Farachi v The King
[2024] VSCA 239
•17 October 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0016 |
| GHAZWAN FARACHI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McCann JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 September 2024 |
| DATE OF JUDGMENT: | 17 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 239 |
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CRIMINAL LAW – Appeal – Application by Chief Commissioner of Police for non‑disclosure order pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 – Where amicus curiae appointed as contradictor – Where subject document is of relevance to the issues raised in the appeal – Where subject document could have been used to impeach the credit of the principal witness against the applicant – Where evidence might be challenged as having been improperly or unlawfully obtained pursuant to s 138 of the Uniform Evidence Act 2008 – Claim for public interest immunity – Application of s 130 of the Uniform Evidence Act 2008 – Where release of the document would create a risk [redacted] – Where interests of justice require non‑disclosure of the subject document.
Criminal Procedure Act 2009; Uniform Evidence Act 2009.
Farachi v The King [2023] VSCA 253; Roberts v The Queen [2020] VSCA 58; 60 VR 431; Chief Commissioner of Police v Crupi [2024] HCA 34; [Redacted]; Gavanas v The King [2022] VSCA 271; 304 A Crim R 503.
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| Counsel | ||
| Applicant: | No appearance | |
| Respondent: | No appearance | |
| Chief Commissioner of Police | Mr J Bayly | |
| As Amicus Curiae | Mr G Hughan | |
Solicitors | ||
| Applicant: | -- | |
| Respondent: | -- | |
| Chief Commissioner of Police | Victorian Government Solicitor’s Office | |
| As Amicus Curiae | -- | |
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MCCANN JR:
Introduction
In Mr Ghazwan Farachi’s (‘the applicant’) appeal against conviction the Court has previously ordered production to the Court by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’).[1] The Court has also previously upheld the Chief Commissioner’s claims of public interest immunity in relation to some of the information contained in those documents.[2]
[1]Orders for production pursuant to s 317 of the Criminal Procedure Act2009 were made on 19 July 2022.
[2]There was an exchange of partially unredacted documents.
The Chief Commissioner has now applied to the court pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 (‘CPA’) and s 130 of the Uniform Evidence Act 2008 (‘UEA’) to be excused from disclosing a further document (‘the document’). The document was referred to in submissions filed by the Chief Commissioner in the previous claim of public interest immunity made by the Chief Commissioner but was then not included in the documents the Court was ultimately asked to consider in that determination.[3]
[3]Farachi v The King [2023] VSCA 253, [9].
Because the Chief Commissioner has subsequently concluded that he may be obliged to disclose this document pursuant to his obligations pursuant to the CPA and/or his common law duty of disclosure, he seeks to be excused from doing so by order of the Court.
Neither the applicant nor respondent were provided with the document. Both were provided with the Chief Commissioner’s open submissions and affidavit material. The applicant filed some submissions on the issue of the non‑disclosure of the document. These were necessarily brief and broad. On 12 March 2024 the respondent advised the Court that they did not intend to file submissions in relation to the non‑disclosure application. On 13 March 2024, the respondent further advised that they did not seek to be heard on the application. The respondent also sought to be excused from further hearings in respect of the Chief Commissioner’s application.
Although the Chief Commissioner is the applicant in respect of the document the subject of this determination, he is referred to throughout as the Chief Commissioner rather than the applicant to avoid confusion.
After reading the submissions and inspecting the document, I decided that the Court would benefit from further assistance in determining the issues raised in the application of the Chief Commissioner and adjourned the matter for an amicus curiae to be appointed.
Having read the submissions and heard argument from both the amicus and Chief Commissioner, it is now clear that the document is of relevance to the issues raised in the appeal. The fact of the document, or its contents, might be used in argument about the admissibility of evidence or, as contended by the amicus, to impugn the credit of a witness. [Redacted].
Counter to this, the Chief Commissioner argues that the release of the document would [redacted], I have concluded that the document should be protected by public interest immunity. Consequently, I will make a non‑disclosure order, pursuant to s 416A of the CPA. These are my reasons.
What is sought by the Chief Commissioner?
In February 2024 the Chief Commissioner filed submissions informing the Court and the applicant that he had formed the views that:
(a)the document was not relevant, but
(b)may conceivably be disclosable pursuant to the prosecution’s statutory ongoing obligation of disclosure under the CPA and/or the prosecution’s common law duty of disclosure.[4]
The Criminal Procedure Act provisions
[4]Chief Commissioner, ‘Open submissions of the Chief Commissioner of Police’ 23 February 2024; Chief Commissioner, ‘Confidential Submissions of the Chief Commissioner of Police’ 7 February 2024.
Section 110(e)(vii) of the CPA now expressly provides that material relevant to the credibility of a witness is subject to the prosecutorial duty of disclosure:
Contents of hand‑up brief
A hand‑up brief must contain—
…
(e)any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence including—
…
(vii)subject to section 32C of the Evidence (Miscellaneous Provisions) Act 1958, a copy of any information, document or thing that is relevant to the credibility of a witness for the prosecution; and
Section 111(1) (b) of the CPA provides:
Continuing obligation of disclosure
(1)This section applies to any information, document or thing that—
…
(b)would have been required to be listed, or a copy of which would have been required to be served, in the hand‑up brief.
Section 416 of the CPA provides:
Disclosure of material by prosecution
(1)Nothing in this Act derogates from a duty otherwise imposed on the prosecution to disclose to the accused material relevant to a charge.
(2)Nothing in this Act requires the prosecution to disclose to the accused material which the prosecution is required or permitted to withhold under this or any other Act or any rule of law.
In relation to the Crown’s duty of disclosure at common law, the court said in Roberts that:
It is now accepted that it is fundamental that there must be full disclosure in criminal trials. It is a ‘golden rule’. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.[5]
[5]Roberts v The Queen [2020] VSCA 58; 60 VR 431, [56] (citations omitted).
In this case, the Chief Commissioner has, ‘out of an abundance of caution’, sought an order pursuant to s 416A(3) of the CPA.
Section 416A of the CPA provides:
Application for non‑disclosure order
(1)At any stage in a proceeding under this Act, a person may apply for a non‑disclosure order if the person —
(a)is a party to the proceeding; or
(b)is a law enforcement officer or law enforcement agency that is in possession of, or that knows of, any information, document or thing relevant to the alleged offence; or
(c)is a law enforcement officer or law enforcement agency that is prohibited or restricted by statute from disclosing any information, document or thing relevant to the alleged offence; or
(d)is a person with a direct or special interest in the making of any order or other decision under subsection (3).
(2)In exceptional cases, an application for a non‑disclosure order may be made without giving notice to the accused.
Example
Exceptional cases may be where giving notice of an application, or the nature of the information, document or thing to which the application relates, will defeat the public interest.
(3)The court may make any order or other decision that it has the power to make, that has the effect of excusing or preventing the disclosure of information relevant to the alleged offence.
(4)Nothing in this section—
(a)limits the power of the court to make any order or other decision that it has power to make with respect to the disclosure of information, documents or things; or
(b)limits or otherwise affects the operation of a provision made by or under any other Act, including an Act of the Commonwealth, that prohibits or restricts, or that authorises a court or tribunal to prohibit or restrict, the disclosure of information for or in connection with any proceeding.
(5)The making of a non‑disclosure order does not affect or limit the prosecution’s duty of disclosure under this Act or any other law to disclose any information, document or thing—
(a)that—
(i)comes into the prosecution’s possession or comes to the prosecution’s notice after the order is made; or
(ii)becomes relevant to an issue in the proceeding that arose after the order is made; and
(b)that is relevant to an application for, or to review of, a non‑disclosure order.
The Chief Commissioner says that he is in possession of a document or thing that is not relevant to the applicant’s application in this appeal, but that may be disclosable. The Chief Commissioner’s position is however, that it is not disclosable, because;
(a)it does not contain any exculpatory evidence;
(b)it does not assist the applicant in his argument that evidence used against him was improperly or unlawfully obtained; and
(c)it does not assist him to formulate any viable ground of appeal.
In conclusion, the Chief Commissioner submits that the document is not disclosable and the result of the balancing test required by s 130 of the UEA is that the document should not be disclosed.
An application may be brought for a non‑disclosure order pursuant to s 416A(1)(b) where a law enforcement officer is in possession of ‘any information, document or thing relevant to the alleged offence’. The section does not provide for an application made in respect of information that is not relevant. The power for the court to make an order pursuant to s 416A(3) also relates to information that is ‘relevant’.
I have inspected the document and take a different view about relevance. It is unnecessary therefore to consider further the proper foundation of the Chief Commissioner’s application.
The Chief Commissioner seeks non‑disclosure based on a claim of public interest immunity. They seek it in respect of the entire document and submit that a balance of the factors to be considered pursuant to s 130 of the UEA weigh in favour of their claim.
Should the document be the subject of non‑disclosure?
Section 130 of the Uniform Evidence Act
Section 131A of the Evidence Act 2008 (‘the Act’) extends the application of the doctrine of public interest immunity contained in s 130 of the Act to material to be produced pursuant to disclosure obligations.[6]
[6]Chief Commissioner of Police v Crupi [2024] HCA 34, [15].
Where objection is taken to the production of material, that objection will be determined having regard to s 130 of the Act. The interpretation of that section is informed by the common law. In this case, the Chief Commissioner submits that I ought have particular regard to my own decision in Farachi [redacted].[7]
[7]Farachi v The King [2023] VSCA 253; [Redacted].
Section 130 of the Evidence Act describes the task for the Court in determining an objection to production in a series of steps. Section 130(1) contains the threshold requirement and relevant balancing act, requiring first that the evidence to be adduced must be properly categorised as relating to ‘matters of state’. Where that threshold is met the Court will determine whether public interest weighs in favour of preserving confidentiality or in favour of disclosure.
The exercise of determining whether the relevant material is properly categorised as relating to matters of state is informed by a non‑exhaustive list of considerations outlined in s 130(4). The balancing exercise is likewise informed by a non‑exhaustive list of matters required to be considered, as outlined in s 130(5). This balancing exercise compares the potential significance of the relevant information to the applicant’s case, weighed against the public interest in maintaining confidentiality of said information as it relates to matters of state.
[Redacted].
The public interest in the administration of justice requires that a party have access to evidence that is relevant to the issues in their case. It is this relevance that is to be balanced against any harm that might be caused by the release of the information the subject of the claim.
In this case, the Court has had the assistance of written and oral submissions from the Chief Commissioner and written and oral submissions in opposition from an amicus. This has assisted in identifying the competing interests; the risks and the potential assistance, and then in the testing of the seriousness and likelihood of the risk and the significance of the assistance.
It is for the Chief Commissioner to satisfy the Court that the public interest in maintaining the secrecy of the information outweighs the public interest in the administration of justice that requires that the applicant have access to materials that advance his case.
The previous decision in Farachi
On 9 October 2023 I heard the Chief Commissioner’s claims of public interest immunity in respect of 7 pages of transcript and two documents that had been produced in redacted form in response to an order for production pursuant to s 317 of the CPA.[8] The order for production was made by consent. The documents were from categories sought by the applicant. The hearing was conducted in closed court. Prior to the hearing, the applicant provided a broad outline of his interest in the documents. I upheld the Chief Commissioner’s claim in respect of those documents on the basis that there was no assistance that could be derived by the applicant from the confidential information in either the transcript or the further two documents.[9]
[8]The s 317 order was made on 19 July 2022.
[9]Farachi v The King [2023] VSCA 253, [40].
The current application is brought by the Chief Commissioner in respect of a different document. The relevance of this document to the applicant’s case on appeal must be assessed and balanced against the public interest in non‑disclosure argued by the Chief Commissioner.
That the Chief Commissioner’s public interest immunity claims in respect of this applicant have previously been upheld, by me or anyone else, is not a matter that I ought have regard to in considering the balance of the interests in respect of this document. I am to consider this document and the interests of this applicant in his appeal and the interests of the Chief Commissioner [redacted].
[Redacted]
[Redacted].[10]
[10][Redacted].
[Redacted].
[Redacted].
[Redacted].[11]
[11][Redacted].
[Redacted].
Application
What is the document?
The Chief Commissioner’s claim includes not only the contents of the document, but its nature and purpose.
I accept that the document is properly understood to be a matter of state. This was unchallenged by the applicant or the amicus.
Further, I accept that the risks in disclosure, deposed to in some detail in the confidential affidavit of Detective Inspector Scott Wallace of 6 February 2024, are real [redacted].
The balance that must be undertaken is described in s 130 of the Evidence Act. The interpretation of that section is informed by the common law.
[Redacted].[12]
What is the applicant’s case?
[12][Redacted].
I outlined the applicant’s case in my previous ruling in this matter:
The applicant made clear in written and oral submissions that the ground of appeal currently advanced is interim. Counsel for the applicant also made clear that his complaint is broad, relating to disclosure and the unfairness caused to him by the non‑disclosure of Ms Gobbo’s role with Victoria Police and the witnesses who made statements against him. Counsel for the applicant also emphasised that, as the interim case is currently framed, the applicant is not only seeking to establish that evidence in his case was improperly or illegally obtained.
The argument articulated in the written case suggests an unfairness ground that would widely encompass perceptions of unfairness and the lost opportunity to cross‑examine the offender witnesses. It may not be readily apparent in the interim formulation how a substantial miscarriage of justice has been occasioned by either following a plea of guilty.
What is clear, is that pivotal to the applicant’s appeal, and any argument about unfairness, is the non‑disclosure of the roles of Ms Gobbo. It follows that information not previously disclosed to him about Ms Gobbo’s role as police informant and her relationship with police witnesses will be of assistance to him, as will information that reveals efforts made previously to conceal these matters from him.[13]
[13]Farachi v The King [2023] VSCA 253, [35]–[37].
Having inspected the documents and read the confidential and open material, as well as the documents filed to date by the applicant, the amicus sought to highlight the use to which the fact of the document might be put in impugning the evidence of a witness against the applicant.
He observed that the applicant would also be assisted by evidence to bolster an argument that, unbeknownst to him, evidence against him was improperly obtained which, if it had been properly disclosed to him, would have lead him to take a different course. That different course may have included challenging the evidence in a trial.
The amicus accepted that the test of an appeal against conviction following a plea of guilty creates a high bar.
Both the Chief Commissioner and the amicus speculated in submissions about potential arguments regarding the admissibility of evidence that may have been run ahead of a trial or a decision to plead had the document been disclosed. These submissions included speculation about public interest immunity claims made at the time, the assessment of merits of evidentiary argument, their likelihood of success and their impact on versions of the case that might have been run. In an interlocutory process ahead of an appeal against conviction following a plea entered on 5 February 2009 these considerations have limited value. The real question is whether any of the information could assist [redacted] to advance a case that the applicant might reasonably make in his appeal.
Non‑disclosure of relevant material at the time of his prosecution deprived the applicant of the opportunity of seeking legal advice on the potential challenge to the evidence against him on the basis of the credit of the witness or the ways in which the evidence was obtained. The challenges may or may not have achieved positive outcomes.
Whether the information rises to the level that it had a negative impact on the outcome for the applicant such that justice miscarried is not a question for me but for the Court of Appeal.
Potential assistance to the applicant
Evidence to impeach the credit of the witness
The amicus submitted that the fact of the document could have been used to impeach the credit of the principal witness against the applicant, Mr Bickley. He submits that it demonstrates that false testimony was given.
The Chief Commissioner has argued that the applicant’s argument on appeal does not refer to the failure to disclose impeachment material. The Chief Commissioner also submits that the deprivation of impeachment material prior to trial will not be sufficient to demonstrate a substantial miscarriage of justice in an appeal against conviction following a plea of guilty.
The applicant’s written case is “interim/holding”. In that context, the fact that a ground or argument is not currently articulated may not to be a barrier. I understand that there is no Australian authority to support the submission made by the Chief Commissioner in relation to impeachment material in a conviction appeal following a plea of guilty.
The amicus took me to a passage from the applicant’s committal on [redacted] which contained answers given by Mr Bickley [redacted].
The amicus submitted that the fact of the document showed that Mr Bickley was not completely honest in the answers given at the committal that day; that the evidence of Mr Bickley was false.
In my view, the answers given by Mr Bickley in this passage of transcript are vague, broad and equivocal. The existence of the fact of the document is not so clearly inconsistent or contrary to the answers given by Mr Bickley to impeach or support an allegation or charge of perjury laid against him. Consequently, I do not share the amicus’ view about its potential impact on the credit of Mr Bickley.
I cannot find that it would [redacted] assist
Evidence unlawfully or improperly obtained
The applicant argues in his written case that had it been disclosed to him by Victoria Police that Nicola Gobbo, the lawyer for the witnesses against him, was a police informer providing information about her clients including Mr Bickley, he would have challenged the evidence. He would have argued that the evidence was improperly or unlawfully obtained pursuant to s 138 of the UEA.
The amicus submits that the fact of the document lends additional weight to an argument of impropriety that might have been advanced by the applicant.
The Chief Commissioner submits that the exclusion of the witness testimony of Mr Bickley pursuant to s 138 would face a number of hurdles, including of the type identified by the court in the appeal of Gavanas.[14]
[14][2022] VSCA 271, [64]; 304 A Crim R 503.
It is not necessary for me to go as far as conclude the likely success or otherwise of the applicant’s arguments to exclude evidence. As I have already observed, this is an interlocutory determination about a document. Whether the sequence of speculative outcomes required in the applicant’s favour present an insurmountable hurdle to the his claim that there has been a miscarriage of justice is a matter for the Court considering his appeal.
Whether the document would provide [redacted] assistance in the case he seeks to mount involves a consideration of the material he already has. In the assessment of the amicus:
The applicant is currently in possession of ample material by which he could seek to demonstrate that the evidence against him was ‘improperly or unlawfully obtained’.
In those circumstances, the applicant is not assisted in his argument about admissibility by the disclosure of the document.
Conclusion
In my view the document is relevant.
It is relevant to the issue of Mr Bickley’s credit, but the attack it would facilitate is in my view weak and certainly not of sufficient strength to outweigh the risks associated with its release.
It is relevant to arguments about impropriety in the use of Ms Gobbo to secure the evidence against him and ensure that it was given, but the applicant’s holdings are already ample. The document will not, therefore, [redacted] assist the applicant in advancing any case he might bring on the impropriety used to obtain evidence against him. The value of the document to the applicant does not outweigh the risk in its release.
I will order non‑disclosure of the document pursuant to s 416A of the CPA.
The court is grateful for the assistance provided by the amicus curiae in this matter.
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