R v Mokbel (Ruling No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1409 of 2008

THE QUEEN

v

ANTONIOS SAJIH MOKBEL

---

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

---

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

---

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 evaluated by the jury as an element of corroboration. Taken individually they are, of course, little more than straws in the wind. But, taken together, as the Crown presented them to the jury … they do present a pattern in which some degree of corroboration can be found.”

[2]See R v Taylor (2004) 8 VR 213, 228 [29] (Vincent JA); R v Kalajzich & Orrock (1989) 39 A Crim R 415, especially at 427 to 429, 434; R v Fuhrer [1961] VR 500, 509 (Sholl J); R v Ferguson, Sadler &Cox [2009] VSCA 198, [112], [133], [134].

[3]Footnote above, at 216.

Thirdly, the fact that the evidence may not be unequivocally referrable to guilt, does not preclude it from being evidence which is capable of being considered corroborative. In R v Taylor[4], Winneke P stated:

“The mere fact that [the evidence] might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration. … For example, evidence of distress, or injury to, or torn clothing of, a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not.”[5]

[4]Footnote above at [13].

[5]See also R v Kalajzich & Orrock above at 433.

Accordingly, evidence which is capable of giving rise to competing inferences, one of guilt, and one of innocence, is not thereby precluded from being corroborative evidence, provided that the evidence is not “intractably neutral”, in the sense that it is incapable of being perceived as supporting the evidence of the accomplice (or witness to be corroborated) in a relevant way.[6] In other words, it is sufficient that the corroborative evidence strengthens, or makes more probable, the evidence of the accomplice implicating (or “involving”) the accused in the commission of the alleged offence.[7]
[6]R v Gill [2003] VSC 317, [13] (Redlich J); R v Taylor (above) at [16], Winneke P.
[7]R v Ferguson, Sadler & Cox (above) [106]-[108]; R v Taylor (above), [12]; R v Kuster [2008] VSCA 261, [17]-[18].

Finally, it is important to note that evidence may be corroborative of a particular witness, notwithstanding that the evidence itself does not point to the guilt of the accused. It is sufficient that the evidence supports an aspect of the testimony of the accomplice (or witness to be corroborated) which itself implicates the accused in the offence charged.

Accordingly, evidence may be regarded as corroborative of the account of a witness, notwithstanding that, in the absence of that account, the evidence would not itself point to the guilt of the accused.[8] Thus in R v Kalajzich[9] the New South Wales Court of Criminal Appeal (in a passage referred to, with approval, by Winneke P in R v Taylor[10]) referred to the:

“… fallacy of many of the arguments advanced in the present case which depend upon the submission that some of the matters left as capable of being corroboration could not have that character because they necessarily presuppose the truth of the evidence of the person whose testimony the Crown sought to have them corroborate.”

[8]R v Berrill [1982] Qd R 518, 526 (McPherson J).

[9](1989) 39 A Crim R 415, 430.

[10]Footnote above, [13].

That last proposition is made clear by two recent decisions of the Court of Appeal of Victoria.

In R v Martin[11], the accused was charged with trafficking in not less than a commercial quantity of ecstasy, contrary to s 71(1) of the Drugs Poisons and Controlled Substances Act 1981. The Crown case was that a man, referred to as G, had acquired the ecstasy from an overseas supplier, referred to as L, and had then sold the ecstasy to the accused for resale by him. After the accused had received, and paid for, two consignments of ecstasy from K, he received, but failed to pay G for, a further batch of ecstasy. G gave evidence against the accused, which included evidence that in early May 1999, while L was visiting Australia, G and L both tried to contact the accused in order to secure repayment by him. G also gave evidence that on one occasion he took L to the accused’s house, and recovered items from his letter box, to satisfy L that the accused actually did exist. At the trial of the accused, evidence was given as to call charge records, which pointed to telephone contacts, or attempted telephone contacts, by L to the accused, by G to the accused, and by the accused to G, during that time period. The items retrieved from the accused’s letter box were also tendered in evidence. The trial judge held that there was no evidence capable of corroborating the testimony of G. However her Honour did refer to the evidence of the call charge records, and the evidence of the contents of the letter box, as circumstantial evidence upon which the Crown relied as being consistent only with the guilt of the accused. On appeal, Vincent JA (who delivered the leading judgment of the Court of Appeal) held that the trial judge erred in distinguishing between circumstantial evidence and evidence capable of corroborating the accomplice G. His Honour further held that the evidence was capable of corroborating the testimony of G, because it made more probable an aspect of the evidence of G which implicated the accused in the trafficking of the ecstasy.[12]
[11][2003] VSCA 80.
[12]See especially at [31], [36] to [38].

In Martin’s case, the evidence, held to be corroborative of the testimony of the accomplice G, did not logically point to the guilt of the accused. However, it was held to be capable of constituting corroboration, because it supported an aspect of G’s evidence, namely, the pursuit by L and G of the accused for payment for the drugs, which itself implicated the accused in the crime charged.

The same principle was made clear in the more recent decision of the Court of Appeal in R v Kuster[13]. In that case, the accused was charged with the murder of Leo Philippone. In January 2004, the accused had stayed overnight at the home of Philippone in Newborough with Christina Krajina, with whom he had an “on and off” relationship. Two days after Krajina’s departure from Melbourne, a fire occurred at the house. After the fire was extinguished, Philippone’s body was found, extensively burnt and charred. An autopsy revealed a number of stab wounds and a number of fractures to his skull. The Crown alleged that the accused had murdered Philippone after Krajina’s departure. A critical part of the Crown’s case was evidence given by Krajina that the accused, two days after the fire, told her that he had struck Philippone on the head with a brick, after which he had stabbed Philippone on a number of times, and then lit the fire. It was only after Krajina had relayed the accused’s confession to the investigating police that the experts, and investigating police, came to the conclusion that a severe blow to the head with a brick was a more likely explanation for the skull fractures of the deceased. The accused appealed from his conviction. One ground of appeal was that the trial judge had erred by directing the jury that the expert evidence (suggesting that the deceased had suffered a fractured skull by means of application of blunt force) was capable of corroborating the evidence of Krajina. The Court of Appeal rejected that ground.
[13][2008] VSCA 261.

In reaching that conclusion, the Court observed:

“17.… The essential quality of corroborative evidence is that it must independently ‘confirm’, ‘support’ or ‘strengthen’ the evidence to be corroborated, by rendering that ‘other evidence more probable. It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.
18.Typically, it is the evidence to be corroborated which will establish the commission of the crime and the accused’s involvement. The corroborative evidence need only render that account more probable in some material particular. The corroborative evidence, ‘standing alone’, need not establish the commission of the crime or the accused’s involvement in it. We reject the applicant’s first contention.”

Thus, in each of Martin and Kuster, evidence was held to be corroborative of the accomplice, notwithstanding that the evidence itself was not capable of implicating the accused in the crime alleged. It was sufficient that the corroborative evidence supported an aspect of the evidence of the accomplice which itself implicated the accused in the crime.[14]
[14]See also Conway v R (2002) 209 CLR 203, 225 to 226 [58], [61].

The evidence of AB

For the purposes of this ruling it is sufficient to set out, in brief compass, the evidence of AB. AB was a long time career criminal, who claimed to have extensive networks in the criminal underground. He stated that he first met Carl Williams in 2003. Subsequently, in March 2004, Williams contacted AB on the telephone, and suggested that they meet together. As a result of that telephone call, AB and Goussis, who were both then living in Geelong, drove to Melbourne, and met with Williams at the Grove Café in Sydney Road, Brunswick. When AB and Goussis arrived, the accused man, Mokbel, was also present. After a short time, Williams suggested that he and AB go for a walk. After the two men left the premises, Williams told AB that the “Carlton Crew” had placed a “contract” on both AB and himself. Williams asked AB whether he was interested in killing Lewis Moran. He said that he had heard that there had been bad blood between AB and the “Carlton Crew”, of which Lewis Moran was a member. Williams stated that he was offering $150,000 in relation to the contract on Lewis Moran. He said that he would be putting up half of the money, and the other half would be funded by the accused. At the conclusion of that discussion, the two men returned to the Grove Café, and after a short time Goussis and AB left.

Subsequently, AB telephoned Lewis Moran at the Brunswick Club, in order to ascertain for himself whether Moran did bear him any animosity. AB stated that the conversation which he had with Moran confirmed in his mind the assertion by Williams that Lewis Moran did wish him ill.

Accordingly, AB telephoned Williams on a mobile telephone number which Williams stated would only be used for contact between the two of them. They arranged to meet at Bridie O’Reilly’s Hotel in Brunswick. At that meeting, AB told Williams that he would proceed with the contract. In response, Williams stated that he should wait for a couple of days after the murder of Moran, and that either Williams or the accused would contact AB in relation to the payment. Williams told AB not to worry about the money and he said “Tony (the accused) will fix it up”.

Subsequent to that conversation, the accused proceeded, with Goussis, to conduct some surveillance on the Brunswick Club, which Lewis Moran frequented. In the meantime, Andrew Veniamin, a notorious underworld killer, was shot dead by Dominic Gatto. AB stated that he was concerned that, as a result of that killing, Lewis Moran might be placed under police surveillance. Accordingly, he telephoned Williams and requested another meeting. Williams responded by stating that the plan (to kill Lewis Moran) should proceed.

AB in his evidence stated that, some time after that, either Goussis or he received a telephone call from the accused, who wanted to “catch up” with them. Accordingly Goussis and AB attended a meeting at the Grove Café with the accused. After they had met, the accused and AB went for a walk. They had a general conversation in relation to the murder of Lewis Moran. In the course of it, (AB alleges) the accused told AB of a previous incident involving himself and the “Carlton Crew”, as a result of which the accused bore some animosity to members of that group (to which Lewis Moran belonged). At the conclusion of the conversation, the accused stated that payment for the murder was “one hundred percent guaranteed”. The meeting concluded on the basis that the murder would proceed. The accused stated to AB that no surveillance was being conducted on Lewis Moran, and as a consequence AB felt reassured that the death of Andrew Veniamin would not cause any complication in the matter.

The murder itself took place in the Brunswick Club on 31 March 2004. On that day, AB, Goussis and AB’s brother, YZ, drove to Melbourne from Geelong. While AB remained in a nearby car park by the getaway vehicle, Goussis and YZ proceeded to the Brunswick Club. They entered the club wearing balaclavas. The Crown case is that Goussis chased Lewis Moran, and shot him in the head at close range. In the meantime, YZ shot, and severely wounded, an associate of Lewis Moran. The two men then rejoined AB at the getaway car, and they departed the scene.

AB stated that subsequently he received a telephone, in which Williams said “One hundred and fifty thousand reasons to smile mate, good one”. Williams told AB to meet at Bridie O’Reilly’s Hotel. In his evidence, AB stated that he thought that the telephone call from Williams took place on a Friday. The meeting was to take place on a Saturday some time between 11.00 am and 1.00 pm.

In cross-examination, it was put to AB that, in his statement to the police dated 21 March 2006, he had said that, after he received a call on his mobile phone from Williams while he was in his garden, he then telephoned Williams back from a public phone box in Geelong on a mobile phone number which Williams had previously provided to AB. In the course of that call Williams arranged to meet with AB the next day at Bridie O’Reilly’s Hotel around lunch time. After that statement was put to AB in cross-examination, he said that he had refreshed his memory, and he believed he could have gone to a public phone box and telephoned Williams for a place to meet. In re-examination AB stated that he then had a stronger recollection that after Williams telephoned him on his mobile telephone, AB went to a public phone box and rang Williams back.

Accordingly, AB and Goussis drove to Melbourne. About twenty minutes before they arrived, either Goussis or AB received a telephone call on his mobile telephone with the query “Where are you?”. In his evidence AB said he assumed (but could not assert) that it was the accused who was on the telephone. AB then drove to the car park in Black Street, which is behind Bridie O’Reilly’s Hotel. When he alighted from his vehicle, he saw the accused emerging from a silver vehicle which was parked in the car park. There was another man in that car, wearing a baseball cap. AB stated that the accused reassured him that the other person was “family”. They then had a short conversation, in the course of which the accused handed to AB a large envelope. That envelope contained cash. The two men then departed, and Goussis and AB made their way back to Geelong. When they counted the money, it totalled to $140,000. AB stated that he contacted Williams about the shortfall, and that Williams said that he would attend to it.

Evidence relied on by Crown as corroborative

The Crown has adduced evidence as to movements of both Williams and the accused, and as to some telephone calls made from public telephone boxes to AB, on 2 April and 3 April. Mr Tinney, who appears on behalf of the Crown, has relied on that evidence as evidence which he submits is capable of corroborating the evidence of AB. In particular, Mr Tinney relies on three pieces of evidence as amounting to corroboration, namely: telephone calls made by Williams to AB’s mobile telephone from public telephones at Broadmeadows Shopping Centre at 1.56 pm and 2.05 pm on 2 April 2004; a telephone call from the public telephone at Coonans Road, Pascoe Vale South to the mobile telephone of AB at 11.17 am on 3 April 2004; and a telephone call from a public telephone at Nicholson Street, Coburg to the mobile telephone of AB at 1.13 pm on 3 April 2004. However in support of his submissions Mr Tinney prepared a helpful chronology of events of 2 April and 3 April 2004. It is clear from his submissions that he relies on the events referred to in that chronology as making relevant the three pieces of evidence, which he submits are corroborative of the evidence of AB. It is useful to consider the question of corroboration by reference to that chronology, which is annexed as Schedule A to these reasons.

Clearly, the prosecution has not called any evidence directly corroborating the testimony of AB that he met the accused at the Grove Café before the murder of Lewis Moran. Rather, the prosecution relies on evidence adduced, after the murder, as corroborative of the evidence of AB that, shortly after the event, he met with the accused in the car park behind Bridie O’Reilly’s Hotel, and received payment from the accused for the murder. In my view, if the evidence relied on by the prosecution, of the events of 2 and 3 April 2004, is capable of corroborating AB’s evidence as to that meeting in the car park behind Bridie O’Reilly’s Hotel, then the evidence would be capable of corroborating evidence of AB implicating the accused in a material respect.[15] Mr Morrissey did not argue to the contrary.
[15]Compare R v Martin (above).

The critical question therefore is whether the circumstances summarised in the chronology, taken together, are capable of strengthening, or making more probable, the evidence of AB as to the meeting which he alleges he had with the accused man in the car park behind Bridie O’Reilly’s Hotel shortly after the murder of Lewis Moran.

Submissions

Mr Tinney submitted that each of the events, referred to in his chronology, should not be considered separately, in determining whether the evidence as to the circumstances of 2 and 3 April 2004 is capable of corroborating AB’s evidence. He submitted, in particular, that the events of 3 April should be viewed in isolation from the events of 2 April 2004. Mr Tinney submitted that it is significant that, both before and after the phone calls made by Williams to AB from the Broadmeadows Shopping Centre on 2 April, Williams met with the accused. Then, on the next day, Williams again met with the accused at about 10.40 am at the accused’s mother’s house. The accused was in company with his brother Milad before that meeting, and again, after that meeting, at South Melbourne at 11.00 am. Mr Tinney then pointed to the coincidence that both Milan Mokbel’s vehicle, and the e-tag of Frank Trimboli, passed under the Moreland Road gantry, 1.4 kilometres from the phone box at Coonans Road, from which a telephone call was made, two minutes later, to AB. Mr Tinney submitted that the evidence establishes that both of those vehicles, and therefore their drivers, had been at Lanes Motors, South Melbourne, when the accused attended there at 11.00 am. Mr Tinney then pointed to the fact that the accused, on his return home from Berwick at 12.47 pm, arranged to meet, shortly, with his brother Milad. Sixteen minutes later the call was made to AB’s mobile telephone from a public phone box in Nicholson Street, Coburg, which was a short distance from the home of the accused’s mother. In turn that public phone box was within a short driving distance from the car park behind Bridie O’Reilly’s Hotel. Mr Tinney further pointed to the circumstance that, at about that time, the accused was in company with his brother Milad, who drove a silver Mercedes Benz. Mr Tinney points to the evidence of AB that, when he met the accused at the car park behind Bridie O’Reilly’s Hotel, the accused arrived in a silver Mercedes Benz, in company with someone who he trusted, and who he described as a member of his family. Mr Tinney submits that taking all those matters together, there is sufficient evidence to strengthen, or make more probable, the evidence of AB that, by arrangement with Carl Williams, he attended at the Bridie O’Reilly car park, that en route he received a phone call from, or connected with, the accused, and that he met the accused in the car park pursuant to the arrangement with Williams.

In response, Mr Morrissey provided a helpful outline of submissions. Rather than repeating those submissions, I shall annex them as Schedule B to these reasons. Essentially, Mr Morrissey focused on each of the three primary events relied upon by the Crown as being corroborative of AB’s evidence. He submitted that when each of those three items of evidence are properly considered, none of them could corroborate the evidence of AB. Put shortly, he submitted that although the events of 2 April support the conclusion that Williams spoke to AB, in all probability about payment for the murder of Lewis Moran, that evidence was not capable of implicating the accused in any arrangement made by Williams to meet with AB and make payment for the murder. Further, he submitted that the telephone call made at 11.17 am on 3 April did not support any aspect of AB’s evidence, and, for the reasons contained in the outline, it could not provide support to AB’s evidence in a general sense. He further submitted that the 1.13 pm call on that day was made at a time too late to fit in with AB’s account of his movements, or indeed with the known movements of the accused on that day. He submitted that there was no provable connection between the accused and that telephone call.

Analysis

The starting point is the events of 2 April 2004. There is, in my view, sufficient evidence from which the jury could reasonably conclude that it was Williams who telephoned AB, from public telephones at Broadmeadows Shopping Centre, at 1.56 pm and 2.05 pm on Friday 2 April 2004. It is of course significant that those telephone contacts occurred two days after the murder of Lewis Moran, and the day before AB claims to have met with the accused. One hour before Williams telephoned AB, he had made telephone contact with the accused, and arranged to meet with him. They met ten minutes later, and parted company 33 minutes before Williams telephoned AB. In the meantime, Williams had attended Broadmeadows Police Station to report on bail, and had been served with an order, signed by the Chief Commissioner of Police, banning him from Crown Casino. Six minutes after Williams telephoned AB from the Broadmeadows Shopping Centre, the accused contacted Williams, and arranged to meet with him. Pursuant to that arrangement, they met at the Cross Keys Hotel at 2.33 pm.

Pausing there, the foregoing evidence has some significance. It is common ground in the case that Williams was implicated in the murder of Lewis Moran. Indeed, that much was appropriately conceded in defence counsel’s opening address to the jury. The jury would be entitled to infer that the contact by Williams with AB on 2 April related to the murder of Lewis Moran. Further, the jury would be entitled to infer that Williams spoke to AB concerning payment to AB for the murder, since that was then the most relevant topic of conversation between the two of them. In that context, it is relevant that shortly before, and shortly after, Williams contacted AB on 2 April, he met with the accused man by arrangement. Each of the two meetings was of relatively short duration.

Further, in my view the jury would be entitled to conclude that Williams visited the accused man, at his mother’s house in Canberra Street, Brunswick, between approximately 10.39 am and 10.48 am on 3 April. At those times, the vehicle with Williams’s father, George Williams was detected at that location. There was evidence (from Sergeant Bateson) that George Williams frequently drove Carl Williams around. On the previous evening, at 10.22 pm, Carl Williams had arranged for his father to pick him up the next morning at his mother’s house in Primrose Street, Essendon. At 8.42 am, and again at 10.26 am, on 3 April, George Williams’s vehicle had attended at Primrose Street, Essendon. In my view, based on that evidence, the jury would be entitled to conclude that Carl Williams did attend at the accused’s mother in Canberra Street, Brunswick between 10.39 am and 10.48 am. The evidence of the telephone intercepts indicate that the accused man was already at the Canberra Street house at that time. Again, it is significant that that meeting took place approximately half an hour before the phone call, at 11.17 am, from a public phone box at Coonans Road to the mobile telephone of AB, who was then in Geelong.

The next relevant set of circumstances is that shortly after 11.00 am, the accused met with his brother Milad at or close to Lanes Motors, South Melbourne. Milad’s silver Mercedes Benz, registration number QVC 887, was collected from Lanes Motors on that day. Shortly after that meeting, the accused travelled in his own black Mercedes east, in company with three others, to Berwick, to inspect another vehicle. It appears that before their departure, one of the passengers, Frank Trimboli, lent his own vehicle to Milad Mokbel. The e-tag attached to Mr Trimboli’s vehicle was detected at 11.10 am travelling north over the Bolte Bridge on the City Link Freeway, and at 11.14 am it passed under the Moreland Road tolling gantry. At the same time, at 11.12 am, Milad Mokbel’s silver Mercedes QVC 887 was detected travelling north over the Bolte Bridge, and it passed under the Moreland Road tolling gantry at 11.15.55 am. At 11.17.50 am the public telephone at Coonans Road, Brunswick was used to make a telephone call to the mobile telephone of AB, who was then in Geelong. Coonans Road is the next exit point from the western link of the City Link Freeway after the Moreland Road gantry. The public telephone box used to make the call to AB was 1.4 kilometres from the Moreland Road gantry. Three minutes after AB received that call, he telephoned Goussis at 11.20 am.

The next pieces of evidence, which are relevant in the events of 3 April, concern the movements of AB. At 1.13 pm he received a telephone call on his mobile telephone from a public phone box in Nicholson Street, Coburg. That phone box is a short drive from the car park close to Bridie O’Reilly’s Hotel. By 1.52 pm AB’s mobile telephone was connecting with the Kensington tower. Thus, he had been en route to Melbourne when his mobile telephone received the 1.13 pm call. By 3.36 pm he was back in Geelong.

In the meantime, the accused had returned from Berwick, and was back at his mother’s house at 12.47 pm in Canberra Street. He telephoned his brother Milad, who was nearby, and arranged to meet him. By 1.40 pm the accused was at the Moreland Hotel.

The question for me is not whether the above set of circumstances, taken together, corroborate, or should be found to corroborate, the evidence of AB. Rather, the question which I must determine is whether those circumstances are capable of being found by the jury to corroborate AB’s evidence. Thus, the question is whether a reasonable jury, probably instructed, could rationally consider that the circumstances, which I have set out above, strengthen, confirm or add to the probability of the account of AB as to the meeting, which he said he had with the accused man in the car park behind Bridie O’Reilly’s Hotel after the murder of Lewis Moran.

It is useful for this purpose to place the events into seven components, notwithstanding that they are not discrete of each other –

(1)The events of 2 April 2004, which include the two telephone calls by Williams to AB, and the two arranged meetings between Williams and the accused before and after those phone calls.
(2)The evidence on which the jury might conclude that the accused met with Williams at his mother’s house on 3 April between 10.39 am and 10.48 am.
(3)The evidence that after that the accused met with his brother Milad at Lanes Motors in South Melbourne at about 11.00 am, in the company of Frank Trimboli, the evidence of the movements of Milad Mokbel’s silver Mercedes Benz vehicle and Trimboli’s vehicle under the Moreland Road gantry of the western link of City Link at 11.15 am, and the phone call made from a public phone box at Coonans Road at 11.17 am, when AB was in Geelong.
(4)The evidence that AB had travelled to the Melbourne metropolitan area subsequent to that call.
(5)The further telephone call made to AB from a public phone box at Nicholson Street, Coburg at 1.13 pm on 3 April.
(6)The evidence that on 3 April the accused was in the Moreland Hotel at 1.40 pm, and that AB was departing from the Melbourne metropolitan area at 1.52 pm.
(7)The evidence of the movements of Milad Mokbel on 3 April, and the evidence that Milad Mokbel at that time owned and drove a silver Mercedes Benz vehicle.

It is, in my view, clear that not one of those seven component parts of the evidence, taken in isolation, would be capable, alone, of corroborating the evidence of AB. However, as the authorities to which I have referred make clear, the Crown is entitled to rely on the combined effect of various pieces of evidence in submitting to the jury that, as a whole, they do corroborate the evidence of the accomplice in a material respect. One piece, or even several pieces, of evidence, taken in isolation, may mean little. However, it is the coincidence, or series of coincidences, of various facts, which may provide appropriate corroboration for such a witness.

In my view, when taken together, the coincidences of the seven groups of evidence which I have set out above are capable of adding to the probability of AB’s account in respect of the receipt by him of payment for the murder of Lewis Moran from the accused man in the car park behind Bridie O’Reilly’s Hotel. There are a number of groups of coincidences which, taken together, and, on occasion, with AB’s evidence, in my view could be reasonably considered by a jury to add weight or probability to the evidence of AB concerning that event.

First, there is the coincidence of the two calls made by Williams to AB on 2 April, with the two meetings which Williams had, shortly before and after those telephone calls, on the same day. As I stated, the jury is entitled to infer that in those telephone conversations Williams and AB discussed payment due to AB for the murder of Lewis Moran. The next coincidence arises from the further meeting between Williams and the accused at about 10.40 am at the accused’s mother’s house on 3 April. Thirty five minutes later, a telephone call was made to the mobile telephone of AB when he was in Geelong. Subsequent to that call AB travelled to Melbourne. The phone call to AB at 11.17 am could not have been made by the accused man. However, both in terms of time and place, it was coincidental with the movements of two vehicles, the drivers of whom had been in contact with the accused when at Lanes Motors, South Melbourne at 11.00 am.

As I stated following that telephone call AB then drove to the Melbourne metropolitan area. In his evidence he said that, about twenty minutes before he arrived at the car park behind Bridie O’Reilly’s, either he or Goussis received a call on their mobile telephone. Coincidental with that evidence, the call charge records reveal a telephone call made to AB’s mobile telephone at 1.13 pm from a public phone box in Nicholson Street, Coburg. That telephone box was a short drive from the accused man’s mother’s house, and also a short drive from the Bridie O’Reilly Hotel. The phone call at 1.13 pm occurred twenty five minutes after the accused had telephoned his brother Milad from his mother’s house, arranging to meet Milad there in the next ten minutes. In his evidence, AB said that when he met the accused in the car park behind Bridie O’Reilly’s Hotel, the accused was alighting from a silver vehicle, and that he indicated that the driver of it was family. It is, again, coincidental that that meeting took place in the middle of the day in which the accused had met with his brother Milad at his mother’s house, a short distance away, Milad being the owner and driver of a silver Mercedes Benz vehicle.

In my view, when all those coincidences are taken together, they do add support for the evidence of AB implicating the accused man in payment to him for the murder of Lewis Moran. In part, some of the parts of the evidence, to which I have referred, directly support parts of evidence given by AB. For example, they directly support AB’s evidence that, on the day before he came to Melbourne, he received a telephone call from Williams, in which they discussed payment for the murder of Moran. The telephone call to AB, from a public telephone box in Coburg, at 1.13 pm on 3 April, is capable of supporting AB’s evidence that, when en route, he received a call inquiring as to his whereabouts. AB’s evidence that, when he met the accused man, the latter was accompanied by another man, who he described as family, and who was in a silver vehicle, is capable of being supported by the telephone call made by the accused man to his brother Milad at 12.47 pm on 3 April. In other respects, while the evidence to which I refer does not directly support specific parts of AB’s evidence, it nevertheless adds to the probability of his evidence that the accused was involved in paying him for the murder of Lewis Moran on a Saturday immediately after the murder. Those items of evidence include the two meetings between the accused and Williams on 2 April, shortly before and shortly after Williams had spoken to AB on that day. It also includes the telephone call made to AB’s mobile telephone at 11.17 am from a phone box in Coonans Road.

In reaching those conclusions, I do not overlook the submissions made by Mr Morrissey as to each of the principal events relied upon by Mr Tinney as being corroborative of AB’s evidence. In a number of respects, the circumstances sought to be relied upon by the Crown do not match the evidence of AB. For example, he said he only received one call (not two calls) from Williams on 2 April. He did not give evidence as to a call, on the Saturday, two or more hours before the meeting in the car park behind Bridie O’Reilly’s. He said he met the accused between 11.00 am and 1.00 pm (that is, before the time of the 1.13 pm call). Ultimately however I have reached the conclusion that those matters do not disqualify the evidence, pointed to by Mr Tinney, as being capable of corroborating AB’s evidence. Rather the matters raised by Mr Morrissey are proper matters to be considered by the jury on the question whether or not the jury is satisfied that that evidence does corroborate the testimony of AB. In particular, it is a matter for the jury what they make of AB’s evidence, not just as to its truthfulness, but also as to its accuracy. However, in my view, Mr Tinney is correct in submitting that the jury are entitled to take into account the united and combined effect of the pieces of evidence to which he has referred, in determining whether that evidence does make more probable the evidence of AB as to the circumstances in which he has said that he received payment from the accused man for the murder of Lewis Moran.

Conclusion

For the reasons which I have set out above I therefore consider that each of the following items, referred to in the schedule, when taken together, are capable of corroborating the evidence of the witness AB. In outlining those facts to the jury, I shall point out that none of the circumstances, taken individually, could amount to corroboration. The particular events which I consider to be capable amounting to corroboration can be grouped together as follows:

(1)Items numbered 1 to 6 of the events of Friday 2 April 2004 (concerning the telephone calls by Williams to AB, and the two meetings between Williams and the accused).
(2)Event number 7 of Friday 2 April 2004, and events 3, 4, 6 and 8 of Saturday 3 April 2004 (events relating to whether Williams visited the accused between 10.39 and 10.48 am on 3 April).
(3)The events of Saturday 3 April 2004 numbered 5, 7 and 9 (relating to the accused meeting his brother Milad at Lanes Motors in South Melbourne).
(4)The events of 3 April numbered 10, 11, 12, 13, 14, 15 and 16 (relating to the movements of Milad Mokbel’s vehicle, and the vehicle to which the Trimboli e-tag was attached, and the making of the telephone call from the public telephone at Coonans Road at 11.17 am).

(5)Event number 18 of 3 April (the accused man meeting again with his brother Milad at Canberra Street).
(6)Events numbered 19 and 20 of 3 April (relating to the phone call to AB’s mobile phone at 1.13 pm on 3 April).
(7)Events 17 and 23 of 3 April (the accused man’s movements).
(8)Events number 24, 25 and 26 of 3 April (the movements of AB leaving the Melbourne metropolitan area after 1.52 pm).

The matters set out in items 21 and 22 of the schedule are not, of course, corroborative of AB; rather they are a repetition of AB’s evidence. Further, the second sentence in item 19 of the events of 3 April is a matter of argument; it would not be left as corroborative point.

CHRONOLOGY OF SURROUNDING CIRCUMSTANCES

Friday 2 April 2004

At 12.51 pm, CW arranged to meet with the accused (A).
At 1.06 pm, CW did meet with A in Moreland Rd, Brunswick West.
At 1.56 pm and 2.05 pm, CW telephoned AB from public telephones at Broadmeadows Shopping Centre.
At 2.11 pm, CW again arranged to meet with A.
CW and A met at the Cross Keys Hotel commencing at 2.33 pm.
At 2.57 and 3.01 pm, CW used a public telephone at Coonans Rd, Pascoe Vale South.
At 10.22 pm, CW arranged with his father (GW) to pick him up the next morning at his mother’s house in Primrose St, Essendon.

Saturday 3 April 2004

At 8.42 am the vehicle of GW attended at Primrose St Essendon, indicating CW was picked up as arranged.
At 9.56 am, A was in the company of his brother Milad. (See TI call at 9.56 am; Deps p 951)
At 10.39 am, the vehicle of GW arrived in the vicinity of the Mokbel family home in Canberra St, Brunswick. A jury would be entitled to infer CW was in the vehicle. It remained there for 9 minutes.
The content of recorded telephone conversations indicated the accused was already present at the Canberra St house at this time.
At 10.49, the accused rang his brother Milad and said he needed his car. At the time of this call, Milad was at Lane’s motors in South Melbourne.
At 10.56, George Williams telephoned his ex-wife and provided her a tip for a horse called Hinting in race 9, Rosehill Races in Sydney that day.
At 11.04, both the accused and his brother Milad were at or close to Lane’s Motors. They met up shortly after this time.
At 11.08, the accused provided a tip for the horse Hinting to a friend in Sydney.
After 11.08, the accused travelled to Berwick via Citylink.
At 11.10, an e-tag associated with the Frank Trimboli account was detected travelling north over the Bolte Bridge. Frank Trimboli claimed he lent his motor vehicle to Milad Mokbel that morning.
At 11.12, Milad Mokbel’s silver Mercedes QVC887 was detected travelling north over the Bolte Bridge.
At 11.14.29, the Trimbole e-tag passed under the Moreland Rd tolling gantry.
At 11.15.55, Milad Mokbel’s vehicle passed under the Moreland Rd tolling gantry.
At 11.17.50, the public telephone at Coonans Rd was used to make a telephone call to the mobile telephone of AB.
The distance between the Moreland Rd gantry and the Coonans Rd telephone is 1.4 km. A motor vehicle travelling at an average speed of 60 km/h would travel this distance in 1 minute 24 seconds.
At the time of the call to his telephone at 11.17, AB was in Geelong. He came up to Melbourne sometime after this call.
In a phone call at 12.34, the accused told a friend he would be at the Moreland Hotel in about an hour.
After his trip to Berwick, the accused had returned to the Canberra St house by 12.47. He arranged to meet up with his brother Milad at that location shortly after this time.
At 1.13, a public telephone in Nicholson St Coburg was used to make a telephone call to the mobile telephone of AB. AB was in Melbourne at this time, having travelled up from Geelong sometime after the 11.17 call.
The public telephone in Nicholson St was a short drive from the carpark close to Bridie O’Reilly’s Hotel.
The evidence of AB was that he received a call from the accused about 20 minutes before he met with the accused in the carpark.
At the meeting in the carpark, the accused said they had not been followed; he had snuck away.
At 1.40, in a call he made to a male, the accused said he was at the Moreland Hotel. The Moreland Hotel is only a short drive from the carpark in question.
By 1.52 pm, AB was on his way back to Geelong, his phone hitting off the Kensington tower.
At 2.10, the phone of AB used the Altona North tower.

By 3.36 pm, AB was back in Geelong.

R V ANTONIOS SAJIH MOKBEL
DEFENCE RESPONSE TO CROWN SUBMISSIONS ON CORROBORATION

At issue between the parties is that Tony Mokbel procured AB to perform this murder. The jury must accept beyond reasonable doubt that Mokbel procured AB at the Grove café meetings to murder Lewis Moran. These meetings are wholly uncorroborated.

As evidence of this, the Crown seek to prove that, after the murder, Mokbel subsequently arranged payment and payed for the killing. The Crown seeks to corroborate these alleged post-murder activities. It is corroboration of a post-facto issue which is pursued.

2 April calls

As to the “2^nd April” calls, the following matters militate against allowing this evidence to corroborate AB, either generally or as to specific allegations:[16]
[16]R v Strawhorn [2008] VSCA 101 paras 179-182, R v Tamme [2004] VSCA 165 paras 25-29

-It is not controversial that, at some time, Williams communicated with AB;
-It is not proved that AB spoke to Carl Williams in these calls;

oAB was equivocal as to the date he spoke to Carl Williams;
oAB did not describe a pair of calls;
oAB said others may have received the calls.

-The content of these calls depends entirely on AB;
-Importantly, in any case, there is no evidence Mokbel knew about these calls or their content:

oMokbel’s meetings with Williams in company with others (including George Williams, Danielle Maguire and Jason Haikal) cannot found such an inference;
oThe surrounding TI and LD material cannot found such an inference;
oHis acts on 3 April cannot do so.

The evidence demonstrates potential contact between AB and Williams on 2 April, and contact between Williams and Mokbel (initiated by Mokbel, not Williams) that day. Neither fact renders more probable that Mokbel arranged payment or payed. This evidence is merely “not inconsistent with” the Crown’s hypothesis.

3 April calls

As to the “11.17 call”, the following matters militate against allowing this evidence to corroborate AB:

-The call is from a public phone box;
-It is unproved who made the call or answered it;
-It is plain Tony Mokbel did not make the call;
-Finally, AB himself does not say (now) that this was or could be the call he received, although it could be.

The evidence demonstrates a mere opportunity for someone known to Mokbel to contact AB. A mere opportunity, not positively inconsistent with AB’s account, cannot constitute corroboration.

As to the “13.13 call” calls, the following matters militate against allowing this evidence to corroborate AB

-The call is from a public phone box;
-This call is manifestly inconsistent with AB’s evidence:
-
oAB alleges a single call;
oThe 13.13 call clearly falls outside AB’s alleged time-frame;
oAB doers not say this call is or could be the one he says he (or Goussis) received;
othis call was never put by the Crown to AB, doubtless through fear that AB would deny this time-frame;
oNever was a statement taken from AB concerning this call;

-this call is not proved to be made by Tony Mokbel;
-the call lasts 12 seconds; the Crown did not seek to establish that the call AB alleges could take this time;
-the Crown do not assert that it was made by Tony Mokbel;
-unlike the 11.17 call, there is no evidence even of the proximity of a Mokbel-friendly vehicle.
-

This call is a belated entrant to the field of proved calls which are not positively inconsistent with AB’s claims. It demonstrates a mere opportunity for someone known to Mokbel to contact AB. A mere opportunity, which is in fact positively inconsistent with AB’s account, cannot constitute corroboration.

AB does not (now) say he personally received any call. He was merely aware of such a call. Thus neither the 11.17 call nor the 13.13 call confirm his account. It is not clear what phone Goussis had on 3 April (if he was really there).

AB’s account of these calls is wholly unaccountable. He says that he or another received a call, on one or another telephone. What the Crown seeks to do is have neutral material, which is merely “not inconsistent with” this almost untestable proposition, left to the jury as corroboration. It would be speculative to use the opportunities for contact between Mokbel or associates and AB and associate as corroboration. The effect would be to dilute the stern warning AB might attract.

Peter Morrissey
13 September

Actions

Download as PDF Download as Word Document

Citations

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

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Doney v The Queen [1990] HCA 51

R v Gill [2003] VSC 317

R v Kuster [2008] VSCA 261

[2009] VSC 362

15 September 2009