R v Mokbel [2009] VSC 342

R v Mokbel [2009] VSC 342 - VSC 2009 case summary — Zoe

[48]

45 During that period, six of the publications (Exhibits GM 8.1, 8.4, 8.9, 8.10, 8.11, 8.12) referred to the link between former Detective Paul Dale and the accused, in the context of the murder of Terence Hodson and his wife in 2004. The most recent publication, on Radio ABC on 11 June 2008 (Exhibit GM 8.1), referred to the link between Dale and the accused in respect of the deaths of Hodson and his wife. It alleged that the accused knew in advance about plans to murder the Hodsons. It then stated that the police had arrested an associate of the accused, Rod Collins, who was charged with another double murder more than two decades ago. It stated that "as with the Hodsons, Ray and Dorothy Abbey were shot execution style in their home in July 1987". During the broadcast it was also stated that Collins was part of the accused's "wider family", as he was living with the mother of the accused's partner. Two of the publications (Exhibits GM 8.4, GM 8.9) comprised a television broadcast and a radio broadcast, in each of which a commentator speculated whether the accused might have knowledge which might assist the police to solve the murders of the Hodsons. One publication (Exhibit GM 8.10), an article in the Age newspaper of 24 March 2007, was a lengthy article focussing on Sergeant Paul Dale. In a short passage more than halfway through the article, brief reference was made to the fact that the accused had had access to stolen police files relating to the Hodsons. On the same day, the Age published another article (Exhibit GM 8.11) focussing on the alleged links of Dale to the murders of the Hodsons. In one line of that article it was said "investigators have examined Dale's links with Tony Mokbel". The other article (Exhibit GM 8.12) was an article in the Australian published on 13 January 2007, alleging that the accused had held internal police documents identifying informants almost two years before one of them was executed in a double murder "linked to corrupt officers".

[112]

96 The leading authority is R v Glennon, to which I have already referred. In that case, the accused was a Roman Catholic priest. In 1985, the accused was cross-examined, in a case in which he was a witness, about a previous conviction which he had for indecent assault with a girl, and also about an alleged homosexual rape of one of the parties. Extensive publicity was given to that allegation in the Melbourne media. The accused was subsequently charged with a number of sexual offences against children, and appeared before the Melbourne Magistrates' Court in November 1985. Thereupon, over the next four months, a prominent radio commentator launched a vitriolic attack on the accused in three broadcasts. He alleged serious criminal conduct and sexual impropriety against the accused, and mentioned his previous conviction. Subsequently, the commentator was convicted of contempt of court arising out of those broadcasts. The contempt proceedings, and his appeals, received extensive coverage in the media. He was ultimately imprisoned, and publicly assumed the mantle of a martyr in doing so. The commentator was released from prison in October 1987. Two months later, the accused was charged with 17 sexual offences against young people. His trial was listed for August 1988. The trial judge dismissed an application on his behalf for a permanent stay of proceedings which had been made on the basis that he would be unable to receive a fair trial because of the effect of the pre-trial publicity. An originating summons seeking a stay was instituted in the Supreme Court. It was dismissed by Crockett J. The trial then proceeded in May and June 1991. The trial judge again refused a further application for a stay. The accused was convicted on five counts, and acquitted on the remaining twelve. The Court of Criminal Appeal (by a majority) allowed the accused's appeal, on the grounds that he should have been granted a stay. The Crown applied to the High Court for special leave to appeal. That application was successful by a majority, with three justices dissenting.

[113]

97 The nature of the publicity in Glennon is set out in the joint dissenting judgment of Deane, Gaudron and McHugh JJ, in which their Honours extracted part of the judgment of Nathan J of the Court of Criminal Appeal[30]. It is important to note some aspects of that publicity. First, the pre-trial publicity had included reference to the accused's previous convictions. Secondly, the allegations made by the commentator were cast very much in terms of a strong moral judgment condemning the accused. As Nathan J observed, the commentator purported to act as a "protector of public morals" who was "exposing a child molester". Thirdly, the adverse publicity was highly emotive and sensational. Fourthly, the adverse publicity was strongly sympathetic to the alleged victims of the accused, and antipathetic to him. Fifthly, the adverse publicity clearly inferred, if not stated, the guilt of the accused on the very charges for which he was tried in the County Court in 1991. It is significant that, notwithstanding those features of the publicity, the High Court held that the Court of Criminal Appeal had erred, by failing to give adequate weight to the right of the community to expect that a person accused of a serious criminal offence would be brought to trial, and, further, by failing to give adequate weight to the effect of instructions and directions given by the trial judge which were designed to focus the jury on the evidence, and to ensure that the jury would not be affected by the pre-trial publicity. It is worth noting that, although the Court's decision was by a narrow majority, nevertheless in their joint dissenting judgment, Deane, Gaudron and McHugh JJ did not express agreement with the view of the Victorian Court of Criminal Appeal; rather, their Honours held that the assessment by that Court of the effect of the pre-trial publicity was essentially a question of fact, peculiarly appropriate for determination by a State Court of Criminal Appeal, such as not to justify the grant to the Crown of special leave to appeal from a verdict of acquittal entered by that Court.

[116]

100 The decision of the Queensland Court of Appeal in R v Long[34] is another instance of the confidence of the courts in the capacity of a jury to disregard highly inflammatory and prejudicial material concerning an accused in a particularly serious case. In that case, the accused was charged with 15 counts of murder, arising from the tragic fire at the Palace Backpackers Hostel at Childers on 23 June 2000. Following the fire, the media published allegations about the accused, which were not only gravely prejudicial to him, but indeed were not the subject of admissible evidence at his trial. They included: that the accused had an extensive criminal history of violence; that the accused had convictions for the attempted murder of his former defacto's six year old daughter; that the accused was alleged to have deliberately set on fire a caravan while his defacto wife was asleep inside it; that witnesses had reported seeing the accused near a burning bin just before the fire at the Backpackers Hostel broke out, and standing in the crowd watching the fire; and that before the fire the accused had alerted two English backpackers to expect a fire in the building hours before it began. The publicity included an interview with the accused's ex-defacto wife, in which she gave details as to how the accused attempted to murder her, and her three young daughters, by setting their caravan on fire, and how he attempted to murder her six year old daughter by strangling her. Jerrard JA, who delivered the leading judgment of the Queensland Court of Appeal, acknowledged the gravity of the complaint made by the appellant as to the nature of the publicity to which he had been exposed, stating that it would "be difficult, if challenged, to conceive of publicity more prejudicial ... ".[35] Nevertheless, the Court of Appeal considered that the directions given by the trial judge to the jury were adequate to sufficiently dispel the prejudice occasioned to the accused, and to ensure that he have a fair trial. [36]

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