R v Mokbel (Ruling No 1)
[2009] VSC 507
•4 November 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1728 of 2008
| THE QUEEN |
| v |
| HORTY MOKBEL, STEPHEN GAVANAS AND MOHAMMAD KHODR |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26-30 October 2009 | |
DATE OF RULING: | 4 November 2009 | |
CASE MAY BE CITED AS: | R v Mokbel & Ors (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 507 | |
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CRIMINAL LAW – Admissibility – Giretti trafficking - Evidence of drug trafficking led previously by witness at a trial in which accused was acquitted – Witness proposed to be called again in present proceedings - Principles of res judicata in criminal proceedings – Determining which matters have been certainly determined in favour of the accused
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J Champion SC | Solicitor for Public Prosecutions |
| For Horty Mokbel | Mr S Shirrefs SC and Mr M Dempsey | Grigor Lawyers |
| For Stephen Gavanas | Mr D Sheales | Stephen Andriannakis & Associates |
| For Mohammad Khodr | Ms P Riddell | Robert Stary & Associates |
HIS HONOUR:
The three accused are charged on an eight count presentment. The first count, to which they have each pleaded not guilty, is as follows:
“The Director of Public Prosecution presents that Horty Mokbel, Stephen Gavanas and Mohammad Khodr at Pascoe Vale and divers locations in the said State between the first day of May 2006 and the ninth day of October 2006 conspired together to commit an offence against the provisions of s 71 of the Drugs, Poisons and Controlled Substances Act 1981 to traffic in a drug of dependence, namely methylamphetamine, in a quantity which was not less than the large commercial quantity applicable to that drug of dependence.”
On 3 October 2008 Horty Mokbel was acquitted by a jury of a charge in the following terms:
“Horty Mokbel at Preston and diverse other places between 1 November 2004 and 30 April 2006 trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the large commercial quantity applicable to that drug of dependence.”
The prosecution case in the earlier trial relied substantially upon the evidence of an accomplice or alleged accomplice, George Peters. He gave evidence of a number of drug dealings which he said he had had with Horty Mokbel in and between November 2004 and April 2006. In this trial the prosecution again proposes to call evidence from George Peters. The evidence which it proposes to call is set out in a marked up folder containing extracts of Mr Peters’ committal transcript, Mr Peters’ police statements, and transcript of the evidence given in chief by Mr Peters at the earlier trial.
The matters which the prosecution proposes to lead in evidence from Mr Peters in this trial are the following:
(1)Mr Peters met Stephen Gavanas in 2005 at the Grove Coffee shop.
(2)Mr Gavanas was introduced to Mr Peters by Horty Mokbel who explained to him that Mr Gavanas was a pseudoephedrine cook, a reference to one method of manufacturing methylamphetamine. Mr Mokbel asked Mr Peters to teach Mr Gavanas an alternative method of producing methylamphetamine, referred to as the P2P method.
(3)At a “cook” subsequently conducted at premises in Preston, Mr Peters did teach Mr Gavanas the method. Mr Gavanas assisted in that cook. On that occasion, and in discussions thereafter, Mr Gavanas displayed knowledge of methylamphetamine manufacture. At one point Mr Gavanas was living at the Parkville Motor Inn, and Mr Peters visited him there and met a person introduced to him as “Ponch”.
(4)Mr Peters was at the time of the introduction and the request, a person who manufactured methylamphetamines for supply to Horty Mokbel. He then believed that he was likely in the near future to be incarcerated. The arrangement he made with Horty Mokbel was that Mr Gavanas would be his replacement and that, if Mr Peters trained Mr Gavanas as requested, he would be paid money whilst he was in jail, or would receive a percentage of the cooks embarked upon by Mr Mokbel and Mr Gavanas. Mr Mokbel supplied 5 litres of Ketone (P2P) for the cook at which Mr Peters taught Mr Gavanas the P2P method.
These events all occurred prior to the first date of the alleged conspiracy which is the subject of this trial. The prosecution submits that the role of Mr Gavanas as a cook is relevant to the conspiracy alleged to commence on 1 May 2006 and that the expertise gained by Mr Gavanas enabled the alleged conspiracy to form and be carried on. The prosecution also maintains that the evidence gives necessary background without which later events cannot be properly understood.
Senior Counsel on behalf of Horty Mokbel objects to the admission of this evidence on the basis that the admission will call into question and tend to overturn Mr Mokbel’s earlier acquittal, will inevitably involve the jury being invited to reach conclusions directly contrary to the effect of the earlier acquittal, and will constitute the re-litigation of an issue which has already been conclusively and finally decided in favour of Mr Mokbel.
Applicable legal principles
There was no substantial controversy as to the applicable principles. The controversy was as to their application.
It seems to me that the applicable principles may be summarised as follows:
(1)It is a fundamental precept of criminal law that an acquittal cannot be re-litigated.[1] This fundamental precept derives from two key principles:
[1]Garrett v The Queen (1977) 139 CLR 437 (“Garrett”); R v Storey (1978) 140 CLR 364 (“Storey”).
(a)decision of courts unless set aside or quashed must be accepted as incontrovertibly correct;[2] and
[2]R v Rogers (1994) 181 CLR 251, 273 per Deane and Gaudron JJ (“Rogers”); R v Carroll (2002) 213 CLR 635, 647-8 per Gleeson CJ and Hayne J (“Carroll”).
(b)accused persons must be given the full benefit of their acquittal.[3]
[3]Storey, 372 per Barwick CJ.
In criminal proceedings the concept of issue estoppel does not apply.[4]
[4]Rogers, 254 per Mason CJ; 278 per Deane and Gaudron JJ.
(2)The verdict of acquittal is incontrovertible. In Garrett, Barwick CJ said:
“The relevant principle is that the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict.”[5]
(3)The principle that an acquittal may not be called in question means that evidence having that effect on a later trial for a different offence is not admissible. In Storey, Mason J (as he then was) said:
“The principle … will preclude the Crown from challenging the effect of a previous acquittal, not merely in proceedings for the same or a substantially similar offence, but also for proceedings for a different offence when evidence of the transaction the subject of the acquittal is sought to be relied upon. In its application in this fashion res judicata gives expression to the notion that once a person is acquitted of an offence, the acquittal must be recognised fully and without qualification for all purposes in criminal proceedings.” [6]
(4)The principle does not, however, mean that evidence which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision may never be led.[7] The principle does not mean that relevant evidence at a subsequent trial must always be excluded because it might, on its face, if unexplained, tend to suggest that the accused was guilty of an offence of which he had been acquitted.[8]
(5)In determining whether the effect of what is proposed contravenes the principle, it is necessary to consider the elements of the offence with which the accused is then charged and the elements of the offence of which he has already been acquitted. In Carroll Gleeson CJ and Hayne J said:
“Where it is said that the abuse lies in seeking to controvert an earlier verdict of acquittal, there appears much to be said for the view that it is necessary to direct attention to the elements of the offence of which the person was acquitted and the elements of the offence with which the person is later charged. Seldom, if ever, will considering whether the later charge controverts an earlier acquittal require attention to whether evidence which would be led at a second trial is new or persuasive.
To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to distract attention from what it is that was decided.”[9]
(6)Where is only one element of fact in the earlier offence, that element cannot be proved in the later trial. Where there are multiple elements then it is not open to a jury at a later trial to conclude that all elements are proved.[10] While all elements cannot be accepted as proved in a later trial, individual elements less than the whole may be.[11] If, however, a detailed examination of the earlier trial reveals that a fact relevant to an element of an offence in respect of which the defendant has been acquitted has been certainly determined in his favour at that earlier trial, then the principle will apply and evidence contrary to that determination cannot be admitted.[12]
(7)If evidence having the incidental effect, or potential incidental effect, of calling into question an earlier acquittal is admitted the jury must be given a clear direction, in specific terms adapted to the case, to the effect that the accused is entitled to the full benefit of that acquittal.[13]
[5]Garrett, 445.
[6]Storey, 396 per Mason J.
[7] Carroll, 651 per Gleeson CJ and Hayne J.
[8] Storey, 397 per Mason J.
[9]Carroll, 651. See also Washer v State of Western Australia (2007) 234 CLR 492 (“Washer”).
[10]Storey, 408-9 per Jacobs J cited with approval in Washer, 507-8 with emphasis on “all”.
[11]Storey, 409.
[12]Storey, 409-10.
[13]Storey, 397 per Mason J, 424-5 per Aickin J and Washer, 506.
Elements of the offences
The offence of which Mr Mokbel was acquitted is an offence often referred to as a “Giretti” count, a reference to the decision of the Court of Criminal Appeal in Giretti and Giretti.[14]
[14](1986) 24 A Crim R 112.
Where a count is pleaded on a Giretti basis the allegation is that the activity has a regularity and a continuity that would enable it to be properly described as the conduct of an ongoing business. In Giretti, Crockett J said:
“If the case being advanced is that a business was being carried on, that is that it was a continuing offence, then that is what must be proved to establish the single offence charged in the count. It is not proper to plead a number of individual acts of trafficking (perhaps because it is not possible to match each to a particular date or approximate date) on the basis that the jury can find at least one offence committed during the stated period; still less that different jurors might be satisfied as to different acts of trafficking so long as they were all satisfied as to at least one.”[15]
Ormiston J, said:
“In my opinion, the continuing offence of trafficking … cannot ordinarily be established by proving merely a number of transactions over a period of time; rather it is the inference to be drawn from those transactions which is critical to the jury’s consideration whether the continuous offence of trafficking has been made out by proof of a trade or business of dealing in drugs.”[16]
I note before leaving Giretti, that Ormiston J also observed[17] that the jury should be told they need to be satisfied that the alleged commercial activity extended over a period of time which broadly corresponded with the period specified in the count.
[15]Giretti & Giretti, 117.
[16]Giretti & Giretti, 130.
[17]Giretti & Giretti, 141.
For present purposes, one noteworthy characteristic of a Giretti count is that the prosecution might succeed without establishing beyond reasonable doubt any particular instance of drug trafficking. On the other hand, the prosecution might fail although it has established beyond reasonable doubt particular instances of drug trafficking.
The earlier trial
In the course of submissions I was taken to passages from Mr Peters’ evidence in the earlier trial, to passages in the prosecution opening, to the closing addresses, and to Her Honour’s charge. In considering the submissions made, I have particularly paid careful regard to the way in which Her Honour charged the jury and to the final addresses.
One issue which needs to be dealt with in relation to the earlier trial, concerns the significance of the period of the charge. The Giretti count against Mr Mokbel in the earlier trial alleged, in effect, that he was engaged in the business of drug trafficking between 1 November 2004 and 30 April 2006. The defence position at the earlier trial was that it was incumbent upon the prosecution to prove that the business alleged was conducted over a period approximating the period stated in the count. This position is consistent with what was said by Ormiston J in Giretti and with the Court of Appeal decision in R v. Peter Allen.[18] The prosecution in the earlier trial referred the trial judge to some arguably contrary dicta in R v. Komljenovic[19] but, on my reading of the transcript, did not seek to take up the issue, on the basis that the prosecution case against Mr Mokbel relied upon the acceptance of the evidence of George Peters and that if that evidence was accepted, then the full period would have been proven.
[18]Unreported, Supreme Court of Victoria, Court of Appeal, Callaway JA, Southwell and Vincent AJJA, 14/12/1995.
[19](1994) 76 A Crim R 521.
There was evidence upon which the prosecution relied in the earlier trial, other than the evidence of the alleged accomplice, George Peters. In particular, the prosecution led evidence of covertly recorded conversations between Mr Mokbel and Mr Peters in April 2006 which senior counsel for Mr Mokbel in the earlier trial conceded revealed what he described as a “drug relationship” between the two of them as at April 2006.
In his final address in the earlier trial, senior counsel for Mr Mokbel put to the jury that George Peters was a man with no credibility and who was utterly unreliable. Aspects of Mr Peters’ evidence which were the basis for this submission were also referred to in Her Honour’s charge.
One issue which senior counsel for Mr Mokbel had to grapple with in his final address at the earlier trial was the taped conversations in April 2006. He addressed that issue by putting emphasis on the period of the charge which Mr Mokbel then faced, being 1 November 2004 to 30 April 2006. What he put to the jury was that the further one went back from April 2006, the greater was the reliance upon George Peters alone, and that the charge that the Crown had chosen to bring was one of drug trafficking; not one of drug trafficking in April 2006, but one of conducting a business of drug trafficking between 1 November 2004 and 30 April 2006. He told the jury that this was a most important point. It was the first matter he dealt with in his final address, and it was the last factual matter he dealt with in that address. When concluding his remarks to the jury he emphasised that the case was not about April 2006, it was about 1 November 2004 to 30 April 2006, and that to find his client guilty of conduct over that period, they would have to believe George Peters beyond reasonable doubt. He put to them that to reason back to 2004 on the basis of what had happened in April 2006 would be guesswork and speculation.
Significantly, shortly after Her Honour commenced her charge, the jury asked this question: “Can you please clarify the charge against Mr Mokbel for us please, specifically, is what Mr Shirrefs said about the charge including the dates, November 2004 to April 2006, correct or do we just need to decide if he is guilty, not guilty, for trafficking at any stage?”
Her Honour in response to that question, confirmed that what Mr Shirrefs had said was correct.
With one exception, throughout her charge Her Honour adopted an approach reflecting the approach which Mr Shirrefs had submitted was the appropriate one in relation to the issue of the period, and which, on my reading of the transcript, counsel for the prosecution had not been concerned to dispute, given the particular circumstances of that case. Her Honour did on one occasion refer to it being sufficient if the business was carried on for some portion of the period, but she explicitly endorsed Mr Shirrefs’ final submission to the jury in this respect, and on every other occasion, and there were many, in her charge she referred to the need for the Crown to prove continuous trafficking over the period alleged.
Counsel for Mr Mokbel queried with Her Honour the one occasion where she had referred to a portion of the period, but Her Honour referred him to the fact that she had also repeatedly told the jury that George Peters said the relationship with Mr Mokbel went from November 2004 onwards and that she had told the jury that the Crown case rested upon George Peters and that the jury could not convict Mr Mokbel unless they accepted his evidence. Counsel for Mr Mokbel agreed with Her Honour that that was the answer to the concern which he had raised.
Her Honour, in her charge, also emphasised to the jury that given the nature of the charge it was not sufficient for the Crown to prove "isolated acts amounting to trafficking". Her Honour referred the jury to the fact that counsel for Mr Mokbel had conceded that the conversations in April 2006 related to drug trafficking but she told the jury that one incident in April, or even two or three incidents, would not be enough. Her Honour repeated for the jury the various submissions that had been made about the significance of the events in April 2006.
What does the previous acquittal mean for present purposes?
Counsel for Mr Mokbel submits that at the earlier trial Mr Peters’ evidence was either to be accepted or rejected, as a package, in effect. He submitted that there was no basis upon which the jury could properly have accepted some of the things which he said and rejected others. He submitted that this was a case such as was described in Smith, Ashford and Schevella v R[20] where the Crown case stood or fell according to the jury’s view of one witness’ credibility.
[20](1990) 50 A Crim R 434
There is substance in this submission but it needs to be qualified. My review of the materials leads me to conclude that it was well open to the jury to find that Mr Mokbel was engaged in the business of drug trafficking as at April 2006, and indeed that so much was, if not conceded, barely disputed. Further, it was open to the jury to conclude on the basis of the conversations in April 2006 that Mr Mokbel had been engaged in the business of drug trafficking for some period before then. That issue was one to which counsel for Mr Mokbel understandably addressed considerable specific attention in his final address. The law has long recognised what might be described as retrospective reasoning of this kind, although it has also recognised that such reasoning has significant limitations.[21]
[21]R v Rhodes [1899] 1 QB 77; Martin v Osborne (1936) 55 CLR 367.
In order to reach its verdict of acquittal in the earlier trial the jury did not have to reach any specific finding in relation to the matters in 2005 about which the prosecution wishes to lead evidence in this trial. They did have to form a view about Mr Peter’s evidence. The submission put to me is that they must have rejected his evidence in its entirety and in every relevant detail, including all of his evidence about the events in 2005 as to which the prosecution now proposes to lead evidence. I do not accept that that is so. They could well have accepted Mr Peters’ evidence about the events in April 2006. They could well have accepted that his account of a drug trafficking business being conducted by Mr Mokbel for some period prior to then was also credible and reliable. Given the way in which the matter was put to the jury by both counsel for Mr Mokbel and by the trial judge, they may have determined that they were not prepared, on the basis of Mr Peters’ evidence, to find that Mr Mokbel had conducted a drug trafficking business during the period 1 November 2004 to 30 April 2006 or during a period approximating that period. On the way the matter was put to the jury in the earlier trial the jury could well have determined to acquit the accused because they found the charge which was made was not proven, even though they were satisfied he was a drug trafficker in April 2006 and was a drug trafficker before then as well, but because they were not satisfied that the period of that activity extended back to 1 November 2004 or to a period approximating that period.
Consequences for the evidence proposed to be led here
Turning to the specific matters proposed to be led here. As to sub-paragraphs 1, 2 and 3, set out in paragraph 4 above, my conclusion is that these matters do not challenge or call into question the previous acquittal.
If the jury in this trial accepted each of those matters without qualification that would not amount to a conclusion that Mr Mokbel was guilty of the charge of which he has been acquitted. The contrary analysis, for which counsel for Mr Mokbel contends, is that the jury could only accept these matters in this trial if they accepted the evidence on those matters of Mr Peters and the issue of Mr Peters’ credibility on matters occurring during the period of the previous trial, 1 November 2004 to 30 April 2006, has already been determined. This analysis appears to me to be misconceived. The relevant enquiry is not as to Mr Peters’ credit. The relevant enquiry is as to the elements of the previous count of which Mr Mokbel has been acquitted and of factual matters relevant to those elements which can be shown to have been certainly determined in his favour at the previous trial. I do not consider that it can be shown those matters have been certainly determined in his favour at the previous trial. Indeed, I note that in the cross-examination of Mr Peters at his previous trial about the issue of training Mr Gavanas, after some ambiguity, what was put to him was as follows:
“What I’m putting to you, Mr Peters, is to the knowledge - certainly to the knowledge of Horty Mokbel, he has no knowledge at all and no involvement in whatever arrangement you may have had with Steve Gavanas concerning the cooking and manufacture of amphetamines? ¾ ¾ ¾I say you’re mistaken, Mr Shirrefs.”[22]
[22]Transcript, 1057.
As to matter sub-paragraph 4, it seems to me the position is different.
Mr Peters’ evidence in relation to the arrangement which he says was made in 2005 concerning the teaching of Mr Gavanas necessarily involves evidence that Mr Gavanas was a replacement for Mr Peters as Mr Mokbel’s drug manufacturer. That is indeed the way counsel for the prosecution put the matter to me in his submissions. The arrangement concerning recompense by payment or product suggests the existence of what was then an existing business being conducted by Mr Mokbel of trafficking in drugs and a business which he proposed to continue. Likewise, the evidence of Mr Mokbel’s provision of the ketone suggests a business of which Mr Mokbel was the then principal.
It might be said that this can properly be described as merely “an instance” of drug trafficking and that a jury accepting that in this trial would not be accepting all the elements necessary to reach a conclusion inconsistent with the verdict of acquittal in the earlier trial. That analysis, however, would, in my view, be too technical. If the jury were to accept the evidence of Mr Peters about the specific arrangements and about the provision of the ketone they would be accepting that as at May 2005 Mr Mokbel had been conducting and was planning to continue to conduct a drug trafficking business. That conclusion would, in my view, call into question the verdict in the earlier trial, even though it is not inevitably inconsistent with it. My conclusion is that that evidence, which I set out in sub-paragraph 4 is not admissible.
To summarise then, my conclusion on the objection made on the basis that the evidence should not be admitted by reason of the earlier acquittal is that the evidence I have set out in sub-paragraphs 1, 2 and 3 in paragraph 4 above is not inadmissible on that ground but that the evidence in sub-paragraph 4 is inadmissible on that ground. I was asked by counsel for the prosecution not to address exclusion on the basis of a general discretion until I had ruled on the matters I have now addressed. Counsel for Mr Mokbel has made some submissions on that issue. I will hear any further submissions on that issue in the light of this ruling.
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