R v Mokbel (Magnum - Ruling No 2 - Stay)
[2011] VSC 128
•5 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SC 2009 1634
| THE QUEEN |
| v |
| ANTONIOS SAJIH MOKBEL |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2011 | |
DATE OF RULING: | 5 April 2011 | |
CASE MAY BE CITED AS: | R v Mokbel (Magnum - Ruling No 2 - Stay) | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 128 | |
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CRIMINAL LAW – Application to permanently stay prosecutions – Substantially similar to [2010] VSC 331 – Stay refused for substantially the same reasons.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | P Kidd and F Dalziel | Solicitor for Public Prosecutions |
| For the Accused | In person |
HIS HONOUR:
In this proceeding the accused, Antonios Mokbel, has made an oral application for a permanent stay. He has previously made similar applications in other proceedings, the most recent of which was the subject of a ruling of mine on 5 August 2010.[1] An application was made for a certificate under s 295(3)(b) of the Criminal Procedure Act 2009 in relation to that ruling, which I refused.[2] I have been told that there is presently pending before the Court of Appeal an application under s 296 to review that decision. I have also been told that if I rule against the application for a permanent stay in this proceeding the accused will again seek to pursue the matter by way of interlocutory appeal. The trial in this proceeding is fixed for 2 May 2011. I have accordingly prepared these reasons as a matter of urgency. In the circumstances I have proceeded on the basis that I will not repeat the matters set out in the Orbital & Quills ruling and these reasons will need to be read in conjunction with my reasons there.
[1]DPP v A Mokbel (Orbital & Quills – Ruling No 1) [2010] VSC 331T (“Orbital & Quills ruling”).
[2]R v Mokbel (Orbital & Quills – Ruling No 2) [2010] VSC 349T.
The application made in this proceeding was argued by the accused in person. He was unable to secure legal aid for this application, although he has legal aid, and is represented by senior and junior counsel, in relation to the pending trial.
As was the case in the applications the subject of the Orbital & Quills ruling, the grounds upon which the accused seeks a permanent stay are twofold. The first concerns the circumstances of his extradition from Greece, and the second concerns the prejudicial effect of publicity. It was agreed that all the material before the Court on the earlier applications would be treated as being before the Court on this application.
Prejudicial publicity
In relation to publicity, the accused expressly adopted the submissions made in the applications the subject of the Orbital & Quills ruling, and added to those submissions both in writing and orally.
In his written submission, he added to submissions previously made concerning the High Court decision in Dupas v The Queen[3]; he relied upon one particular article, being an article in “The Age” on 25 February 2008, in support of a submission that his position was relevantly identical to that in Tuckiar v The King[4]; and he relied upon certain academic studies concerning the effect of judicial directions and publicity on jurors.
[3][2010] HCA 20 (“Dupas v The Queen”).
[4](1934) 52 CLR 335 (“Tuckiar”).
In his oral submissions he concentrated on the prejudicial effect of the “Underbelly” series. He submitted that the potential effect of that series was known to prosecuting authorities, that the DPP opposed or refused to cooperate in attempts to suppress the series, that police officers leaked information and assisted in the production of the series in an attempt to sabotage or undermine the fairness of any trial he might subsequently have to face, and he submitted that the “Underbelly” series was not like normal crime reporting as it constituted a portrayal of him, on what was said to be a factual basis, as a drug “king”. In his oral submissions he also differentiated between his position in relation to his pending drug trials and his position in relation to his trial for the murder of Lewis Moran where he was acquitted. He referred in that respect to the fact that the “Underbelly” series did not portray him as being criminally involved in the murder of Lewis Moran, and he referred to the fact that newspaper reports referred to him as an “alleged” murderer whereas they stated that he was a drug trafficker as a matter of fact or by reference to his prior conviction for drug trafficking. In relation to the suggestion that with the elapse of time the memories of potential jurors will have faded, he submitted that their memories will be quickly refreshed by evidence of notorious events and in particular his flight by boat and his subsequent apprehension in Greece.
On behalf of the prosecution it was submitted that Mr Mokbel’s submissions concerning prejudicial publicity did not advance the matter at all beyond those matters which were the subject of the Orbital & Quills ruling.
My conclusion is that the prosecution submission is correct. Nothing which Mr Mokbel has now raised has relevantly advanced the position.
I adhere to the views I expressed in the Orbital and Quills ruling concerning Dupas v The Queen[5].
[5]See: Orbital & Quills ruling at [135]-[138].
I do not consider that Mr Mokbel’s position is relevantly analogous to that which existed in Tuckiar. In Tuckiar the accused’s counsel announced in open court that the accused had admitted to him that evidence called by the prosecution of a confession he had made was correct. In Dupas v The Queen the High Court described the situation in Tuckiar as constituting a public revelation of guilt by the accused’s own counsel. In my view that is very far from the position which pertains in relation to “The Age” article of 25 February 2008 which makes reference to Mr Mokbel having “informally confessed to police his drug dealing activities”. The possibility that any panel member might remember that observation more than three years afterwards seems to me to be remote; and even if they did remember it, it is clear that the source is said to be an unidentified police officer. This position is not relevantly similar to that in Tuckiar. If the accused has some genuine concern that a panel member might recollect that article I will hear submissions as to whether it should be addressed in some way with the panel.
In relation to the academic studies, the provisions of the Juries Act 2000 (and its predecessors) are such that it is not possible to undertake comprehensive research on jury deliberations (see s 78). In any event, I am bound by the observations made concerning the jury system by the High Court in Dupas v The Queen and I proceed on that basis. As far as this particular accused is concerned, his acquittal in the Lewis Moran murder trial, in circumstances where a number of the publications he complains of asserted that he was guilty of that murder (although not the “Underbelly” series), suggests that that jury did determine the matter on the basis of the evidence before them in that trial, as they were instructed to do.
Mr Mokbel is correct, in my view, in his submission that the “Underbelly” series subjected him to potential prejudice of a kind which is different to that arising as a result of crime reporting. His allegations that Victoria Police members deliberately set out to sabotage any fair trial he might subsequently receive by leaking information is not substantiated by any evidence. As to the DPP’s attitude towards suppression, I accept the submission made by the prosecution that the issue was argued in full before Vickery J and he gave detailed reasons for the orders which he made on 8 September 2008.[6]
[6][2008] VSC 344 – Only edited reasons are publicly available. Broadcast of the series had earlier been prohibited by orders of King J. Since then, orders designed to prevent prejudicial publicity in relation to this accused made by Kaye J and by me have been supported by the DPP.
Extradition from Greece
In relation to the ground concerning the circumstances of his extradition from Greece, the accused filed written submissions which repeated, and in certain respects amplified, the submissions made in the applications the subject of the Orbital & Quills ruling. The amplifications concerned the Lebanese extradition request, an additional English authority, and two additional European decisions.
Prior to the hearing of this application, the accused issued subpoenas to the Commonwealth Attorney-General’s Department and to the Department of Foreign Affairs and Trade concerning the Lebanese extradition request, which was belatedly raised in the Orbital & Quills proceeding.[7] The only additional matter submitted on behalf of the accused based on these documents was that as at 16 October 2007 Australian authorities were anxious to prevent the Lebanese request being considered by the Greek justice system because it was known that the Lebanese courts had jurisdiction to prosecute the accused for crimes committed in Australia and that “in principle” would make Lebanon the “preferred” extradition destination.
[7]See Orbital & Quills ruling at [57] to [72].
The subpoenaed documents upon which the accused relied concerning the Lebanese request were tendered in this proceeding as Exhibit 1. The particular document referred to in his submissions is a report of a meeting between an advisor to the Lebanese Prime Minister and an Australian Consular official referred to as “HOM” (presumably Head of Mission). The document includes a passage which reads:
“He [the advisor] also asked whether we thought that Mokbel had contacts in Lebanon who might be pressuring the Justice Ministry to submit an extradition request in order to escape extradition to Australia. HOM said that she could not comment on why Lebanon intended to submit a request, noting that Lebanese law allows the prosecution of its citizens for crimes committed overseas. However, HOM emphasised the serious nature of crimes committed by Mokbel in Australia and the importance of him being surrendered to Australia from a law enforcement perspective.”
The additional document relied upon does not relevantly advance the accused’s case for a stay, in my view.
The accused’s written submission referred to a decision of the Criminal Division of the Court of Appeal in the United Kingdom in R v Mullen.[8] The accused submitted that the facts in his case are “similar” to those in Mullen. In my view, that is not so. The relevant circumstances concerning Mr Mokbel’s extradition are summarised in the Orbital & Quills ruling.[9] In Mullen certain UK officials undertook a process, in collaboration with authorities in Zimbabwe, to procure the return to the UK from Zimbabwe of a person they wished to prosecute. The process they instigated involved deliberate deception as to which country’s authorities were seeking his removal from Zimbabwe and as to what were the true reasons for that removal. The process involved clear contravention of the local Zimbabwean law. There was a conscious intention to arrange matters in such a way as to deprive the person to be deported of all access to lawyers and all access to the local justice system. In Mr Mokbel’s case there was no such process and no such deception. His complaint is not that he was deprived of all access to legal advice and to the local judicial system but rather that the authorities should have waited until he had exhausted every legal avenue potentially available to him. The two situations are very different.
[8][2000] QB 520.
[9]See in particular [15] and [16] and [28]-[41].
The accused relied upon two European decisions in support of his submissions concerning the effect of the application which had been made to the European Court of Human Rights, and in particular the request which had been made for interim measures. The two decisions are Al-Moayad v Germany and Muminov v Russia.[10]
[10]Al-Moayad v Germany (2007) ECHR Application No 35865-03 (“Al-Moayad”), and Muminov v Russia (2009) Application No 42502-06 (“Muminov”).
The accused submitted on the basis of these authorities that if a State bound by the European Convention on Human Rights acted in a manner which prevented the European Court of Human Rights from taking a decision to grant interim measures that would itself amount to a violation of that State’s obligations under the Convention, and in particular under Article 34 whereby parties “undertake not to hinder in any way the effective exercise” of the rights of applicants. Thus, it was submitted, it was improper for Australia to accept the accused’s surrender because that surrender was “illegal”.
In a further written submission handed up in the course of oral argument the accused submitted that the decisions referred to operated in such a way that:
“The accused did so obtain all the practical benefits of interim measures merely by making the application with the ECHR.”
This was perhaps a direct response to a conclusion I had reached in the Orbital & Quills ruling to the effect that that could not be so.[11]
[11]Orbital and Quills ruling at [48].
In Al-Moayad there had been lengthy court proceedings in Germany concerning an extradition request by the United States of America. Those court proceedings had culminated in a decision made by the German Federal Government on Friday 14 November 2003 to extradite the applicant. A request for interim measures under Rule 39 of the European Court of Human Rights’ Rules of Court was lodged on behalf of the person proposed to be deported that day.[12] It seems that the applicant’s lawyer advised the European Court of Human Rights that the German Federal Ministry had been notified of the request and also advised the Court that the Ministry had advised that the extradition would not take place within the next few days. It subsequently transpired that relevant documents had been faxed by the applicant’s lawyer to the wrong fax number. Relying on the advice of the applicant’s lawyer and in the belief that the relevant Ministry had knowledge of the Rule 39 request the court did not make a decision on the application on 14 November 2003. The applicant was extradited on Sunday 16 November 2003. The Court decided that, while it was clear that there had been no failure to comply with measures formerly “indicated” under Rule 39,[13] the case “still raises an issue” as to compliance with Article 34.[14] In that respect the Court said:
“… the Court does not exclude the possibility that acts or omissions by the authorities of a respondent State intended to prevent the Court taking a decision on a Rule 39 request or notifying the Government thereof in a timely manner may amount to a violation of a State’s obligations under Article 34, second sentence, of the Convention, which requires cooperation in good faith with the Court.”[15]
[12]In the Orbital & Quills applications copies of the European Court of Human Rights’ Rules of Court, the Convention for the Protection of Human Rights and Fundamental Freedoms, and the Extradition (Hellenic Republic) Regulations 1991 were handed up and referred to.
[13]Rule 39 relevantly reads: “The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it”.
[14]Article 34 of the Convention relevantly provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols hereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right”.
[15]Paragraph [125].
In this case the court found that there was “insufficient factual basis” to enable the court to conclude that Germany “deliberately prevented the Court from taking its decision on the applicant’s Rule 39 request”.[16]
[16]Paragraph [127].
In Muminov, interim measures had been indicated under Rule 39 prior to the applicant in that case being extradited from Russia. The issue there was whether the Russian authorities had been advised of the measures indicated before the extradition occurred. The timing of the applicant’s removal and of the notification of the interim measures indicated was a matter of controversy. As to the principle to be applied, the Court said:
“The Court does not exclude the possibility that a respondent State’s failure to make practical arrangements for receiving and processing information from the Court regarding the examination of a Rule 39 request or the Court’s decision to apply it in a given case may raise an issue under Article 34 of the Convention. However, in the present case the Court cannot establish with sufficient certainty that having been put on notice about the Court’s decision to apply Rule 39, the respondent Government deliberately omitted to comply with it.
Neither does it appear that any act or omission of the Russian authorities was intended to prevent the Court from taking a decision on a Rule 39 request or notifying the government thereof in a timely manner. (Compare Al-Moayad v Germany [citation omitted]).
[The Court referred to inadequate evidence of prior notification that a Rule 39 request had been made and then went on]
Against this background, the Court’s assessment of the material before it leads it to find that there is an insufficient factual basis for it to conclude that the respondent State deliberately prevented the Court from taking its decision on the applicant’s Rule 39 request or notifying it of that decision in a timely manner, in breach of its obligation to cooperate with the Court in good faith.”[17]
[17]Paragraphs [136]-[137].
The two decisions referred to do not alter the conclusions I reached on this issue in the Orbital & Quills ruling. In particular circumstances, it might be that action by a State bound by the Convention will constitute the hindering of effective exercise of rights in contravention of Article 34 even where interim measures have not been indicated, if it can be shown there was deliberate conduct intended to circumvent the possibility of interim measures. The two decisions relied upon do not, however, stand for the proposition that it is unnecessary to obtain interim measures in order to achieve interim protection.
It is worthwhile briefly reviewing some aspects what occurred in Mr Mokbel’s extradition proceeding.
The Council of Appeal of the Court of Athens ordered that Mr Mokbel be extradited to Australia in July 2007. Mr Mokbel appealed to the Supreme Court of Greece, which ordered that he be extradited on 18 March 2008. In April 2008 Mr Mokbel made his application to the European Court of Human Rights. That application included a request for interim measures.
It is instructive to pause at that point and make reference to the Practice Direction in the Rules of Court of the European Court of Human Rights concerning requests for interim measures under Rule 39. The Practice Direction expressly provides for urgent notifications in extradition or deportation cases by facsimile or email, and by telephone, and it expressly provides for the making of submissions before a final decision is given in extradition or deportation cases where immediate steps may be taken to enforce removal.[18]
[18]The Practice Direction forms part of the copy of the Rules provided.
The Minister for Justice approved the extradition on Wednesday 7 May 2008.
Mr Mokbel’s lawyers advised the Australian Embassy of the application which had been made to the European Court of Human Rights under cover of a letter dated 9 May 2008 (Friday). That letter included the following passage:
“Therefore the extradition should not take place before the ECHR has decided on the substantive application; otherwise it is possible that a decision of the court recognising the violation of my client’s human rights will be of no effect.”
It is noteworthy that there was no reference to interim measures in that letter and indeed, on the contrary, the position taken was that no extradition should take place until the “substantive application” had been dealt with.
In the Orbital & Quills proceedings an affidavit was filed by Yiannis Vlahos, the lawyer who represented Mr Mokbel in Greece. In this proceeding a further affidavit by him, in very similar terms, was filed.[19] The two affidavits set out the sequence of events between Wednesday 7 May 2008 and the extradition on Friday 16 May 2008. There is no reference to any approach being made to the European Court of Human Rights. It seems that attention was entirely focused on a proposed application to the Greek Council of State.
[19]The affidavit filed in this proceeding added some information in relation to applications to the Council of State.
Nothing in the additional matters raised concerning extradition leads me to reach any different conclusions to the conclusions I reached in the Orbital & Quills ruling.
The accused in his oral submissions emphasised that all that the Australian authorities had to do was just wait; wait until all possible avenues of review or appeal which he had in Greece were exhausted. His true complaint is that the Greek and Australian authorities were not prepared to wait. Mr Mokbel’s extradition had been ruled upon by the Council of Appeal of the Court of Athens, by the Supreme Court of Greece, and by the Minister of Justice of Greece. The stated Greek position was that there was no impediment to extradition. The accused’s complaints about the conduct of the Australian authorities concerning, or in the context of, the pending application to the European Court of Human Rights, to which Australia was not a party and where interim measures had been requested but not obtained; and the proposed application to the Council of State, which was never made and of which the Australian authorities were not notified[20], are, in my view, nowhere near the kind of behaviour which could justify a permanent stay.
[20]The only indication in the material that Australian authorities were even aware of that possibility is the following passage in a memo of 17 April 2008 (DFAT 22): “Regarding the extradition request pending against him, a/n [Mr Mokbel] advised his lawyers had not yet exhausted all legal avenues. Specifically a/n advised that the Greek Minister of Justice’s decision regarding his extradition could still be reviewed by a “council of judges”. Regarding the availability of further legal appeals, Post has been advised that no/no additional appeals are possible under Greek law once the Minister of Justice has rendered his decision”.
In oral submissions, the accused raised a complaint or a concern that no signed copy of the Greek Minister’s Decision had been produced. While correspondence on that issue had been forwarded to the Court, no evidence concerning it was filed and its relevance or significance was not articulated.
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