R v Mokbel

2 Yesterday the accused's solicitor, and the accused in person, requested a certificate under s 295(3)(b) of the Criminal Procedure Act 2009 so that leave to appeal could be sought against that interlocutory decision.

3 Relevantly for present purposes, a party cannot seek leave to appeal unless I, as the judge who made the relevant interlocutory decision, certifies: "... that the interlocutory decision is ... of sufficient importance to the trial to justify it being determined on an interlocutory appeal".

4 In McDonald v DPP[2] Ashley JA and Redlich JA said that consideration of the issue provided for in s 295(3)(b) required the trial judge to make a "value judgment" about the interlocutory decision made. In that case they held that the certificate which had been granted there should never have been granted. It seems that the trial judge in that matter had considered that he should not take into account the merits of the proposed appeal but rather should certify if the point raised would determine the proceeding should it be resolved in favour of the accused. The analysis of Ashley JA and Redlich JA reveals that this approach was misconceived. They held that the certificate should not have been granted because the argument made on behalf of the accused was hopeless. The third member of the Court, Neave JA, did not address the issue of whether the certificate should have been granted.

5 In Wells v DPP[3] the Court of Appeal, constituted again by Ashley JA and Redlich JA, with Weinberg JA as the third member of the Court, considered an application under s 296 for a review of a refusal to certify under s 295(3)(b). The application in question there was an application for a permanent stay.

6 Ashley JA analysed the arguments on the substantive issue of whether a permanent stay ought to have been granted. Ashley JA dismissed the application for a review and observed that "... the circumstances of this matter do not satisfy the language of s 295(3)(b)". It seems to me from Ashley JA's analysis of the arguments that the arguments on behalf of the accused there could not have been characterised as hopeless in the way the argument in McDonald was seen as hopeless. Ashley JA nevertheless specifically endorsed the trial judge's decision not to certify. Weinberg JA and Redlich JA agreed with Ashley JA. Redlich JA added some observations including the following: "The learned trial judge was in my view correct to refuse the grant of a certificate as her decision was not attended by sufficient doubt".

7 It seems to me, on the authority of McDonald and Wells, that I should proceed on the basis that, in considering the issue which I must consider under s 295(3)(b), I should, amongst other relevant considerations, make a value judgment as to the decision made, and I should refuse a certificate if I am of the view that in the circumstances the decision is not attended by sufficient doubt to justify it being determined on an interlocutory appeal.

8 As will be the position on every application for a permanent stay, a successful application would mean that the trials will not proceed at all. In that sense, the decision to refuse a stay is important to the trials. But I do not consider that the decision in this case is of sufficient importance to justify the decision being determined on an interlocutory appeal. I reach this conclusion for the following reasons:

(1) Mr Mokbel's arguments based upon what I refer to in my published reasons as the prejudicial publicity ground are, in my view, inconsistent with the very recent High Court judgment in Dupas v The Queen[4].

(2) Mr Mokbel's arguments based upon the prejudicial publicity ground are relevantly the same as those also made and rejected by Kaye J.[5] Kaye J then proceeded with the trial of the matter in which that application was made and Mr Mokbel was acquitted.

(3) Mr Mokbel's arguments based on what I refer to as the extradition ground are, in my view, misconceived insofar as unlawfulness is contended for; and rely on circumstances which are, in my view, very far from the circumstances which would require or justify a stay on the basis of reprehensible conduct by those in authority.

(4) Mr Mokbel has previously unsuccessfully attacked his extradition before the Federal Court, both at first instance and on appeal,[6] and has sought a stay on very similar grounds to those contended for before me from Kaye J,[7] again without success.

(5) An appeal at this stage will be disruptive not only to the trials in the proceedings in which the application has been made, but in relation to a number of related trials where there are co-accused, not all of whom are on bail.[8] There has already been considerable delay as a consequence of Mr Mokbel's application for a stay and the prospect of an interlocutory appeal is likely to result in further delay. Whilst my own view is that the correct outcome of the application is clear, the material is voluminous and it would take the Court of Appeal a good deal of time in order to become familiar with it.

9 For these reasons I have determined not to certify as requested. I do not consider that the interlocutory decision is attended with sufficient doubt to justify it being determined on an interlocutory appeal in the circumstances existing here.

[1] [2010] VSC 331T.

[2] [2010] VSCA 45.

[3] [2010] VSCA 100.

[4] [2010] HCA 20.

[5] [2009] VSC 342R.

[6] Mokbel v Attorney-General for the Commonwealth & Anor [2007] FCA 1536 and [2007] FCAFC 161.

[8] See matters 1451 of 2009, 1461 of 2009, 1408 of 2009, and the "Magnum" matters: 1634 of 2009, 1435 of 2008, 1709 of 2008 and 57 of 2010.