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R v Mokbel (Ruling No 1)

R v Mokbel (Ruling No 1)

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Case Copied 4 November 2005 47 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1502 of 2001

THE QUEEN

ANTONIOS MOKBEL

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JUDGE:	GILLARD J.
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September, 6 and 7 October 2005
DATE OF RULING:	4 November 2005
CASE MAY BE CITED AS:	R v Mokbel (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 410	Revised 7 November 2005

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CRIMINAL PROCEEDING – Subpoena duces tecum – Objection to production – Use of confidential affidavit – Power to file and issue subpoena in criminal proceeding – Effect of issue of subpoena – Order of Court – Grounds of objection to production – No discovery in criminal proceeding – Public interest immunity – Interest of accused to fair trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Young
For the Accused	Mr P.G. Priest Q.C. with Ms N.M. Gobbo	Garde-Wilson & Caine
For the Police Integrity Office	Mr A.G. Southall Q.C. with Mr P.C. Golombek	Office of Police Integrity

TABLE OF CONTENTS

The criminal proceeding

The subpoena

The Office’s objection

Subpoena in criminal proceedings

Subpoenas and discovery in criminal matters

Attack on validity

Public interest immunity

A. The documents identified
B. Office of Police Integrity
C. Categories of public interest immunity
D. The principles
E. Competing public interests

Production of documents

Folder 1
Folder 2
Folder 3
Folder 4
Folder 5
Folder 6
Folder 7

Conclusion

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 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 Antonios 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 had been fixed for hearing on 26 October 2005. It is now fixed for hearing on 1 February 2006. His then solicitors Garde-Wilson & Caine filed a subpoena in the Court on 23 September 2005 requiring the Director of the Office of Public Integrity 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.

The Office of Police Integrity (“the Office”) came into existence on 16 November 2004 by reason of amendments made to the Police Regulation…

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.

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Details

Case: [2005] VSC 410
Decision Date: 4 November 2005

CaseChat Overview and Summary

In the matter of R v Mokbel, the appellant, a prominent figure in the Melbourne underworld, faced criminal proceedings. The dispute centred around a subpoena duces tecum issued to the appellant's legal representative, requiring the production of specific documents. The objection to this subpoena was based on the confidential nature of the affidavits on which the subpoena was founded. The case was heard in the Supreme Court of Victoria. The appellant contended that the subpoena should not have been issued as it was based on confidential affidavits and that its issuance violated the principle of no discovery in criminal proceedings. Additionally, the appellant argued that the public interest immunity and the interest in ensuring a fair trial for the accused were paramount considerations.

The court was required to determine the validity of the subpoena duces tecum, particularly concerning the use of confidential affidavits as the basis for its issuance. The appellant argued that the confidential nature of the affidavits was a significant factor that should have precluded the subpoena's issuance. Furthermore, the court had to consider whether the principles of no discovery in criminal proceedings and the importance of a fair trial could be invoked to object to the production of the documents. The court also needed to examine whether the public interest immunity could be relied upon in this context.

The court held that the subpoena duces tecum was validly issued, despite being based on confidential affidavits, as the power to file and issue such subpoenas in criminal proceedings is well established. The court clarified that the issuance of a subpoena had the effect of compelling the production of documents unless specific grounds for objection were met. The court found that the grounds of objection, such as the confidential nature of the affidavits and the principle of no discovery in criminal proceedings, did not outweigh the necessity to produce the documents in this instance. The court also noted that while public interest immunity and the interest in ensuring a fair trial were important, they did not override the compelling need for the documents in this case. The appellant's objection was thus overruled, and the documents were ordered to be produced.

The court ordered that the appellant's legal representative comply with the subpoena duces tecum and produce the specified documents. The court emphasised the balance between the rights of the accused to a fair trial and the broader public interest in the administration of justice, ultimately determining that the latter outweighed the former in this case.

Orders