Farachi v The King
[2023] VSCA 253
•27 October 2023
| 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: | 9 October 2023 |
| DATE OF JUDGMENT: | 27 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 253 |
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CRIMINAL LAW – Orders for production of documents pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Police – Objections to redactions – Production objected to on the basis of public interest immunity –[Redacted] – Claim of public interest immunity upheld.
Criminal Procedure Act 2009, Evidence Act 2008.
Goussis v The King [2022] VSCA 255; Zirilli v The Queen [2021] VSCA 2; R v Szabo [2001] 2 Qd R 214; [Redacted]; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.
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| Counsel | ||
| Applicant: | Ms K Farrell | |
| Respondent: | Mr T Wood | |
| Chief Commissioner of Police | Ms K Argiropoulos with Ms A. Roodenburg | |
Solicitors | ||
| Applicant: | Galbally Parker Lawyers | |
| Respondent: | Office of Public Prosecutions | |
| Chief Commissioner of Police | Victorian Government Solicitor’s Office | |
MCCANN JR:
Introduction
On 5 February 2009, Ghazwan Farachi (‘the applicant’) pleaded guilty to one count of trafficking 3,4-Methylenedioxymethamphetamine (‘MDMA’) between 1 February 2005 and 15 February 2005 and one count of trafficking in a large commercial quantity of MDMA between 1 August 2005 and 15 August 2005. In broad terms, the charges arose from the applicant’s conduct as a courier and assistant to Antonios Mokbel in the production of MDMA pills. He was sentenced by the County Court to seven years’ imprisonment with a non-parole period of four years and six months.
On 23 February 2022 the applicant applied to the Court of Appeal for an extension of time in which to file a notice of application for leave to appeal his conviction for these trafficking offences.
The applicant relies on a single ground of appeal:
There has been a substantial miscarriage of justice because of the failure to disclose, and concealment of the fact, that Nicola Gobbo, was a registered police informer, including her true role (and conflicts of interest) in acting for Mr Cooper, Mr Bickley and Mr Hastings.
On 4 April 2022 the applicant made an application for orders for production by the Chief Commissioner of Police (‘the Chief Commissioner’) pursuant to s 317 of the Criminal Procedure Act 2009 (‘CPA’). The Court made orders by consent on 19 July 2022.
The Chief Commissioner produced the documents to the Court and the legal representatives of the parties in redacted form.
On 21 December 2022 the applicant objected to the redactions applied to 37 of the documents so produced.
On 23 January 2023 the Chief Commissioner provided to the Court an ‘Index of objected documents re-produced 23 January 2023’. Legal representatives for the applicant were permitted to inspect these documents with some of the redactions removed after giving undertakings not to copy or share the content with any person other than the Court, other legal representatives of the applicant who had given identical undertakings and/or the legal representatives of the Chief Commissioner.
Having inspected this batch of partially unredacted documents, the applicant revised down the number of documents still the subject of dispute. A similar process was conducted immediately prior to the hearing of the disputed redactions with a similar reduction in the area of dispute.
At the commencement of the hearing of the matter on 9 October 2023, the Court was advised that determination was only required in respect of seven pages of transcript along with two further documents. In respect of this reduced volume of material, the Chief Commissioner maintained his claim of public interest immunity (‘PII’) and the applicant maintained his objection, and sought the appointment of a contradictor.
Summary of decision
As a preliminary matter I concluded that there was no assistance I required in the review of the remaining documents and consideration of the PII claim and did not appoint a contradictor. Having considered the submissions and material, open and confidential, filed by all parties, the PII claims of the Commissioner will be upheld.
Submissions
The Chief Commissioner filed open and confidential submissions along with an open and confidential affidavit of Detective Inspector Scott Wallace. By the day of the hearing these documents and oral submissions related to:
(a)Seven pages of redacted transcript (‘the transcript’) from the Royal Commission into the Management of Police Informants (‘RCMPI’);
(b)Two documents in respect of which PII was claimed in their entirety (‘the further documents’).
The applicant provided written submissions outlining their objection and supporting their request that an amici be appointed to assist the Court in the consideration of the documents. The applicant sought that his legal representative be appointed as contradictor.
As the decision in Goussis makes clear, the approach to be taken or the process adopted in the determination of claims of PII will vary from case to case.[1] In any given case what is required is ‘a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate’.[2]
[1]Goussis v The King [2022] VSCA 255 (‘Goussis’).
[2] Ibid [23].
The applicant’s appeal
In this case the applicant brings an application for leave to appeal a conviction following a plea of guilty. The applicant’s counsel correctly stated that, pursuant to s 276(1), to be successful in his appeal the applicant needs to satisfy the Court that there has been a substantial miscarriage of justice. There was some discussion about the height of the bar to overcome in demonstrating a substantial miscarriage of justice following a plea of guilty. The Court in Zirilli said that:
It is accepted that an applicant must demonstrate ‘very exceptional circumstances’ before this Court, following a plea of guilty, will grant leave to appeal against conviction. The applicant will generally need to show that, upon the admitted facts, he or she could not in law be convicted, or that there has otherwise been a substantial miscarriage of justice.[3]
[3]Zirilli v The Queen [2021] VSCA 2, [10] (footnotes omitted).
The authorities relied upon in in support of the proposition in Zirilli were not determined in respect of applications made under Part 6.3 of the CPA. It is a statement in the context of a s 317 application rather than the appeal against conviction itself, but needs to be in the parties’ contemplation as these appeal proceedings unfold. Counsel for the respondent submitted that there is ‘complex interplay’ between the concept of ‘exceptional circumstances’, referred to in Zirilli, with the requirement of a ‘substantial miscarriage of justice’. What is clear is that the threshold is high.
The applicant was not represented by Nicola Gobbo (‘Ms Gobbo’). His ground of appeal, as currently formulated, relies solely on the failure to disclose Ms Gobbo’s status as police informer, and also the legal representative for Mr Cooper, Mr Bickley and Mr Hasting.
Counsel for the appellant submitted that the substantial miscarriage of justice in this case would arise from actual unfairness flowing from that failure. In his written case he also postulates that the failure to disclose might also:
(a)lead to a perception in a fair-minded observer that there has not been a fair trial;[4]
(b)have denied him the opportunity to cross examine Mr Cooper about payments he received.
[4]R v Szabo [2001] 2 Qd R 214.
Ahead of the applicant’s plea of guilty to the trafficking charges he had disclosed to him the evidence that was to be called by the prosecution and the identity of the witnesses who were to give that evidence. What the applicant did not know was the role of Ms Gobbo as an informer and, what he describes as, her ‘true role’ in acting for each of the witnesses against him. It is the non-disclosure that is pivotal to his ground of appeal. It is information relating to this non-disclosure or the information not previously disclosed about her true role that is sought to establish the unfairness (or the perception of it), impropriety or illegality and thereby the substantial miscarriage of justice.
The appointment of a contradictor
In the case of Goussis[5] Beach J identified a number of practices that might be adopted in determining a PII claim:
The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material. The appropriate course to be taken requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate.[6]
[5]Goussis [2022] VSCA 255.
[6]Ibid [23].
His Honour also observed that factors that may tell in favour of granting the applicant’s legal representatives permission to inspect confidential material included:
(a)‘The saving of court time and scarce judicial resources’; and
(b)‘in circumstances where there have been issues about material not being disclosed by Victoria Police to accused who have been convicted of serious offending and sentenced to substantial terms of imprisonment… it is in the interests of justice that those caught up in the criminal justice system believe that it’s processes are fair’.[7]
[7]Ibid [28]–[29].
Neither factor is singularly dispositive. Each case will turn on its facts.
In this case, the volume of material that fell to be considered was small, totalling 19 pages. The applicant had provided the Court with written and oral submissions on the nature of their appeal, the issue it raised and the applicable legal principle in respect of PII claims.
Further, prior to the hearing there had been the sensible provision by the Chief Commissioner of documents in partially unredacted form on undertakings by legal representatives allowing the applicant to appreciate the relevance of some of the material contained in the documents. This process occurred between the parties to the dispute themselves without an order of the Court and facilitated a reduction in the volume for determination to seven pages of sparsely redacted transcript and 12 entire pages in the further documents. It also confined the issues in dispute and thereby the matters for determination.
In this case, the size of the dispute and the manner in which it has come to the Court meant that a determination is readily undertaken by the Court without assistance beyond the general submissions of the applicant and respondent, the detailed written submissions of the Chief Commissioner and the inspection of the documents.
I announced my decision in respect of the process to be adopted prior to hearing further submissions from the applicant on their appeal.
The general legal principles applicable in the determination of PII claims were set out in detail by the Chief Commissioner in their open submissions and affidavit. The applicant took no issue with the applicable principles.
Relevant principle – the balance
At common law, a claim of PII must ‘pass an initial hurdle … to establish that the class of documents in question … are governmental in character’.[8] This initial hurdle at common law, is described as matters of state in the Evidence Act 2008 (‘the Evidence Act’).
[8] Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, [35].
Section 130(1) of the Evidence Act provides that:
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Section 130(4) of the Evidence Act provides that:
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
Once the class of documents is established, the initial hurdle is overcome. The common law then directs a balancing exercise be undertaken.
The required balance is captured by s 130(1) of the Evidence Act; the public interest in admitting the information into evidence is weighed against the interest in maintaining confidentiality in relation to that information.
Section 130(5) sets out matters relevant in the balancing exercise:
(1)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
The principles and process must then be applied in the context of the case, in this case being an application for leave to appeal against conviction. The public interest in maintaining confidentiality must be balanced against the potential significance of the masked information to the ground of appeal in the applicant’s application as argued in his written case.
Consideration
I am satisfied that the information not previously revealed to the applicant in the redacted portions of the transcript pages and the further documents falls into the broad category of matters of state and so the risks associated with revelation must be weighed against the potential assistance this information might provide to the applicant’s case. [Redacted].[9]
[9][Redacted]
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.
Having reviewed each of the seven pages of transcript with redactions that remain contested, I could find nothing that would be of assistance to the ground of appeal or grounds that might conceivably be developed by the applicant.[10]
[10]See paragraph 17 above.
Similarly, the further documents do not contain any information in relation to Ms Gobbo; her role as an informer or as legal representative for the witnesses.
As there is no assistance that can be derived by the applicant from the confidential information in either the transcript or further documents it follows that the Chief Commissioner’s claim of PII in relation to that confidential information should be upheld.
RCMPI Redactions
As a final matter, I note that the applicant and Chief Commissioner reached a consent position in relation to redactions applied by the RCMPI to the transcript of Commission proceedings. A small number of the pages from the transcript were provided to the Chief Commissioner with solid redactions applied by the RCMPI. The Chief Commissioner has not been able to have them removed nor has he been able to locate copies of unredacted transcript. In the event that less redacted copies of these pages come to the attention of the Chief Commissioner, he agrees to disclose to the applicant the version of the transcript previously produced to the applicant with the RCMPI opaque redactions removed subject to any PII claim that the Chief Commissioner may wish to pursue in respect of the information that sits behind those redactions.
The Court requests that the parties confer to provide an order in the terms outlined in this judgment including the consent order in relation to the RCMPI redactions.
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