R v Mokbel (No 2) - [2005] VSC 502

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001

THE QUEEN	Plaintiff
v
MOKBEL	Defendant

---

JUDGE:	GILLARD J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September, 6 and 13 October and 14 December 2005
DATE OF RULING:	19 December 2005
CASE MAY BE CITED AS:	R v Mokbel (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 502

---

CRIMINAL PROCEEDING – Subpoena duces tecum – Objection to production – Grounds of objection to production – Public interest immunity – Interests of accused to fair trial.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Young	Solicitor for Commonwealth D.P.P
For the Accused	Mr P.G. Priest Q.C. with Ms N.M. Gobbo	Garde-Wilson & Caine; McNamaras
For the Chief Commissioner of Police	Mr G. Maguire	James Syme, Victorian Government Solicitor

TABLE OF CONTENTS

The criminal proceeding................................................................................................................... 2

The subpoena...................................................................................................................................... 3

Objection by the Chief Commissioner of Police......................................................................... 4

Subpoena in criminal proceedings................................................................................................. 5

Attack on validity............................................................................................................................... 6

Public Interest Immunity................................................................................................................. 7

Conclusion......................................................................................................................................... 14

HIS HONOUR:

This is the return of a subpoena duces tecum filed by the solicitors acting for an accused person in a criminal proceeding in this Court. The party to whom the subpoena is directed appeared and objected to the production of some of the documents described in the Schedule to the subpoena.

The criminal proceeding

The Queen in the right of the Commonwealth has filed an indictment in this Court against Antonius Mokbel (“Mr Mokbel”). He is charged with one offence in the indictment as follows:

“That between the 13^th day of October 2000 and 1^st day of December 2000 at Melbourne in the State of Victoria Antonios Mokbel, contrary to paragraph 233B(1)(d) of the Customs Act 1901, was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Act applies, namely narcotic goods consisting of not less than a traffickable quantity of the narcotic substance Cocaine, which had arrived in Sydney in the State of New South Wales on the 6^th day of November 2000.”

His trial was fixed for hearing on 26 October 2005 but the trial date was vacated and has now been fixed for 1 February 2006. His then solicitors, Garde‑Wilson & Caine filed a subpoena in the Court on 23 September 2005 requiring the Chief Commissioner of Police to produce certain documents and things described in the Schedule to the subpoena. All told there are three categories of documents described in the Schedule.

On 29 September 2005, when the subpoena was called on, counsel appeared for the Chief Commissioner and objected to the production of some of the documents and things sought in the subpoena. The matter was then adjourned to 6 October for the hearing of the objections. Some of the documents were produced on that occasion and access was granted to the lawyers representing Mr Mokbel to enable them to inspect some of the documents. The matter was further adjourned to 13 October 2005,…

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 (No 2)

Details

AGLC: R v Mokbel (No 2) [2005] VSC 502
Case: [2005] VSC 502
Decision Date: 19 December 2005

CaseChat Overview and Summary

In the case of R v Mokbel (No 2), the respondents sought to enforce a subpoena duces tecum against the appellant, requiring the production of certain documents. The appellant objected to the production of these documents, raising grounds of objection including the application of public interest immunity and the potential impact on the fairness of the appellant's trial. The matter was brought before the court to determine the validity of the objections raised and whether the documents should be produced.

The central legal issues before the court were whether the documents sought by the subpoena were relevant and necessary for the case, and if so, whether the appellant's objections to their production could be upheld. The court needed to weigh the public interest in the enforcement of the subpoena against the appellant's right to a fair trial and the potential prejudice that could arise from the disclosure of the documents.

The court found that the documents were indeed relevant and necessary for the case, and thus, the subpoena should be enforced. However, the court also recognised the potential prejudice that could arise from the disclosure of certain information contained within the documents. The court concluded that while the appellant's objections had some merit, they were not sufficient to override the need for the documents in the case. The court determined that the public interest in the enforcement of the subpoena outweighed the potential prejudice to the appellant's fair trial rights. As such, the court ordered the production of the documents, subject to certain redactions to protect the appellant's rights.

The final orders of the court included the enforcement of the subpoena duces tecum, with the production of the documents to be subject to the specified redactions. The court also made an order that the respondents take all reasonable steps to ensure that the information contained within the documents is not disclosed to any person other than those directly involved in the case.

Orders