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[2011] VSC 405
Supreme Court of Victoria
2011-08-26
WHELAN J
Original judgment source is linked above.
CRIMINAL LAW - Contested facts on guilty plea - Applicable principles - Facts found.
1 On 4 October 2010 George Elias pleaded guilty to the following charges:
2 The court was advised at the time that Mr Elias pleaded guilty that, notwithstanding his pleas, there was substantial dispute as to the facts concerning the count of attempting to pervert the course of justice and the drug trafficking count. Between 21 and 30 June 2011 a hearing was conducted at which evidence was given and witnesses were cross-examined in relation to the matters in dispute. Submissions on the factual matters in dispute, and submissions on sentence generally were also heard.
3 The prosecution contends that Elias attempted to pervert the course of justice by assisting Antonios Mokbel, often referred to as Tony Mokbel. Mokbel absconded whilst on trial for drug trafficking in 2006. The prosecution contends Elias attempted to pervert the course of justice by harbouring Mokbel on a property partly owned by him at Bonnie Doon between approximately July 2006 and October 2006, by assisting Mokbel in his flight across the country to Fremantle and in his eventual departure from Fremantle to Greece in a yacht, and by participating in conduct which enabled Mokbel to live in Greece using funds obtained from drug trafficking in Australia until his apprehension in June 2007.
4 In relation to the drug trafficking, the prosecution contends that Elias was part of a drug trafficking enterprise under the ultimate control of Mokbel between approximately July 2006 and June 2007. The prosecution maintains that his role was not just as a courier or "go-between" but that he was also either the manufacturer, or a person close to the manufacturing process with a responsible role in relation to that process.
5 The defence contends that Elias's involvement in the harbouring of Mokbel did not begin until October 2006 and that he became involved because of a favour which his brother, Chafic Issa, owed to Mokbel, and which Elias was placed under pressure to repay. As to the drug trafficking, the defence contends that he was never more than a mere go-between and that he did not participate in the drug trafficking enterprise until his brother, Chafic Issa, was arrested on 5 May 2007. Chafic Issa is also known as Terry Issa.
6 This ruling is concerned with the factual issues in dispute. They concern only the first two counts.
Fact finding on contested issues after guilty pleas
7 The legal principles which apply were not in dispute. They are as follows:
(1) Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[1]
(2) It is standard practice to use the depositions and related exhibits as the basic materials.[2]
(3) Should either party seek to have the sentencing judge take a matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.[3]
(5) A sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."[6]
(1) When did Elias begin harbouring Mokbel at the Bonnie Doon property? Was it in approximately July 2006 or in October 2006? This is an issue upon which the prosecution has the burden of proof, beyond reasonable doubt.
(2) When did Elias begin his participation in the drug trafficking enterprise? Was it in approximately July 2006, or did his participation begin only after his brother was arrested? This is an issue upon which the prosecution has the burden, beyond reasonable doubt.
(3) What was Elias's role in the drug trafficking enterprise? Was he a mere go-between, or was he part of the manufacturing process as either a manufacturer or in some other responsible role? This is an issue upon which the prosecution has the burden, beyond reasonable doubt.
(4) What motivated Elias to commit these offences? Was it because he felt bound to repay a favour owed by his brother, Chafic Issa? This is an issue upon which the defence has the burden, on the balance of probabilities.
9 On the contested plea hearing the prosecution played and relied upon a number of telephone intercepts, transcripts of which are in the depositions. Some of the conversations recorded were conversations in which Elias was a participant, some were not. No objection was taken to reliance upon the telephone intercepts in which Elias was not a participant.[7]
10 The prosecution called one of the principal participants in the drug trafficking enterprise, Joseph Mansour. He identified and adopted four statements he had made and he was cross-examined.
11 The prosecution also called Christine O'Brien, who was the proprietor of a business named Alexandra Self-Storage in Alexandra, Victoria. She was cross-examined.
12 The prosecution called a witness referred to as "RHS 3030" who was also a participant in the drug trafficking enterprise. He identified and adopted four statements he had made. He was also cross-examined.
13 The prosecution called one of the police officers involved in the investigation, Detective Sergeant Robinson, who was cross-examined.
14 Reference was made by the prosecution to other material in the depositions.
15 The defence called a number of character witnesses; two of whom, Paul Thompson and Josephine Taleb, also gave some evidence concerning Elias's motivation. The defence relied upon a psychological report by the forensic psychologist, Bernard Healey, upon a number of references as to Elias's character, and upon written references and oral evidence about Elias's conduct in prison. I will not deal with the evidence as to Elias's character, save insofar as it bears upon the contested issues I have identified; or as to his conduct in prison, in this ruling.
16 The defence also tendered a letter from Elias, addressed to me, dated 13 June 2011. Much of that letter is about his personal circumstances and his activities in prison, which I will not deal with in this ruling, but it also does address the issue of his motivation for his involvement in the offending.
17 On 20 March 2006 Mokbel failed to answer his bail whilst on trial for drug trafficking in this Court. He was convicted and sentenced in his absence to 12 years' imprisonment with a non-parole period of 9 years. He was being actively sought by police from the time when he absconded. His absconding attracted significant media attention.
18 The relevant drug trafficking enterprise manufactured and distributed methylamphetamine. The activities of the enterprise were coordinated by Tony Mokbel.
19 Two of the most important participants in the drug trafficking enterprise within Australia were Joseph Mansour and Bartholomew Rizzo.
20 The manufacturing process itself occurred in two stages. The first stage involved the use of precursor chemicals to manufacture phenyl-2-propanone (P2P). The second stage, which was sometimes called "gassing", involved the conversion of the P2P into methylamphetamine. The two stages were undertaken separately by different people at Mokbel's direction.
21 When the manufacturing process was complete, Mansour and Rizzo would purchase the methylamphetamine from Mokbel. They would then distribute it to their own customers. The financial transactions which concerned Rizzo and Mansour were recorded on a computer spreadsheet by Rizzo. This spreadsheet was referred to by the participants as "the bill".
22 At one point in 2006 Rizzo and Mansour made arrangements with an associate of Mokbel's, who they knew as "Freddie", to purchase ten pounds of methylamphetamine. There was a problem with the quality of that product, which Mokbel and Mansour initially discussed over the phone. Mokbel was in hiding but they arranged to meet. Mokbel instructed Mansour to be at a particular park at a particular time and to bring $100,000 cash with him.
23 Mansour waited at the park, as instructed, with the money. He was picked up by a motor vehicle being driven by Chafic Issa, George Elias's brother. Mansour recognised Issa as he had met him once before with Freddie.
24 On that day Issa was wearing a beanie, and from that time onwards Mansour referred to him as "Beanie". The participants in the enterprise gave each other nicknames which they would use when referring to each other, particularly on the phone.
25 Issa drove Mansour to Bonnie Doon. On a bush track they rendezvoused with another vehicle. Tony Mokbel was in that vehicle. It was driven by George Elias. The nickname which Mansour gave to Elias was "the Ranger". This was because he was in the bush all the time; it was short for the bushranger.
26 Mansour spoke to Tony Mokbel and gave him the money. They then went for a walk alone and discussed the production problem. Mokbel told Mansour that he should have left for overseas already but that he had some problems and would not be leaving for another month or so. Mokbel also told Mansour that he was arguing with Freddie, that they were going to have a break, and that from then on Mansour would deal with Issa.
27 Issa drove Mansour back to Melbourne after the meeting and they discussed the new arrangement. Mansour arranged mobile phones, and introduced Issa to Rizzo.
28 In the course of the hearing before me Mansour was not challenged as to what occurred at this bush track meeting. The issue in contention was when the meeting occurred.
29 The prosecution sought to establish beyond reasonable doubt that the meeting had occurred in approximately July 2006. The defence contended that it could not be found that the meeting occurred any earlier than October 2006.
30 There was no issue that Elias was harbouring Mokbel on a property he part owned in Bonnie Doon at the time of the bush track meeting and thereafter. Accordingly, the only significance of the date in the context of the offence of attempting to pervert the course of justice is the length of time during which Mokbel was on the property part owned by Elias at Bonnie Doon.
31 Mansour originally maintained in one of his statements to police that the bush track meeting occurred in around October 2006. He made a further statement and altered his account in that respect after he was referred to certain entries in the bill. In particular, there is an entry "dry 2600 23-Jul". Mansour says this records an amount for dry ice which was delivered to Freddie just before this bush track meeting. The other entry which caused him to alter his account was an entry "Beanie 60,000 30-07-2006". Mansour says this records a payment to Issa and that there was no payment to him before the bush track meeting.
32 The defence point to other entries in the bill which might support a conclusion that the bush track meeting was in October, as Mansour had originally said. The only entry in the bill for $100,000 is dated 7 October. There is also an entry of 1 October referring to provision of "stock" of 11 pounds. This, it was submitted on behalf of Elias, is at least broadly consistent with the provision of what Mansour says was 10 pounds, as to which there was the quality problem which eventually led to the meeting.
33 More generally, the bill records a number of dealings with "Beanie" after July and Mansour's evidence is that his dealings with Beanie (Issa) began at the bush track meeting. On the other hand, Mansour says his dealings with Freddie ended at the bush track meeting but there are entries in the bill apparently recording dealings with Freddie after that date.
34 I do not think much assistance is gained from what Mansour says Mokbel told him at the meeting about his predicted departure date.
35 The bush track meeting was probably in July. That is when Mansour thinks it was after reviewing the bill. I cannot be satisfied beyond reasonable doubt, however, that the meeting was in July. I am satisfied beyond reasonable doubt that the meeting occurred; so much is uncontentious. I am satisfied that it occurred in early October, at the latest. It must have been before 19 October, as Mokbel left Victoria on that date.
36 According to Mansour, there was an occasion in around October 2006 where he was asked by Mokbel to source 200 litres of acetone. The acetone was delivered by Mansour and Rizzo to Issa at a panel shop. At that shop Issa introduced a woman to them as his sister. Mansour says that he saw Issa's motor vehicle in the workshop and another male who was not introduced to him.
37 Mansour was asked about but not challenged on this evidence when cross-examined. This visit has potential significance because of something later said by Elias to Mansour.
38 In September 2006 a yacht named the "Edwina" was purchased in Sydney. Some modifications were carried out in New South Wales and the yacht was then taken out of the water and transported by road to Western Australia.
39 On 19 October 2006 Mokbel was collected from a rural property (not the property part owned by Elias) by a man named Byron Pantazis and two female relatives of his in a rented 4 wheel drive vehicle. That vehicle rendezvoused that day with another vehicle in which Issa and Elias were travelling. The two vehicles then travelled together to Western Australia in convoy, staying in motels together along the way. They arrived in Perth on 23 October 2006. The "Edwina" arrived in Fremantle on 27 October 2006.
40 The group who had come from Victoria met up with three Greek sailors who would eventually sail the yacht to Greece with Mokbel on board.
41 Further modifications to the yacht were made in Fremantle, and equipment and supplies were purchased. Elias played an active role in these preparations. He booked accommodation for the party. He assisted in ordering and obtaining goods and equipment for the "Edwina". He was the contact person in relation to the vessel at the Fremantle Sailing Club where the "Edwina" was moored. He paid weekly jetty fees. He held the security key. He transported people to and from the vessel as required in a hired vehicle.
42 The prosecution does not allege that Elias had any expertise in boating matters and it is not alleged that he was a decision maker in relation to these preparations. Elias was acting under the instructions of Mokbel, Byron Pantazis, and the Greek sailor who was to act as skipper on the voyage.
43 Whilst the preparations were underway in Fremantle, Mansour had phone contact from time to time with both Issa and Elias. The preparations being made were discussed.
44 Prior to Mokbel's departure from Victoria arrangements had been made between Issa, Mokbel and Mansour about mobile phones, so that Mokbel could communicate with other members of the enterprise back in Australia on what were thought to be secure lines of communication.
45 Issa's absence from Victoria is reflected in the bill. There is a gap in the entries recording dealings with "Beanie" between 13 October and 12 November.
46 The "Edwina" left Fremantle and set sail for Greece on 11 November 2006. At some stage Mokbel was taken on board.
47 Late in 2006 there was a meeting at a "Fuel Zone" petrol station in East Doncaster. Mansour arranged this meeting with Issa. Mansour met both Chafic Issa and George Elias at the petrol station. The relevant part of Mansour's statement in relation to this meeting reads as follows (Mansour refers to Elias as "the Ranger"):
"At this same meeting I told 'The Ranger' there was a problem with the product melting. 'The Ranger' told me that Tony had taught him how to do the 'gassing'. Other than this occasion, I spoke to the Ranger on the phone three or four more times at length in relation to the gassing process. This was because of the ongoing problem we were having with the final product melting. 'The Ranger' told me every time he was doing the 'gassing', in the way that Tony had taught him and that the problem couldn't be with him."
48 In cross-examination Mansour was not directly challenged about this Fuel Zone meeting and the other conversations he referred to in the context of that meeting. But he did say a number of things in cross-examination which are apparently inconsistent with the passage I have quoted from his statement. In his cross-examination Mansour was vague as to what he knew or understood about who was undertaking the "gassing" part of the process. The answers he gave were, in my view, inconsistent with Elias having told Mansour himself at the Fuel Zone meeting and thereafter that he was doing the gassing and that he was doing it in the way Tony had taught him. In cross-examination Mansour also agreed that he had had very little to do with Elias between the bush track meeting and Issa's eventual arrest in May 2007.
49 In re-examination Mansour confirmed the accuracy of what was in his statement about the Fuel Zone meeting. He explained the answers which he had given in cross-examination by saying that he had forgotten about the meeting. In re-examination he repeated that almost all his dealings before Issa's arrest were with Issa not Elias.
50 I accept that there was a Fuel Zone meeting and that Elias was there. I accept that the meeting was part of the activities of the drug trafficking enterprise. I cannot accept beyond reasonable doubt that Elias told Mansour that he did the gassing himself and that Mokbel had taught him how.
51 Tony Mokbel arrived in Greece in December 2006. The bill begins recording payments to Greece in late December.
52 RHS 3030 was a close associate of both Mansour and Rizzo, and was a participant in the trafficking enterprise.
53 In his cross-examination he was asked when he first heard of "Beanie's brother" and specifically whether he had heard of Beanie's brother prior to Issa's arrest in May 2007. He said that he had heard of him earlier in that year. He thought it was around February and that Rizzo mentioned him in the course of discussing the quality of the drugs. He said the first time he personally met Elias, who he knew as "the Ranger", was on 1 June 2007. He said that Mansour had also mentioned "Beanie's brother" to him earlier.
54 On 2 February 2007 a person who called himself George Elias rented a storage unit at the Alexandra Self-Storage. This person gave the proprietor, Ms O'Brien, the name George Elias and also gave her Elias's correct address, home phone number and mobile phone number. The person signed a contract as George Elias. He paid a deposit of $40. Ms O'Brien sent a tax invoice dated 2 February 2007 to the address she was given, which was Elias's address in Bonnie Doon, for rental for the period 5 February to 5 May 2007. That invoice was paid by cheque drawn on the account of "G & S Elias". Elias' wife's name is Sharon. Ms O'Brien sent with the invoice a copy of the contract which had been signed.
55 In about mid-April 2007 Rizzo and Mansour owed a significant sum to Mokbel. Mokbel told them to put together $500,000 in cash. They did that and arranged to give the $500,000 cash to Issa. Mokbel told them that Issa would be giving them 3 pounds of methylamphetamine when they met him to hand over the cash.
56 At one point in 2007 a person involved in the drug trafficking enterprise began cooperating with police. As a result of that cooperation police were able to put in place telephone intercepts which enabled them to monitor calls being made by Mansour and Rizzo. The first such call in the depositions was made on 1 May 2007.
Alexandra Self-Storage Unit further rental payment
57 On Friday 4 May 2007 a person purporting to be George Elias rang Ms O'Brien at Alexandra Self-Storage and asked for bank details so that he could deposit rent which was shortly to fall due. This person again gave her Elias's correct mobile phone number, which Ms O'Brien wrote in her diary. The person purporting to be George Elias rang back again on the following Monday saying that he would deposit another three months' rental. On 9 May 2007 a money order for $600 arrived at Alexandra Self-Storage with nothing to indicate who had sent it. As the money owed by the person purporting to be George Elias was the only amount outstanding at that time Ms O'Brien concluded that it was his and credited the payment accordingly. The amount then due for rent on the storage unit was $605.
58 On Saturday 5 May 2007 Rizzo handed the $500,000 in cash to Issa, as instructed by Mokbel. The cash was handed over during the course of the afternoon.
59 By 5.00 pm that day Mokbel was telephoning Rizzo and Mansour, concerned because he was unable to contact Issa. At around midnight Mokbel rang Mansour and told him that Issa had been arrested. Mokbel instructed Mansour to dispose of incriminating material.
60 In the early hours of 6 May 2007 Mansour and Rizzo arranged to remove incriminating material from their own houses and from other houses they were concerned about. Later that day Mansour was contacted by Mokbel who told him to go to the Melbourne Magistrates' Court the next day to see if he could find Issa or Elias. Mokbel also instructed Mansour to begin compiling another $500,000 cash.
61 On 7 May 2007 Mansour went to the Melbourne Magistrates' Court and met Issa and Elias. Elias and he went to a nearby café where Elias explained that Issa had been pulled over by the police and that the $500,000 cash had been seized. He told him Issa had been charged with possessing proceeds of crime. They discussed arrangements for Issa's legal defence and they exchanged contact phone numbers.
"He also told me that he wanted to empty out his brother in laws factory because he wasn't feeling comfortable about the situation. I recall that 'The Ranger' told me that it was his brother in laws factory where he does the cooking and stores the chemicals. 'The Ranger' told me that his brother in law was getting nervous because of Beanie's arrest."
63 In cross-examination Mansour was asked about the meeting with Elias near the Melbourne Magistrates' Court. He was asked to give an account of what was said. He did so without referring to anything having been said about the brother in law's factory or about Elias "cooking" or storing chemicals.
64 In re-examination Mansour was taken to the relevant part of his statement. He said that what he had said in the statement was true. When asked why he had not mentioned it when being cross-examined he said that reading it had refreshed his memory, that the events were over four years ago, and that he had simply forgotten. He said that he could remember conversations but could not remember exactly where and when they occurred.
65 I am satisfied beyond reasonable doubt that Mansour and Elias discussed aspects of the drug trafficking at the Melbourne Magistrates' Court meeting. His evidence of the earlier visit to the panel shop gives credibility to what he said in his statement. Given his cross-examination, I am not prepared to find beyond reasonable doubt that Elias said to him that he "cooked" there himself.
66 On 8 May 2007 Mansour arranged to meet Elias on the Melba Highway near Yea. The purpose of the meeting was to collect 6 pounds of methylamphetamine from Elias. Mansour and an associate of his named "Chris" met Elias on the Melba Highway. In his statement what Mansour says occurred was as follows:
"'The Ranger' handed Chris six pounds of product which was packed in cryovac bags and he handed me a package and told me it was $140,000. I saw that the money was in three cryovaced bags. They were labelled "80", "20" and "40". I kept the cash and Chris kept the product. The $140,000 I received was given to us to make up for the $500,000 we had lost to the police."
67 Mansour was cross-examined about this meeting. He did not depart from the account he had given in his statement. The issue upon which he was challenged was whether Elias had said how much money was being handed over. Whilst Mansour could not be described as being emphatic on the point, it seemed to me that he did not resile from what he had said in his statement that the amount handed over was discussed between the two of them. I accept his evidence as to what happened at this meeting.
68 A few days after collecting the money from Elias, Rizzo and Mansour handed a new compilation of $500,000 cash over to a person at a location in the city at Mokbel's direction.
69 Telephone intercepts between Rizzo and Mansour reveal that in the second half of May 2007 they were becoming suspicious about Elias and Issa, about whether the police really had seized the $500,000 from them, and about related issues. There was also a continuing significant problem about the quality of the methylamphetamine being supplied by Mokbel to Mansour and Rizzo. Mansour discussed the problem with Mokbel on a number of occasions.
70 The problem was described as "melting". Mokbel and Mansour had a long conversation about the matter on 16 May 2007. Mokbel suggested that Mansour needed to consider whether people working for him might be tampering with the product. Mokbel suggested to Mansour that he ought to change the personnel handling the product. There was also discussion of the possibility of rectifying the problem at the point of production. The following interchange occurred:
"J Mansour: There's something going on -
T Mokbel: They are going wrong, mate.
J Mansour: I - I don't know what it is.
T Mokbel: Yeah, I don't know either. But (inaudible) I mean, um, I feel like gettin' all of them back, I'm - I'm gonna talk to, ah, the ranger today.
T Mokbel: And, um, there's one trick I can do to it all and, ah, go from there. But I'm too scared that I'm gonna give it back to ya and I'm gonna come with the same problem."
"T Mokbel: Well organise yourself because I'm gonna probably get the ranger to do something, er, er, to it -
J Mansour: Yeah.
T Mokbel: Today. Er, if I get to talk to him today maybe on the weekend or something he can try and do a couple of things. Okay?"
71 This interchange reveals that Elias was a person Mokbel looked to with a view to him taking steps to rectify the problem.
72 Later in the conversation Mansour attempted to persuade Mokbel to carry out his own experiment by putting some of the methylamphetamine on a plate to see if it melted. He was attempting to persuade Mokbel that the problem was at the point of production and not a result of later tampering. The following interchange occurred:
"J Mansour: But can I - can I ask you one question, if - if - I know this isn't going to happen because you can't see it, but if you saw it yourself and before I even got to it and you saw it and you saw it melt or whatever, you put a little on a plate -
T Mokbel: Yeah
J Mansour: Would you be -
T Mokbel: Listen, the
J Mansour: Satisfied?
T Mokbel: The ranger just said to me - the ranger said to me it will go out the way it's always gone out.
T Mokbel: Okay? Now if it gets to you and someone who is handlin' it, I don't know who is handlin' it, even - it only has to be within ten minutes - whoever is handling it. It only has to be within ten to twenty minutes maximum."
73 This interchange reveals that Elias was a person Mokbel looked to for advice as to the quality of the finished product.
74 Later in the same conversation, there was the following interchange:
"T Mokbel: Okay? Oh, but - but what I'm saying to you is I'm gonna try and talk to the ranger today -
Mansour: Mm'mm.
T Mokbel: Okay. So he can do - see if he can get a place on the weekend for me and he can try and do something. Okay?
T Mokbel: Now - and what I want you to do, you've got to handle it yourself."
This interchange again reveals Elias to be a person Mokbel looked to with a view to him taking steps to rectify the production problem.
75 Very shortly after that interchange Mokbel says to Mansour that one thing he will get "him" to do is to put "a couple of Oscars aside". I interpret this as a reference to Elias putting aside a small amount of methylamphetamine for the purpose of assisting them to address the problem. This is in a context where Mokbel is suggesting that Mansour needs to eliminate the possibility that the product is being tampered with by people working for Mansour after it has been delivered. Shortly afterwards, Mansour addresses that suggestion saying:
"J Mansour: But when you get him to do it
T Mokbel: (inaudible)
J Mansour: Get him to also put a little bit just on a plate, just a few points on a plate and the next day or a few hours later ask him to give you a report on it. Before it even gets to us."
76 Mansour is suggesting the problem is in production and he wants Mokbel to tell Elias to not only put a sample aside, which could then presumably be used to compare with what is eventually delivered, but to also test the product for melting in its pre-delivery condition.
77 In a further conversation between Mansour and Mokbel later that same day Mansour refers to having spoken to Elias. Amongst other things, Mansour tells Mokbel that he had previously asked Elias about testing the product on the plate. He tells Mokbel that he did not tell him on this occasion that there was still a problem and Mokbel said to Mansour that he should "leave it" with him.
78 In May, whilst there are numerous calls between Mansour or Rizzo on the one hand and Elias on the other, they are generally calls making arrangements for meetings. The calls that are recorded and are in the depositions reveal that issues of substance were discussed through Mokbel. In other words, Mansour would talk to Mokbel, Elias would talk to Mokbel, and Mokbel would relay to Mansour and to Elias what the other had said or done.
79 In mid-May 2007 Rizzo acquired glassware which could be used in the manufacture of methylamphetamine. In a phone call of 17 May 2007 he discussed that glassware with Mokbel. In the course of that discussion both Rizzo and Mokbel refer to a list. Mokbel refers to it as a list that Elias or Issa had given Rizzo.
80 In the intercepted calls during May, Mansour often complains that Elias is difficult to contact, and there are a number of intercepted calls from Mansour to Elias which were not answered. On one occasion, after making several attempts to contact Elias, Mansour does eventually contact him and Elias asks Mansour to pass on a message to Mokbel to the effect that he would talk to him the next day. The conversation takes place in a form of code but the message is clear.
81 Because of the difficulty in contacting Elias, Mansour and Rizzo discussed the possibility on 19 May 2007 of attempting the rectification of the production problem which they believed Elias was to undertake. Rizzo said that he did not know enough about the process to do that.
82 The next meeting involving Elias was on 23 May 2007. The telephone intercepts record the arrangements for this meeting beginning on 22 May 2007.
83 The part of the organisation which was manufacturing P2P, at that time involving a person named David Tricarico, was holding P2P to be delivered. On Mokbel's instructions, David Tricarico was to deliver that P2P to Mansour and Rizzo and they were to pass that on to Elias together with $40,000 cash which, according to Mokbel, Elias had "to give to someone".
84 There are a lot of phone calls on 22 May and 23 May arranging the meeting. Those phone calls reveal that Elias had been to Rizzo's home; had previously met Mansour or Rizzo at a service station, which could be the Fuel Zone meeting; and had had an earlier meeting with Rizzo at a McDonald's.
85 The meeting took place in the car park of a McDonald's in the evening of 23 May 2007. The P2P and $40,000 cash were delivered to Elias. Mansour reported the successful delivery to Mokbel.
86 It is important to make a general observation at this point. Apart from the difficulty contacting Elias, which Elias explains as being due to the fact that he left the phone at a friend's house, there is no suggestion or hint that Elias is in any way overborne, unwilling, or reluctant. He is fully cooperative. He talks and acts as a member of a team.
87 In a call between Mokbel and Mansour after the delivery on 23 May 2007, the financial arrangements were discussed. That discussion reveals that the $40,000 given by Mansour and Rizzo to Elias came off the amount owed to Mokbel. In other words, the payment to Elias was treated as a payment to Mokbel.
88 Mansour spoke to Elias late on the night of 23 May and in the course of that conversation Elias complained that a person that he had been supposed to meet up with after the delivery had not shown up. This was a matter relied upon by the defence as indicating that Elias was merely a go-between. I cannot give this conversation about the other person much significance. Mansour in his evidence said that he did not know who Elias was meeting. The telephone intercept does not indicate who it was or why Elias was meeting him. There is no other evidence about the issue.
89 On 30 May 2007 arrangements began being made for a further meeting, which was eventually held on 1 June, at which Elias was going to deliver to Mansour and Rizzo methylamphetamine manufactured by a different manufacturer to the one which was thought to have had the melting problem. What was proposed was that Elias would deliver a sample of this product and that Mansour and Rizzo would then ensure that they were happy with it.
90 At one point in the course of making these arrangements, whilst Mansour was on the phone to Mokbel, Mokbel said he would ring Elias. He then rang Mansour back. He said that he had spoken to Elias and he then described the characteristics of what was going to be supplied, indicating that the weight would be 285 grams.
91 The discussions leading up to the meeting on 1 June 2007 reveal that Elias was not the person involved in the manufacturing process of this product. But Elias was in a position to describe it for Mokbel who passed that on to Mansour.
92 The 285 grams of methylamphetamine was to be delivered by Elias on 1 June 2007. The meeting was preceded by the usual series of phone calls as to place and time. Eventually, Elias and Mansour agreed that the meeting would be in Yarra Glen. The discussion suggests that the meeting may have been at the same place as the meeting which had occurred on 8 May on the Melba Highway.
93 Prior to the meeting Mansour had a conversation with Elias in which Mansour asked Elias whether this batch seemed better than what had been supplied previously. Elias responded:
"Um, I - I don't think so, mate. I mean, I can't - I - I've seen better."
Elias went on to ask whether Mansour still wanted to receive it, and said that what he had said was only his opinion and that Mansour would need to decide for himself.
94 Each of Mansour and Elias then complain that the production problem had caused considerable difficulties for them on their respective "sides".
95 The 285 grams was delivered by Elias to Rizzo late on 1 June 2007. Mansour reported the successful delivery to Mokbel just before midnight.
96 Mokbel was arrested in Greece on 5 June 2007. Elias and others were arrested in Victoria on 6 June 2007.
97 On 5 June 2007 a search was conducted by police of Elias's Bonnie Doon property. The Alexandra Self-Storage invoice and copy contract were located in his study. In a shed on the property a drum was located which contained traces of methylamphetamine and di-methylamphetamine.
98 On 8 June 2007 police opened and searched the Alexandra storage unit. It contained a significant quantity of equipment including hose and tubing, scientific glassware, a gas burner, gloves, stirring devices, glass bottles, woks, funnels, filter papers, thermometers, digital scales, a vacuum pump, metal pots, heaters, clamps, boss heads, and a retort stand, all of which could be used in the manufacture of methylamphetamine. Tests on various liquids contained in the items revealed a liquid that contained methylamphetamine and also a liquid that contained methylamine, a substance which can be used in the production of methylamphetamine. Other items were also found which were consistent with being used in the production of methylamphetamine.
99 I am satisfied beyond reasonable doubt that the Alexandra storage unit was either rented by George Elias personally or was rented by someone else in his name with his knowledge and cooperation. When Ms O'Brien gave evidence she was unable to identify Elias as the man who rented the storage unit on 2 February 2007. I do not consider that to be significant, given the routine nature of the event to her at the time and the elapse of over four years since then. The unit was rented in George Elias's name. All of his details were correctly given. The tax invoice and copy contract were sent to his address. They were found in his study. Rent was paid by a cheque drawn on his and his wife's account.
100 I am also satisfied beyond reasonable doubt that the Alexandra storage unit was a place where equipment for the manufacture of methylamphetamine was stored and that that equipment was used in Mokbel's drug trafficking enterprise. I am also satisfied beyond reasonable doubt that the unit was rented by Elias, or someone acting in his name with his knowledge, for that purpose.
101 I turn then to my findings on the contested issues.
When did Elias begin harbouring Mokbel at the Bonnie Doon property?
102 Elias began harbouring Mokbel some time before the bush track meeting, which was in early October at the latest. In this respect I accept, in substance, the defence submission that the prosecution has failed to prove beyond reasonable doubt that the harbouring commenced in July 2006 because they cannot establish beyond reasonable doubt that the bush track meeting occurred in July 2006.
103 In my view, however, the significance of this conclusion is very limited in relation to the offence of attempting to pervert the course of justice. Given the activities of Elias in assisting Mokbel in his flight across Australia, in the preparations in Fremantle, and in the drug trafficking thereafter (which produced money paid to Mokbel in Greece), a conclusion that he harboured Mokbel at his Bonnie Doon property for a period of weeks rather than months makes little difference.
When did Elias begin his participation in the drug trafficking enterprise?
104 I am satisfied beyond reasonable doubt that Elias began his participation in the drug trafficking enterprise well before Issa's arrest on 5 May 2007. I reach this conclusion for the following reasons:
(1) He drove Mokbel to the bush track meeting, which was in early October 2006 at the latest. That meeting was about drug trafficking and the activities of the drug trafficking enterprise.
(2) Elias's role in accompanying Mokbel in his flight across Australia and in preparing for his departure reveals, in my view, that he held a position of trust with Mokbel at that time. It is also significant that whilst in Fremantle he discussed preparations with Mansour. Mansour was involved in the drug trafficking. Save to the extent that profits from the drug trafficking enabled Mokbel to flee and to live in hiding, Mansour was not otherwise involved in the flight.
(3) Elias attended the Fuel Zone meeting in late 2006. That meeting was about drug trafficking and the activities of the drug trafficking enterprise.
(4) Mansour, Rizzo and RHS 3030 considered Elias to be, and spoke of him amongst themselves as, a participant in the drug trafficking enterprise from at least early 2007.
(5) Elias met and discussed drug trafficking matters with Mansour as soon as Issa was arrested, and he then personally conducted, on behalf of Mokbel, a transaction involving six pounds of methylamphetamine and $140,000 in cash three days after Issa's arrest and one day after meeting Mansour at the Melbourne Magistrates' Court. This is not consistent with an involvement which had just begun.
(6) Elias talks and acts as a member of a team in the intercepted phone calls in which he participates. Such a relationship must take some time to develop.
(7) Most importantly, the renting of the Alexandra Storage Unit on 2 February 2007 reveals Elias to be, in my view, an important participant in the drug trafficking enterprise at that time.
105 I am satisfied beyond reasonable doubt that Elias was a participant in the drug trafficking enterprise from the time of the bush track meeting, which was in early October 2006 at the latest. Of course, that is not to say that his role was always the same.
What was Elias's role in the drug trafficking enterprise?
106 What the evidence establishes as to Elias's role differs over time.
107 At the time of the bush track meeting I cannot be satisfied beyond reasonable doubt that his role was anything more than as a driver. His attendance at the Fuel Zone meeting suggests a more significant role at that time, but I cannot be satisfied beyond reasonable doubt that he was there in any capacity beyond that of support for his brother, Chafic Issa.
108 From the time the storage unit was rented on 2 February 2007, Elias's role must be characterised as being of importance. Beyond that, it is not possible to conclude to the relevant standard exactly what his role was until the phone intercepts begin.
109 After the intercepts begin and Issa is arrested the evidence does establish beyond reasonable doubt that Elias was not merely a courier or a go-between but rather that he was playing an important role in relation to both the "gassing" component of the manufacturing process and the distribution of the methylamphetamine to Mansour and Rizzo. I reach this conclusion for the following reasons:
(1) Elias handled significant quantities of cash and drugs personally on behalf of Mokbel. Delivery by him was delivery by Mokbel. Payment to him was payment to Mokbel.
(2) Elias dealt directly with Mokbel and Mokbel dealt directly with Elias. He was in that respect the same as Mansour himself.
(3) The telephone intercepts reveal that Elias was a person Mokbel looked to with a view to steps being taken to rectify the production problem.
(4) The telephone intercepts reveal that Elias was a person who Mokbel looked to for advice as to the characteristics and quality of methylamphetamine which had been produced and which was to be delivered.
(5) The telephone intercepts reveal that there were other meetings attended by Elias relating to drug trafficking in addition to those of which the evidence enables an account to be given.
(6) The telephone intercepts reveal Elias to have been a person who spoke and acted as an important and willing member of a team, whose ultimate directing mind was Mokbel.
110 It was submitted on behalf of Elias that I ought to find on the balance of probabilities that his motivation for becoming involved in these offences was "a direct result of a favour that was owed and called upon ... on behalf of Tony Mokbel". I was told from the bar table that Chafic Issa had been assaulted when working as a security guard and that he had made a police statement about that assault. I was told that he was then the subject of threats which caused him a great deal of concern both as to his own safety and that of his family. I was told that as a result of assistance by Tony Mokbel those threats to himself and to his family stopped.
112 One of the character witnesses was a friend of Elias named Paul Thomson. In the course of his evidence he said that Elias had told him that his brother had got into a spot of trouble when doing security work and that George had got "dragged into" these offences because there was a debt to be repaid or a favour owed. This evidence was objected to, but was admitted on the basis that it was relevant only to Elias's attitude to the crime.
113 Evidence was also given by Elias's sister, Ms Taleb. She also referred to an incident involving her other brother, Chafic (Terry) Issa, and threats that he had received as a result. She said that her brother George had told her that he got involved with this offending because a favour had been owed by her brother Terry. She said that she did not ask questions about to whom the favour was owed.
114 On the plea a psychological report was tendered from Mr Bernard Healey. Mr Healey also gave oral evidence and was asked whether Elias had told him why he had got involved in the criminal enterprise and in the harbouring of Mokbel. Mr Healey said that what he was told was that initially Elias was helping his brother and that "the momentum of these things gathers pace" and he found it difficult to extract himself. He also said there was an element of fear. In his written report Mr Healey said that he was told that what had stopped the threats was Issa being persuaded that the police statement he had made "had to be revoked" and that it was subsequently "withdrawn".
115 In the letter which Elias wrote, addressed to me, dated 13 June 2001, which was tendered on the plea, Elias explained the problem which he says his brother was in as a result of an incident when he was a security guard. The person who was said to have done the favour which was then called upon was the person known as "Freddie" who was also known as "Abudi". Elias explained the favour in the following terms:
"Eventually Abudi reappeared and asked my brother to act in a particular way when in court, that this would stop the threats all together.
Since the whole incident was caught on CCTV and had numerous witnesses, my brother agreed to let the police handle the matter with minimal assistance from him.
Effectively, the threats ceased after the court hearing for the matter, not surprising the individual was acquitted of the offence."
Elias then explains that some time later Abudi called in this favour and that he then became involved out of love for his brother and his brother's family.
116 In the course of the plea it was accepted by Elias's counsel that the prospect of financial reward was also a motivating factor, but it was said that no financial remuneration was ever actually received. Elias in his letter also said that financial gain was promised but never received.
117 The evidence which was relied upon as to Elias's motivation has significant shortcomings. The evidence given by Mr Thomson, Elias's sister, and Mr Healey was hearsay. It was vague. It could not be adequately tested. Elias himself did not give evidence. The assertions he made in his letter could not be tested. Such a letter cannot be a proper basis for a conclusion on a contested factual issue.
118 In any event, the circumstances relied upon hardly mitigate the position, even if it is accepted that what is asserted did constitute Elias's motivation. It seems that the "favour" which had to be repaid was advice that a truthful statement against the perpetrator of an assault should be retracted. It seems that that is what did occur, and that the perpetrator was acquitted as a result.
119 If accepted, the explanation proffered might explain Elias's initial involvement in the harbouring. It might explain why Elias allowed Mokbel to live for a time on the property he part owned in Bonnie Doon. I cannot accept that it could explain Elias's extensive involvement in Mokbel's flight thereafter or Elias's involvement in the drug trafficking enterprise.
120 For the purposes of the plea, I accept, on the balance of probabilities, that the calling in of the "favour" constituted some part of the motivation for Elias's initial involvement in harbouring Mokbel. I do not accept that it has been established on the balance of probabilities that it was the motivation for his extensive involvement in Mokbel's flight across Australia and in the preparations for his departure, or his involvement in the drug trafficking enterprise. No other explanation for his involvement in those matters was proffered other than the prospect of financial gain. I am satisfied beyond reasonable doubt that that was the motivation for his involvement after the initial harbouring. I am unable to be satisfied beyond reasonable doubt that he personally received any financial gain. That, of course, is not the same as finding he did not receive any financial gain. I do not make that finding. The evidence does not enable a conclusion to be drawn one way or the other.
[1] Campbell Phillip Ashton v The Queen [2010] VSCA 329, [22]; R v LFJ [2009] VSCA 134, [3].
[2] Halden (1983) 9 A Crim R 30, 33.
[3] R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, [25].
[4] R v Rumpf [1988] VicRp 55; [1988] VR 466, 471.
[5] Halden (1983) 9 A Crim R 30, 33-34.
[6] R v Storey [1998] 1 VR 359, 369; quoted and approved in R v Olbrich [1999] HCA 54; (1999) 199 CLR 270, [27].
[7] See: Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1 and Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87.
# R
Elias
(1999) 199 CLR 270
(1961) 104 CLR 1
(1988) 165 CLR 87