in the evidence admissible against the accuseds such that separate trials will not significantly alter the evidence led, and submits that to the extent that evidence is led which is not cross-admissible directions can appropriately address the issue.  As was the case in the Matchless proceeding, the submissions were made on the basis of examples and illustrations, and in the absence of an articulation in writing of what is in issue in the form of defence responses.

1. I accept the submissions which were made on behalf of counsel for Wayne and Matthew Finn on the issue of delay, for the reasons I set out in my ruling in the Matchless proceeding.  If it is necessary to sever the presentment in order to give Wayne and Matthew Finn a fixed trial date, I will do so.  Having discussed the matter with the principal judge in the criminal division, I can indicate that if the counts against Wayne Finn and Matthew Finn are severed from the count against Antonios Mokbel, the trial can be heard in this Court.

1. For the reasons I have given I make the following ruling and give the following directions:

(a)I rule that the joinder of the thirteen counts on this presentment complies with Rule 2 of the Sixth Schedule of the Crimes Act 1958.

(b)I direct that each accused file and serve his defence response to the summary of the prosecution opening by 4.00 pm on 21 February 2011.

(c)I adjourn the further hearing of the applications to sever the presentment to the directions hearing on 28 February 2011.

1. I will hear the parties on whether any further directions should be made at this stage.