Mokbel v DPP

Supreme Court of Victoria|2002-08-09|Before: KELLAM J.

BAIL - Further application for bail - Drug trafficking - Submission that new facts or circumstances exist - Delay in committal by reason of investigations into alleged corruption of police - Delay as an exceptional circumstance - Unacceptable risk -- Bail Act 1977 ss.4(2)(aa), 4(2A), 4(2)(d), 8(c)(ii), 18(4).

This is a further application for bail made by Antonios Mokbel ("the applicant"). The history of this proceeding is set out in detail in DPP v Antonios Mokbel [2001] VSC 403, and in Mokbel v DPP [2002] VSC 127. The most recent of those two decisions involves a decision to refuse bail which was handed down on 26 April 2002.

Currently the applicant is remanded in custody and awaiting committal and trial in relation to two separate proceedings. The first such proceeding relates to 18 charges related to alleged drug offences brought by the Victorian Director of Public Prosecutions ("the State prosecution"). The second such proceeding relates to a charge brought by the Commonwealth Director of Public Prosecutions that the applicant was knowingly concerned in the importation into Australia of a traffickable quantity of cocaine ("the Commonwealth prosecution").

At the time of the handing down of the decision refusing the applicant bail in relation to both the State prosecution and Commonwealth prosecution on 26 April 2002, it was anticipated that the committal in relation to the Commonwealth prosecution would commence on 9 May 2002 and that the committal in relation to the State prosecution would commence on 15 July 2002.

The Commonwealth prosecution, for reasons which have not been explained to me, did not commence on 9 May 2002 but is now fixed to commence on 16 October 2002. It should be observed that the application for bail now made before me is in relation to the State prosecution only and not in relation to the Commonwealth prosecution.

On the occasion of the previous application for bail by the applicant, it was clear that the State prosecution intended to proceed to committal and trial without relying upon the evidence of an informer who had had a number of conversations with the applicant. These conversations upon which the State prosecution intends to rely were taped covertly in the course of the investigation. In addition, it was then apparent that the State prosecution intended to proceed to committal and trial without relying upon the evidence of two police officers, Detective Sergeant Rosenes and Detective Senior Constable Paton who were the "handlers" of the informer in question. It should be observed that on 8 April 2002, Paton was committed to stand trial for serious drug offences, including trafficking in a commercial quantity of amphetamines. On 7 May 2002, Rosenes was committed for trial on a charge of trafficking in a commercial quantity of Ecstacy. These charges are unrelated to the charges the applicant is facing.

In addition, there was evidence before me at the time of the previous bail application that allegations had been made against other members of the former Victorian Drug Squad who were involved in the investigation of the applicant. For obvious reasons, little detail of the nature of these investigations was provided to me. However, notwithstanding this investigation the prosecution expressed confidence that the State prosecution would proceed to committal on 15 July 2002.

That confidence has proven to be unfounded. Regrettably, it is now clear that the investigation of former officers of the Victoria Police Drug Squad is of such a nature that it will affect the date of committal of the State prosecution of the applicant. On 27 June 2002, the Victorian Director of Public Prosecutions ("DPP") applied to the Magistrates' Court to adjourn the committal proceedings which had been fixed for 15 July 2002. The Magistrate, Mr Goldberg, adjourned the committal date to "the tentative date of 25 November 2002". He arranged for the matter to be mentioned in September and October of this year so that the progress of the investigation into members of the former Victoria Police Drug Squad could be monitored by him.

However, it is unlikely that the State prosecution will proceed on that date. In the course of the hearing before me, Mr Maguire of counsel, was granted leave to appear on behalf of Inspector De Santo, a Detective Inspector assigned to the Corruption Investigation Division of the Ethical Standards Department of the Victoria Police Force. Detective Inspector De Santo is currently involved in investigations concerning members of the former Victoria Police Drug Squad. Mr. Maguire, on behalf of Detective Inspector De Santo, produced before me a document which stated as follows:

"Task Force CEJA. An investigation into the activities of members and former members of the Drug Squad is currently underway. The resources available to the investigation have been recently enhanced by the Chief Commissioner of Police with a view to the investigation being completed at the earliest possible time. However it is unlikely that the investigation will be concluded by the date set for the committal hearing in respect of Mr Mokbel. Charges in respect of serious criminal offences have already been laid against two former members of the Drug Squad. It may be that further charges will be laid as a result of the current investigation. It may be that some charges will be laid by the end of the year. It is submitted that further public canvassing or release of the details of the nature, scale or scope of the investigation or the time lines associated with it has the potential to adversely affect the investigation. We are thus not able to comment further in open court on the likely completion date of the investigation or when any claims for public interest immunity in respect of some or all of the documents sought pursuant to various subpoenas issued on behalf of Mr Mokbel will no longer be persued (sic)."

In my view, this statement is sufficient for current purposes to enable me to give adequate consideration to the issue of delay as an exceptional circumstance. I reject the suggestion made by Mr Heliotis that I should have a private and confidential meeting with Detective Inspector De Santo to further inform myself as to the details of this matter. Mr Heliotis informed me that recently a magistrate had followed this course. In my view, it is difficult, except perhaps in the most exceptional circumstances of immediate security or substantial risk to imagine when such a meeting would ever be appropriate.

It is conceded by the prosecution that new circumstances have arisen since the making of the previous order. These circumstances are relevant to the issue of the bail of the applicant upon the State prosecution. By reason of those new circumstances the applicant is entitled to have his application for bail heard afresh.[1]

By reason of the provisions of s.4(2)(aa)(i) of the Bail Act 1977 ("the Act"), the Court must refuse bail for the applicant unless satisfied that there are exceptional circumstances which justify the granting of bail.

It is clear that the accused person bears the onus of establishing "exceptional circumstances".[2]

Two affidavits sworn by the solicitor to the applicant and dated 27 June 2002 and 12 July 2002 were filed in support of the application before me. The affidavit sworn by the applicant's solicitor on 27 June 2002 refers to the application made by the State DPP to adjourn the committal proceeding on that day and submits that the applicant has demonstrated exceptional circumstances by reason of a combination of the following matters:

"(a) The delay before the applicant faces his committal and subsequent trial;

(b) the fact that there is no firm date fixed for the committal and the magistrate has specifically fixed a date that is a `tentative' date;

(d) the probability that whenever the ESD investigation is concluded that a large amount of material will be provided by the Crown to the defence;

(e) the possibility that other police officers involved in the investigation of the applicant will be charged, resulting in the Crown not calling them on the grounds that they are unreliable witnesses;

(f) the Crown is refusing to call their three principal witnesses on the basis that they are unreliable; and

(g) the effect of incarceration upon the applicant's business interests and financial position."

The further affidavit of the solicitor for the applicant in support of his application dated 12 July 2002 deals with issues relating to the alleged deterioration in the financial circumstances of the applicant.

The principal thrust of the submission made before me by Mr Heliotis QC who appears with Ms Gobbo of counsel for the applicant is that the circumstances whereby the date of committal is speculative indeed are such that they amount to exceptional circumstances. In particular, Mr Heliotis submits that the issue of delay before the matter will now come on for trial is such that together with other factors the applicant has established clearly that there are exceptional circumstances.

Mr Morgan Payler QC who appears with Ms Williams for the DPP concedes " ...on the material in this case it is open to (the court) to find exceptional circumstances". However he submits that I should not find that the circumstances of the delay in the committal date by "some four months" is such a circumstance. It should be noted that this submission was made before the statement referred to in paragraph 8 above was provided to me. Furthermore,[3] Mr Morgan-Payler submits that it would be "inappropriate to make a final ruling in this matter" until there has been a further application for bail in respect of the Commonwealth prosecution.

At all material times until now it has been expected that the trial of these proceedings would take place within two years of the date of the arrest of the applicant, that date being 24 August 2001. It is apparent that an estimate of "about two years awaiting trial" was taken into account by Cummins J when he refused bail on 1 October 2001[4]. The current position is that the date of the committal is now unknown although it is improbable that it will be commenced this year. Whether the committal will take place in time for the trial to commence within two years of the date of the arrest of the accused is now highly speculative. It is dependent entirely upon the course determined by the ongoing investigation being undertaken by Inspector De Santo into the former Victorian Drug Squad. If those investigations lead to charges being laid against police who have been intimately involved in the investigation which led to the arrest of the applicant, it may be that the proceedings against the applicant will be, at the least, delayed by many months. It is now more than eleven months since the arrest of the applicant. There is a high probability that, if not granted bail, the applicant will have been held in custody for at least eighteen months before any committal can proceed. There is, at the minimum, a strong possibility that he will be in custody for a greater length of time before any committal actually does take place.

It is clear that the delay between arrest and final disposition can of itself constitute an exceptional circumstance. A civilised society, as we profess to be, cannot tolerate its citizens being detained for inordinate periods without the allegations made being determined by the process of trial.

Vincent J, as he then was, said in R v Mantase[5]

" ... if our community, as it must do for good reasons on many occasions, is to detain individuals in custody prior to the determination of their guilt, then that period must be as short as reasonably practicable. Periods of eighteen months or so of detention prior to the conduct of trials is by any form of reckoning extremely long. It is not to the point to say, in effect, that such periods represent the norm and, therefore, cannot constitute part of a matrix of exceptional circumstances. This, in effect, ultimately negates the very justification for detention prior to the determination of guilt. What I mean by this is that such detention must be directed to serving the ends of justice and not itself constituting a potential source of injustice."

It is true, of course, that the question of what is a reasonable delay will vary with the circumstances of the alleged offence or offences, and the complexity of the matter the subject of the charges, and no doubt the seriousness of the matters in question including the likely range of potential sentence.

In this regard a number of decisions of this Court have considered particular fact circumstances which provide at least some guidance.

"In my opinion the normal delay which occurs in this State between arrest and committal, and committal and trial, cannot of itself amount to an exceptional circumstance. I do not say that delay per se may not amount to an exceptional circumstance. If there is inordinate delay, it very well may. But that is not the situation in the present case. The respondents were arrested in the months of February and March and later their committal hearing commenced on 21 August. That is some six months later. In my experience that is the usual period of time which elapses in this State between the arrest of a person charged with a serious drug offence or murder and that person's committal. If such a person is then committed to stand trial, he will face a further delay of the order of six to eight months before his trial commences. In my opinion there is nothing exceptional or unusual about the delay which has occurred in this case since the arrest of the respondents, nor will there be anything exceptional or unusual about a delay of six to eight months before their committal and trial."

In R v Kantzides[7], Smith J in dealing with an application for bail by a person who had been charged with trafficking in a drug of dependence took the view that a period "of at least twenty to twenty-one months before the trial can take place" was in the circumstances of that case exceptional.

In R v Alexopoulous[8], Hampel J in dealing with an application for bail by a person who had been charged with "serious offences which relate to a very substantial importation of heroin" concluded that a delay of "at least one and a half years from arrest to trial" was inordinate and was an exceptional circumstance.

In R v Medici,[9] Ashley J said when referring to the circumstances of that case:

"The situation presently, seems to be this, that the applicant who has been on remand since 18 June 1992 is unlikely to come to trial, at the earliest before April 1994. With an estimated length of trial of eight weeks, it follows that the applicant would have been in custody for something of the order of two years before the conclusion of this trial if he is not granted bail. The estimate of two years depends upon the trial getting on in April 1994, at this stage, that seems to be more a matter of hope than certainty."

At page 6 of the unreported decision his Honour said:

"In the present case the applicant has now been fourteen months in custody and he will be in custody for not less than two years before his trial his completed. That is simply unacceptable and it must be regarded as exceptional. It does not answer the unacceptable nature of such delay to say that the applicant is likely to incur a custodial sentence of more than two years for offences to which he has pleaded guilty. Remand and custody are quite different and in my opinion, two years on remand between charge and trial does constitute exceptional circumstances."

In R v Mantase, Vincent J considered in the circumstances of that case where it was "unlikely a trial would be conducted within eighteen months" of the bail application, that fact, together with other matters, amounted to exceptional circumstances. It is appropriate, however, to note that Vincent J considered that in the particular circumstances of that case it appeared that "a very significant portion of any sentence that the applicant may ultimately be required to serve would, indeed, be served as pre-sentence detention" in the event that bail was not granted.

Returning to the circumstances of the current application, there is still a possibility, depending upon the course of the investigation being conducted by Mr De Santo that the trial of the State prosecution will take place within the earlier estimated period of two years. However, it is certainly less likely now than was previously considered to be the case that the earlier time frame will be the one achieved. Accordingly the current circumstance is that the likely date of any committal and any subsequent trial is speculative and entirely contingent upon the circumstances of an investigation which is both intensive and unpredictable as to both date of completion and the likely consequences. In my view, and as Hampel J said in Alexopoulous, "It is not good enough, I think, to say we will wait and see what happens."

In the circumstances of the State prosecution it appears to me that the applicant has established that exceptional circumstances do exist. Those circumstances are that the likely dates of the committal and consequently of any trial which might follow such committal are unknown and not capable of being ascertained for at least some, if not many, months. The facts of this case are such that the delay can be said to be exceptional by reason of the combination both of its likely period and of the speculative nature of any estimate of the continuing length of such delay whilst the investigation of allegations made against members of the former Drug Squad continues. It is stressful enough for persons awaiting trial to do so whilst retaining liberty. It is more stressful to await trial for a substantial period whilst detained in a prison with all the restrictions such detention brings. In my view a further significant dimension is added when the person so detained, is likely to remain in a state of uncertainty as to whether or not his committal and/or trial will come on within a reasonably foreseeable period of time. This is the case in the current situation.

In my view, however, no other exceptional circumstances have been established. It would be entirely speculative to say that the State prosecution case will be weakened by reason of the current investigation of certain members of the former Drug Squad who are associated with the investigation of this case. Furthermore, although I accept that the financial circumstances of the applicant are rendered more difficult by reason of his being in custody and are no doubt deteriorating by reason of both the charges having been laid against him and his being in custody, I am not satisfied that such matters constitute exceptional circumstances. I might add that although once again affidavit material was put before me in relation to debts of the applicant and entities with which he is associated, financial documents relating to his income such as tax returns were not placed before me.

However, that is not the end of the matter. The prosecution contends that there is in this case an unacceptable risk that if the applicant were to be granted bail, he would fail to appear or that he would interfere with the prosecution case. This submission relies principally upon two distinct matters. The first such matter is the fact that the applicant was convicted on 6 April 1992 of attempting to pervert the course of justice. He was sentenced to a term of twelve months imprisonment with six months being suspended. This conviction arose in circumstances whereby the applicant paid $2,000 to a person whom he believed to be the associate of a County Court judge (he was in fact an undercover policeman) with a view to obtaining a non-custodial sentence for a person charged with drug trafficking. The State prosecution relies upon this conviction as evidence that the applicant has demonstrated a willingness in the past to attempt, in a "major way" to interfere with the course of justice.

The second distinct matter upon which the prosecution relies is that it is submitted that covertly taped conversations between the informer and the applicant demonstrate that the applicant regards himself as having the capacity to obtain access to police for the purpose of perverting the course of justice. The transcripts of the tape recordings in question were produced to me. The transcripts are of conversations between the applicant and the informer which took place on 25 October 2000, 27 October 2000 and 8 December 2000. I do not intend to set out the contents of the transcripts here as relevant parts of them were read out to me and appear at pages 72 to 76 of the transcript of the application before me on 16 July 2002. Those transcripts, if accurate, do make clear that the applicant was telling the informer that he had the capacity to influence police in relation to the bail conditions of the informer. Of more significance is an assertion by the applicant that he was trying to "get them" to "get to" the "main bloke of the laboratory there". I am satisfied that the clear inference to be drawn from the transcripts is that the applicant was stating that he had a relationship with police and a capacity to pay money to influence police to interfere in investigations and prosecutions.

Mr Heliotis submits that these are not matters of enormous consequence. In relation to the prior conviction he submits that the events the subject of it occurred more than twelve years ago and that there is no evidence that the applicant has behaved in a similar fashion since that time. Insofar as the transcripts are concerned Mr Heliotis submits that the statements made by the applicant are "mere puffery" and that there is no evidence before me to suggest that the applicant in any way actually had any influence upon the bail conditions of the informer being changed or that he had any real capacity to bribe police and in any way interfere with the course of justice. Mr Heliotis submits that there is no basis upon which it can be said realistically that the applicant is now capable of interfering with the course of justice. It is submitted that there is only one civilian witness who is associated with the case against the applicant, being the informer, who is most unlikely to give evidence. In any event Mr Heliotis submits, the informer is in prison, having had his bail revoked, and thus it would be difficult to interfere with him. He submits that the possibility of any policeman involved with the State prosecution being susceptible to influence is remote, particularly in the circumstances of the current investigation of police.

In addition, Mr Heliotis places substantial reliance upon evidence given before me in March this year by a Sergeant Allison who was a member of the drug squad involved in the investigation of this applicant. Allison gave evidence before me that subsequent to the decision of Cummins J denying bail on 1 October 2001, he, Allison, saw the applicant in custody. Allison gave evidence that he spoke to the applicant in custody and made an offer to "provide supporting evidence" on a bail application if the applicant assisted the Drug Squad with various enquiries. He agreed that the offer was "genuine". Whilst I agree with Mr Heliotis that such evidence is surprising in all the circumstances, it should be remembered that the determination of whether bail should or should not be granted is for this Court and not for members of the Drug Squad. Whatever the reason for such an offer being made by Allison, the fact remains that I am required to determine bail on the basis of the evidence before me.

Before I turn to consider the competing submissions in this regard it is appropriate to refer to the fact of the Commonwealth prosecution. The committal date for that prosecution is fixed for 16 October 2002. In my view the fact of the Commonwealth prosecution coming on for committal on that date is relevant to the issue of bail in this matter. Section 8(a)(ii) of the Act is statutory recognition of the relevance of the fact that an accused person has been charged with and is awaiting trial on another criminal offence. As I stated in the course of the hearing of this application there is an air of artificiality in dealing with an application for bail on the State prosecution without also considering the issue in relation to the Commonwealth prosecution. It is for this reason that Mr Morgan-Payler submits that I should not deal with the application for bail on the State prosecution unless the issue of bail on the Commonwealth prosecution is also argued before me. While s.4(2A) of the Act provides that a court is not required to refuse bail to an accused whilst that person is serving a term of imprisonment for some other cause, there is no statutory consideration of the current circumstance now before me. I have no doubt that it is permissible to bring separate and independent applications for bail in circumstances such as those which are applicable to the current application It is true nevertheless that it is somewhat artificial to deal with the application now before me in isolation from the Commonwealth prosecution. Furthermore, there is an argument that if I were to grant bail, then the Court would be making an order which in practice could not be put into effect as the order is contingent upon what may occur in relation to the Commonwealth trial. There is some force in each of these propositions. However, notwithstanding these matters, an application is before the Court and in my view should be dealt with on the material before me now, unless to do so would cause injustice, or would produce an absurd result.

However, the fact that the applicant is facing charges on serious Commonwealth charges of importation of cocaine in which a committal is to take place in the near future is relevant to the totality of facts in this application and in particular is relevant to the issue of whether or not there is an unacceptable risk pursuant to s.4(2)(d) of the Bail Act.

Looking at the totality of facts which are before me at the present time, I am satisfied that there is an unacceptable risk that the applicant if released on bail would fail to answer the charges against him or would commit an offence whilst on bail or would interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or to any the other person. In making the assessment above I have had regard to the totality of the nature and seriousness of the alleged offence. In relation to these matters I adopt the succinct summary of Cummins J in his written judgment of 1 October 2001[10]:

"The State summary and the Commonwealth draft document, if an accurate account of truthful matter, propounded a web of illegality and corruption with the respondent at its apex. If accurate and true, the material exposed continuous and substantial drug offences of an egregious kind and incidence of corruption or attempted corruption of the course of justice. The covert recordings if accurate and truthful reveal discussions by the respondents with the informer about payment or offers of payment by the respondent to corrupt police to pervert the course of justice."

The prior conviction of the applicant for attempting to pervert the course of justice is a matter of significance. Although the full facts of what actually occurred are not before me, such circumstances as are known to me demonstrate that the conduct of the applicant was brazen indeed. Furthermore, I am required by the provisions of s.4(3) of the Act to take into account a number of other matters including the seriousness of the offence, the character, antecedents, associations, home environment and background of the accused person. There can be no doubt that the charges laid against the applicant in the State prosecution are serious and if proven are likely to lead to a substantial term of imprisonment. The applicant does have a number of prior convictions which reflect unfavourably upon his character although apart from the matter referred to previously they are not of direct relevance to his current charges. I observe that in his favour is the fact that he has met bail in the past. On the other hand the evidence before me in relation to the State prosecution appears, at the least, to demonstrate that he associates with people who may well be heavily involved in criminal activity. The applicant has substantial assets, and whilst it is true that many of his known assets have been the subject of court orders freezing any dealing with them whilst he awaits trial, the applicant probably still has sufficient resources to obstruct the course of justice. At the same time he may well have an incentive to raise money by illegal means. Furthermore, he is a man of sufficient means to have a capacity to travel. I am satisfied that he told the informer that he has the capacity to influence police. As stated above, it is said on his behalf that that is mere "puffery" and that there is no evidence that he has in fact done so. However, he has said that he had done so and would attempt to do so, and as the current circumstances before the Court demonstrate, it is at the minimum, arguable, that some police are susceptible to such influence.

Furthermore, the applicant faces serious Commonwealth charges which will be the subject of a committal hearing within three months. He does not have bail on those charges. However in my view this fact is a relevant matter to the issue of whether there is an unacceptable risk that he would fail to answer his bail or that he would interfere with witnesses or otherwise obstruct the course of justice in relation to both proceedings. Although it can be argued from a hypothetical viewpoint that the issue of unacceptability of risk should be looked at in the context of the facts which are related only to the application now before me, it is in my opinion not appropriate for me to assess the issue of unacceptable risk on the basis that any such risk is confined to the State prosecution. The issue of risk must be assessed upon the totality of the circumstances known to the Court at the time of making the assessment. Furthermore, the issue of risk must be assessed as a matter of realism and not from a curial or procedural viewpoint. In my view, the fact that the committal in the Commonwealth proceeding is fixed for 16 October 2002 is highly relevant to the assessment of unacceptable risk in both prosecutions.

In all the circumstances referred to above, I am satisfied that in the factual situation known by me as of today, there is an unacceptable risk that if released on bail the applicant would not answer his bail, or would commit further offences whilst on bail, or would interfere with witnesses or otherwise obstruct the course of justice. For these reasons this application is dismissed.

Notwithstanding the conclusion reached by me on the facts of this particular case, as they are known to me today, our society will not, and should not, tolerate what is effectively the indefinite detention awaiting trial of persons such as the applicant whilst an investigation such as that currently under way takes place. The issue of detention by reason of unacceptable risk is an issue which must be balanced with the likelihood of the allegations against an accused man being brought before a court in the near future. The question of unacceptable risk is to be judged according to proper criteria, one of which is the length of delay before trial. That is, although the risk might be objectively the same at different times, the question of unacceptability must be relative to all the circumstances, including the issue of delay. This view appears to be supported by a decision of Crockett J in R v Pietrobon[11] and referred to in DPP v Parker.[12]

If there is further significant delay beyond 16 October 2002 in the Commonwealth proceeding coming on for committal the question of whether the risk continues to be unacceptable may well require to be re-examined in the circumstances of such delay. I say nothing further about that matter other than to state it. However, for this reason and in order to avoid cost and inconvenience and further delay, I propose to grant to the applicant liberty to apply to me on 48 hours' notice in writing to my Associate and to the DPP for Victoria in the event that the Commonwealth prosecution committal does not proceed on 16 October 2002 as proposed.

It is appropriate to make one further observation. Before doing so I should say that it is not appropriate for me to comment upon the state of the investigation into former members of the Drug Squad and it is speculative to say whether that investigation, apart from the demonstrable delay, will have any relevance to the prosecution in this case. However, it is a matter of grave public concern that such an investigation has become necessary. The allegations which have been made strike at the heart of public confidence in the administration of criminal justice in this State and I urge those responsible to ensure that all necessary resources are committed to ensuring that the investigation is completed as soon as possible.

[3] see p.61-62 of the transcripted dated 16 July 2002

[4] See DPP v Mokbel [2001] VSC 403 at page 5

[5] Unreported, Supreme Court of Victoria, 21 September 2000

[6] 83 A Crim R 593 at page 596

[7] Unreported, Supreme Court Victoria, 9 August 1996

[8] Unreported, Supreme Court of Victoria, 23 February 1998

[9] Unreported, Supreme Court of Victoria, 27 September 1993

[10] DPP v Antonios Mokbel [2001] VFC 403 at page 4

[11] Supreme Court of Victoria, unreported 13 January 1988

[12] 1994 MC 166 at p.168

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties