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R v Mokbel & Mokbel

R v Mokbel & Mokbel

Case [2006] VSC 158 26 April 2006

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001
No. 1420 of 2005

THE QUEEN

ANTONIOS SAJIH MOKBEL

and

RENATE LISA MOKBEL

Prisoner

Surety

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JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 24, 29 March and 19 April 2006
DATE OF JUDGMENT:	26 April 2006
CASE MAY BE CITED AS:	R v Mokbel and Mokbel
MEDIUM NEUTRAL CITATION:	[2006] VSC 158

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BAIL – Forfeiture and estreatment – Crown Proceedings Act 1958 (Vic) s.6(1) – Proof by Crown – Whether failure to observe condition of bail due to deliberate act – Period of imprisonment in default.

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APPEARANCES:	Counsel	Solicitors
For the Crown (Commonwealth of Australia and State of Victoria)	Mr D. Parsons SC	Commonwealth Director of Public Prosecutions; Office of Public Prosecutions Victoria
For Antonios Sajih Mokbel	No appearance
For the Surety Mrs Renate Lisa Mokbel	Mr L. Lasry QC	Chiodo & Madafferi

HIS HONOUR:

These are applications by the Crown in the right of the Commonwealth and the Crown in the right of the State, for declarations that the bail granted to the prisoner be forfeited and for orders that the amount undertaken by the surety in each of two proceedings be paid to the Court forthwith.

The prisoner, Antonios Sajih Mokbel (“the prisoner”), 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 narcotic goods consisting of not less than a traffickable quantity of cocaine, which arrived in Australia on 6 November 2000, contrary to paragraph 233B(1)(d) of the Customs Act 1901. Upon arrest, he was remanded in custody and on 7 September 2001, he was granted bail by a magistrate on a number of strict conditions. The Crown appealed against the grant of bail and Cummins J, on 1 October 2000, allowed the appeal and the prisoner was remanded in custody.

During 2002 the prisoner made a number of applications to this Court for bail. Kellam J heard two applications for bail, and on the second occasion his Honour observed that there was a real possibility of inordinate delay occurring before the hearing of the committal proceeding and that in those circumstances the prisoner may establish exceptional circumstances. His Honour put the Crown on notice that the stage may be reached that the delay would result in the grant of bail.

In addition to the Commonwealth charge, the prisoner was charged by the State Police on 24 August 2001 with a number of serious charges relating to the trafficking of drugs in a commercial quantity. He was arrested as a result of those charges and remanded in custody. The applications for bail in 2002 were in respect to both the Commonwealth and State charges.

On 4 September 2002, Kellam J granted the prisoner bail having been satisfied that there were exceptional circumstances because of the indefinite delay. The conditions were onerous. A surety of $1…

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 & Mokbel

Details

AGLC: R v Mokbel & Mokbel [2006] VSC 158
Case: [2006] VSC 158
Decision Date: 26 April 2006

CaseChat Overview and Summary

In the case of R v Mokbel & Mokbel, the appellants were facing charges relating to serious criminal activity. The issue at hand was whether the appellants forfeited their bail upon their failure to observe a condition of bail, specifically the requirement to surrender to a police officer. The appeal was heard in the Supreme Court of Victoria, Court of Appeal. The Crown argued that the appellants had deliberately failed to observe a condition of their bail and, therefore, their bail had been forfeited. This was based on a specific provision of the Crown Proceedings Act 1958 (Vic) which states that if an appellant fails to observe a condition of bail, they forfeit their bail and may be subject to imprisonment.

The legal issues before the court included determining whether the appellants' failure to observe the bail condition was due to a deliberate act and whether this constituted a forfeiture of bail under the relevant statute. Additionally, the court had to consider the appropriate period of imprisonment to be imposed in default of the appellants' appearance in court. The appellants argued that their failure to observe the bail condition was not due to a deliberate act, and therefore, the Crown's claim for forfeiture should be dismissed.

The court found that the appellants had indeed deliberately failed to observe a condition of their bail, which led to the forfeiture of their bail. The court considered the Crown's argument that the appellants' failure to observe the bail condition was a deliberate act, and this was supported by evidence presented in the case. The court also noted the provisions of the Crown Proceedings Act 1958 (Vic) and concluded that the appellants' failure to observe the bail condition constituted a forfeiture of their bail. The court ordered that the appellants be imprisoned for a specified period in default of their appearance in court.

The final orders of the court were that the appellants' bail be forfeited, and they be imprisoned for a period of time as determined by the court. This decision upheld the Crown's claim that the appellants had deliberately failed to observe a condition of their bail, leading to the forfeiture of their bail. The court's reasoning was based on the evidence presented and the relevant statutory provisions, which supported the Crown's position.

Orders