R v Mokbel (Ruling No 3) - [2009] VSC 653

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1409 of 2008

THE QUEEN

ANTONIOS MOKBEL

---

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2009
DATE OF RULING:	21 August 2009
CASE MAY BE CITED AS:	R v Mokbel (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2009] VSC 653

---

CRIMINAL LAW – Murder trial – Accused awaiting subsequent trial on drug trafficking charges – Suppression order – Order to remove prejudicial material from websites maintained by 3 media organisations – Whether order futile – Court’s obligation to protect right of accused to fair trial.

---

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 News Digital Media Pty Ltd	Mr W T Houghton QC with Ms R L Enbom	Kelly Hazell Quill Pty Ltd
For Fairfax Digital Ltd	Mr W T Houghton QC with Ms R L Enbom	Minter Ellison Lawyers

HIS HONOUR:

The accused man, Antonios Mokbel, is charged with the murder of Lewis Moran at Brunswick on 31 March 2004. The jury for the trial of that charge is due to be empanelled on Monday 24 August. In addition, Mr Mokbel has been charged on five other presentments with various charges relating to drug trafficking and the like. The first of those trials is due to commence on 9 November next.

In the trial which is due to commence on Monday and in each of the other trials, an application has been made on behalf of Mr Mokbel that I make an order, the effect of which would be to prohibit the proprietors of The Age, the Herald Sun and The Australian from continuing to display on their websites materials relating to Mr Mokbel which, it is submitted, are highly prejudicial to his right to a fair trial in each of the proceedings to which I have just referred.

It is common ground that each of the three organisations, to which I have referred, maintain websites that, if one accesses each of those websites by searching the name “Mokbel”, one is able to readily access a very large number of articles on each of them previously published by each of the three newspapers relating to Mr Mokbel.

It is submitted on behalf of the accused that by continuing to publish those articles in that way, The Age, the Herald Sun and The Australian is indulging in conduct which is jeopardising the right of Mr Mokbel to a fair trial of the charges against him. I should interpolate that on 15 April of this year I made a number of orders suppressing publication of materials which might contain various allegations which were enumerated in that order. The terms of that order were expressly continued by me on 10 August until further…

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.

Keep reading for free

Create a free CaseChat account to read R v Mokbel (Ruling No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] VSC 653
Decision Date: 21 August 2009

CaseChat Overview and Summary

In the case of R v Mokbel (Ruling No 3), the accused, Mokbel, who was awaiting trial on drug trafficking charges, faced a separate trial for a murder charge. The court considered the need to suppress prejudicial material from three media organisations' websites to protect the accused's right to a fair trial. The High Court of Australia was tasked with determining whether the suppression order was necessary and effective in mitigating the risk of prejudice to the accused.

The primary legal issue before the court was whether the suppression order, which required the removal of prejudicial material from the websites of three media organisations, was necessary to ensure that the accused received a fair trial. The court had to balance the right to a fair trial, as guaranteed by the Constitution, against the freedom of the press. Additionally, the court had to consider whether the order was likely to be effective in preventing the accused from being exposed to prejudicial material before the trial.

The court concluded that the suppression order was necessary to protect the accused's right to a fair trial. It found that the prejudicial material had the potential to cause significant harm to the accused's case, particularly given the extensive media coverage of the drug trafficking charges. The court held that the order was an appropriate and proportionate response to the risk of prejudice, and it was not futile. The court also noted that the media organisations had a responsibility to act in a manner that did not compromise the accused's right to a fair trial.

The court's ruling emphasised the importance of protecting the right to a fair trial and the obligation of the court to take steps to ensure that the accused was not exposed to prejudicial material. The court ordered the three media organisations to remove the specified prejudicial material from their websites. The court also noted that the order was not intended to restrict freedom of the press but rather to ensure that the accused received a fair trial.

Orders