R v Mokbel (Ruling No 2) [2009] VSC 652 (19 August 2009)

THE QUEEN

V

ANTONIOS MOKBEL

JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2009
DATE OF RULING:	19 August 2009
CASE MAY BE CITED AS:	R v Mokbel (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2009] VSC 652

CRIMINAL LAW – Murder trial – Accused awaiting subsequent trial on drug trafficking charges – Suppression order to prevent publication of murder trial – Protection of right of accused to fair trial.

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney	Solicitor to Director of Public Prosecutions

For the Accused (in Murder Trial)	Mr P Morrissey and Ms R Shann	Andrianakis & Associates

For the Accused (in the Drug Trials)	Ms G Morgan	Robert Stary & Associates

For the Herald & Weekly Times Ltd, The Australian Broadcasting Corporation, the Nine Network Ltd and The Seven Network Ltd	Mr J Quill	Kelly Hazell Quill Pty Ltd

1 In this matter the accused is charged with the murder of Lewis Moran at the Brunswick Club on 31 March 2004. The empanelment of the jury in the trial is due to commence on Monday 24 August next.

2 During the hearing of pre-trial issues in relation to this and other matters, orders have been made by me to prevent the publication of material concerning the accused which might prejudice his right to a fair trial in this and other proceedings. The main order which I have made is that of 15 April 2009.

3 If that order remains in place and is not varied by me, the effect of it will be to prevent the publication of the forthcoming trial by the media.

4 Mr Quill, who appears for The Herald & Weekly Times, the Australian Broadcasting Corporation, The Nine Network and The Seven Network has made application to me that I should vary my order of 15 April to permit the publication of the proceedings of the trial. That application has been supported by Ms Cooper, on behalf of The Age and John Fairfax.

5 The application is opposed by Ms Shann, who appears with her leader, Mr Morrissey, for the accused in the forthcoming trial; by Ms Morgan, who is the solicitor for Mr Mokbel in five other trials in this Court and by Mr Andrew Tinney who appears to prosecute the forthcoming trial.

6 It is necessary that I make very brief reference to the nature of the other trials which are listed in this Court.

7 Mr Mokbel is charged with the Commonwealth offence of breach of the Customs Act by inciting the importation of a commercial quantity of MDMA. That prosecution has been given the operation name “Orbital”. It is listed for trial in this Court on 9 November and a pre-trial directions hearing will be conducted in this Court on 5 October.

8 In addition, there are four other proceedings against the accused which are listed for directions hearings on 5 October in this Court. The first involves a charge of trafficking a large commercial quantity of methylamphetamine and dealing with the proceeds of crime between December 2003 and March 2006 and that prosecution has the operation name “Spake”.

9 The second matter is a charge against the accused for trafficking and conspiring to traffic a large commercial quantity of MDMA between January 2004 and August 2005. That prosecution has the operation name “Quills”.

10 Thirdly, the accused is charged with conspiracy to traffic a commercial quantity of methylamphetamine between February 2001 and August 2001. That prosecution has the operation name “Landslip”.

11 Fourthly, the accused is charged with trafficking a large commercial quantity of methylamphetamine between September 2002 and April 2003. That prosecution has the operation name “Matchless”.

12 The immediate question for me is whether, as I have said, the terms of my order of 15 April should be varied to enable publication of the present proceeding, but in my view Mr Quill is correct in postulating the question in a different way, that is, whether orders should remain in place to prohibit the publication of these proceedings.

13 In that respect Ms Shann submitted that the publication of the present proceedings would prejudice the fair trial of the accused in those proceedings. She particularly relied on the prospect that if the jury were exposed to out-of-court publicity relating to the proceeding, it would not only distort the jury’s perception of the evidence in court, but might remind the jury of the very substantial volume of adverse and prejudicial publicity which has taken place in respect of Mr Mokbel and in respect of which a stay application was made before me last week.

14 In addition, Ms Shann has submitted that if the present proceeding were the subject of publicity, it would be inevitable that significant public comment would be provoked by it and the jury would be exposed to highly prejudicial and inflammatory remarks concerning the character and antecedents of the accused by people such as neighbours, family and friends.

15 Ms Morgan submitted that the publication of the present proceeding would seriously prejudice the accused in the five drug trials to which I have heard. Firstly, she submitted that the nature of the charge, that is murder, and the circumstances of it, if publicised, would have the propensity to prejudice potential jurors who would be empanelled to hear the trials in the other five cases. She also submitted that a number of the other background matters which will be the subject of evidence in this case, if publicised, would prejudice the minds of potential jurors. They include the evidence concerning the relationship between the accused and Carl Williams, issues concerning the background of what has been termed by the media “the gangland wars” which consisted of a large spate of violence involving a number of killings during that period of time, and evidence concerning the involvement of a number of characters who are in the background of this case in the trafficking of drugs.

16 On the other hand, Mr Quill, whose submissions were supported by Ms Cooper, submitted that a fair and accurate report of the present proceeding would not have the effect of prejudicing a jury empanelled on this proceeding.

17 He submitted that, firstly, I should proceed on the presumption that the jury would adhere to directions given to them that they should not pay any heed to any publicity given to the proceeding during the trial of it.

18 Secondly, he submitted the directions which I could give to the jury would be sufficient to offset any adverse or prejudicial comments made to jurors concerning the accused by persons such as neighbours, friends and the like.

19 Mr Quill also submitted that the fair trial of the five drug cases would not be prejudiced by the publication of a report in the media of the present proceedings. First he submitted that it was his understanding that the trial of the matters relating to Operation Orbital will not be proceeding on 9 November.

20 Secondly, in relation to that he submitted that if, as he understood it, that trial is delayed, the intervening delay would be sufficient to offset any adverse prejudice to the accused arising from publication of the matters which emerge in the evidence in this case.

21 Thirdly, he submitted that if that is not the case then the drug cases might be adjourned for a period of time to enable the prejudicial effect of the publication of the proceedings in this case to be eroded.

22 Fourthly, he submitted that this case involves a murder trial, the charge is different to the charges in the drug trials, and therefore the publication of the evidence relating to this trial would not have the potential to prejudice a jury hearing the drug cases.

23 Fifthly, and principally, Mr Quill relied on the effect of directions which would be given to juries in the drug cases that they must put out of their minds the publicity given to this case and concentrate only on the evidence called in that case. In that respect, Mr Quill called in aid the principles, which in fact I did summarise in the ruling which I made on the stay application, which recognise the extraordinary capacity of jurors to disregard antecedent publicity and prejudice to an accused and to focus judicially and fairly on the evidence in a trial and to give a true verdict only according to that evidence. He submitted that I should have a degree of confidence that notwithstanding publicity given to this trial, that any jury empanelled in the subsequent drug trials would be able to adhere to that type of direction that is given to juries and thus the accused would not be unfairly prejudiced by any publicity given to this proceeding.

24 It is beyond argument that this Court does, in an appropriate case, have the power to prohibit or restrict, either temporarily or permanently, the publication of its own proceedings. That power derives both from ss.18 and 19 of the Supreme Court Act and, more importantly, from the inherent jurisdiction of this Court. See, for example, John Fairfax & Sons v Police Tribunal of New South Wales[1]; and Herald & Weekly Times Limited v A.[2]

25 The jurisdiction to make such an order arises where the court considers that an order of that kind may be necessary to protect the court’s own process and to secure the proper administration of justice. It is important to bear in mind that the power to make such an order is a power strictly limited to doing only what is necessary to achieve that purpose.

26 Thus, the test in this case is whether there is a real or substantial risk that publication of these proceedings will cause an interference with the administration of justice of a kind which might cause serious injustice. See Friedrich v Herald & Weekly Times Limited and Anor[3], and In the Matter of R v Carl Anthony Williams[4].

27 In determining what is necessary, the court, of course, takes into account the important principle that the proceedings of the court should ordinarily be open to public scrutiny. As a matter of practical reality, the members of the public are generally unable to attend the court hearings which occur in this city and in this state. Ordinarily, it is only possible for the public to learn and know about, and thus scrutinise, court processes if the proceedings are subject to a fair and accurate publication of them by the media.

28 Bearing those matters in mind, I turn to the two issues which I need to decide.

29 The first issue is whether the publication of these proceedings might carry with it the real or substantial risk that such publication might cause serious injustice particularly by prejudicing the right to a fair trial of the proceeding of the accused man.

30 In my view, if these proceedings were publicised during them then there is a real and substantial risk of prejudice to the right of Mr Mokbel to a fair trial of a very serious charge against him. Firstly and principally my concern is that the publication of the evidence in this case, of the Crown opening and the final addresses would be calculated to provoke significant public comment about the matter, about the issues in the case and, most importantly, about the accused man.

31 In the stay application I had put before me a very substantial bulk of previous publicity relating to the accused man. That publicity makes it plain that any publicity given to this case would be prominent and, indeed, most probably quite sensational and that it would be calculated to provoke public comment. Indeed, I think there is a very high likelihood that if these proceedings were published during them, that people to whom the jurors would be exposed in day-to-day lives would make comments and would make inflammatory comments, not only about the case, but particularly about the accused.

32 Connected with that, as I, in fact, observed in relation to the stay application, nearly all of the publicity to which the accused has been subjected has been adverse to him and has reflected prejudicially on his character and background. In my view, it is highly likely, if not inevitable, that public comment engendered by publication of these proceedings would be adverse to Mr Mokbel. It would, I expect, be couched in terms which could only be calculated to prejudice the minds of any recipients of those comments. The nature of those comments would indeed be fuelled by the type of allegations which would be made in the evidence in this case, not only in relation to a number of aspects pertaining to the killing of Lewis Moran, but also matters of evidence which will be adduced in relation to the background of this case.

33 There is force in Mr Quill’s submissions and Ms Cooper’s submissions that juries are particularly conscientious in adhering to directions, and in distinguishing between what is said to them out of court and what they hear in court. Our court system functions on the proper and safe assumption that jurors are assiduous in adhering to directions that they must decide the case only on the evidence put before them. However, jurors are only human. As I have stated, it is highly likely, if not inevitable, that if I were to permit publicity to be given to this proceeding, there would be generated a substantial amount of adverse comment relating to the accused.

34 The trial is expected to proceed for two to three weeks. During much of it the evidence which I anticipate will be given will be the type which will, if permitted, attract substantial publicity. Even if a juror were able to put out of his or her mind a few comments adverse to the accused, I would expect that the cumulative exposure of the accused to the type of comment and discussion which could quite probably occur during the trial would be calculated to prejudice the mind of the juror, and notwithstanding the conscientiousness of the juror and the strictness of directions I give to them, in my view it would be calculated to distract the juror from his or her judicial role.

35 For that reason alone, in my view, there is a real and substantial risk of prejudice to the right of Mr Mokbel to a fair trial of this proceeding if I permit there to be published an account of the proceedings during it.

36 However, in my view there is a second reason, albeit not one which of its own would lead to the conclusion that the publication of this proceeding should be suppressed, but one which adds further weight to the matters that I have just mentioned.

37 It is my practice and, indeed, it is a practice which I invariably follow, to give juries strict directions that they must not read or listen to any reports in the media relating to the trial that they are hearing. The reason why that direction is given is that inevitably reports in the media of proceedings are not accurate and they deflect the jury from the evidence and their recall of the evidence which is given in the case.

38 Ordinarily, that risk can be properly coped with by giving, as I say, a firm direction to the jury that they must not hear or read any report of the proceeding while the case is being heard. However, as I stated, I would expect that if I permitted the proceedings in this case to be reported, they may well be subject to very substantial and prominent reporting. While it would be possible for the jury to deflect their eyes from what is in the print media, there is, I think, a real risk that jurors could, on more than one occasion, be exposed to reports which could be quite inflammatory about the accused contained in the live media.

39 Whilst, as I say, I do not consider that second consideration is sufficient itself to form a basis of a suppression order in this case, it does add additional weight to the first matter to which I have referred.

40 For those reasons, in my view, there is a very real and substantial risk of prejudice to the accused if the proceeding were to be the subject of publicity before the verdict in it.

41 I turn then to the second question which is raised by Ms Morgan in this case in her submissions, namely whether I ought to extend the term of the suppression order beyond the completion of this case.

42 To an extent, I am limited in my appreciation of all the issues which might be at large in the drug trials. However, I have had the opportunity to not only read the presentments or indictments, but also the Crown summaries in each of them.

43 In my view, based on my understanding of what could be at issue in those cases, and my understanding of a number of matters which will be at issue in this case, there is a real and substantial risk that publication in this trial of these proceedings would cause serious prejudice to the right of the accused to have a fair trial in relation to the five drug trials.

44 First, and indeed foremost, this case involves a very serious allegation against the accused man. An allegation of murder or a charge of murder is of itself particularly serious. In this case it is the Crown case that the murder occurred in circumstances which were brutal and cold-blooded against a defenceless man in a public place. It was carried out by paid assassins and the motive, it would seem, would be alleged to have been one of either animosity or revenge on behalf of the co-accused, Carl Williams. Suffice to say that the nature of the allegations against the accused in this case are particularly serious. If they were given publicity, in my view, that matter on its own would cause substantial prejudice to the accused in the forthcoming drug trials.

45 In addition to that, as Ms Morgan points out, there are a number of background matters which will be the subject of evidence in this case which would have the real potential to prejudice the right of the accused to a fair trial in his drug trials. Firstly, there will be evidence as to his relationship with Williams. Williams has already been convicted and sentenced on four murders and the materials which have been put before me show that he is a man who has had a notorious involvement on a large scale in the drug industry.

46 In addition, a number of issues by way of background will be the subject of evidence relating to what has been termed “the gangland war”. Those issues will be put on behalf of the Crown as providing either the motive or the setting for the murder of Lewis Moran. Those matters will reflect adversely on the accused and will, in my view, have the potential to lead to a public perception that the accused was criminally involved in a very violent and corrupt drug scene.

47 It is true that I have formed the conclusion that notwithstanding that some of these matters have been the subject of prior publicity, they are not such to deprive the accused of a right of a fair trial in the present proceeding. However, the previous publicity now took place some time ago.

48 Secondly, if I permitted the type of matters to which I have referred to be the subject of publicity, they would be publicised as allegations made on oath by witnesses in court. The publication of that type of allegation about the accused would carry significantly greater weight than the publication of matters which have previously occurred in the press and in the entertainment industry in previous years.

49 Furthermore, as I stated, it is the expectation that the trial of the accused on at least one of his drug matters will proceed in the next few months. In those circumstances, the publicity given to this trial would be particularly recent in the minds of any juror empanelled on the drug case.

50 Furthermore, any publicity given to this case would compound and cumulate on the previous publicity and would indeed, in my view, have the real risk of reviving eroded and fading memories of the previous publicity.

51 For those reasons, in my view there is a very real and substantial risk that the publication of the evidence or the proceedings in the current trial would involve an interference with the administration of justice and would cause a serious injustice to the accused man in those trials.

52 Mr Quill did submit to me that his understanding was that the trial in the matter of Orbital will be delayed. However, Ms Morgan has told me that the matter remains fixed for 9 November. If, indeed, there is any delay in that or in any other trial, I, as currently advised, would not expect that to be a particularly long delay. If I permitted the proceedings in this case to be the subject of publicity, then only a few months would have passed between that publicity and the drug trial.

53 Furthermore, I would not expect the publicity given to this case would cease upon verdict. It is highly likely, given the nature of previous publicity, that ongoing publicity might well be given to it. Thus the issue of delay of the drug trials would not be such, in my view, as to alleviate the prejudice against the accused.

54 Mr Quill submitted that if that were so then any residual prejudice to the accused man could be alleviated by an appropriate adjournment of the drug proceedings.

55 In my view, Ms Morgan is correct in pointing out that any such adjournment would be unfair to the accused who is entitled to a timely trial of the charges against him. It would, I would also add, be unfair to the Crown in its capacity of representing the public interest in the due and timely prosecution of criminal trials.

56 In addition, as I stated in argument, this Court has an interest itself in the timely and orderly conduct of the business in it. The adjournment of trials such as these after they have been set down does disrupt the work of the court, and that itself causes injustice to those many of whom are on remand and have been on remand for some time awaiting their trials. This Court has a responsibility to do what it can to ensure that its trials are conducted in a timely and orderly way.

57 Mr Quill submitted that the fact that this case is a murder case and the other trials are drug trials is significant because the allegation made against the accused in this case is not of the same type of offending as that which is made against him in the drug trials. However, as I already pointed out, in my view it would be difficult to imagine a more prejudicial allegation than an allegation made in a court setting, on evidence and publicised, of a man charged with the public murder, in execution style, of another citizen.

58 Furthermore, as I have already pointed out, the evidence in this case will involve issues which, to an extent, do intertwine with some of the issues in the drug trials, namely the background of drug dealing, the gangland and the relationship with Williams. Publication of the evidence given on those issues would, in my view, have the capacity to infect juries empanelled on the future trials.

59 As I stated, Mr Quill’s primary submission based itself on the capacity of jurors to receive and follow directions and, as I have already stated, that submission is not without substantial force. The legal system’s faith in the capacity of jurors to adhere to and abide by those directions has been vindicated time and time again.

60 However, as I stated, it would seem to me that for the reasons I have already set out, this case is exceptional. The allegations, if published, would be allegations made in a court setting by witnesses on oath. Those allegations would be published close to the time of the drug trials. The allegations themselves would have a cumulative factor on preceding publicity which may otherwise have faded from the public mind.

61 For all those reasons, in my view if I were to permit publication of the proceedings in this case there would be a substantial risk that that publication might cause serious prejudice to the accused and interfere with his right to a fair trial.

62 As I remarked in the course of argument, the suppression of these proceedings is, of course, not permanent and it is important that that be borne in mind. The prohibition on the reporting of this case will be temporary until the conclusion of the proceedings against the accused. Mr Quill is correct that the prohibition may last for some time until those proceedings have finished, but it is not a permanent barring of the right of the public to know about these proceedings.

63 As I also remarked in the course of argument, it is not unusual for proceedings to be suppressed on a temporary basis, particularly where accused have been granted separate trials. Indeed, in recent times there have been examples of cases in which the publication of one trial has been temporarily suppressed pending the outcome and completion of the trial of the co-offender or, indeed, in one case of an offender in a related but different trial. It is my perception that the delayed publicity given to those cases has not thus deprived the public of their right to know about the case and thus has not prevented public scrutiny of the work of this Court.

64 In extending the suppression beyond the verdict in this case I do, of course, make one qualification. I have decided that it is appropriate to extend that suppression at this stage based on what is now understood about the issues in the drug trials and the understanding that those drug trials, if they are not to proceed later this year, will proceed at least some time in the first part of next year. It may be that matters might change either because of what occurs in the present case, what occurs in the later case or the issues in the later cases may change. I do not, of course, invite an application to reopen this issue; however, what I say in relation to this current application must be understood as being based on my understanding of what will transpire in the drug cases which are to come.

65 Finally, I am driven to make one final remark. So far in considering the issue before me I have done so on the assumption that any reporting of this proceeding would be fair and accurate. Regrettably, I am driven to observe that I am not entirely confident that that assumption would hold good if I were to permit its reporting. I have two principal reasons for making that remark: firstly, the publicity which I have thus far read in the course of the stay application has shown me that the media and, indeed, the entertainment industry has had an insatiable proclivity to sensationalise allegations relating to the accused and to give them far greater prominence than they deserve.

66 Ordinarily, I agree with the observations of Cummins J in David Syme & Co v Arnold and Ors[5] that this Court should proceed on the basis that the media will report the proceeding in a fair and accurate way and I have indeed proceeded on that assumption. However, in this case, in my view, such an assumption would be well nigh to be naive. It would not, I think, be sensible to anticipate that if these matters were the subject of publicity, that publicity would be a fair and accurate report of the proceedings but, rather, the more sensational or more salacious parts of the case would be given greater prominence than perhaps other matters which ought to be the subject of proper publication.

67 Secondly, as I stated during submissions, it is the regrettable experience, certainly of this Court and I believe of other courts, that the media have from time to time strayed well away from giving a fair and accurate report of proceedings in this Court. That dereliction was of such substance that Harper J was driven to comment on it of necessity in his sentence in the matter of DPP v MM[6]. In my experience the type of matters referred to by Harper J in those sentencing remarks are not uncommon.

68 This matter, of course, is relevant because ultimately, while I have concluded that a fair and accurate report of these proceedings would have a real and substantial risk of prejudicing the fair trial of Mr Mokbel, there is, I consider, a significant risk that this trial would not attract fair and accurate reporting and that the unfair and inaccurate parts of it would be even more prejudicial to the accused.

69 Those remarks, however, may not be necessary because, in any event, I have concluded that a fair, accurate and faithful reporting of the proceeding would not only prejudice the fair trial of this proceeding but also the drug proceeding.

70 For those reasons, I will not accede to the submission made on behalf of the media to vary my order of 15 April 2009.

Supreme Court of Victoria

R v Mokbel (Ruling No 2) [2009] VSC 652 (19 August 2009)