Farachi v The King - [2023] VSCA 253

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0016

GHAZWAN FARACHI	Applicant
v
THE KING	Respondent

---

JUDGES:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2023
DATE OF JUDGMENT:	27 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 253

---

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.

---

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…

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.

Continue reading Farachi v The King

Details

AGLC: Farachi v The King [2023] VSCA 253
Case: [2023] VSCA 253
Decision Date: 27 October 2023

CaseChat Overview and Summary

The applicant in this case sought orders for the production of certain documents from the Chief Commissioner of Police under section 317 of the Criminal Procedure Act 2009. The applicant's request was made in the context of a criminal proceeding, where the production of these documents was deemed necessary for the preparation of their defence. The Chief Commissioner objected to the production of the documents on the basis of public interest immunity, leading to a dispute that was brought before the court for resolution.

The legal issues before the court involved the interpretation and application of the provisions of the Criminal Procedure Act 2009, as well as the considerations of public interest immunity under the Evidence Act 2008. The court had to determine whether the documents in question should be produced to the applicant and, if so, whether any redactions were permissible. Additionally, the court needed to weigh the public interest in the disclosure of the documents against the potential prejudice to the administration of justice or the safety of individuals.

In delivering the judgment, the court considered the precedent set by previous cases such as Goussis v The King, Zirilli v The Queen, R v Szabo, and Royal Women’s Hospital v Medical Practitioners Board of Victoria. The court found that the documents contained sensitive information that, if disclosed, could undermine the public interest in the protection of certain individuals and the integrity of ongoing investigations. Consequently, the court upheld the claim of public interest immunity and ruled that the documents should not be produced to the applicant. The objections to the redactions were also sustained, leading to a final determination that the documents should remain protected from disclosure.

The court made orders that the Chief Commissioner of Police was not required to produce the documents to the applicant and that the objections to the redactions were upheld. This decision effectively protected the sensitive information contained in the documents from being disclosed in the criminal proceeding.

Orders