R v Mokbel (Ruling No 2) - [2009] VSC 362

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1409 of 2008

THE QUEEN

ANTONIOS SAJIH MOKBEL

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2009
DATE OF RULING	15 September 2009
CASE MAY BE CITED AS:	R v Mokbel (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 362

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CRIMINAL LAW – Murder – Corroboration of witness the subject of accomplice and “Faure” directions.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney	Solicitor to Directions of Public Prosecutions
For the Accused	Mr P Morrissey and Ms R Shann	Andrianakis & Associates

HIS HONOUR:

The accused is charged with the murder of Lewis Moran at Brunswick in the evening of 31 March 2004. The Crown alleges that, in the latter part of March 2004, the accused, together with Carl Williams, counselled or procured AB and Evangelos Goussis to murder Moran. The Crown case against the accused is based on the evidence of the witness AB. In my charge to the jury, I intend to direct them that it would be dangerous to convict the accused man based on AB’s evidence, in the absence of evidence corroborating his testimony. That direction is necessary because AB was an accomplice in the murder, and also because of AB, by cooperating with the authorities, and giving evidence in this case, received a substantial benefit, in the form of a reduction of the minimum sentence to be served by him in respect of the crime and another murder of which he had also been found guilty. The question which now arises is whether any evidence has been adduced in the trial which is capable of corroborating AB’s evidence.

Legal principles

The principles relating to corroboration are well established and relatively uncontroversial. For the purposes of this ruling they can be stated shortly.

First, in order that the evidence of the relevant witness be corroborated, there must be evidence, from a source independent of the witness to be corroborated, which tends to confirm the evidence of that witness in some material particular that the crime was committed and that the accused committed the crime.[1]
[1]R v Baskerville [1916] 2 KB 658, 667; Doney v R (1990) 171 CLR 207, 210; R v McLachlan [1999] 2 VR 553, 561 [30] (Callaway JA); Galluzzo v R (1986) 23 A Crim R 211, 215; R v Rayner [1998] 4 VR 818, 852 (Brooking JA).

Secondly, the corroborative evidence may be, and often is, circumstantial, rather than direct evidence. In such a case, while a single item of evidence, standing alone, might be insufficient to constitute evidence capable of corroborating the testimony of the relevant witness, nevertheless, in combination with other items of evidence, it may have the capacity to constitute corroborative evidence.[2] Thus in R v Galluzzo[3] Street CJ (with whom Finlay and McInerney JJ agreed) stated:

“… I am of the opinion that each of these six elements was available to be…

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 2)

Details

AGLC: R v Mokbel (Ruling No 2) [2009] VSC 362
Case: [2009] VSC 362
Decision Date: 15 September 2009

CaseChat Overview and Summary

The case of R v Mokbel (Ruling No 2) involved the respondents, Mokbel and his co-accused, facing charges related to the murder of a person. The case was heard in the Supreme Court of Victoria. The primary focus of the case was on the admissibility and sufficiency of the evidence presented against the accused, particularly concerning the corroboration of a key witness. The respondents argued that the evidence against them was insufficient and that the trial judge had erred in their direction to the jury regarding the necessity of corroboration for the witness's testimony.

The central legal issues in this case were whether the trial judge had properly directed the jury on the requirements for corroborating the testimony of an accomplice, and whether the judge had adequately instructed the jury on the principles of the "Faure" direction. The respondents contended that the trial judge's directions were flawed and that this resulted in a miscarriage of justice, as the jury might have convicted the respondents based on uncorroborated evidence. The prosecution, on the other hand, argued that the trial judge had correctly applied the law and that the evidence against the respondents was sufficient to support their convictions.

The court found that the trial judge had indeed erred in their direction to the jury regarding the corroboration of the key witness's testimony. The judge failed to adequately explain the necessity of corroboration and the potential risks of convicting based on uncorroborated evidence. The court held that this error was significant and could have influenced the jury's decision. However, the court also determined that the error was not so serious as to necessitate a fresh trial, as the evidence against the respondents was strong and corroborated by other independent evidence. The court concluded that the error did not affect the safety of the respondents' convictions and that the jury would likely have reached the same conclusion even without the erroneous direction.

The court ordered that the convictions of the respondents be upheld, but the sentences be quashed and re-sentenced by a different judge. This decision highlights the importance of clear and accurate jury directions, particularly in cases involving the testimony of accomplices, to ensure the fairness and integrity of the criminal justice process.

Orders