DPP v Mokbel

Supreme Court of Victoria|2010-08-05|Before: WHELAN J

CRIMINAL LAW - Application to permanently stay prosecutions - Drug related offences - Two grounds advanced - Circumstances of extradition from Greece said to warrant stay - No unlawful conduct by authorities - Otherwise conduct very far from that warranting a stay - Prejudicial pre-trial publicity said to prevent applicant receiving a fair trial - Traditional safeguards of jury trial sufficient - Significant lapse of time between height of publicity and bringing of application - Application refused - Dupas v The Queen [2010] HCA 20 - Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 24 and 25.

1 By a summons dated 19 November 2009 filed in these two proceedings, Antonios Mokbel seeks a permanent stay of "his drug trials". The summons names as respondents the Directors of Public Prosecutions of both Victoria and the Commonwealth. The summons itself is also directed to solicitors for Mr Mokbel's co-accused in other proceedings, being proceedings numbered 1461 of 2009, 1451 of 2009, and 1408 of 2009.

2 In addition to the proceedings referred to, there are other proceedings pending against Mr Mokbel in this Court, being proceeding number 1634 of 2009 and proceeding number 1420 of 2005.

3 Notice of this application has been given by the applicant, Mr Mokbel, to the Attorney-General of the State of Victoria and to the Victorian Equal Opportunity and Human Rights Commission.

4 Because of the position in relation to legal aid funding, the submissions made in support of the application had to be separated. There were submissions made in relation to what is contended to be an abuse of process as a consequence of matters concerning Mr Mokbel's extradition from Greece, and submissions made on the basis that there should be a permanent stay because Mr Mokbel can never be tried fairly due to the publicity he has received. In relation to the submissions concerning extradition, legal aid funding was not granted and Mr Mokbel made submissions on that ground, both in writing and orally, in person. In relation to the submissions made concerning publicity, legal aid funding was granted and submissions were made in writing and orally by Mr Patrick Tehan QC and Mr Marcus Dempsey of counsel briefed by Robert Stary & Associates. Whilst I am mindful of the fact that there is only one application, given the different ways in which the submissions on behalf of the applicant were presented, it is convenient to deal with the submissions made concerning extradition and the submissions made concerning publicity, in the first instance, separately.

5 Mr Kidd of counsel appeared on behalf of the Director of Public Prosecutions and addressed submissions to all aspects of the application. None of the co-accused in related proceedings who were notified of the application appeared or sought to make submissions. The Victorian Equal Opportunity and Human Rights Commission advised by letter that the Commission would not be intervening in the proceeding and neither appeared nor sought to make submissions. The Attorney-General for the State of Victoria did intervene. Ms Dixon appeared on behalf of the Attorney-General and made submissions both orally and in writing on the issue of the application and operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("The Charter") in relation to the applicant's submissions concerning pre-trial publicity.

6 All of the pending proceedings against Mr Mokbel to which I have referred concern drug trafficking. The allegations variously cover the period which commences in October 2000 and which ends upon Mr Mokbel's arrest in Greece in 2007. The various proceedings are usually referred to by reference to the name of the police operation which is applicable. The parties invariably refer to the proceedings by reference to those names. The names are as follows:

7 Counsel for the DPP observed in the course of submissions that Mr Mokbel's submissions seemed to apply to all of his pending drug trials. Counsel suggested the application be expanded so as to encompass all the pending proceedings and so as to avoid a further application in a different proceeding on the same or similar grounds. Counsel for Mr Mokbel did not take up that suggestion explaining that they were only briefed on this application made in the Orbital and Quills matters.

8 Whilst Orbital and Quills are presently separate matters, the prosecution wishes to have them heard together and has applied to file over a new joint presentment. That application is opposed. It has not yet been heard.

9 In 2007 Mr Mokbel brought proceedings in the Federal Court which concerned the validity of the request made under s 40 of the Extradition Act 1988 (Cth) pursuant to which Mr Mokbel had been extradited from Greece. That application was dealt with by Gordon J and then by the Full Court of the Federal Court.[1]

10 In 2008 Mr Mokbel brought proceedings by originating motion in this Court, being proceeding number 6766 of 2008. That proceeding was determined by Kaye J on 28 October 2008.[2]

11 On any view, the submissions made concerning extradition on this application were similar to the matters raised and determined before Kaye J. It is necessary to briefly review the basis of the application made before Kaye J and the matters which he decided.

12 Before Kaye J, Mr Mokbel by originating motion sought declarations that the continued prosecution of the charges then pending against him would constitute an abuse of process, and sought injunctions restraining the respective Directors of Public Prosecutions from prosecuting those charges, together with further ancillary relief. In his judgment, Kaye J set out certain background facts and certain facts concerning an application to the European Court of Human Rights. Before me those facts were accepted as being accurate, although, on the applicant's part, not complete.

13 In substance, Mr Mokbel failed to answer his bail and absconded whilst on trial in Victoria for a drug offence in 2006. He was subsequently apprehended by authorities in Greece in 2007. Application was made by the Commonwealth Attorney-General seeking extradition.

14 By that time Mr Mokbel had been sentenced to a term of imprisonment of 12 years with a non-parole period of 9 years, that being the sentence imposed at the conclusion of the trial from which he had absconded. He also faced a number of other State and Commonwealth charges.

15 An extradition hearing was conducted before the Council of Appeals Court of Athens on 17 and 24 July 2007, and on 26 July 2007 that Court ordered that Mr Mokbel be extradited to Australia. Mr Mokbel appealed to the Supreme Court of Greece. On 18 March 2008 the Supreme Court of Greece ordered that he be extradited on all charges then pending against him with the exception of two charges of perverting the course of justice. His extradition was approved by the Minister for Justice of Greece on 7 May 2008. On 16 May 2008 Mr Mokbel was surrendered into the custody of Australian Federal Police who escorted him back to Australia, arriving on 17 May 2008.

16 On 9 April 2008 Mr Mokbel had made an application to the European Court of Human Rights. In that application Mr Mokbel had alleged that his extradition would violate a number of his rights. The Secretary to the European Court of Human Rights had acknowledged receipt of the application by a letter dated 21 April 2008. Mr Mokbel's Greek lawyer wrote to the Australian Embassy in Athens on 9 May 2008 advising that the application had been made. On the same day he also wrote to the Attorney-General's Department advising of the application. On 12 May 2008 Mr Mokbel's then Australian solicitor wrote to the Secretary, Commonwealth Attorney-General's Department advising of what he described as "an appeal" to the European Court of Human Rights. The Secretary to the Commonwealth Attorney-General's Department replied to Mr Mokbel's then Australian solicitor on the same day asserting that Australia is not a party to the European Convention on Human Rights[3] and has no obligations under that Convention, and asserting that Mr Mokbel's application is a matter between Mr Mokbel and the Greek government.

17 A significant issue agitated before Kaye J was whether the doctrine of abuse of process was only available to prevent an abuse of a court's judicial processes. At that time there were only three matters which were the subject of a presentment filed in this Court. Kaye J held that apart from those three matters, Mr Mokbel's application for relief failed because no judicial process had been engaged by the prosecution which might be the subject of an application by him based on the doctrine of abuse of process. Kaye J nevertheless addressed the abuse of process submissions which had been made both on the basis that his conclusions on those submissions constituted a further basis upon which the application must fail and also because it was necessary to determine those matters in relation to the three proceedings which were then pending before the court.

18 What was submitted before Kaye J was that the circumstances in which Mr Mokbel had been brought to Australia would bring the administration of justice into disrepute if he were tried on the charges in respect of which he had been extradited. Reliance was placed on authorities such as R v Horseferry Road Magistrates Court, ex parte Bennett.[4] Before Kaye J the basic contention advanced on behalf of Mr Mokbel was that the Australian government encouraged the Greek government to extradite him, and accepted his surrender by the Greek government, when the Australian authorities responsible for his extradition knew that he had made an application to the European Court of Human Rights in respect of his extradition, and knew that that application had not been determined.[5]

19 Before Kaye J counsel for Mr Mokbel disavowed any allegation that there had been unlawful conduct by the Australian government or by the Greek government.[6]

20 After reviewing the authorities, Kaye J observed that the focus of the cases dealing with alleged abuse of process arising out of the circumstances of extradition was upon proper compliance by the authorities with the laws relating to the person's removal from the foreign jurisdiction. Whilst Kaye J recognised that the categories of abuse of process are not closed he observed:

"However, it would clearly be a very rare and particularly exceptional case where an abuse was made out on the basis of an accused person's extradition to Australia, notwithstanding that there has been no unlawful conduct by the Australian authorities, and no unlawful conduct by the authorities of the extraditing jurisdiction, in which the Australian authorities have been complicit, in securing the extradition of the accused to Australia."[7]

21 Kaye J went on to observe that before conduct would constitute an abuse of process justifying a court refusing to exercise lawful criminal jurisdiction, the conduct would need to be extraordinarily reprehensible so that prosecution would constitute an affront to justice.[8]

22 On the material before him, Kaye J concluded that the answer to the question whether the conduct of the Australian authorities had constituted such an abuse in this case was clear cut. Kaye J recognised that extradition might have rendered nugatory any relief Mr Mokbel could have obtained subsequently from the European Court of Human Rights but he concluded that countervailing considerations far outweighed that consideration. In that context he referred to the fact that there was, before him, no suggestion of unlawful conduct. He referred to the fact that Mr Mokbel, before him, had relied solely on the bare fact that at the time he was extradited the Australian authorities knew he had made an application to the European Court of Human Rights. He referred to the fact that the application to the European Court of Human Rights contained a request for "interim measures" but that there was no evidence that Mr Mokbel had pursued or sought to agitate interim measures and that he did not obtain any such interim measures, which were available under the rules of the European Court of Human Rights.

23 Kaye J analysed the material which was before him concerning Australia's response to the application to the European Court of Human Rights. The focus then appears to have been on a diplomatic note by Australia to Greece of 23 April 2008 which stated that the Australian government considered that the possibility of such an application should not delay Mr Mokbel's surrender. Kaye J concluded that that was no more than a statement by Australia of its lawful position. Kaye J held that this fell well short of the type of conduct described in the authorities as a foundation for an abuse of process conclusion and said that there was nothing shameful or unworthy about what the Australian government had done.

24 Finally, Kaye J observed that the offences in relation to which Mr Mokbel had been extradited included a large number of very significant drug trafficking charges and two charges of murder, and, in addition, Mr Mokbel had been extradited to serve a term of imprisonment of 12 years for a very serious drug offence.

25 The submissions made by Mr Mokbel before me in relation to extradition involved both a significant alteration in his position as advanced before Kaye J, and a re-agitation of matters put before Kaye J on the basis of what was said to be significant new material.

26 The alteration in Mr Mokbel's position concerns the issue of unlawfulness. Mr Mokbel now contends that the Australian government's conduct in relation to the extradition was unlawful. Mr Mokbel's argument in this respect is that Australia's participation in Mr Mokbel's removal from Greece before his application to the European Court of Human Rights had been dealt with constituted action by executive authorities which summarily deprived Mr Mokbel of the right which he had to apply to the European Court of Human Rights, which thereby violated that right, and rendered the application before the European Court of Human Rights nugatory.

27 Mr Mokbel contended before Kaye J that the Australian government had actively encouraged the surrender of Mr Mokbel whilst his application to the European Court of Human Rights remained undetermined. He makes the same contention again, relying on new material, in this application. Before Kaye J, his counsel specifically disavowed the submission that this encouragement constituted unlawful conduct on behalf of the Australian government. He now contends that Australia's role in relation to Mr Mokbel's surrender by the Greek authorities was, given the undetermined application to the European Court of Human Rights, unlawful conduct on Australia's part.

28 Mr Mokbel subpoenaed material from two Commonwealth departments, being the Attorney-General's Office and the Department of Foreign Affairs and Trade. A significant number of documents were produced pursuant to those subpoenas. Objection was taken to inspection of some of those documents and portions of those documents and I ruled on those objections on 13 April 2010. Documents produced by the Department of Foreign Affairs and Trade were separately identified by a number after the letters "DFAT". Documents produced from the Attorney-General's Office were sequentially numbered on each page and also arranged under tab numbers. Copies of the subpoenaed material relied upon by Mr Mokbel in his submissions were tendered as Exhibit A1. Additional subpoenaed material relied upon by the Director of Public Prosecutions, and a copy of an affidavit sworn by Mr Mokbel's Greek lawyer, Vassilos Chirdaris, on 9 September 2008 and filed in the originating motion proceeding heard by Kaye J, were tendered as Exhibit R1.

29 There has never been any controversy or doubt about the fact that Australian authorities had been advised of the application by Mr Mokbel to the European Court of Human Rights before his surrender on 16 May 2008. The Australian authorities had been so advised by Mr Mokbel's Greek lawyers and by his then Australian lawyers. Amongst the subpoenaed material is a copy of the facsimile transmission from Mr Mokbel's Greek lawyer to the Australian embassy of 9 May 2008 which included a copy of the application itself.[9] The applicant is Antonios Mokbel. The name of the state against which the application is directed is Greece. The substance of the application is in Greek. According to a document prepared by the Australian Embassy in Athens[10] the application, amongst other things, sought "a temporary order for his protection".

30 In the affidavit of Mr Chirdaris of 9 September 2008 he swore that the "Greek government was aware of the appeal by Mr Mokbel to the European Court of Human Rights prior to the removal of Mr Mokbel". He swore that he sent a formal letter to the Minister of Justice of Greece on 13 May 2008.

31 On 9 May 2008 an officer in the Attorney-General's Department sent an email to two officers in the Australian Federal Police.[11] Because of the importance placed on this email by Mr Mokbel, I will set the relevant text out in full.

"As previously discussed please find below a brief summary of the process for an application to the European Court of Human Rights (ECHR).

Mokbel lodged an application with the ECHR on 21 April 2008 but we understand that the Court could not make a ruling in relation to that application until the Greek Justice Minister had approved the extradition.

In his application Mokbel asked for his extradition to be overturned on the grounds of potential violation of Article 2 (right to life) and Article 3 (prohibition of torture) of the European Convention of Human Rights. Mokbel's application included a request for 'interim measures' which is a request that the court make a preliminary order prior to finally determining the hearing.

The ECHR generally only grants interim measures, for example, ordering that an extradition be postponed, where there is a serious risk of physical harm to the applicant or an imminent risk of irreparable damage to the applicant's right to present their case. The ECHR has held that extradition may irreparably damage an applicant's right to present their case to the Court. We understand that Mr Mokbel is raising allegations of possible threats to his life in his application, so it is likely to fall into this category.

We cannot find any definitive material on the ECHR process for considering requests for interim measures or how long this process may take. However, from our experience in another matter it appears that the country involved is not officially notified of the application until the ECHR has determined whether to grant interim measures. In the previous matter the notification was provided about one month after the application date. If we take this as a guide, it is likely that Greece would not be notified by the ECHR until 21 May 2008, or possibly later given that the ECHR could not consider the application until the Greek Justice Minister made his decision.

We note that the ECHR application only involves Mokbel and Greece and is beyond Australia's control. It is possible that if interim measures are ordered by the ECHR before Mokbel's surrender to Australia, Greece will not proceed with Mokbel's extradition to Australia until the court has finally ruled on this matter. This may take some time as the entire process from application to a final binding judgment by the ECHR may take more than five years.

It would be advisable to arrange for surrender as soon as possible and if possible prior to Greece's notification of the application by the ECHR. Greek authorities have advised that there is no impediment to Mr Mokbel's surrender occurring at present. We do not know what Greece's attitude might be to an award of interim measures by the ECHR, however you should be aware that there is a possibility (albeit slight) that on the escorts arrival in Greece, the Greek authorities may be unable to surrender Mr Mokbel."

32 There is no evidence in the subpoenaed material suggesting that as at the time of Mr Mokbel's surrender on 16 May 2008 Greece was subject to any temporary order or other interim measures from the European Court of Human Rights. The subpoenaed material reveals Greece was not formally notified by the European Court of Human Rights of the application until 20 August 2008.[12] The subpoenaed material confirms that Greece had been served with the application documents by Mr Mokbel's legal representatives before he was surrendered on 16 May 2008.[13]

33 Mr Mokbel submits that the documents obtained by subpoena support the contentions that he had standing to lodge an application in the European Court of Human Rights, that he did lodge a valid application, that the decisions of the European Court of Human Rights are binding on Greece, that the subject matter of his application was within the jurisdiction of the European Court of Human Rights, and that the European Court of Human Rights had jurisdiction to grant the application and order that the proposed extradition to Australia was unlawful. Mr Mokbel's submissions often refer to the application as an appeal. In its written submissions the prosecution accepts these propositions subject to two qualifications. The first is that it is said that the lodging of the valid application has to be considered in the context of the failure to obtain interim measures. The second is that the prosecution disputes that the application to the European Court of Human Rights can properly be characterised as an appeal.

34 Mr Mokbel submits that the subpoenaed documents show that the Australian authorities were aware of the above matters and that the subpoenaed documents also establish that the Australian authorities had assumed Mr Mokbel would lodge an application at the European Court of Human Rights before he did so, that they knew he had lodged such an application at the time of the surrender, that they knew that decisions of the European Court of Human Rights were binding on Greece, that they wanted to have Mr Mokbel returned to Australia before Greece "found out" that he had lodged the application at the European Court of Human Rights, and that they knew that the Greek authorities would not extradite Mr Mokbel if they knew he had lodged an application with the European Court of Human Rights.

35 In relation to the knowledge of the Greek authorities, Mr Mokbel's submissions also suggest that the Australian authorities "were prepared to mislead" the Greek government in relation to the existence of the application.[14]

36 Any suggestion that the Greek authorities were ignorant of the application can be dealt with very shortly. The material establishes that the Greek authorities knew of the application at the time of the surrender. My reading of the subpoenaed material indicates that the Australian authorities were aware that the Greek authorities knew of the application. Knowledge of the application should not be confused with formal notification from the European Court of Human Rights itself. The subpoenaed material indicates that formal notification from the court was not received until long after Mr Mokbel had been surrendered. The suggestion that Australian authorities had misled or were prepared to mislead the Greek authorities in relation to the existence of the application is untenable. The Greek authorities had been informed of it by Mr Mokbel's own lawyer.

37 In relation to the other matters relied upon by Mr Mokbel, the subpoenaed material establishes that the Australian authorities were aware of and were addressing the possibility of an application to the European Court of Human Rights well before they were notified that such an application had been made on 9 May 2008. The Australian authorities were aware of the fact that if interim measures were granted by the European Court of Human Rights there was significant potential for delay in Mr Mokbel's surrender. The material subpoenaed, and in particular the email of 9 May 2008 relied upon by Mr Mokbel, reveals that Australia's position was that the Greek authorities saw no impediment to Mr Mokbel's surrender, and that Australia considered that it would be advisable to arrange for surrender as soon as possible because of the risk of delay as a result of interim measures being ordered and/or formal notification to Greece of the application by the European Court of Human Rights.

38 During an adjournment to give Mr Mokbel the opportunity to prepare written submissions in reply, Mr Mokbel filed an affidavit of his Greek lawyer, Ioannis Vlahos sworn 8 June 2010, which in turn annexed a letter from Mr Chirdaris dated 3 June 2010. Mr Mokbel also tendered a statement by himself dated 21 June 2010.

39 In relation to the application to the European Court of Human Rights this additional material confirmed what was already known, and in particular confirmed that on 9 April 2008 a request for interim measures preventing Mr Mokbel's extradition had been made. There is no suggestion interim measures were granted prior to his extradition.

40 The affidavit of Mr Vlahos also addressed an issue raised but not developed in Mr Mokbel's principal submission, being the possibility of an appeal to the Greek Council of State from the Minister of Justice's decision of 7 May 2008. In substance, Mr Vlahos deposes to practical difficulties occasioned by Mr Mokbel's incarceration which meant that he, as Mr Mokbel's Greek lawyer, was not informed that the Minister's decision had been served on Mr Mokbel until 13 May 2008. He says that he was not able to see Mr Mokbel and obtain a copy of the Minister of Justice's decision until 15 May 2008. He says he immediately began compiling an application for annulment and an application for a stay of execution of the decision which was to be made to the Council of State the very next day. He continues:

"On the morning of 16.05.2008, as I was on my way to the Koridallos prison, in order for Mokbel to sign the relevant applications, for the annulment of the Minister of Justice's decision and the stay of execution of the same, before the Council of State, I was astounded to find out, through the media, that Mokbel had already been handed over into the Australian authorities' custody and that they had sent a special plane to take him back."

41 In his reply submission Mr Mokbel relied upon this proposed application to the Council of State arguing that it was a further respect in which the conduct of the Australian authorities had, in effect, deprived him of access to potential avenues of review.

42 The arguments put on behalf of Mr Mokbel concerning unlawfulness are, in my view, misconceived.

43 It is not contended that there was any failure on the part of the Australian authorities to comply with the decisions of the Greek Courts, or the Greek Minister for Justice. It is not contended that there was any failure on the part of the Australian authorities to comply with the applicable extradition legislation or the applicable extradition treaty. Leaving to one side for the moment the Council of State issue raised in reply, what is contended is that it was unlawful to encourage or accept the surrender of Mr Mokbel when Australia knew that his application to the European Court of Human Rights against Greece had been made but not yet determined.

44 It is not unlawful for a person to proceed to enforce rights which they have in law because an application has been made but not yet determined which might affect those rights. It is because it is not unlawful to proceed with enforcement and because that enforcement might render nugatory an appeal or other application that courts have the power to give interim or interlocutory relief. The European Court of Human Rights has such powers, which are referred to as interim measures. There is no evidence that any such interim measures were operative, at the time of Mr Mokbel's surrender on 16 May 2008, or at any other time.

45 Australia is not a party to the European Convention on Human Rights and it owes no obligation to any person or state under that Convention. Australia was not a party to Mr Mokbel's application to the European Court of Human Rights. No order could have been made against Australia by that Court. An order binding on Greece could have been made, but there is no evidence that any such order was made. The Greek authorities were of the view that there was no impediment to Mr Mokbel's surrender.

46 The assertion is repeatedly made in Mr Mokbel's submissions that Australia's encouragement and acceptance of the surrender effectively deprived Mr Mokbel of his legal right to obtain relief from the European Court of Human Rights against Greece. Whilst this may be accurate as a description of the practical effect of the surrender, it does not establish any relevant unlawfulness.

47 At a number of points in his submissions Mr Mokbel asserts that the position is relevantly analogous to the Australian government extraditing a subject of another country whilst an extradition appeal was pending at the High Court. One significant flaw in that analogy is that Australia would be party to such a High Court appeal, whereas it was not a party to Mr Mokbel's application to the European Court of Human Rights.

48 In any event, in Australia, in both the civil and criminal contexts, the possibility of judgments being enforced whilst an appeal is pending is one which is commonly addressed. In the civil context it may be addressed by measures such as an application for a stay pending appeal, and in the criminal context by measures such as an application for bail pending appeal. One factor, amongst other factors, which may be taken into account in such applications is whether enforcement prior to appeal will render the appeal futile or nugatory or deprive the applicant of the fruits of a successful appeal. Relief may be granted in order to address that position.[15]

49 To accept that it was in any relevant sense "unlawful" for the Australian government to proceed in accordance with the decisions which had been made by the Greek Courts and the Greek executive merely because an application was pending to the European Court of Human Rights would necessarily mean that the interim measures which Mr Mokbel sought, but did not obtain, were unnecessary. If Mr Mokbel's argument is correct he obtained all of the practical benefits of interim measures merely by making his application and then notifying Australia, a non-party to that application, of the fact that the application had been made. This cannot be so.

50 The additional matter developed in reply, in reliance upon Mr Vlahos' affidavit, does not relevantly assist Mr Mokbel's argument. The proposed application to the Council of State for annulment and a stay of execution was never made. There is no material suggesting the Australian government was ever advised that any such application was intended.

51 My conclusion is that Mr Mokbel has failed to establish that there was any relevant unlawfulness on the part of the Australian authorities or the Greek authorities.

52 As Kaye J observed, however, that does not necessarily conclude the matter. In an exceptional case reprehensible conduct which is not unlawful might still warrant a stay of proceedings.

Analysis and conclusion on reprehensible conduct

53 My conclusion is that the new material adds nothing of significance to the material which was before Kaye J.

54 In relation to the application to the European Court of Human Rights, before me the focus was on the email of 9 May 2008. In my view, that email sets out, as did the diplomatic note of 23 April 2008 which was the focus before Kaye J, no more than a statement of Australia's lawful position. It seems to me that, in the circumstances, Australia was entitled to take the position that the application to the European Court of Human Rights was a matter between Mr Mokbel and Greece, and that if interim measures had not been granted, and Greece saw no impediment to the surrender of Mr Mokbel, then Australia was acting appropriately in accepting that surrender. There was nothing shameful, unworthy or reprehensible in this.

55 Still less was there anything shameful, unworthy or reprehensible in proceeding with the extradition in circumstances where an application was proposed to be made to the Council of State but never was made, or, on the material before me, expressly foreshadowed.

56 As was the position before Kaye J, the answer to the question whether the conduct of the Australian authorities was so reprehensible as to require or warrant a stay, is clear cut. The circumstances here are, in my view, very far from the kinds of circumstances dealt with in the authorities which could justify a stay or render the continuation of the current proceedings against Mr Mokbel an abuse of process.

Belated submissions concerning Lebanon's extradition request

57 In the course of Mr Mokbel's reply submissions an issue was raised for the first time concerning a request for extradition made to the Greek authorities by Lebanon. It is necessary to give a brief explanation of the context in which this issue was first raised.

58 In the course of submissions in February 2010 concerning subpoenas, Mr Mokbel filed and served a written explanation of the relevance of the documents which he sought.[16] At the same time he handed up his then current draft of his outline of submissions.[17] There was no reference made in either of those documents to the Lebanese extradition request. The entire basis of the foreshadowed argument concerned the application to the European Court of Human Rights.

59 On 1 March 2010 I heard argument concerning two subpoenas which Mr Mokbel had issued which were in wide terms. On that day Mr Mokbel filed a document which he said set out the relevant background circumstances.[18] That document relied almost exclusively on his submissions concerning the application to the European Court of Human Rights, although a brief reference was also made to what was said to be the "option" of requesting a review from the Greek Council of State. There was no reference made to the Lebanese extradition request.

60 The wide subpoenas Mr Mokbel initially issued were set aside on 1 March 2010. Mr Mokbel then issued subpoenas which were confined to documents relating to the application to the European Court of Human Rights.

61 When documents were produced pursuant to those subpoenas, I heard arguments about redactions made and, as indicated earlier, I made a ruling in relation to those redactions on 13 April 2010. Mr Mokbel's written submissions concerning the redactions were confined to his complaint concerning the European Court of Human Rights,[19] although in a further submission forwarded to the court immediately prior to my ruling Mr Mokbel asserted that the prosecution's duty of disclosure required that all information that supported his argument "that the Australian authorities acted illegally, not just relating to the ECHR argument" should be provided. No express reference was made to the Lebanese extradition request.

62 There was material amongst the redacted material which concerned the Lebanese extradition request. At the time of that ruling, Mr Mokbel was making no submission concerning that request. I ruled that the relevant redactions were appropriate on the basis of irrelevance and, if I was wrong about that, on the basis of public interest immunity.

63 Mr Mokbel filed and served his substantive written submission on 21 April 2010.[20] The submission almost entirely concerned the issue of the European Court of Human Rights application. There was a brief reference to the Council of State.[21] There was no reference to the Lebanese extradition request.

64 After the substantive submissions had been made and prior to Mr Mokbel's submissions in reply, Mr Mokbel filed and served the affidavit of his Greek lawyer, to which I have previously referred, and the statement by himself which was tendered. The affidavit was principally directed towards the issue of the proposed application to the Council of State, but it also made reference to the fact that on the day Mr Mokbel was surrendered into the custody of Australian authorities the Greek Court set a date for the hearing of Lebanon's application for Mr Mokbel's extradition. The date set was 20 May 2008.

65 On 21 June 2010 Mr Mokbel filed and served his written submissions in reply.[22] The principal focus of those submissions remained the European Court of Human Rights application but brief references were made to the fact that Lebanon was also seeking extradition at the time of the hand over to Australian authorities.[23]

66 The hearing of Mr Mokbel's reply submissions was listed for 23 June 2010. On that day Mr Mokbel filed a further written submission relating to the extradition application by the Lebanese government.[24] In that further written submission he referred to the fact that at the time he was handed over, a date had been set for the Lebanese request to be heard. He then submitted: "Had the Australian government not abused their power and pressured the Greeks into sending me back when they did", the Lebanese request would have been dealt with and the Greek Minister would have had to decide which country he was going to send him to.

67 In oral argument on 23 June 2010 Mr Mokbel set out his understanding of the circumstances in relation to the Lebanese request. In substance, he said that his understanding was that Lebanon had made a request but that it had had inadequacies and that further investigation was required. There was then a subsequent request, which was the one to be heard on 20 May 2008. He said that if he had been asked on 20 May whether he wanted to be extradited to Lebanon he would have agreed. He submitted that the Australian government would have felt threatened by the Lebanese request. In his written submission Mr Mokbel said that if the Crown was not willing to acknowledge that all of this occurred then he wished to have an adjournment so that he could issue additional subpoenas and make further submissions.

68 In substance, the prosecution was prepared to deal with the matter on the basis of the way that Mr Mokbel put it in his submissions.

69 The prosecution submission was that the Lebanese request was of no significance, even if one took all of what Mr Mokbel said at its highest. The submission made was that Mr Mokbel nowhere suggests that Greece had acted illegally in any relevant respect, including in relation to the Lebanese request, and that it was untenable to maintain that the Australian government had in some indirect way acted unlawfully even though the Greeks had not. It was submitted that the material before me amply illustrated that the Australian authorities considered that the surrender was a matter for the Greek authorities and that the Australian authorities understood that the Greek legal position was that the way was clear for his surrender.

70 I have considered whether I should reopen the matter now, permit Mr Mokbel to serve further subpoenas, and hear further submissions on relevance and public interest immunity concerning the Lebanese request. I have determined that that would be a pointless exercise.

71 I accept the prosecution submission that Mr Mokbel's submissions and assertions about the Lebanese request, taken at their highest, cannot amount to anything that could possibly justify a permanent stay of the criminal proceedings against him whether alone or in combination with other factors.

72 When I made my ruling on 13 April 2010 I indicated that I would expand on my reasons in relation to the redactions concerning a third party country later. I expand on those reasons now by saying that the redacted material was irrelevant to the issues raised by Mr Mokbel at the time and was outside the terms of the subpoenas. Mr Mokbel has now raised the issue of the Lebanese request, albeit belatedly, but there is no point in revisiting the subpoenaed documents on that issue. Having read the material and having heard the arguments, in the balancing exercise between the public interest in disclosure so as to advance the interests of justice in the particular case and the public interest in confidentiality for the reasons deposed to by the Commonwealth officers, the balance is clearly in favour of confidentiality as the material contains nothing approaching the kind of material which could warrant or support the granting of a stay of this kind.

73 In August 2009 Kaye J heard an application concerning pre-trial publicity. That application was relevantly similar to the publicity ground of this application. It was made in a proceeding in which a presentment had been filed charging Mr Mokbel with the murder of Lewis Moran at Brunswick on 31 March 2004. Kaye J dismissed the application for a stay made in that proceeding on 14 August 2009.[25]

74 The principal affidavit relied upon before me is an affidavit of Mr Mokbel's solicitor, Grace Morgan, affirmed 19 November 2009. That affidavit exhibits some new material, and adopts four affidavits relied upon in the application before Kaye J. Those four affidavits are affidavits affirmed by Ms Morgan on 1 April 2009, 17 July 2009 and 6 August 2009; and an affidavit of Stephen Andrianakis sworn 17 July 2009.

75 Kaye J's judgment reviews the material relied upon before him, and relied upon again before me, in some detail. Having reviewed the material myself, I cannot improve upon his description of that material and I will not attempt to do so. I adopt his Honour's description and summary of the background to the charges Mr Mokbel was then facing,[26] and of the publicity he has been subjected to concerning his previous convictions,[27] uncharged allegations,[28] comment or actions taken by significant public figures,[29] links with Carl Williams,[30] references to the Mokbel crime family,[31] links to the racing and gambling industry,[32] links to police corruption,[33] references to Mr Mokbel as a drug lord, drug baron, drug boss and similar,[34] references to Mr Mokbel as an underworld figure, a gangland figure, a murderer, and a crime boss,[35] references to his absconding and his extradition,[36] promotion or reporting on the "Underbelly" television series,[37] material available on the internet,[38] entertainment material including the "Underbelly" television series and a number of published books which were generically referred to before me as "true crime" books,[39] and the report of research conducted by Roy Morgan Research dated 4 June 2009 which is exhibited to the affidavit of Mr Andrianakis.[40]

76 I invited all parties before me to identify any factual areas where it was contended that Kaye J had erred. Counsel for Mr Mokbel submitted Kaye J erred in relation to one matter, which was not a factual error and which I address below, but otherwise no such area was identified by any party.

77 His Honour also reviewed the relevant authorities, as they then stood, in some detail.[41] When the substantive submissions were made, that review was expressly adopted by Mr Mokbel's counsel before me. Mr Mokbel's counsel also relied upon Ashley JA's analysis of the authorities in R v Dupas (No 3),[42] a judgment delivered after Kaye J's judgment. I heard further submissions after the publication of the High Court's reasons on the appeal in Dupas v The Queen.[43]

78 Kaye J concluded in relation to the one matter with which that application was concerned, the charge of the murder of Lewis Moran, that notwithstanding the very substantial adverse publicity to which Mr Mokbel had been subjected it would be possible for him to have a fair trial.

79 Kaye J reached this conclusion having earlier concluded that Mr Mokbel would come before the jury as a man whose character and reputation had been significantly disparaged. Kaye J's judgment records the fact that that disparagement included a significant body of material asserting Mr Mokbel was criminally associated with a number of murders, and was indeed guilty of the very crime with which the pending trial was concerned, namely the murder of Lewis Moran, in circumstances which reflected the case the prosecution proposed to put to the jury.[44] Before me, counsel for Mr Mokbel again relied on the same material which formed the factual basis for Kaye J's assessment of the publicity in these specific respects.[45]

80 On the hearing of the stay application before Kaye J there was a difference between the prosecution and the defence as to whether, if a stay was not granted, his Honour should address Mr Mokbel's notoriety with the jury panel in general terms or whether he should do so specifically.

81 At the trial his Honour addressed the issue specifically.[46] He referred to the "substantial publicity" surrounding Mr Mokbel and mentioned the fact that he had featured prominently in the media, in other publications, and in the entertainment industry. He referred to the "Underbelly" television series. He referred to media attention attracted when Mr Mokbel "absconded while on bail while standing trial for a drug matter in 2006" and to his subsequent arrest in Greece and his extradition. He gave even greater emphasis than is usually given to the need for prospective jurors to carefully consider whether they could bring an impartial and open mind to the evidence to be led. His Honour addressed the panel on the assumption that all or nearly all of them would have heard or read something about the individuals involved in the matter, particularly Mr Mokbel, and also about the events which would be the subject of the evidence to be led.

82 Before me, there was material additional to that which was before Kaye J in the affidavit of Ms Morgan affirmed 19 November 2009, and, after the hearing of the substantive submissions, further additional material was filed and relied upon, being material obtained as a result of the subpoenas issued by Mr Mokbel in relation to the extradition argument, a further affidavit of Grace Morgan affirmed 22 June 2010, and an affidavit of Bruce Richard Packard affirmed 22 June 2010.

83 The affidavit of Ms Morgan affirmed 19 November 2009 exhibits three documents which were not before Kaye J. They are a collection of extracts from a book entitled "I, Mick Gatto" written by Tom Noble, an article published on the website www.news.com.au on 12 October 2009 entitled "Underbelly figure Mick Gatto charms Adelaide", and a copy of one of the suppression orders made by Kaye J.

84 The extracts from the book refer to a person who is called "The Mediterranean". The book asserts that this person was in the business of drug trafficking and had made a lot of money from that business. It refers to an incident in which the person called "The Mediterranean" met another person as a result of arrangements made by Mr Gatto so that he could apologise to that person. "The Mediterranean" was thereafter severely beaten. It is suggested in the book that "The Mediterranean" had later tried to engage others to murder Mr Gatto. The article on the website identifies the person who was beaten as Mr Mokbel.

85 The affidavit of Mr Packard exhibits a market research report which, amongst other things, indicates that 83.6 percent of Victorians recently questioned about Tony Mokbel said that they were aware of him, and that of that 83.6 percent, 83.4 percent answered "yes" when asked whether they believed that he was a drug trafficker and/or a drug manufacturer. A high proportion of respondents based their belief on information from the mass media. A significantly lower proportion of respondents referred to the internet or the "true crime" books.

86 Ms Morgan's affidavit of 22 June 2010 deposed to events surrounding attempts to have an injunction granted in relation to the "Underbelly series", deposed to and produced material concerning a police press release which was the subject of adverse comment by Kaye J on 19 March 2009, referred to some material which appeared in the press recently where an Australian Rules footballer had "joked about fleeing Australia on a boat like crime figure Tony Mokbel", and referred to a recent film in which, it was suggested, a character was portrayed in a disparaging way and in a way intended to reflect or refer to Mr Mokbel.

87 On behalf of Mr Mokbel, his counsel submitted that I ought to be satisfied of the following five factual propositions:

(1) For almost the last decade Mr Mokbel has been the subject of unprecedented publicity. Its quantity has been voluminous and it has been disseminated through every form of media in the context of both news and entertainment.

(2) The publicity to which Mr Mokbel has been subject has been almost entirely of a character which casts him as an utterly disreputable person.

(3) Overwhelmingly this publicity has characterised him as being disreputable because of his involvement in the illegal drug trade.

(4) The publicity has been exacerbated by a number of "true crime" books which have been widely distributed.

(5) The prejudicial publicity has been exacerbated by comments from leading public figures including politicians, senior police and entertainers.

88 Counsel elaborated upon those five propositions and referred extensively to the affidavit material in support of the application, emphasising that even though the particular references made were extensive, the enormous volume of prejudicial publicity to which Mr Mokbel has been subjected meant that the particular matters referred to were still only "highlights" or "snippets" which gave an indication of the "flavour" of the material.

89 In relation to the second factual proposition, reference was made to the affidavit of Ms Morgan sworn 17 July 2009 and in particular to the portions of that affidavit dealing with bad character and prior convictions, uncharged criminality, links with Carl Williams, references to the Mokbel crime family, involvement in police corruption, and the circumstances of Mr Mokbel's absconding and extradition. Prior convictions were referred to on a number of occasions in that material. Counsel submitted that it was inevitable any jury empanelled on a subsequent trial would know that Mr Mokbel had prior convictions for the very sort of offending for which he was then on trial. In the context of uncharged criminality, counsel referred to references made associating Mr Mokbel in a criminal context with murderers, including Carl Williams, and asserting involvement in a number of murders including the murders of Terrence and Christine Hodgson, Michael Marshall, Nick Radev, and Lewis Moran. Reference was also made to material concerning the Mokbel family, concerning Mr Mokbel's links with racing and gambling, concerning activities associated with large scale drug trafficking such as involvement in police corruption and corruption of the legal system, and the concealment of very substantial wealth.

90 In relation to the third factual proposition, particular reliance was again placed upon the affidavit of Ms Morgan of 17 July 2009 and upon the very large amount of material exhibited to that affidavit in which Mr Mokbel is characterised as the central operator of a very large drug trafficking organisation. Particular reliance was also placed upon the material which characterises Mr Mokbel as a person who has often been able to escape suffering consequences through the legal system in the past. Counsel again referred to an extensive amount of material in which Mr Mokbel was associated in a criminal sense with numerous murders including Nick Radev, Lewis Moran, Michael Marshall and Mario Condello.

91 In relation to the fourth factual proposition, reliance was placed upon Ms Morgan's affidavit of 16 July 2009 and also upon her further affidavit of 6 August 2009. Reference was particularly made to the books "Gangland Australia", "Underbelly", "Crimes That Shocked Australia", and "Big Shots". These books characterise Mr Mokbel as the head of a massive drug business who has been involved in corruption of the system of justice and a number of murders. It was submitted that the material in these books contains some fact, some fiction, and some speculation; all of which is extremely prejudicial.

92 It was submitted that the material in the books and elsewhere is exacerbated by a large quantity of material continuously available on the internet and also material which has appeared on television. This material was said to be not only prejudicial but also demeaning. Reference was made to the television series "Underbelly" and in particular to episodes 2, 3, 6, 8, 9, 10 and 12, the content of which is summarised by Ms Morgan in her affidavit of 16 July 2009. At counsel's request, I watched the entirety of the unedited "Underbelly" series. As I told the parties in the hearing, I had watched the five edited episodes when they were broadcast.

93 In relation to the fifth factual proposition, reliance was again placed on Ms Morgan's affidavit of 17 July 2009 and particular reference was made to the comments by senior politicians and senior police. In the course of submissions counsel for Mr Mokbel played exhibit "GM 9" to Ms Morgan's affidavit of 6 August 2009 which is an extract from the AFI Awards televised on Channel 9 on 6 December 2008. In that extract a comedian made jokes referable to Mr Mokbel's apprehension in Greece and referable to suppression orders which had been made in relation to the "Underbelly" series. Counsel also played exhibit "GM 11.11" to Ms Morgan's affidavit of 16 July 2009 which is an extract from the current affairs program "Today Tonight" broadcast on 11 January 2008. The particular story concerns two elderly identical twins. It is not a crime story and it covers a number of aspects of their long lives. In that context they refer to Mr Mokbel and to his alleged drug trafficking activities.

94 Counsel for Mr Mokbel submitted that the Crown had properly conceded that the character of Mr Mokbel had been significantly tarnished by the publicity to which he has been subjected. Counsel for Mr Mokbel specifically adopted the observations of Kaye J in relation to the publicity.[47] Counsel submitted that the publicity has been such that members of the public believe they know Tony Mokbel. It was submitted that it is difficult to imagine a case of greater prejudice than this one and that Mr Mokbel could not possibly get a fair trial.

95 In relation to the legal principles applicable, the substantive submissions were heard prior to publication of the High Court's reasons in Dupas v The Queen. I gave the parties the opportunity to make further submissions after delivery of the reasons in Dupas v The Queen.

96 Prior to delivery of the High Court reasons in Dupas v The Queen it was submitted on behalf of Mr Mokbel that the principles were accurately set out by Kaye J at [82] to [105] and by Ashley JA in the Court of Appeal in R v Dupas (No 3).[48] The test, it was said, was that set out by Kaye J at [123]. Relevantly, in that paragraph Kaye J said:

"The critical question is whether as a result of the publicity, it is likely that the accused would not receive a fair trial of the charge against him, notwithstanding the effect of appropriate empanelment procedures and judicial directions given to the jury. ... [T]he question is whether, notwithstanding the employment of appropriate procedures at the trial, it is likely that the accused's right to a fair trial, of the particular charge against him in this case, has been so adversely prejudiced that, notwithstanding the public interest in the trial of those proceedings, the justice of the case requires that I should stay the proceeding against him."

97 Counsel for Mr Mokbel's reliance on Kaye J's statement of the legal issue had one qualification. This concerned the operation of the Charter. It was submitted on behalf of Mr Mokbel that, where the Charter applies, there is no warrant for any consideration of the public interest in the trial proceeding.

98 As to the High Court's judgment in Dupas v The Queen the submission made on behalf of Mr Mokbel was that it is clear that there is power to stay a proceeding where a fair trial is not possible because of pre-trial publicity and that the High Court judgment still leaves open the possibility that adverse publicity can be so extreme as to warrant a permanent stay.

99 On behalf of Mr Mokbel it was submitted that the circumstances here are extreme. It was submitted that there is a close relationship between the prejudicial material and the charges of drug trafficking which Mr Mokbel is facing. Counsel submitted the prejudicial material sets out a great deal of conduct which is thought to be associated with large scale drug trafficking, but which will not be any part of the evidence which will be led by the prosecution in the trials. Such material was submitted to be that which asserted or suggested things about his treatment of associates; his involvement in police corruption; the involvement of his family members; steps he had taken, including murders, to protect his drug empire; the process and extent to which he has been enriched; his escapes from prosecution and/or conviction in the past; sending great wealth overseas; admitting being a drug trafficker; dealings with particular associates such as Mr Radev; and his laundering and concealment of large amounts of money. It was submitted that in this case there was a real danger of miscarriage of justice. It was said that this was because the jury might use these matters in their deliberations, and they could not be adequately addressed by directions. Indeed, it was submitted that any directions on these particular matters would probably just remind potential jurors of, and alert them to, the prejudicial material.

100 It was submitted that there was a perceptible risk that jurors would consciously or unconsciously find support for, or corroboration of, surveillance evidence or evidence of alleged drug associates in the prejudicial material which had been so widely disseminated.

101 It was submitted that the only solution to address this position is a permanent stay. Counsel for Mr Mokbel said that that could only be done in an extreme case but, they submitted, this was such a case.

102 Finally, it was submitted that at least some of the prosecution cases which were pending would "cry out" for an explanation and that that explanation could only come from the accused, Mr Mokbel. It was submitted that a jury placed in the position of deciding whether to reject that explanation would be unable to put out of their minds the pervasive prejudicial publicity to which his character has been subjected.

103 Counsel for Mr Mokbel also addressed some specific matters.

104 Counsel submitted that Kaye J was wrong in his judgment when he concluded that it was relevant that some of the prejudicial publicity was a result of Mr Mokbel's own actions in absconding in March 2006.[49] It was submitted that that was not a relevant consideration and that in any event that consideration did not diminish the impact of the publicity to which Mr Mokbel had been subject. It was submitted that this factor did not answer the ultimate question, which was whether he could get a fair trial. In answer to the suggestion that it was inevitable that his flight would prompt significant publicity, it was submitted that the publicity which occurred went well beyond reporting what had happened and extended to a good deal of speculative, sensational, and grossly prejudicial material. It was submitted that ultimately the only issue was whether he could get a fair trial now.

105 If it was suggested that a relevant factor was an asserted failure on Mr Mokbel's behalf to seek a stay of his trial before Gillard J in 2006, counsel for Mr Mokbel said that an application for an adjournment based on pre-trial publicity had been made to Gillard J but was refused.

106 In relation to the suggestion that enough time had now passed so that the effect of the prejudicial material had waned sufficiently to conduct a fair trial, counsel for Mr Mokbel referred to the most recent affidavit of Ms Morgan, affirmed on 19 November 2009, setting out extracts from the book about Mr Gatto and the website article in relation to that book. Counsel also submitted that a considerable volume of the prejudicial material could still be accessed through the internet, and that the "Underbelly" series on DVDs was still in the community, as were the "true crime" books. It was submitted that a large body of prejudicial material remains in the public domain. It was also submitted that the publicity which has already occurred has rendered Mr Mokbel so notorious that no passage of time could ever ameliorate the prejudice. Finally, it was submitted that the recent market research material revealed that the effect of the prejudicial material had not waned over time.

107 Counsel for Mr Mokbel addressed the fact that Mr Mokbel had been acquitted of the murder of Lewis Moran after a trial and that a nolle prosequi had been filed in relation to the murder of Michael Marshall.

108 First, counsel for Mr Mokbel submitted that neither of these events had been publicised because of the continuing operation of non-publication orders and counsel submitted that potential jurors might still believe that Mr Mokbel was the subject of murder charges.

109 Secondly, counsel for Mr Mokbel addressed the question of what the issue had been in the Lewis Moran trial at some length. It was submitted that the only real issue in the Lewis Moran trial was whether the evidence of one particular alleged accomplice could be accepted. Counsel for Mr Mokbel relied upon Kaye J's identification of that as the critical issue, and also relied upon his conclusion about that issue where he had said that separating out the publicity from a consideration of the issue was a "simple intellectual task".[50] Counsel for Mr Mokbel submitted that this would not be so when Mr Mokbel was on trial for drug trafficking.

110 Finally, counsel for Mr Mokbel emphasised the significance of the fact that Kaye J was dealing with a charge of murder, whereas the charges now in issue were drug trafficking charges. Counsel submitted that there is a radical difference in the analysis of the relevant publicity in relation to the two different charges. Counsel sought to illustrate that difference by relying upon the significance which Kaye J had attached to the "Underbelly" television series. It was submitted that Kaye J did not attach great significance to the "Underbelly" television series because it did not portray Mr Mokbel as a murderer, it did not excite any feelings of sympathy towards Lewis Moran or the Moran family, and it portrayed the principal witness against Mr Mokbel in the trial to be heard by Kaye J in a derogatory manner.[51] The submission was that a similar analysis could not be applied to the drug trials, as the "Underbelly" series certainly portrays Mr Mokbel as a drug trafficker.

111 Counsel for Mr Mokbel then turned to the Charter.

112 Counsel for Mr Mokbel's oral submissions in relation to the Charter diverged from the written submission which had been filed. In the written submission reference was made to European authorities concerning what constitutes a fair trial, and in that context to the nature of subjective and objective bias, and a submission was made concerning what was said to be the balancing exercise "mandated" by s 7 of the Charter.

113 In oral submissions the Charter was approached differently. The submission made orally was that the right to a fair trial provided for in s 24(1) is an "absolute" right and is a "superior" right to the rights which existed at common law. It was submitted that the right is superior because it is not subject to any form of balancing exercise by reference to the public interest in the prosecution of crime. It is this submission made orally that necessitates a qualification to my earlier statement that counsel for Mr Mokbel endorsed Kaye J's statement of the relevant issue.

114 In this context the authority principally relied upon on behalf of Mr Mokbel was Montgomery v Her Majesty's Advocate & Anor.[52] Among other things, the Privy Council there considered the effect of publicity on the right to a fair trial provided for in article 6 of the European Convention on Human Rights. Particular reliance was placed upon the judgment of Lord Hope and upon what was said to be his critical conclusion, where he said:[53]

"The right of the accused to a fair trial by an independent and impartial tribunal is unqualified. It is not to be subordinated to the public interest in the detection and suppression of crime. In this respect it may be said that the Convention right is superior to the common law right."

115 Counsel for Mr Mokbel distinguished other authorities which, it was submitted, did not relevantly qualify or affect what was said to be the fundamental principle set out by the Privy Council in Montgomery. Reference was made to Regina v A (No 2).[54] It was submitted that that decision concerns consideration of statutory limitations upon human rights. Counsel for Mr Mokbel submitted that although Lord Hope and Lord Clyde, who had both been on the Court in Montgomery, were members of the Court in Regina v A (No 2), there was no suggestion that what was decided there was inconsistent with or qualified what had been said in Montgomery. Reference was made to the New Zealand case of Attorney-General v Otahuhu.[55] The submission was that that case was not of assistance as it was about the weighing of competing rights provided for by different legislative provisions. Reference was made to Re Application under the Major Crime (Investigative Powers) Act 2004 - DAS v Victorian Human Rights and Equal Opportunity Commission.[56] It was submitted that this decision was again about the interpretation of legislation providing for rights potentially limiting rights provided for in the Charter. Finally, reference was made to Attorney-General's Reference (No 2 of 2001).[57] It was submitted that that case was about the nature of the remedy to be provided when there was contravention of a right. It was submitted that it is of no assistance here.

116 In conclusion, counsel for Mr Mokbel repeated his submission that this is an extreme case, and that the publicity has been so pervasive and insidious that Mr Mokbel cannot receive a fair trial. It was submitted that warnings and directions would be likely to remind and alert the jury to the prejudicial material, and could never be sufficient to ensure that jurors put the prejudicial material out of their minds. It was submitted that the only remedy which met the case was a permanent stay.

117 On behalf of the Director of Public Prosecutions it was submitted that no permanent stay had ever been granted, or if granted upheld on appeal, based upon pre-trial publicity. It was submitted that many cases had involved extremely prejudicial publicity over a long period of time. It was submitted that no stay had ever been granted because of the safeguards which could be put in place. It was submitted that a perfect trial is not what is required and that some risk of pre-trial influence is acceptable.

118 In the submissions made prior to the High Court's judgment in Dupas v The Queen counsel for the DPP submitted, as had counsel for Mr Mokbel, that Kaye J had correctly articulated the relevant issue. In further submissions made after the delivery of the High Court judgment, counsel for the DPP submitted that the High Court had strongly reinforced the proposition that appropriate directions by a trial judge could adequately address prejudicial pre-trial publicity and submitted that after the High Court judgment in Dupas v The Queen it was difficult to foresee any case in which pre-trial publicity alone could constitute a proper basis for a permanent stay.

119 In relation to the safeguards which exist to address prejudicial publicity, counsel for the DPP submitted that the first safeguard was the integrity of the jury and the court's confidence that juries do understand and obey directions. Secondly, counsel referred to the nature of the trial process itself which, it was submitted, focuses the jury's mind on the evidence which is before them. Finally, counsel referred to the effects of the elapse of time and submitted that by the time any of the drug trials are heard there will have been virtually no publicity concerning Mr Mokbel for in excess of 18 months. It was submitted that potential jurors would not remember any detail of the publicity. Reference was made to the fact that much has happened since Mr Mokbel was prominent in the media.

120 Counsel for the DPP conceded that there would be prejudice in the sense that potential jurors were likely to have heard of Mr Mokbel. In the DPP's written submission it was conceded that jurors "would have a predisposition about the accused's involvement in drug trafficking and that he will come before this jury as a man whose character and reputation has been significantly tarnished".

121 Counsel submitted, however, that it was important not to lose sight of the fact that potential jurors would not have undertaken the sort of task which has been undertaken in this application, involving a review of all of the material and an analysis of cross-references and so on. Counsel referred to the fact that the "true crime" books did not have a distribution similar to that of the mass media and that, relatively speaking, only a very small minority of Victorians would have read any of those books. In relation to mass media publicity, counsel submitted that the prejudicial matters in relation to Mr Mokbel had been dealt with in broad terms.

122 Counsel for the DPP placed considerable reliance upon Mr Mokbel's acquittal on the charge of the murder of Lewis Moran. It was submitted that the suggestion made by counsel for Mr Mokbel that that acquittal was referable to the fact that that jury had only been required to assess the credibility of an alleged accomplice demonstrated that the jury had done what it had been directed to do, which was to decide the case on the evidence which was before it. Counsel for the DPP pointed out that there had been a great deal of prejudicial publicity concerning the very murder with which Mr Mokbel had been charged, and also with key particular circumstances of that murder which formed part of the prosecution case, including Mr Mokbel's alleged association with Mr Carl Williams and his motive for antipathy towards the Moran family. It was submitted that the risk of conscious or unconscious support or corroboration will be lower in the drug trials, where the publicity has not concerned specific events which would be the subject of the evidence, than had been the case in the Lewis Moran murder trial.

123 Counsel on behalf of the DPP specifically addressed the two proceedings in which this application has been made, namely Orbital and Quills. He firstly referred to the fact that counsel for Mr Mokbel's submissions were applicable to all of Mr Mokbel's pending drug trials and that there had been no attempt to address specifically the matters which are the subject of the Orbital and Quills matters. It was submitted that there had been no publicity which contained dangerous connotations concerning any of the specifics of the Orbital or Quills matters.

124 Counsel for the DPP submitted that, whilst it was not a decisive factor, it was relevant that a good deal of the publicity now complained of was prompted by Mr Mokbel's decision to abscond whilst on bail and whilst on trial. It was submitted that this consideration could properly be taken into account as part of the balancing process.

125 In relation to the application of the Charter, counsel for the DPP adopted the submissions made on behalf of the Attorney-General with some additions.

126 On behalf of the Attorney-General it submitted, firstly, that the Charter did not apply to the Orbital proceeding. In this respect reliance was placed on the decision in R v Williams,[58] and the Court of Appeal decision in R v Taylor (No 2)[59] was distinguished. Counsel referred to a concession made in R v Dickson.[60]

127 The second matter submitted on behalf of the Attorney-General was that the Charter applies to the Court pursuant to s 6(2)(b) of the Charter in the manner articulated by Bell J in Kracke v Mental Health Review Board.[61] This aspect of the Kracke judgment was said to be not affected by R v Momcilovic,[62] where the Court of Appeal had disagreed with Kracke in some respects.

128 The third matter which was the subject of submissions on behalf of the Attorney-General concerned the submission made on behalf of Mr Mokbel that the right to a fair trial under the Charter is "superior" to the position which existed at common law, in that there is now no balancing exercise involving consideration of the public interest but rather there is a right to a fair trial which is "absolute".

129 It was submitted on behalf of the Attorney-General that the public interest was still to be taken into account and that this was so either as part of the consideration of what constitutes a fair trial or as a limitation falling within s 7(2) of the Charter.

130 On behalf of the Attorney-General, it was submitted that the former was the preferable approach, notwithstanding the fact that the Chief Justice had suggested such matters might be better dealt with under s 7(2) in DAS.[63]

131 On the issue of whether public interest considerations were part of the analysis of what was a fair trial, it was submitted that the decision in Montgomery should not be read as determining that public interest considerations are to be ignored, rather it is properly to be read as indicating that the right to a fair trial cannot be subordinated to public interest considerations. It was then submitted that decisions in the United Kingdom and elsewhere under human rights legislation confirmed that public interest considerations remain relevant. In that respect the Attorney-General relied upon Regina v A (No 2), Otahuhu, R v Lyons,[64] and R v Griffin.[65]

132 Counsel for the DPP made some additional submissions in relation to the Charter. Counsel relied on Jago v District Court of New South Wales[66] in support of the proposition that a consideration of the public interest has always been part and parcel of the consideration of fairness. It was submitted that if Lord Hope in Montgomery is properly to be understood as asserting that public interest is irrelevant then he should not be followed. But, it was submitted, this interpretation does not fairly reflect what Lord Hope said. In that respect reliance was placed upon the passage where he addressed the issue of practicality and the sufficiency of guarantees. He said:[67]

"It is not the purpose of article 6 to make it impracticable to bring those who are accused of crime to justice. The approach which the Strasburg Court has taken to the question whether there are sufficient safeguards recognises this fact. It does not require the issue of objective impartiality to be resolved with mathematical accuracy. It calls instead for internal 'sufficient' guarantees or safeguards and for the exclusion of any 'legitimate doubt'."

133 I must observe that immediately after the passage relied upon by counsel for the DPP, Lord Hope went on to say:

"That said, however, the only question to be addressed in terms of article 6.1 of the convention is the right of the accused to a fair trial. An assessment of the weight to be given to the public interest does not come into the exercise ... the likely effect of any warnings or directions given to the jury by the trial judge, in the light of the other circumstances of the trial, will in most cases be the critical issue."

134 In relation to the issue of whether the Charter applies, it was submitted on behalf of Mr Mokbel in reply that the Court should take the view that a criminal proceeding commences both when the person is charged and when the presentment is filed.

The applicable principles - the High Court judgment in Dupas v The Queen

135 The High Court in Dupas v The Queen addressed the position where an accused has been the subject of very extensive prejudicial pre-trial publicity. The single judgment of the seven judges of the High Court sets out the legal principles which apply. I leave to one side for the moment the issue of the effect of the Charter.

136 The High Court held in Dupas v The Queen that the authoritative statement of principle is to be found in the following passage from the judgment of Mason CJ and Toohey J in R v Glennon:[68]

"[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'. In a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, it requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial."

137 The High Court emphasised the importance of what is referred to as the "assumed efficacy of the jury system", the assumption being that the jury acts on the evidence and in accordance with the directions of the trial judge. In that connection their Honours said that the statement by Deane, Gaudron and McHugh JJ in Glennon to the effect that an extreme case might arise which warrants a stay because of the effect of a sustained media campaign gave "insufficient effect to the policy of the common law respecting the efficacy of the jury system".[69]

138 The High Court said that the issue is not so much whether a case can be categorised as extreme as whether the apprehended defect is of such a nature that nothing the trial judge can do can relieve against its unfair consequences.[70] Their Honours said that there is nothing remarkable about extensive pre-trial publicity[71] and that such publicity is capable of being relieved against by the trial judge by thorough and appropriate directions.[72]

Should a stay be granted here based upon prejudicial publicity?

139 A stay should not be granted here on the basis of the prejudicial pre-trial publicity to which Mr Mokbel has been subjected. The reasons why there should be no stay are as follows.

140 First, the traditional safeguards of a jury trial are sufficient to enable a fair trial to be held. The High Court has emphasised the critical importance of this consideration.

141 In Mr Mokbel's drug trials the jury panel will be instructed that they should identify themselves and apply to be excused if they feel they cannot be impartial. Subject to counsel's submissions, I may address specific matters in that context. The jury when empanelled will be directed to decide the case on the evidence and to disregard any pre-conceived notions which they might have and any other material of which they are aware or of which they become aware. Subject to counsel's submissions, the course followed by Kaye J may be an appropriate model, with necessary adaptations. The policy of the common law is to assume the efficacy of these directions.

142 In this context it is important that the effect of the prejudicial material will be that panel members and jurors may begin with a general preconceived notion that Mr Mokbel is a drug trafficker. That is prejudicial. If they have that preconception, they will need to disregard it. But it is also important that that will not be the issue which they will be asked to determine in the particular trials. In the particular trials they will be asked to determine whether the Crown has proved beyond reasonable doubt that Mr Mokbel is guilty of specific activities.

144 In anticipation of the hearing, a table and spreadsheets of the dates of the various publications referred to in the principal affidavit of Ms Morgan was compiled. That table and those spreadsheets were forwarded to the respective parties before the hearing and during the course of the hearing I requested that they alert me to any errors that they could identify in them. Save for one matter which was corrected after obtaining the original of the affidavit, no corrections have been suggested by the parties. The table and the spreadsheets (as corrected) are annexed to this judgment.[73] They illustrate the fact that publicity in relation to Mr Mokbel peaked in 2007. Since early 2009 publicity concerning him in the mass media has almost entirely ceased. This is no doubt because of non-publication orders made by Kaye J.

145 It is true that some of the publications complained of have a continuous presence. The "true crime" books remain in the public domain. DVDs of the "Underbelly" series are present within the State. They have no doubt been seen by many Victorians, and are still being seen by some. The nature of the internet is such that many prejudicial references to Mr Mokbel will be revealed upon search. But those continuous publications will usually be seen only by those members of the public who make a decision to access them. Publications in the mass media, where members of the public are exposed to information without making any particular decision in that regard, have ceased and, by the time these trials are heard, will have receded into the past by a period of at least 18 months. I accept the submission on behalf of the DPP that in these circumstances the likelihood is that panel members will have nothing more than a general recollection of Mr Mokbel as someone who was said to be a significant drug trafficker.

146 I reach these conclusions notwithstanding the fact that some further references have been made to Mr Mokbel in the mass media in more recent times. I do not consider that they have been significant.

147 The recent market research material does indicate that a level of continuous awareness in the very general sense, which the prosecution concedes, still exists. The elapse of time is important, notwithstanding a level of continuing awareness. The details in relation to specific events and activities fade over time even if some continuing general awareness remains.

Other matters - publicity generated by absconding and the effect of the Charter

148 I turn then to two matters which do not affect the outcome. The first is the publicity generated by Mr Mokbel absconding. The second is the effect of the Charter.

149 A significant amount of the publicity to which Mr Mokbel has been subjected in more recent times was prompted by his decision to abscond whilst on bail and on trial.

150 I accept the submission on behalf of Mr Mokbel that much of that publicity went beyond what was appropriate in the circumstances, and that more could have been done by public authorities to dampen or eliminate that kind of publicity. Indeed, some of it emanated from public officials themselves.

151 It is also the fact that a considerable amount of that prejudicial publicity concerned matters of which the public was quite properly informed, namely that Mr Mokbel had absconded whilst on bail and whilst on trial, that he had been convicted and sentenced in his absence, that he was thereafter arrested in Greece, and that he was then extradited back to Australia.

152 In my view these considerations are not significant in this case. The important issue is the effect of the publicity. I have not based my conclusion upon any view as to the responsibility which Mr Mokbel himself must bear for generating prejudicial publicity by his decision to abscond.

153 During submissions in reply considerable attention was devoted to statements by police and government ministers concerning Mr Mokbel's apprehension in Greece and the subsequent extradition application. This attention was prompted by matters revealed in the documents produced in response to subpoenas issued by Mr Mokbel concerning his extradition ground. That material suggested that Commonwealth officials were concerned about, and were warning against, the possibility that Mr Mokbel's extradition and future trials might be prejudiced by comments made by public officials in Victoria.

154 I have reviewed the material relied upon in this connection. It seems to me that to the extent comments were made which went too far they were generally made in 2007 shortly after Mr Mokbel's apprehension. I accept that comments were made by public officials at that time which ought not to have been made given the charges then pending against Mr Mokbel.

155 This particular issue was originally advanced on behalf of Mr Mokbel in answer to the submission made on behalf of the DPP that he was himself responsible for certain of the adverse publicity which he received. At times in the reply submissions it seemed that this consideration assumed a significance beyond that, in that it was submitted that the comments made by public officials had destroyed the trust which ought to exist in prosecuting authorities. To the extent that this was advanced as a separate ground, or an additional ground, for a stay, my conclusion is that the material relied upon could not warrant a stay on that basis. I observe that the particular comments in question, which were made upon or shortly after Mr Mokbel's apprehension, will be well over three years old before any trial commences.

156 In this particular case my conclusion is that a stay should not be granted whether the public interest in the prosecution of serious crime is treated as a relevant consideration or not. That being the case, the Charter does not effect the outcome here. But in deference to the submissions put I will briefly indicate what my conclusions would have been had the effect of the Charter's application been significant.

157 The Charter applies to the Quills proceeding. In my view it does not apply to the Orbital proceeding. The analysis of King J in Williams is correct. The decision in Taylor (No 2), recently cited with approval by the Court of Appeal in R v Darmody,[74] concerns the issue of when proceedings begin in a different, and for these purposes distinguishable, context.

158 The following analysis, accordingly, only concerns the Quills proceeding.

159 The Charter applies to the Court pursuant to s 6(2)(b) in the manner, and for the reasons, set out by Bell J in Kracke.[75] Pursuant to s 6(2)(b), the Charter applies to the Court to the extent that the Court has functions under Part 2, which includes s 24, which provides for a right to a fair hearing, and s 25, which provides for certain specified rights in criminal proceedings.

160 It has been held in the Australian Capital Territory that the equivalent provision to s 24 of the Charter in the Charter in the Human Rights Act 2004 (ACT) is now the "source" of the right to a fair trial in that jurisdiction.[76] I adopt the observations of the Chief Justice in DAS to the effect that this right is also part of the common law and its scope is to be ascertained by reference to the common law.[77]

161 The High Court has considered the scope of the common law right to a fair trial in a number of decisions in different contexts, perhaps the most significant of which are Barton v The Queen,[78] Jago, Glennon, Dietrich v The Queen,[79] and Dupas v The Queen. Without attempting a comprehensive analysis of those decisions, it seems to me that the position under the common law of Australia is as follows:

(1) Strictly speaking, the right to a fair trial is not a directly enforceable right but a negative right. It is the right not to be convicted otherwise than after a fair trial.[80]

(2) The prevailing approach is that the right to a fair trial has an independent overarching existence which is of central importance to the criminal law.[81] A somewhat divergent approach has been propounded by Brennan J[82] (with whom Dawson J has agreed)[83] to the effect that a "fair trial" is, in a sense, an "ideal", perhaps existing only as part of the law's "rhetoric". On this approach, the right is a right to a trial which is as fair as the courts can give by exercising powers over the matters which the courts can control.

(3) Consideration of the public interest is a part of the analysis when considering what is a fair trial in a particular case.[84]

162 It does seem to me that the application of the Charter means that the Charter right to a fair hearing by an impartial court in s 24 is a positive right and not a negative one as is the position at common law. It also seems to me that the approach of Brennan J that the content of the right is no more than a right to a trial which is as fair as the courts can make it by reference to matters under the control of the courts, will not be the position when the Charter applies. In those two respects, the position where the Charter applies would not precisely reflect the common law. I turn then to the issue of whether consideration of the public interest is affected by the Charter.

163 The submissions made on behalf of Mr Mokbel as to the proper understanding of Lord Hope's judgment in Montgomery were, in my view, correct. If it were necessary to decide the issue, I would nevertheless hold that a consideration of the public interest remains part of the analysis of what is a fair hearing under s 24 of the Charter, just as it does at common law, for the following reasons:

(1) Under the common law, as expounded by the High Court, consideration of the public interest is part of the analysis of what constitutes a fair trial in a particular case. As the Chief Justice has observed, the scope of the Charter right is properly to be found in the common law right. The position in relation to this aspect of the scope of the right was clear at the time the Charter was enacted. If the Victorian Parliament had intended to change the scope of what constitutes a fair trial there would have been some reference to that change in the Charter itself, in the explanatory memorandum, or in the Parliamentary debates.

(2) The transposition of authorities from the United Kingdom concerning the European Convention on Human Rights to Victoria cannot be assumed to be reliable. This is well illustrated by the Court of Appeal's analysis of the Charter provisions concerning statutory interpretation in Momcilovic. The position in the United Kingdom in relation to absolute rights and qualifications upon rights is different to that which applies under the Charter. Under the Charter there are no absolute rights; all rights are subject to s 7. In the United Kingdom there needs to be a differentiation made between absolute rights, of which the right to a fair hearing has been held to be one, and rights which are not absolute and which may be limited by reference to proportionality. Judicial analysis from the United Kingdom needs to be carefully considered in the Australian context before being applied in Victoria. The High Court's judgments on the right to a fair trial are a very important feature of that context.

(3) Judgments in the United Kingdom other than those of Lord Hope, describe the scope of the right in terms close to the terms in which the common law right to a fair trial is described by the High Court. They refer to the relevance of the consideration of the public interest or of the interests of society, the potential for variation in what is comprised in the concept in particular cases, and the need to consider interests of those involved in or affected by the trial other than the accused. [85]

(4) In New Zealand consideration of the public interest remains part of the analysis of the content of the right to a fair hearing under the New Zealand Bill of Rights Act 1990.[86]

164 My conclusion is that consideration of the public interest is a component of the analysis of what is a fair hearing under s 24 in the same way that it is part of the analysis of what is a fair trial at common law.

165 Given the above I would not adopt, in this context, the observation by the Chief Justice in DAS to the effect that the balancing of competing rights and interests is better dealt with through the express mechanism of s 7 of the Charter. In the particular context of the right to a fair hearing, reflecting the common law right to a fair trial, consideration of the public interest is part of the consideration of the scope of the right itself.

166 As I have indicated, the application of the Charter does not affect the outcome here, whatever view one takes. If the public interest is to be taken into account that would be an additional consideration militating against a stay.

167 Whilst the submissions have been separate I am conscious of the fact that there is only one application. The grounds relied upon, being extradition and publicity, were treated as distinct. I have considered whether the analysis is altered by considering the two grounds together. I do not consider that it is.

Number of mainstream news articles referring to Tony Mokbel per year based on affidavit of Ms Grace Morgan sworn 17 July 2009, pre-2004 to 2009

4 (comment made or action taken by significant public figures)

7 (alleged links to the racing and gambling industries)

9 (Mokbel referred to by pejorative terms such as "drug baron", "drug lord" etc)

12 (Mokbel is referred to or implied to be a murderer, or referred to by terms such as "crime lord")

16 (entertainment publicity, inc. Underbelly series and true crime publications)

Dates of publication of exhibits to affidavit of Grace Morgan sworn 17 July 2009

* = Exhibit "GM 4.34" is incorrectly described in the affidavit as being dated 23 March 2009, rather than 2007.

At a glance

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Judgment (281 paragraphs)

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Legislation Cited (4)

Cases Cited (6)