Goussis v The King
[2022] VSCA 197
•15 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0040 |
| EVANGELOS GOUSSIS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McCANN JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 September 2022 |
| DATE OF JUDGMENT: | 15 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 197 |
| JUDGMENT APPEALED FROM: | [2009] VSC 16 (King J) |
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CRIMINAL LAW – Application for second appeal against conviction – Production of documents – Public interest immunity – Statutory prohibitions against disclosure – Whether hearing in camera or in absence of parties – Whether contradictor required – Whether material should be provided to applicant’s counsel – Whether amicus curiae should be appointed – Applicant’s counsel to act as contradictor upon confidentiality undertaking – Chief Commissioner’s affidavits and submissions to be provided to applicant’s counsel.
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| Counsel | ||
| Applicant: | Mr P Smallwood with Mr T Antos | |
| Respondent: | Ms A Martin | |
| Chief Commissioner of Victoria Police: | Mr A Dinelli with Ms J Wang | |
Solicitors | ||
| Applicant: | James Harris Lawyers | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
| Chief Commissioner of Victoria Police: | Victorian Government Solicitor | |
MCCANN JR:
Pursuant to orders made under s 317 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) by Judicial Registrar Pedley on 29 September and 23 November 2021, the Chief Commissioner of Victoria Police (‘CCP’) has produced documents to the Registrar of the Court of Appeal over which he has applied redactions. The CCP asserts that the redacted portions include material that ought not be released to the applicant, citing both public interest immunity (‘PII’) and statutory prohibition.
The CCP’s position is that the hearing and determination of the claims he makes ought be in camera and in the absence of the legal representatives of the parties to ensure the security of the subject documents.
In submissions dated 18 July 2022, the applicant asserts that a contradictor should be present for the consideration of the CCP’s claims in relation to the documents. The applicant submits that either his counsel, on undertaking not to disclose the material including to the applicant, or amici appointed for this purpose, should fulfil the role of contradictor. In his response dated 27 July 2022, the CCP submits that the issues for determination do not require assistance beyond that provided by his counsel and that there is no need for a contradictor. However, should the Court determine that assistance is required, the CCP submits that this should be provided by amici.
The preliminary question to be determined is whether the Court ought to be assisted by a contradictor in the task of determining the PII and statutory prohibition claims. If so, the next question relates to who should fill the role of contradictor.
Having considered the detailed written and oral submissions, I am of the view that the Court will be additionally assisted by a contradictor and that counsel for the applicant is best placed to fill that role, upon making the appropriate confidentiality undertakings.
Procedural Background
On 29 May 2008, the applicant was convicted of the murder of Lewis Moran (‘Mr Moran’) and intentionally causing serious injury to Herbert Wrout (‘Mr Wrout’) following trial. On 9 February 2009, he was sentenced to life imprisonment with a non-parole period of 30 years.[1]
[1]This sentence was ordered to be served concurrently with a 20 year sentence imposed on the applicant on 3 May 2006 for the murder of Lewis Caine.
On 31 March 2004, Mr Moran was shot and killed and Mr Wrout was shot and injured at the Brunswick Club. The offending was committed by two gunmen wearing balaclavas. At trial, the Crown case was that those gunmen were the applicant and Noel Faure (‘Mr Faure’) and that the applicant shot and killed Mr Moran and Mr Faure shot and injured Mr Wrout.
The principal Crown witness at trial was Jack Price, a pseudonym (‘JP’). The Crown case was that JP was engaged to kill Mr Moran by Carl Williams and Tony Mokbel and that JP had enlisted Mr Faure and the applicant to assist. JP gave evidence that he drove the applicant and Mr Faure both to and from the club. He pleaded guilty to Mr Moran’s murder and was sentenced to life imprisonment.
The applicant sought leave to appeal this conviction, which was refused by this Court. His application for special leave to the High Court was also refused.
The applicant now applies to this Court for leave to appeal against his conviction for a second time pursuant to Part 6.4 of the CPA.[2]
[2]Notice of application for leave to appeal against conviction filed on 20 April 2021.
In his written case, the applicant states that JP’s credibility was a central issue in his trial for the murder of Mr Moran.
On 11 October 2007, JP pleaded guilty to the murder of Shane Chartres-Abbott on 4 June 2003. JP implicated the applicant and two co-accused in the murder and gave evidence in their subsequent trial.[3] On 8 July 2014, all accused were found not guilty.
[3]That trial took place from May until July 2014.
The applicant asserts that evidence disclosed prior to and given by JP in the Chartres-Abbot murder trial is fresh and compelling in respect of his conviction for the murder of Mr Moran and intentionally causing serious injury to Mr Wrout. This is set out in his notice of application for leave to appeal against conviction filed on 20 April 2021 as follows:
Ground 1:There is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal and that establishes that there has been a substantial miscarriage of justice.
Particulars:
(a)The fresh and compelling evidence includes:
1.1:Seven covert recording transcripts relating to conversations between Jack Price (a Pseudonym) and investigators in relation to the Shane Chartres-Abbott murder.
1.2:Five unredacted statements made by Jack Price (a Pseudonym) revealing that he had confessed to murdering Shane Chartres-Abbott with a .357 Magnum revolver that he disposed of at Eastern Beach, Geelong, which was the same type of weapon used to murder Lewis Moran.
1.3:A sixth statement made by Jack Price (a Pseudonym) alleging that he had provided the Shane Chartres-Abbott murder weapon to David Waters, rather than the applicant as he stated in his first statement, and the perjury committed by Price in 2007 that was illuminated by that disclosure.
1.4:The evidence that Jack Price (a Pseudonym) gave at the Shane Chartres-Abbott murder trial that he was not precluded by reason of his physical health, in particular his abnormal heart rhythm, breathing problems and injury to his right hand, from chasing Lewis Moran, discharging a revolver and running from the scene.
By an application filed on 8 June 2021, the applicant sought orders that the CCP produce certain categories of documents pursuant to s 317 of the CPA. On 29 September and 23 November 2021, this Court ordered that the CCP produce eight categories of documents. The CCP produced the documents over a period of almost two months. Redactions were applied over portions of the material on the bases of relevance, statutory prohibition and PII.
In submissions filed on 12 May 2022, the applicant objected to the redactions applied by the CCP. The CCP filed both open and confidential submissions, as well as an open and a confidential affidavit of Superintendent Timothy James McKinney, in support of the redactions.[4]
[4]All versions of the submissions and affidavit are dated 17 June 2022.
Submissions of the Chief Commissioner
In its submissions dated 27 July 2022, the CCP contends that there is no need for the Court to depart from the ‘orthodox’[5] approach in relation to PII claims and that it should read, assess and determine the claims itself assisted solely by counsel for the CCP.[6]
[5]Submissions of the Chief Commissioner of Police regarding confidential material dated 27 July 2022 [3].
[6]Ibid [4].
The CCP referred to authorities in relation to the approach to be adopted in securing sensitive documents. It submitted that the High Court has ‘set a very high barrier’ to the release of documents to legal representatives prior to the determination of PII claims.[7]
[7]Seymour v Price [1998] FCA 1224 [9] (French, O’Connor and North JJ) referring to the decision in Commonwealth v Northern Land Council (1993) 176 CLR 604 [638].
From the CCP’s oral submissions, I discerned that whilst there may be a ‘usual’ approach, there is no rule and that the issues relating to assistance from a contradictor, including when it is sought and from whom, are matters within the court’s discretion.
With respect to the form of any assistance, the CCP urged for the appointment of amici. It was submitted that this course would avoid the possibility of conflict for the applicant’s representatives. Additionally, the CCP asserted that the present case is a simple one, differing from other instances where amici have been appointed or circumstances where material was released to an applicant upon a confidentiality undertaking. I understand the CCP’s submission to mean that the subject documents are not so voluminous that there is ‘a real practical imperative’[8] for assistance beyond that available from counsel for the CCP, nor that the material and factual matrix underpinning the applicant’s claim are of such complexity that assistance from the applicant’s counsel should be preferred over amici.
[8]Seymour v Price [1998] FCA 1224 10.
The CCP also suggested that proceedings could commence in the absence of a contradictor and that one could be appointed should it become apparent that it is required.
Submissions of the Applicant
The applicant refutes the CCP’s suggestion of an ‘orthodox’ or ‘usual’ approach to securing sensitive documents, submitting that the approach needs to be tailored to the circumstances of each case. He submitted that relevant considerations include the level of complexity, the volume of material making up the case, the volume of the subject material and any particular need to achieve transparency for the applicant and the broader community. The applicant urged that the Court determine the question at the outset, rather than return to the issue during the course of consideration of the subject material in the absence of a contradictor.
Should the Court determine that assistance is required, the applicant submits that his counsel should take on the role of contradictor given their knowledge of the factual history of the matter and the ground of appeal. It is contended that this level of assistance could not be provided by counsel without such knowledge.
The evidence that the applicant contends is fresh and compelling in his single ground of appeal includes material that was generated by Victoria Police which was not disclosed to him until after his trial. In the circumstances, it was submitted that the involvement of the applicant’s own counsel would increase the level of trust he holds in the process undertaken and the conclusions reached in the determination of the CCP’s claims. Doubtless, it would also have an impact on the trust the applicant has in the appeal process as a whole.
In oral submissions, counsel for the applicant confirmed that his written and oral submissions were made on instructions following advice as to the ethical issues that may arise upon giving a confidentiality undertaking. Counsel also assured the Court that every caution would be exercised to avoid the risk of unwitting disclosure.
Submissions of the Respondent
The respondent did not seek to be heard beyond informing the Court that in the instance that the documents were released to either the applicant’s counsel or an amici, the Director did not seek access to them or to play any role in the further hearing of the PII claim.
Consideration and decision
As noted above, the applicant’s present application for leave to appeal against conviction relates to fresh evidence which was only revealed to him after he had exhausted his appeal rights.
It seems to me that in an appeal of this nature, and where the applicant has requested that the Court be provided with assistance beyond that offered by the CCP, I ought not to proceed without a contradictor. Having concluded that a contradictor will be required, the question arises as to whom ought fill the role.
The CCP submits that an amici should be appointed to assist the Court. It is true that this Court has been assisted in matters similar to the present by an amici appointed for this purpose. As observed by Beach JA in the matter of Mokbel v The Queen,[9] amici appointed for such a purpose would themselves be required to provide an undertaking and that the risk in respect of the dissemination of sensitive information would be no less than in the instance that the applicant’s own counsel provide such an undertaking.
[9][2021] VSCA 366 [17] (‘Mokbel’).
As outlined above, the CCP asserts that this is a simple case and that there is not a large volume of documents. Nonetheless, it is a second appeal with an intricate matrix of facts of both evidentiary and procedural relevance, all of which is in the current understanding of the applicant’s legal team. The volume of subject materials is also not determinative in itself. In Mokbel, Beach JA considered that the size of the task includes the materials required for an amicus counsel ‘to acquire an appropriate understanding of the circumstances of this case in order to properly answer the Chief Commissioner’s arguments resisting the disclosure of the subject documents.’[10]
[10][2021] VSCA 366 [15].
On this analysis, the appointment of amici fails to mitigate the risk in respect of the security of the subject documents as compared to the applicant’s own counsel. It also creates additional delay and cost and may be unlikely to provide the same level of assistance as would be provided by counsel with existing knowledge of the proceeding and the ground of appeal. As such, I am of the view that the applicant’s legal representative should fill the role of contradictor.
The release of privileged or prohibited documents to the applicant’s legal practitioners presents a potentially difficult ethical situation for them, a dilemma expressly referred to in the authorities provided by the CCP. The legal team for the applicant is highly experienced and has requested that the court proceed on the basis of undertakings. As such, I have confidence that they will be able to navigate the process for which they have advocated.
In balancing of the competing risks and reaching my conclusions, I have had regard to the authorities cited by counsel for the CCP.[11]
[11]Commonwealth v Northern Land Council (1993) 176 CLR 604; Roadshow Films Pty Ltd v iiNet Ltd (2011) 248 CLR 37.
As in the matter of Mokbel, the confidential submissions and affidavit filed by the CCP in this matter describe the subject documents and the privilege or prohibition which attaches to them in some detail. In my view, the provision of those materials alone to the applicant’s legal representatives will be sufficient for counsel to consider and counter the CCP’s objections to production, as well as consider the relevance of the material to the applicant’s case.
Subject to further submissions I will make orders and give directions in conformity with these reasons.
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