Re Mokbel
[2008] VSC 608
•23 December 2008
a
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1445 of 2008
| HORTY MOKBEL | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING | 23 December 2008 | |
DATE OF JUDGMENT | 23 December 2008 | |
CASE MAY BE CITED AS: | Horty Mokbel v The Queen | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 608 | |
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CRIMINAL LAW: Bail — Exceptional Circumstances — s 4, Bail Act 1977
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Michael H Tinney SC | Office of Public Prosecutions |
| For the applicant | Stephen A Shirrefs SC | Grigor Lawyers |
HIS HONOUR:
Horty Mokbel is the subject of five counts on a nine count presentment alleging serious drug offences against him and two other men. The trial of that presentment is set down for October 2009. He has been in custody since April 2007 on other drug charges, some dishonesty charges and these offences, the charges for which were first laid in July 2007. They are very serious charges, some of them carrying a maximum term of life imprisonment.
Recently Mokbel was acquitted at trial on an earlier drug charge laid in April 2007, and he is also awaiting trial on dishonesty offences involving large sums of money. He faces those charges jointly with his wife. He now seeks bail on the remaining drug charges. It was asserted that if he was bailed on the drug charges, the Crown would not oppose bail on the dishonesty offences. I have proceeded on the basis that this assertion is correct.
As he is facing serious drug charges, Mokbel must show exceptional circumstances why he should be bailed. Such is the effect of s 4 of the Bail Act 1977. Counsel for Mokbel, Mr Shirrefs of Senior Counsel, points to a number of factors,, which he says, taken in combination, make up the necessary exceptional circumstances. The first matter pointed to as being a component of exceptional circumstances in this case is delay. By the time of trial, Mokbel will have been in custody for more than two years, most of which, until a few days ago, was served in the Acacia Unit at H.M. Prison Barwon, with the well-known privations such incarceration involves. However, he is now an inmate of Port Phillip Prison in considerably less stringent circumstances. Mr Shirrefs referred to two authorities on the issue of delay, and demonstrated that this Court has on many occasions reached the conclusion that delay of less than that contemplated in this case constituted exceptional circumstances.
Mr Tinney of Senior Counsel for the Crown submitted that consideration had to be given to the reasons for delay before one can find that it constituted exceptional circumstances. He pointed out that here, for much of the time Mokbel has been in custody, he was facing the charge of which he was recently acquitted, and that he had had committal hearings during the same period as well. Further, witnesses who are to testify against him have had to be charged and sentenced before they could properly give evidence. All of this led to the alleged delay and, in any event, the circumstances of these offences are complex and the cases are themselves not simple.
There is no doubt that delay, particularly delay for which the accused has no responsibility can, of itself, amount to exceptional circumstances. Whether it does here, where other charges are pending and logistical problems such as those Mr Tinney referred to have added to that delay, is a difficult question. It is better that such delay that has occurred be considered, at least, in this case, jointly with the other matters relied upon by Mr Shirrefs.
Next Mr Shirrefs referred to the strength of the Crown case. The Crown case was said to rest mainly or even solely on the evidence of alleged accomplices who have turned Queen’s evidence. This says little about the strength of the Crown case. Evidence given by accomplices commonly results in conviction. The fact that it may not have in Mr Mokbel’s recent trial says nothing as to what may happen in the trial of the current matter. It is sufficient to say that the case against him will succeed or fail on whether his alleged accomplices are believed beyond reasonable doubt by the jury. Mr Shirrefs’ criticisms of the Crown case did not deny this proposition.
Mr Shirrefs referred to unacceptable risk as being one of the matters relied upon by the Crown. The Crown said that Mokbel poses an unacceptable risk of flight, an unacceptable risk of interfering with witnesses, and an unacceptable risk of committing offences whilst he is on bail, if he is granted bail.
As far as flight is concerned, Mr Tinney pointed to the evidence given by the police informant on earlier bail hearings that, although Mokbel had no apparent legitimate means of earning a large income, he is believed to have amassed a considerable pool of assets in real property, indirect interests in shares, and even a large stake in a very valuable racehorse. Mr Tinney argued that it is inconceivable that the police have been successful in tracing all of Mokbel’s assets so as to obtain restraining orders in respect of all of them. Such assets as he has, Mr Tinney argued, could be used to assist in a bid for freedom should he be bailed. He pointed to the evidence again of the police informant, who made the same point, that it is unlikely that the police have tracked all of Mokbel’s assets.
Mr Shirrefs responded that there is no evidence that Mokbel has any assets which are not already accounted for and effectively restrained, and that therefore he has no means of financing elaborate methods of fleeing the jurisdiction. Nor, says Mr Shirrefs, does he want to. He is happily married, he has children, and he is firmly tied to the jurisdiction. He has an elderly mother.
In any event, said Mr Shirrefs, Mokbel can be restrained by harsh conditions and will even wear an electronic bracelet if the Court required him to do so. He said that he has an offer of steady employment at a city restaurant at $22 an hour, although Mr Tinney sought to make the point that a person of Mokbel’s apparently affluent lifestyle could hardly be interested in such employment. I say nothing further about that; it is there as one matter which goes into the general consideration of the matter of bail.
The question of interference with witnesses was raised by the Crown. The police informant gave evidence at earlier hearings concerning information she had which suggested that at least one witness had been approached by someone with a view to influencing the outcome of this case. He was said to believe that a “contract” had been let in respect of him. Mr Shirrefs strongly refuted this argument. He said that the police engaged in no proper investigation of this so called approach, that in fact it was no more than a rumour and that simply calling it intelligence does not make it any the stronger. He makes the final point that, in any event, the evidence of witnesses is now on deposition, and subject to the granting of an application by the Court, would be able to be used on Mokbel’s trial.
Whilst the logic of Mr Shirrefs argument is attractive, matters such as these are not always dictated by logic. The Court cannot ignore the evidence of the police informant, even if it is based on intelligence, whatever that might mean in the circumstances. Hard evidence of such things is seldom available.
The Crown says that, having regard to Mokbel’s past activities, he must have known that he was under surveillance for much of the time he was engaging in the events which give rise to the present charges. There is an unacceptable risk, says Mr Tinney, that he will continue to so engage in such activities.
Mr Shirrefs says that such an assertion assumes his client’s guilt of the offences with which he is charged. But this is not necessarily so. In this instance, I think it might be properly said that such a consideration is of lesser importance than it might be in others, having regard to the circumstance in which he now finds himself: facing trial on serious charges.
Even giving maximum weight to the question of delay and ignoring the reasons given by Mr Tinney for that delay, there are in this case a number of risk factors which the Court regards as unacceptable with respect to bail in the case of this applicant. Despite Mr Shirrefs’s well argued refutation of the Crown’s submissions, the Court is not satisfied that even with a large surety, stringent conditions and any other safeguards which can be placed on it, that the community should have to accept the risk, the unacceptable risk, either of flight or of the interference with witnesses and perhaps other risks as well if Mokbel is granted bail. The risks are too great in this case.
Accordingly, bail is refused.
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