1 The applicant is due to stand trial in early 2011, on one count of trafficking in a drug of dependence (methylamphetamine) in a quantity not less than a large commercial quantity. In the course of pre-trial proceedings, the trial judge has given a ruling on the admissibility of certain evidence which the prosecution seeks to lead. His Honour ruled that the evidence was admissible.

2 The defence sought leave to appeal from so much of that ruling as would make admissible the evidence relied on to establish the allegations in one particular paragraph of the 'Summary of Prosecution Opening' ('Crown opening'). (We set out below the content of that paragraph.[1]) The trial judge certified under s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) ('CPA') that if the relevant evidence were ruled inadmissible, the prosecution case would be substantially weakened. The prosecution had made a concession to that effect.

3 In our view, leave to appeal should be granted and the appeal allowed. Our reasons are as follows.

4 The essentials of the Crown case, as set out in the Crown opening, are as follows:

The Crown case is that between the dates alleged on the presentment the accused Tony Mokbel ran a drug trafficking enterprise which concerned the wholesale manufacture and distribution of raw methylamphetamine (speed) for sale.

The drug trafficking enterprise involved the participation of many individuals, who performed different though inter-dependant roles.

Tony Mokbel was the principal of this enterprise. He established it. He coordinated it. He was the one who most benefited from it. It was his business. He had proprietary ownership over the raw or wholesale methylamphetamine manufacture. He made vast profits from it. He engaged the most senior personnel, and directly and personally issued orders and directions to them.

The individuals, who played different and various roles in this trafficking enterprise, participated in an integrated business of the manufacture and distribution of raw or wholesale methylamphetamine, for sale. Persons involved in the Company's enterprise worked in combination in pursuit of this common criminal goal. This drug manufacturing and distribution enterprise constituted a continuing joint criminal enterprise[2] ...

5 It is further alleged that the trafficking was conducted by the applicant, or for his benefit, while he was a 'fugitive' from the law. The applicant had been on trial in the Supreme Court of Victoria from 30 January 2006 on quite separate drug offences. From the beginning of that trial he had been on bail, on a $1m surety, provided by his sister-in-law, Renate Mokbel. On 20 March 2006, the applicant failed to answer his bail and attend the trial. He was subsequently convicted and sentenced in absentia.

6 It is alleged by the Crown that, after he failed to answer bail, the applicant travelled to Bonnie Doon, where he was 'harboured' by his associates, Elias and Issa. The Crown alleges that he was subsequently transported to Western Australia, with the assistance of Elias and Issa, where he boarded a yacht (the 'Edwena') and left Australia. It is further alleged that the applicant travelled on the yacht to Greece, where he was later arrested.

7 The drug trafficking enterprise is alleged to have been conducted 'remotely'. That is, the applicant directed others to run the drug trafficking operations on his behalf, providing instructions mainly by telephone. The Crown further alleges that the applicant's instructions included directions on how the proceeds of the drug trafficking should be used. Relevantly, it is alleged that the drug profits were used:

• to fund the applicant's life as a fugitive, both in Australia and in Greece;
• to fund, in part at least, his escape from Australia (including the purchase of the Edwena and the payment of people to assist);[3] and
• to assist Renate Mokbel with her legal expenses following her imprisonment for failing to meet the bail surety.

8 There is a very large body of evidence proposed to be led against the applicant. Of relevance to the present application are the following categories of evidence:

• computerised records, said to be the accounts of the drug trafficking enterprise (referred to as 'the Bill');
• the evidence of a key witness, Mansour; and
• transcripts of multiple telephone intercepts.

9 The Crown opening runs to some 164 pages (including schedules). Before the judge, the defence sought to have almost 100 paragraphs of the Crown opening excluded. (The present application relates to a single paragraph, paragraph 29). By written submission, the defence contended that 'the evidence described in the prosecution opening as 'flight' is inadmissible'. The evidence was said to fall into two categories:

(b) payment of moneys for expenses related to the flight.

10 According to the submission, the evidence was 'neither relevant nor probative'. Alternatively, if it were relevant, it should be excluded under ss 135 and/or 137 of the Evidence Act 2008 (Vic) ('EA'). Nothing was said in the written submission, or in the oral argument to the judge, to suggest that the matters in paragraph 29 of the Crown opening stood in any special position. The argument was put in quite general terms, in relation to the impugned evidence taken as a whole.

11 The prosecution for its part contended that the evidence was relevant and admissible. It was said to be of high probative value, not outweighed by the danger of unfair prejudice. In argument before the judge, the prosecutor conceded that evidence of the applicant's absconding, conviction and sentence would be prejudicial to him but contended that any such prejudice could be overcome by judicial direction.

12 On 25 November 2010, the trial judge ruled in favour of the prosecution. His Honour held that the evidence was probative. Understandably, his Honour's reasons addressed the competing arguments at the level of generality at which they had been advanced. As to the evidence of payments made to fund the applicant's flight, his Honour said:

For present purposes it suffices for me to say that, upon the material I was taken to, the inference could be drawn that entries in 'the Bill' record payments made for the accused's flight from Australia. When combined with other evidence, particularly the evidence as to what 'the Bill' was, the objected to evidence could rationally affect the assessment of the probability that the accused was the principal of the drug trafficking enterprise conducted in Victoria by Mansour, Rizzo, Elias, Issa and others. I do not accept the submission put on behalf of the accused that the evidence is too tenuous and remote to be relevant.

13 As to the evidence of flight more generally, his Honour said:

Further, the evidence is also relevant as it provides essential context to the other evidence about what occurred in Victoria. Indeed, without the objected to evidence, in my view that other evidence would in certain key respects be either incomprehensible or positively misleading. The significance of the accused's remoteness generally and his absence overseas can only be fairly and accurately assessed if the reason why he was remote and why he was absent is understood. Indeed, without that evidence the accused's remoteness and absence overseas would, it seems to me, otherwise be a circumstance tending to minimise his role. This is a situation, such as was referred to by Dixon J (as he then was) in O'Leary v The King, where without the evidence objected to the conduct which is alleged to constitute the offence cannot be truly understood. As was the case in R v FDP, the evidence objected to explains why the parties did what they did and said what they did, and why contact was made between them in the way in which it was.

The evidence is also relevant because it reveals the character of the association between the accused on the one hand and Issa and Elias on the other, and because it explains the relationship and the method of dealing with Mansour and in that respect supports and renders comprehensible his account of events.[4]

14 No issue was taken with any of these conclusions when the matter came before this Court. It was conceded almost immediately that the impugned evidence was relevant. Indeed we think it rather surprising that a challenge on grounds of relevance was ever mounted.

15 As to s 135 EA, his Honour concluded that the probative value of the evidence was not substantially outweighed by the danger that it might be unfairly prejudicial to the accused, misleading or confusing or cause or result in undue waste of time. As to s 137, his Honour concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused.

The evidence does in my view have significant probative value. There is a risk of unfair prejudice, in the sense that the evidence might be misused for a tendency purpose, that that matter can and will be appropriately addressed by directions.

16 As will appear, it was this aspect of his Honour's reasoning which was disputed on the present application.

17 On 1 December 2010, the defence applied for a certificate under s 295(3)(a), alternatively s 295(3)(b) of the CPA. But the certificate sought was confined to (that part of the ruling which rendered admissible) 'the evidence supporting paragraph 29 of the summary of prosecution opening'. The outline of submissions asserted that the ruling was in error 'for the reasons advanced by the defence in argument'. The outline continued:

In particular, the defence contends:

(a) It is grossly prejudicial in any criminal case, let alone this case, to admit evidence of a previous conviction.

(b) That admission of such evidence is so prejudicial that it can never be outweighed by probative value.

(c) That admission of such evidence deprives the accused of a fair trial which he is entitled to under the Charter of Human Rights and Responsibilities (Vic), the Commonwealth Constitution and at common law.

18 For its part, the prosecution conceded that the requirement of s 295(3)(a) CPA was satisfied, that is, that loss of the paragraph 29 evidence would 'substantially weaken the Crown case'. The concession was explained in these terms:

The evidence in paragraph 29 gives meaning and context to the entire body of the 'Edwena' evidence in that it goes to establish that Mokbel was a fugitive, and had a pressing reason to remain at large and to flee the jurisdiction. To exclude it, would significantly diminish the cogency of the 'Edwena' evidence generally.

The exclusion of the disputed evidence in paragraph 29 would not eliminate the prosecution case, or even approach this. However, the 'Edwena' evidence (underpinned as it is by the disputed evidence in paragraph 29) is significantly probative and without it, the other evidence in the case 'would in certain key respects be either incomprehensible or positively misleading.

19 His Honour ruled that he would certify under s 295(3)(a) CPA, noting that the proposed appeal related 'to more limited evidence than was the subject of argument'. He declined to certify under s 295(3)(b)

as, in my view, this cannot be described as an interlocutory decision which does not concern the admissibility of evidence.

20 Following his Honour's decision to certify, senior counsel for the applicant said: 'This whole issue of the Crown being able to lead prior convictions is a pretty sensitive one ...'. He told the judge that an application for special leave to the High Court could not be ruled out.

21 When the case came on for further pre-trial argument on other issues on 7 December, the trial judge raised with senior counsel for the applicant the fact that the defence objection to admissibility had been directed to 'all of the flight' evidence. He noted the defence suggestion in argument that the matter could be 'appropriately addressed by a concession that Mr Mokbel was out of Melbourne and then out of the jurisdiction.' His Honour then said:

... If an alternative position is that the Crown should be allowed to lead evidence that he was a fugitive as per paragraph 29 without the last sentence - well, perhaps the last two sentences - about the fact of his conviction, my view is I have not ruled on that because that has never been put to me.

22 On three further occasions in the course of argument on that day, his Honour referred to this possibility of a limited excision from paragraph 29, and emphasised that this was not a proposal he had ever been asked to consider. The hearing concluded with the prosecutor saying:

If my friend wants to put the argument to your Honour, not directly now, but in the next few days, that the last two sentences of paragraph 29 is the alternative position ought to be excluded, then we will be prepared to argue that.

Tony Mokbel ran this drug trafficking enterprise whilst he was a fugitive from the law. He had been on trial by jury for criminal offences in the Supreme Court of Victoria from 30 January 2006. From the commencement of the trial he was on bail, on a $1,000,000 surety, which had been put up on his behalf by his sister-in-law, Renate Mokbel. On March 20, 2006, Mokbel failed to answer his bail and attend his trial. A bench warrant was issued for the apprehension of Mokbel. The trial continued in Mokbel's absence. On March 31, 2006 Mokbel was convicted and sentenced in his absence to a substantial term of imprisonment.

24 Self-evidently, this paragraph contains a number of assertions of fact. Only the last sentence asserts the fact of conviction and sentence. At the same time, as highlighted by the applicant on this application, there are a number of other statements in the Crown opening which emphasise the applicant's fugitive status, as follows:

• '[the applicant] was harboured near Bonnie Doon': [30]
• '[the applicant] was secretly transported across to Western Australia': [31]
• 'Some of these profits funded [the applicant's] life as a fugitive... and his escape from Australia': [34]
• '[the applicant] absconded from his trial': [41]
• '[the applicant] organised for a person... to bring Mansour to his hiding place': [44]
• 'Issa... drove Mansour to a rural area where [the applicant] was hiding': [45]
• '[the applicant's] flight from the Victorian authorities': [218]
• '[the applicant's] flight was largely if not wholly funded by the proceeds of his drug trafficking enterprise': [219]
• 'Large amounts of cash were used in the flight': [220]
• 'payments made from the proceeds of the drug trafficking enterprise in support of [the applicant's] flight': [221]
• 'the application of funds towards his flight and maintenance': [222]
• '[the applicant] conducted his drug trafficking business in the context of his flight from authorities': [223]
• 'The Crown will rely on the flight evidence': [224]
• 'the roles played by Issa and Elias in [the applicant's] flight': [226]
• 'Elias and Issa worked closely together in the drug trafficking enterprise just as they did in harbouring [the applicant] in Bonnie Doon and assisting him in his escape': [226]
• 'channelled back to [the applicant] to sustain his existence on the run': [292]

25 On this application, consistently with the application for certification, counsel for the applicant confined their objection to paragraph 29 of the Crown opening. Counsel emphasised, however, that the elimination of that paragraph would require, as a consequence, the exclusion of a number of other pieces of evidence.

26 The applicant's objection to paragraph 29 concentrated largely on the reference to the applicant's having been convicted and sentenced. A lengthy written submission was filed on the morning of the hearing, which contained an extensive survey of the authorities regarding the inadmissibility of evidence of prior convictions. The applicant argued that the 'sole basis' upon which the Crown was seeking to adduce the evidence was to provide context.

27 The Crown submitted that, in addition to providing 'context' to the offending, the contents of paragraph 29 (and the evidence supporting it) were important in the following ways:

1. It can establish that funds generated from the charged drug trafficking enterprise were applied towards the applicant's flight from Australia, affecting the probability that the applicant was the principal of the said drug trafficking enterprise;
2. Without it, the other evidence would in certain key respects be either incomprehensible or positively misleading;[5]
3. It reveals the character of the association between the applicant on the one hand and Issa and Elias on the other; and
4. It supports the evidence of the prosecution's accomplice witness Joseph Mansour.[6]

28 In the course of argument, Weinberg JA asked the prosecutor why it was necessary for the Crown opening to say that the reason for the applicant's flight from Australia was that he had been convicted and sentenced to imprisonment. Why could the Crown not merely state that the applicant was being 'pursued by the authorities'?

29 The prosecutor accepted that, because of the inevitable prejudice to the applicant, the Crown needed to demonstrate a 'compelling necessity' before the admission of evidence of the prior conviction could be justified as an exercise of discretion. The prosecutor sought to explain the necessity in these terms:

It is the Crown case that [the applicant] engaged in an extremely elaborate and costly exercise to flee this country, and it risked taking a boat to sail to the other side of the world... [I]t comes back to why [the applicant] fled the country. He didn't flee the country because there was an outstanding warrant for some minor offence. He didn't flee the country because he had absconded on bail for an offence for which he might ultimately be acquitted. It's got nothing to do with flight or consciousness of guilt. The fact is there was a sentence of imprisonment, and he fled from that. And that's why he was prepared to engage in this exercise, to get out of the country. It goes to prove, given that it's in issue, that [the applicant] was the subject of the Edwena enterprise. If they were to admit that, that he was the subject of the Edwena enterprise, then I would lose... the argument to get the conviction and sentence in.

30 Following the luncheon adjournment, however, the Crown conceded that proof of the applicant's 2006 conviction and sentence was not essential. Nevertheless, it was submitted, 'the evidence of Mr Mokbel's fugitive status must in some meaningful way convey the seriousness of [his] situation, a seriousness which would compel him to take the steps that he took.' Responding to a suggestion from Redlich JA, the prosecutor agreed that he would be able to seek the trial judge's leave to adduce evidence of the conviction and sentence if the applicant advanced a defence suggesting that there was no reason for him to go to the lengths he did to evade detection.

31 A complication in this appeal, it also emerged, is that the trial is still at a relatively early stage. In particular, the applicant has not yet been called upon to admit or deny any of the facts alleged against him. As appears from the extract of the prosecutor's submission set out above, the justification advanced by the Crown for the admission of the conviction into evidence assumed - and indeed was required to assume - that all the allegations in the proceedings were 'live'.

32 It is plain that there is a range of matters which, if admitted by the applicant, could alter substantially the balance between the probative force of the evidence and the danger of prejudice. For instance if - as appears likely - the applicant were to admit that he left Australia on the Edwena, and was the beneficiary of the funds put towards the journey, this would remove any need to prove identity, a matter which featured prominently in the prosecutor's arguments on this application.

33 The prosecutor's concession - concerning the evidence of the applicant's conviction and sentence of imprisonment - was rightly made. Nothing said in the argument to that point had persuaded us that proof of those matters was indispensable to the Crown case. Even then, the prejudice attaching to proof of prior convictions is of such an overwhelming character that indispensability is unlikely (without more) to have been sufficient to avert the mandatory exclusion of the evidence under s 137 EA.

34 That provision, it will be recalled, requires the Court to refuse to admit prosecution evidence:

if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Much more would have been required, in our view, for the prosecution to demonstrate that this evidence was of such probative value as to outweigh the inevitable prejudice it would occasion.

35 For similar reasons, we are persuaded that the balance of paragraph 29 must also be excluded. Were the exclusion to be confined to the last two sentences, the jury would be made aware that the applicant had absconded after almost two months of a Supreme Court trial. These facts would readily invite the inference that he had been on trial for serious, or very serious, offences, that he had failed to appear at an advanced stage of the trial and that this had occurred because he was expecting to be convicted and imprisoned. In short, the removal of explicit references to conviction and sentence would not prevent adverse inferences, of a like prejudicial nature, from being drawn.

36 It follows that the interlocutory appeal must be allowed, and his Honour's ruling varied so as to exclude paragraph 29 from its scope. As noted earlier, the defence contention was that, if paragraph 29 were excluded, there would need to be consequential changes to other paragraphs. That is not a matter on which it is either possible or appropriate for us to comment. Any reworking of the opening which may be required must necessarily await the giving of instructions by the applicant as to those aspects of the 'flight' chronology which he is prepared to concede. The submissions of senior counsel for the applicant suggested that a 'realistic' approach was likely to be taken in that regard.

37 At a minimum, we would expect agreement to be reached along the following lines, suggested by Weinberg JA in argument. Instead of paragraph 29, the Crown should be able - without defence objection - to make a statement to the following effect: 'From late March 2006, Mr Mokbel was being sought by Victorian law enforcement authorities.' A statement of that kind is necessary - and should be sufficient - to explain what followed.

38 As is apparent from the foregoing, the argument in this Court bore almost no resemblance to the argument which took place before the judge. What was presented to his Honour was wide-ranging and general; the argument on this application was sharply-focused and specific. We have little doubt that, had his Honour been asked to rule on paragraph 29 alone, he would have come to the same conclusion as we have. So much is apparent from his Honour's repeated invitations to the parties, following the making of the ruling under challenge here, to turn their attention to the last two sentences of that paragraph.

39 His Honour's invitation ought to have been acceded to. As this application has demonstrated, it was the reference to conviction and sentence which the defence regarded as supplying the real 'sting'. Plainly enough, it was for the defence to pursue that matter. Had that occurred, it must be assumed that his Honour would have had the benefit of the arguments which were presented in this Court, and that the Crown's concession would ultimately have been forthcoming, as occurred in this Court.

40 On any view, that would have been a far preferable way for this matter to have been dealt with. Apart from the additional work which has been occasioned for this already-overworked Court, the trial judge is best placed to deal with matters of this kind. As things have turned out, we will be allowing the appeal, not because of any error which his Honour made - his ruling has gone almost entirely unchallenged - but because the narrow argument presented for the first time in this Court has been held to have merit.

The foreshadowed approach to interlocutory appeals in this proceeding

41 In order to minimise the risk of the trial date being lost, the Court arranged to hear this interlocutory appeal urgently. Senior counsel for the applicant had indicated to the trial judge that there were likely to be a number of interlocutory appeals. As a result, the Court of Appeal Registry asked counsel for the applicant to be in a position to advise, upon the hearing of the present application, what other applications were anticipated.

42 Senior counsel for the applicant provided a helpful written response dated 7 December 2010. The relevant extracts are as follows:

This is a complex trial and an important one to both sides.

The depositions and other materials total more than 20,000 pages. This comes from 3 sets of depositions. A large amount id duplicated but there is at least 12,000 pages that the Crown relies upon. There are about 6,000 telephone calls and 12,000 hours of listening device tapes to be dealt with. The latter (the LDs) have not yet been provided to us. All these audio tapes have either transcripts or summaries.

There are 254 Crown witnesses. There are no admissions or concessions by the Defence. The Defence requires the Crown to prove its case. Everything is in issue.

I anticipate that there will be a large number of interlocutory appeals.

My views below are based upon the assumption that there will be many challenges to the evidence (which is the fact) and that we lose those challenges (which is speculation).

...

1. There is an application for a permanent stay based upon 2 limbs - pre-trial and validity of the extradition. There is no ruling as yet. The arguments have not been made yet as further subpoena material relevant to the extradition will be provided on 21 December 2010. This means that argument will not take place until February 2011. If the argument is lost, it is almost certain that the interlocutory appeal will be made later in February.

2. I have foreshadowed a challenge to the validity of 3 types of warrants: Telephone Intercepts, Listening Device and Search Warrants. As indicated above, we have not reviewed all the product of those warrants yet largely due to delays in complying with the subpoenas. These challenges will be complex arguments.

3. That is as far as we have been able to prepare the matter: there is no doubt that when these major arguments are completed there will be many more arguments concerning admissibility of fair trial. My best guess is that there could be 10-20 more interlocutory appeals next year.

4. My guess is that we could spend perhaps 2 weeks in total in the Court of Appeal.

5. Our strong preference is that all matters be heard together rather than the present piecemeal approach. This is, of course, a matter for the Court.

43 There was some discussion of these issues at the conclusion of argument. It is sufficient for present purposes to record that we emphasised the limits on the Court's ability to entertain interlocutory appeals and, in particular, to entertain multiple interlocutory appeals in a single criminal proceeding. There is no prospect whatsoever of the Court devoting '2 weeks in total' to interlocutory appeals arising from the present trial, given the competing demands on the Court's time for substantive appeals as well as for other interlocutory appeals.

44 In particular, there is extremely limited scope to hear interlocutory appeals regarding rulings on evidence, for the reasons given by Maxwell P (with whom Buchanan and Bongiorno JJA agreed) in CGL v Director of Public Prosecutions (No 2)[7] and by the Court (Buchanan, Weinberg and Bongiorno JJA) in R v DG; DG v The Queen.[8]

[2] As to the elements of such a case, see Likiardopolous v The Queen; DPP v Likiardopolous [2010] VSCA 344.

[5] This included the telephone intercepts, which, it was submitted, make extensive reference to the flight and the applicant's conviction. It also includes the receipt of money by Renate Mokbel, which cannot be explained unless the applicant's actions are known to the jury. That is, the payment makes sense only if one is aware that her liability on the surety was caused by the applicant's actions [ie absconding on bail].

[7] [2010] VSCA 4 [4]-[5].

[8] [2010] VSCA 173 [29] - [34].