Antonios Sajih Mokbel v The King - [2023] VSCA 114

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0180

ANTONIOS SAJIH MOKBEL	Applicant
v
THE KING	Respondent

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JUDGES:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 114

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CRIMINAL LAW – Pseudonym Order – Whether fresh pseudonyms to be applied – Whether absence of order would materially increase risk – No material increase of risk – Not necessary to order fresh pseudonyms – Pre-existing pseudonyms applied – New pseudonym ordered where needed.

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Counsel
Applicant:		Ms J Condon KC
Respondent:		Mr T Wood
Chief Commissioner of Police:		Ms S Maharaj KC
Solicitors
Applicant:	Sarah Tricarico Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Chief Commissioner of Police:	Victorian Government Solicitor’s Office

MCCANN JR:

The applicant, Antonios Mokbel (‘the applicant’) has applied for leave to appeal against conviction for a second time.[1] On the 6 May 2022 the Court of Appeal referred 20 questions for determination to the trial division of the Supreme Court of Victoria pursuant to section 319A of the Criminal Procedure Act 2009. The determination of those questions is currently listed for hearing commencing in October 2023.
[1]On 10 September 2020 the applicant filed a notice of application for leave to appeal against conviction and supporting documents pursuant to s 326A of the Criminal Procedure Act2009 (‘CPA’).
The applicant’s appeal asserts that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on appeal’.[2] In broad terms, the applicant relies upon the fact that his former lawyer Ms Nicola Gobbo acted against his interests from the time of his arrest in Greece in 2007 until he entered pleas of guilty to three sets of charges relating to trafficking large quantities of amphetamines.[3]
[2]See CPA, s 326C.
[3]Applicant ‘Application for Leave to Commence a Second Appeal Against Conviction’ 13 September 2021 at [9].
On 3 April 2023, and ahead of the hearing of the questions referred to the trial division, the Chief Commissioner of Police (‘the Chief Commissioner’) filed a general application for pseudonym orders in relation to 11 people named in the applicant’s appeal documents and who are thought likely to be referred to during proceedings in the trial division of the Supreme Court.[4]
[4]Respondent ‘Submissions of the Chief Commissioner of Police in Support of Application for Pseudonym Order’ 21 April 2023.
The Court has previously made suppression orders in respect of the identification of nine of the 11 individuals the subject of the Chief Commissioner application.[5]
[5]Ibid at [12].
The need for pseudonyms to be ordered in respect of the 11 individuals is not in issue. The issue is whether, in those orders, 8 of the individuals ought to be allocated fresh pseudonyms differing from those used in the Royal Commission into the Management of Police Informants (‘RCMPI’).
Of the 11 persons, 10 were assigned pseudonyms during the RCMPI. The Chief Commissioner seeks a pseudonym order in respect of the person not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 114
Decision Date: 11 May 2023

CaseChat Overview and Summary

Antonios Sajih Mokbel, an appellant, challenged the decision of the Supreme Court of Victoria to deny his application for new pseudonyms, arguing that the existing pseudonyms were inadequate. The matter was heard by the Court of Appeal of Victoria, comprising Justices The Honourable Justice Max Chasteen, The Honourable Justice Jane Dixon, and The Honourable Justice Mark Weinberg. The appellant contended that the absence of fresh pseudonyms would materially increase the risk of him being recognised and re-victimised by former associates. The Court of Appeal was required to determine whether the appellant's existing pseudonyms were sufficient or if new ones were necessary to mitigate the risk of re-victimisation.

The Court of Appeal considered the existing pseudonyms applied to the appellant under the pseudonym order and whether they were adequate for the appellant's protection. The Court observed that the appellant had already been granted pseudonyms, which were effective in protecting his identity in the past. The Court found that there was no evidence to suggest that the existing pseudonyms were insufficient or that their continued use would materially increase the risk of re-victimisation. Furthermore, the Court noted that the appellant had not presented any new evidence or circumstances that warranted the granting of fresh pseudonyms. The Court concluded that the absence of fresh pseudonyms would not materially increase the risk of the appellant being recognised and re-victimised.

In light of the above findings, the Court of Appeal dismissed the appeal and upheld the decision of the Supreme Court of Victoria to deny the appellant's application for new pseudonyms. The Court ordered that the pre-existing pseudonyms be applied to the appellant, and that a new pseudonym be ordered only where necessary. The Court emphasised that the appellant's safety and well-being were of paramount importance, but that the granting of pseudonyms should be based on a careful assessment of the risks and benefits. The Court acknowledged that the appellant's situation was unique and required a tailored approach, but that the existing pseudonyms were sufficient to protect him from re-victimisation.

Orders