Court of Appeal (Vic)|2013-05-17|Before: Mr P, Maxwell ACJ, Buchanan JA, Weinberg JA

The applicant is taken into custody in Greece, for possession of false documents. The applicant pleaded guilty to this offence and was dealt with by the Greek courts some weeks later.

A provisional arrest warrant in respect of the extradition request is executed on the applicant.

A formal extradition request is presented to Greek authorities.

The Greek Court of Appeal orders the applicant's extradition.

The Australian AttorneyGeneral's Department notes, internally, that the applicant may seek to challenge his extradition in the European Court of Human Rights, and requests advice about the operation of the European Court of Human Rights ('ECHR').

The AttorneyGeneral's Department receives advice about the operation of the ECHR. The advice notes that decisions of the ECHR are binding on Greece, and the applicant had standing to make an application. The advice also noted the court's capacity to grant interim measures in extradition cases (citing Mamatkulov v Turkey).

A background briefing to the Minister of Justice is provided by the AttorneyGeneral's Department.

On appeal, the Supreme Court of Greece orders the applicant's extradition.

The applicant applies to the ECHR. The application includes a request for interim measures.

The applicant notifies an Australian consular officer that he has made an application to the ECHR and that he intends to seek review of the decision of the Greek Minister of Justice regarding his extradition.

A diplomatic note from Australia to the Greek Ministry of Justice refers to the possibility of an action in the ECHR and says that in the event such action is taken it 'should not delay the determination of Mr Mokbel's return to Australia'.

The Greek Minister of Justice orders the applicant's extradition.

The applicant's Greek lawyer writes to the Australian embassy notifying it of the ECHR application and attaching a copy.

The Australian Attorney-General's Department writes to the AFP advising that arrangements should be made for the applicant's surrender 'as soon as possible and if possible prior to Greece's notification of the application by the ECHR'.

The applicant's representatives write to the secretary of the AttorneyGeneral's Department notifying him that an application to the ECHR has been lodged, and informing him that it would be an abuse of process for Australia to facilitate his removal from Greece before the determination of his case in the ECHR.

The applicant's lawyer notifies the Greek Ministry of Justice of his application to the ECHR.

The applicant is surrendered to the AFP and escorted back to Australia.

Trafficking in not less than a large commercial quantity of a drug of dependence (MDMA)[103]

Incitement to import a prohibited import (MDMA)[104]

Trafficking in not less than a large commercial quantity of a drug of dependence (methylamphetamine)

A new federal nonparole period of 6 years and 9 months and 19 days commencing 3 July 2012 in respect of the Orbital offence and the federal cocaine importation sentence currently being served.
The State sentences commence 2 years and 9 months and 16 days before the expiry of the new federal nonparole period.
Nonparole period on the State sentences of 18 years (commencing on commencement of those sentences being 2 years, 9 months and 16 days before the expiry of the federal nonparole period).

6AAA Statement: The learned sentencing judge stated that the sentence he would have imposed if the applicant had been convicted of this offence after a trial would have been life imprisonment, with no nonparole period.

[1] Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477, 484-5, 490-1, 498-9, 505-8 ('Barton').

[2] The abbreviation is used here for ease of reference, not for anonymity.

[3] Contrary to s 233B(1)(d) of the Customs Act 1901 (Cth).

[4] A full chronology of events appears as Appendix A to these reasons.

[5] Mokbel v Attorney-General (Cth) [2007] FCA 1536; (2007) 162 FCR 278; Mokbel v Attorney-General (Cth) [2007] FCAFC 161; (2007) 162 FCR 296; Mokbel v Attorney-General (Cth) [2007] HCA Trans 813.

[6] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). M alleged that, if he were returned to Australia, his life would be in danger (art 2 - right to life); and he would be subjected to inhuman and degrading treatment art 3).

[7] Mokbel v DPP (Vic) [2008] VSC 433, [42].

[8] DPP v Mokbel [2010] VSC 331, [26]-[27], [43].

[9] R v Mokbel [2011] VSC 128, [18].

[10] R v Mokbel [2012] VSC 255, ('Reasons').

[14] European Court of Human Rights, Rules of Court (adopted July 2007).

[15] DPP v Mokbel [2010] VSC 331, [43]-[49] (Whelan J).

[16] European Court of Human Rights, Grand Chamber, Application Nos 46827/77 and 46951/99 4 February 2005, ('Mamatkulov').

[18] DPP v Mokbel [2010] VSC 331, [44].

[19] R v Mokbel [2011] VSC 128, [23].

[20] See generally, VSAB v Minister for Immigration and Multicultural Affairs [2006] FCA 239, [29][30] (Weinberg J) quoting Applicants in V722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059, [32]-[33] (Ryan J) as to the ascertainment of foreign law and the circumstances in which it is unnecessary to resort to expert evidence for its proof.

[21] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331, 370 [115] (Gummow and Hayne JJ).

[23] See art 6(2) of the Treaty on European Union as amended by the Treaty of Lisbon (entered into force 1 December 2009) as to the European Union's accession to the Convention.

[24] The term 'foreign country' in s 174 may, however, refer to a country that is a signatory to a multilateral treaty irrespective of whether the treaty itself can be described as the product of that particular country.

[25] See, eg, Saxby v Fulton [1909] 2 KB 208. See also R Fentiman, Foreign Law in English Courts: Pleading, Proof and Choice of Law (1998, Clarendon Press) 251.

[26] In this regard we note that a rule expressed in a treaty such as the Convention may be a codification of customary international law. See also Lord Wilberforce's observation (which his Lordship acknowledged to be controversial) in I Congreso del Partido [1983] 1 AC 244, 260 that there may be 'cases in which a multilateral convention may become part of general international law so as to bind States not parties'. Lord Wilberforce added that such a convention 'must bear a legislative aspect', and that there must be a 'wide general acceptance of it as law-making'. It is unnecessary to consider whether art 34, which is procedural in nature, and directed to the 'High Contracting Parties', could possess those qualities.

[27] [1977] 1 QB 529 ('Trendtex').

[29] Ibid 164. See also 184, 190 (Merkel J).

[31] Ibid [28]-[48] (emphasis in original).

[33] Ibid 261 citing Re Cohn [1945] 1 Ch 5; F & K Jabbour v Custodian of Israeli Absentee Property [1954] 1 WLR 139, 148 (Pearson J).

[34] Lord Collins et al (eds), Dicey, Morris & Collins on the Conflict of Laws (Sweet & Maxwell, 15th ed, 2012) 321.

[35] Opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[36] Golder v United Kingdom (1975) 1 EHRR 524, 532 [29]. See also Akers v Saad Investments Co Ltd (in liq) (2010) 190 FCR 285, 295 (Rares J).

[37] (2012) 246 CLR 213, 223 (citation omitted).

[38] Tahiri v Minister for Immigration and Citizenship (2012) 87 ALJR 225, 230 [21].

[39] See [50]-[52] below.

[40] See [57] below.

[41] Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456, 475 [51] ('Moti').

[42] See, eg, R v Hartley [1978] 2 NZLR 199, 216-7; Levinge v Director Custodial Services (1987) 9 NSWLR 546, 563-4; R v Horseferry Road Magistrates' Court, Ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42.

[43] Cf R v Mullen [2000] EWCA Crim 36; [2000] QB 520, 535.

[46] Mamatkulov (European Court of Human Rights, Grand Chamber, Application Nos 46827/77 and 46951/99 4 February 2005), [24].

[52] Oxford University Press, 3rd ed, 2011, 33 [2.53].

[54] See Shamayev and others v Georgia and Russia (European Court of Human Rights, Second Section, Application No 36378/02, 12 April 2005); Aoulmi v France (European Court of Human Rights, Fourth Section, Application No 50278/99, 17 January 2006); Ben Khemais v Italy (European Court of Human Rights, Second Section, Application No 246/07, 24 February 2009); Aleksanyan v Russia (European Court of Human Rights, First Section, Application No 46468/06, 22 December 2008); Paladi v Moldova (European Court of Human Rights, Grand Chamber, Application No 39806/05, 10 March 2009); See also Grori v Albania (European Court of Human Rights, Fourth Section, Application No 25336/04, 7 July 2009) (delay of 17 days in transferring applicant from prison to hospital ― violation of Art 34); Al-Saadoon and Mufdhi v UK (European Court of Human Rights, Fourth Section, Application No 61498/08, 2 March 2010); D B v Turkey (European Court of Human Rights, Second Section, Application No 33526/08, 13 July 2010).

[55] European Court of Human Rights, Fifth Section, Application No 35865/03, 20 February 2007 ('Al-Moayad').

[60] European Court of Human Rights, First Section, Application No 42502/06, 11 December 2008 ('Muminov').

[63] Ibid [136]-[137] (emphasis added).

[64] Al-Moayad (European Court of Human Rights, Fifth Section, Application No 35865/03, 20 February 2007), [125] (emphasis added).

[65] European Court of Human Rights, Plenary Session, Application No 14038, 7 July 1989, ('Soering').

[68] The first of these documents, a handwritten file note dated 31 March 2008, includes the statement, 'Greece should oppose application for interim measures'. No such view was put forward, however, in the official submission to the Greek Minister.

[70] What follows in [77]-[93] is based on the sentencing reasons.

[71] R v Moran and Mokbel [1998] VSCA 64; (1999) 2 VR 87.

[72] R v Mokbel [2006] VSC 119.

[81] See: R v Williams [2008] VSCA 95.

[82] The suggestion that the sentencing judge is bound by any such agreement is inconsistent with R v MacNeil-Brown, as the Court of Appeal has repeatedly emphasised, see: Campisi v The Queen [2010] VSCA 183, [20]-[21]; Hilder v The Queen [2011] VSCA 192, [30]-[32]; Bogdanovich v The Queen [2011] VSCA 388, [93]; and, most recently, Talbot v The Queen [2012] VSCA 118.

[84] See also Barbaro v The Queen [2012] VSCA 288, [26].

[85] Director of Public Prosecutions (Vic), Director's Policy 9 - Crown's Role on Plea and Sentence, 2 October 2012, 14-18 [67]-[79].

[87] See [96] above.

[89] Clarkson v The Queen (2011) 32 VR 361, 384 [89].

[90] Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, 676 [2].

[98] Ibid 476 [39] (footnotes omitted).

[99] See, eg, Collins v The Queen [2012] VSCA 163, [67]; Brennan v The Queen [2012] VSCA 151, [91]; R S J v The Queen [2012] VSCA 148 [3], [44]. See also R v Moran [2011] VSC 375.

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

R v Mokbel [2012] VSC 255 (Whelan J)

Mokbel v The Queen [2013] VSCA 118

At a glance

Court

Decision date

Before

Source

Judgment (91 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)