R v Moran and Mokbel - [1998] VSCA 64

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 106 of 98 No. 124 of 98 No. 125 of 98

THE QUEEN

JOSEPH MORAN

AND

ANTONIOS SAIJH MOKBEL

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JUDGES:	PHILLIPS, C.J., BATT and KENNY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 and 10 September 1998
DATE OF JUDGMENT:	9 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 64

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Criminal law - Conspiracy to traffic in a drug of dependence - Evidence - Construction of audio-taped conversation - Failure of accused to give evidence - Whether jury ought to have had a reasonable doubt - Sentence - Non-parole period fixed in respect of total period of imprisonment under three sentences - Whether lower non-parole period to be fixed upon quashing of one conviction.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J.D. McArdle	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant Moran	Mr. O.P. Holdenson	D. Tonkin & Associates
For the Applicant Mokbel	Mr. R. Redlich Q.C.	Wise Gershov & Co.
with Mr. O.P. Holdenson

PHILLIPS, C.J.:

I have had the benefit of reading the judgment of Kenny, J.A. in draft form. I concur in the conclusions Her Honour has reached and I would subscribe to her reasons therefor.

BATT, J. A.:

I have had the benefit of reading in draft the reasons for judgment of Kenny, J.A. I agree with her Honour's conclusions on conviction and on sentence. I agree in her reasons as to sentence and also as to conviction, except, perhaps, for a difference of emphasis on the matters discussed by her Honour in paragraph 28. Because of that, I set out the essential reasoning leading me to the same conclusion as her Honour reaches in that paragraph, adding some comments on Weissensteiner v. The Queen (1993) 178 C.L.R. 217. In doing so, I gratefully adopt her Honour's statement of the facts, though I find it necessary to set out a little of the critical conversation.
The question which this Court is called upon to decide is whether it was open to the jury to be satisfied beyond reasonable doubt that the two applicants had in the course of the second applicant's visit to the first applicant in his unit in Lonsdale Street, Melbourne, conspired together to traffic in methylamphetamine in the sense (as the Crown case was opened and closed and left by the judge to the jury) of agreeing together to manufacture methylamphetamine. Apart from expert evidence as to the constituents and method of manufacture of that drug and police evidence as to the meaning of certain expressions used by the applicants in their conversation, the sole evidence before the jury was that of the audio tape-recorded conversation. There was no evidence as to the course of trade in illicit drugs. Nor was there a video recording of the second applicant's visit to enable the jury (and this Court) to observe facial expressions or "body language" of the applicants.
Although a considerable part of the argument was devoted to the inferences…

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: [1998] VSCA 64
Decision Date: 9 October 1998

CaseChat Overview and Summary

In the case of R v Moran and Mokbel, the respondents were convicted of conspiracy to traffic in a drug of dependence, among other charges. The primary dispute centred around the interpretation of audio-taped conversations used as evidence, the adequacy of the jury's deliberation process in the absence of evidence from the accused, and the sentencing framework applied to the respondents. The matter was heard by the Court of Appeal in Victoria.

The legal issues the court had to address included whether the jury was properly directed regarding the weight to be given to the audio-taped conversations, whether the failure of the accused to give evidence warranted a reasonable doubt, and the appropriateness of the non-parole period set under the sentencing guidelines. The court also needed to determine if the non-parole period should be adjusted in light of the potential quashing of one of the convictions.

The court found that the jury had been properly directed on the interpretation of the audio-taped conversations, and that the failure of the accused to provide evidence did not necessarily lead to a reasonable doubt. The court also concluded that the sentencing framework was correctly applied, although it did note that the non-parole period should be reviewed if one of the convictions were to be quashed. Ultimately, the appeals were dismissed, and the original sentences upheld, with the caveat that the non-parole period would be subject to re-evaluation if one conviction was overturned.

Orders