R v Mokbel (Ruling No 1) - [2009] VSC 507

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1728 of 2008

THE QUEEN

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.…

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 (Ruling No 1)

Details

AGLC: R v Mokbel (Ruling No 1) [2009] VSC 507
Case: [2009] VSC 507
Decision Date: 4 November 2009

CaseChat Overview and Summary

The court was presented with a case where the appellant, Mokbel, was facing charges related to drug trafficking. The nature of the dispute revolved around the admissibility of evidence from a previous trial where the same witness had testified about drug trafficking activities, and the appellant was acquitted. The witness was proposed to be called again in the current proceedings. The High Court of Australia was tasked with determining the principles of res judicata as they apply in criminal proceedings, specifically whether certain matters had been conclusively determined in favor of the accused in the previous trial.

The legal issues before the court included the applicability of the principle of res judicata to criminal proceedings and whether the matters determined in the earlier trial could be considered conclusive in the current case. The court needed to weigh the precedent set by previous cases, such as DPP v Marini, against the unique circumstances of the current proceedings. Another issue was whether the witness's evidence from the previous trial could be used to bolster the prosecution's case in the current trial, despite the appellant's acquittal in the earlier proceedings.

The court found that the principle of res judicata applied to criminal proceedings in a limited capacity. It concluded that the matters determined in the earlier trial could be considered conclusive if they were relevant to the current charges and were sufficiently established in the previous trial. The court acknowledged that the acquittal did not necessarily mean that the evidence was inadmissible in the current proceedings if it could be shown that the matters had indeed been determined conclusively. The court also considered the nature of the evidence and the role of the witness, finding that the witness's testimony could be relevant if it directly pertained to the current charges and had been sufficiently established in the earlier trial. The court held that the evidence was admissible if it could be shown that the matters had been conclusively determined in favor of the accused in the previous trial.

The final orders of the court were that the evidence from the previous trial could be considered if it could be demonstrated that the matters had been conclusively determined in favor of the appellant in the earlier trial. The court emphasized the need for a clear and direct connection between the matters determined in the previous trial and those at issue in the current proceedings. The court also noted that the weight to be given to the evidence would depend on its relevance and the circumstances of the case. The decision provided clarity on the application of res judicata in criminal proceedings, ensuring that the evidence from previous trials could be considered under specific conditions.

Orders