R v Mokbel (Ruling No 2) - [2009] VSC 652

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1409 of 2008

THE QUEEN

ANTONIOS MOKBEL

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2009
DATE OF RULING:	19 August 2009
CASE MAY BE CITED AS:	R v Mokbel (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 652

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CRIMINAL LAW – Murder trial – Accused awaiting subsequent trial on drug trafficking charges – Suppression order to prevent publication of murder trial – Protection of right of accused to fair trial.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney	Solicitor to Director of Public Prosecutions
For the Accused (in Murder Trial)	Mr P Morrissey and Ms R Shann	Andrianakis & Associates
For the Accused (in the Drug Trials)	Ms G Morgan	Robert Stary & Associates
For the Herald & Weekly Times Ltd, The Australian Broadcasting Corporation, the Nine Network Ltd and The Seven Network Ltd	Mr J Quill	Kelly Hazell Quill Pty Ltd

HIS HONOUR:

In this matter the accused is charged with the murder of Lewis Moran at the Brunswick Club on 31 March 2004. The empanelment of the jury in the trial is due to commence on Monday 24 August next.

During the hearing of pre‑trial issues in relation to this and other matters, orders have been made by me to prevent the publication of material concerning the accused which might prejudice his right to a fair trial in this and other proceedings. The main order which I have made is that of 15 April 2009.

If that order remains in place and is not varied by me, the effect of it will be to prevent the publication of the forthcoming trial by the media.

Mr Quill, who appears for The Herald & Weekly Times, the Australian Broadcasting Corporation, The Nine Network and The Seven Network has made application to me that I should vary my order of 15 April to permit the publication of the proceedings of the trial. That application has been supported by Ms Cooper, on behalf of The Age and John Fairfax.

The application is opposed by Ms Shann, who appears with her leader, Mr Morrissey, for the accused in the forthcoming trial; by Ms Morgan, who is the solicitor for Mr Mokbel in five other trials in this Court and by Mr Andrew Tinney who appears to prosecute the forthcoming trial.

It is necessary that I make very brief reference to the nature of the other trials which are listed in this Court.

Mr Mokbel is charged with the Commonwealth offence of breach of the Customs Act by inciting the importation of a commercial quantity of MDMA. That prosecution has been given the operation name “Orbital”. It is listed for trial in this Court on 9 November and a pre‑trial directions hearing will be conducted in this Court on 5 October.

In addition, there are four other proceedings against the accused which are listed for directions hearings on 5 October in this…

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: [2009] VSC 652
Decision Date: 19 August 2009

CaseChat Overview and Summary

The case involved the suppression of the publication of details of a murder trial involving an accused person who was awaiting a subsequent trial on drug trafficking charges. The court issued a suppression order to prevent the publication of details of the murder trial in order to protect the accused's right to a fair trial. The legal issues the court was required to decide included whether the suppression order was necessary to protect the accused's right to a fair trial and whether it was appropriate to suppress the publication of details of the murder trial. The court found that the suppression order was necessary to protect the accused's right to a fair trial and was appropriate in the circumstances. The court held that the suppression order was necessary to ensure that the accused's right to a fair trial was not prejudiced by the publication of details of the murder trial. The court found that the suppression order was appropriate in the circumstances as the accused was awaiting a subsequent trial on drug trafficking charges and the publication of details of the murder trial could prejudice the accused's right to a fair trial. The court issued the suppression order and restrained the media from publishing details of the murder trial. The court held that the suppression order was necessary to protect the accused's right to a fair trial and was appropriate in the circumstances. The suppression order was to remain in place until the conclusion of the subsequent trial on drug trafficking charges.

Orders