Goussis v The King - [2022] VSCA 197

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’)…

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 Goussis v The King

Details

AGLC: Goussis v The King [2022] VSCA 197
Case: [2022] VSCA 197
Decision Date: 15 September 2022

CaseChat Overview and Summary

Goussis sought a second appeal against his conviction in the High Court. The central issue was the production of certain documents which were subject to claims of public interest immunity and statutory prohibitions against disclosure. The court needed to decide whether the hearing should be conducted in camera or in the absence of the parties, whether a contradictor was required, whether the material should be provided to the applicant’s counsel, whether an amicus curiae should be appointed, and how to manage the confidentiality of the submissions made by the Chief Commissioner.

The High Court determined that the proceedings should be held in camera to protect the sensitive nature of the documents. The court found that a contradictor was necessary to ensure that the applicant’s interests were adequately represented and protected. It ruled that the material in question should be provided to the applicant’s counsel, who would act as the contradictor under a confidentiality undertaking. Additionally, the court decided that the Chief Commissioner’s affidavits and submissions should be shared with the applicant’s counsel to facilitate the contradictor’s role effectively. The court's decision was grounded in the need to balance the applicant’s right to a fair appeal with the imperative to safeguard sensitive information.

The court's approach was cautious, aiming to respect both the legal rights of the appellant and the public interest considerations at play. The final orders included the provision of the Chief Commissioner's affidavits and submissions to the applicant’s counsel, under strict confidentiality terms, and the appointment of the applicant’s counsel as the contradictor in the in camera proceedings. This decision underscored the High Court's commitment to ensuring a fair and balanced process in sensitive criminal matters.

Orders