Mokbel v The Queen
[2022] VSCA 83
•6 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0180
| ANTONIOS MOKBEL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH, McLEISH and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 April 2022 |
| DATE OF JUDGMENT: | 6 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 83 |
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CRIMINAL LAW – Conviction – Application for leave to appeal against conviction – Abuse of process – Whether activities or involvement of Nicola Gobbo and/or failures to disclose such activities and involvement gave rise to substantial miscarriage of justice – Whether evidence obtained unlawfully or improperly – Whether undisclosed financial payments made by Victoria Police to prosecution witnesses gave rise to substantial miscarriage of justice – Multiple factual disputes in issue between parties – Referral of issues and matters to Trial Division for reference determination pursuant to Criminal Procedure Act 2009, s 319A – Appropriate terms of referral – Karam v The Queen [2022] VSCA 22 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Shann SC with Ms S Seoud and Mr P Coleridge | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr B Kissane QC with Ms R Sharp | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA
KENNEDY JA:
On 18 April 2011, the applicant pleaded guilty to one charge of trafficking a drug of dependence (MDMA) in not less than a large commercial quantity (the Quills matter), one charge of inciting the importation of a prohibited import (MDMA) (the Orbital matter), and one charge of trafficking in a drug of dependence (methylamphetamine) in not less than a large commercial quantity (the Magnum matter). On 3 July 2012, he was convicted on each charge and sentenced to a total effective sentence of 30 years’ imprisonment, with a non-parole period of 22 years.[1]
[1]R v Mokbel [2012] VSC 255.
On 17 May 2013, this Court refused the applicant leave to appeal against his convictions and dismissed the applicant’s appeal against sentence.[2] On 13 December 2013, the High Court refused applications for special leave to appeal from this Court’s decisions.[3]
[2]Mokbel v The Queen (2013) 40 VR 625; [2013] VSCA 13.
[3]Mokbel v The Queen [2013] HCA Trans 321.
Pursuant to s 326A of the Criminal Procedure Act 2009, the applicant now seeks leave to appeal for a second time against his convictions in the Quills, Orbital and Magnum matters. Section 326C of that Act provides that this Court may grant leave to appeal under s 326A, ‘if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’. The facts which the applicant relies upon as fresh evidence within the meaning of s 326C are as follows:
·Between 16 September 2005 and 14 January 2009, the applicant’s former lawyer, Nicola Gobbo, was a registered informer to, and agent of, Victoria Police. During this period, and with the encouragement of Victoria Police, she gave information to Victoria Police about the applicant, and acted contrary to his interests.
·Financial payments were made by Victoria Police to prosecution witnesses, the extent of which has not yet been disclosed.
In his application for leave to appeal, the applicant advances seven proposed grounds of appeal. The proposed grounds of appeal relate to the conduct of Ms Gobbo, as a police informer, the conduct of Victoria Police, and the conduct of the prosecution of the Quills, Orbital and Magnum matters.
In proposed grounds 1 to 4, the applicant contends that his convictions constitute substantial miscarriages of justice because the proceedings were fundamentally irregular on account of:
·Ms Gobbo’s conflict of interest in acting concurrently as lawyer to the applicant and agent for the police;
·Ms Gobbo having provided privileged and confidential information about the applicant to Victoria Police;
·the unlawful conduct of Victoria Police in recruiting and registering Ms Gobbo to work as their agent against his interests; and
·the unlawful and improper conduct of Victoria Police in the applicant’s extradition proceedings from Greece in 2007/2008.
In proposed grounds 5 to 7, the applicant contends that his convictions constitute a substantial miscarriage of justice because:
·the prosecution unlawfully failed to disclose Ms Gobbo’s status as an agent of the police to either the Court or the applicant;
·the evidence of Mr Bickley[4] and Mr Cooper[5] was unlawfully and/or improperly obtained; and
·financial payments made by Victoria Police to prosecution witnesses were not disclosed.
[4]A pseudonym.
[5]A pseudonym.
The applicant has filed a detailed written case in support of his application for leave to appeal. His written case relies upon more than 405 asserted facts[6] set out in a document headed ‘Applicant’s Amended Statement of Facts’[7] (the ‘AASOF’).
[6]Some of the individually numbered asserted facts contain subparts and/or multiple allegations of fact.
[7]Dated 10 September 2021.
The respondent has filed a lengthy and detailed response to the applicant’s written case. In its response, the respondent admits some facts, but disputes many others.
On 10 March 2022, the parties filed a document headed ‘Proposed List of Joint Facts’ (the ‘PLOJF’). The PLOJF lists all of the facts asserted in the AASOF together with the respondent’s response to each asserted fact. Broadly speaking, the PLOJF discloses, in respect to each asserted fact, whether the respondent admits, does not contest or denies that fact, or asserts that the fact is irrelevant, or should be viewed in any and what context.
The issue that now arises is how the facts in dispute between the parties (and which are alleged to underpin the applicant’s proposed grounds of appeal) might be resolved. Resolving the facts that are in contest between the parties, before then determining what (if any) legal consequences flow from those facts, appears from the documents presently filed to be a matter of some complexity.
On 10 March 2022, the respondent put forward a potential list of issues or matters for referral to the Trial Division pursuant to s 319A of the Criminal Procedure Act 2009 as follows:
(1)What was Ms Gobbo’s conduct between 15 September 2005 to 20 March 2006 (it is not in dispute that Ms Gobbo was acting for the applicant during this period in relation to both Plutonium[8] and Orbital) other than that agreed in the joint statement of facts?
[8]Plutonium (or ‘Paddle’) was another investigation involving allegations against the applicant.
(a) Were any of the things she told Victoria Police (either found or agreed) in this period relevant to the proposed grounds of appeal and or relevant to the three convictions?
(b) If so, were any of them privileged?
(2)What was Ms Gobbo’s conduct between 5 June 2007 and 25 July 2007 (ie during the period she was acting for the applicant in relation to the extradition proceedings) other than that agreed in the joint statement of facts?
(a) What did she actually do as the applicant’s lawyer (question of fact)?
(b) What did she tell Victoria Police in this period?
(c) Were any of the things she told Victoria Police in this period relevant to the proposed grounds of appeal or the extradition, or the three convictions?
(d)If so, were any of them (other than those agreed to be) privileged?
(3)What was Ms Gobbo’s conduct between 25 July 2007 to 17 May 2008 (ie post extradition hearing in Greece and before his extradition):
(a) What did Ms Gobbo actually do (question of fact)?
(b) Was Ms Gobbo engaged as the applicant’s lawyer?
(c) Were any of the things she told Victoria Police in this period relevant to the proposed grounds of appeal?
(d)If so, were any of them (other than any agreed to be) privileged?
(4)What was Ms Gobbo’s conduct between 18 May 2008 and 18 April 2011, in relation to the three convictions:
(a) What did she actually do (question of fact)?
(b) Was Ms Gobbo engaged as the applicant’s lawyer?
(c) Were any of the things she told Victoria Police in this period privileged?
(5)What was the significance, if any, of Mr Bickley, Mr Cooper, Mr Thomas[9] and Mr Hastings’s[10] evidence on the Quills conviction?
(6)To what extent did Ms Gobbo influence Mr Bickley, Mr Cooper, Mr Thomas and Mr Hastings’s decisions to give evidence against the applicant?
(7)Was there any impropriety (within the meaning of s 138 of the Evidence Act 2008 (Vic)) in relation to any evidence on the Quills brief as a result of Ms Gobbo’s involvement?
(8)What was the extent of Ms Gobbo’s involvement, if any, in Operation Magnum?
(9)Was there any impropriety (within the meaning of s 138 of the Evidence Act 2008 (Vic)) in relation to any evidence on the Magnum brief as a result of Ms Gobbo’s involvement?
(10)What was the extent of Ms Gobbo’s involvement, if any, in Operation Orbital?
(11)Was there any impropriety (within the meaning of s 138 of the Evidence Act 2008 (Vic)) in relation to any evidence on the Orbital brief as a result of Ms Gobbo’s involvement?
[9]A pseudonym.
[10]A pseudonym.
On 1 April 2022, the applicant filed a competing list of potential issues or matters for referral pursuant to s 319A as follows:
(1)In what ways did Ms Gobbo assist or attempt to assist Victoria Police in the investigations, extradition and prosecutions of the applicant?
(2)In what ways did Ms Gobbo assist or attempt to assist Victoria Police in the investigations and prosecutions of persons who became witnesses against the applicant?
(3)Was Ms Gobbo one of the applicant’s lawyers (or did he reasonably believe she was) while she was assisting or attempting to assist Victoria Police in the investigations, extradition and prosecutions of him (and, if so, during which period/s)?
(4)Was Ms Gobbo one of the applicant’s lawyers (or did he reasonably believe she was) at any time between her deregistration (on 13 January 2009) and him entering his plea of guilty (on 18 April 2011)?
(5)Was Ms Gobbo one of the lawyers of any or all of the persons who became witnesses against the applicant (or did they reasonably believe she was) during any or all of the periods that she was assisting or attempting to assist Victoria Police in the investigations and prosecutions of them?
(6)Which, if any, duties did Ms Gobbo owe to the applicant and the persons who became witnesses against him during any or all of these periods?
(7)Was Ms Gobbo’s registration and conduct as a human source for the third time done pursuant, at least in part, to a common purpose of Ms Gobbo and Victoria Police to ensure the applicant was charged and convicted of serious crimes?
(8)Did any or all of the investigations, extradition or prosecutions of the applicant involve conduct by Victoria Police and/or Ms Gobbo which was improper or unlawful or otherwise undermining of the administration of justice?
(9)Did the process by which those who became (and remained) witnesses against the applicant involve conduct by Victoria Police and/or Ms Gobbo which was improper or unlawful or otherwise undermining of the administration of justice?
(10)Did Victoria Police take steps (and if so what and when) to ensure Ms Gobbo’s conduct and its use of Ms Gobbo was not improper or unlawful or otherwise risked undermining the administration of justice?
(11)When (and in what circumstances) did Victoria Police know (or ought to have known) that its use of Ms Gobbo in relation to the applicant and/or persons who became witnesses against him was or may be improper and/or unlawful?
(12)To what extent do clear records now exist of the above including whether Victoria Police and/or Ms Gobbo made (or retained) clear records of:
(a)What precisely was communicated by the applicant to Ms Gobbo.
(b)What precisely Ms Gobbo communicated to police (including investigators).
(c)What precisely was done with the information communicated to Victoria Police.
(d)What precisely were Ms Gobbo and Victoria Police’s interactions with persons who became witnesses against the applicant (both before and after they made statements and including in relation to the content of their statements and oral evidence at committal hearings).
(13)What was the relationship between the investigations and prosecutions of Quills and Orbital?
(14)What effect would the exclusion of evidence obtained as a result of improper or unlawful conduct have had on the strength of the prosecution cases in Quills and Orbital?
(15) When did:
(a) Victoria Police;
(b) the Director of Public Prosecutions (Cth);
(c) the Director of Public Prosecutions (State);
know (or ought to have known) that some or all of the prosecution/s and/or extradition of the applicant may have been (or would be) adversely affected by Victoria Police’s use of Ms Gobbo? What (if any) steps were taken (and when) to notify the courts and/or applicant?
(16)Was any breach of the duty of disclosure deliberate? Why was it done? Was it done with the knowledge of senior police/prosecutors?
(17)Is the conduct of Victoria Police in relation to the applicant (including the failure to disclose) part of a broader pattern of high-level, deliberate and/or systemic improper and/or unlawful practices in relation to the use of Ms Gobbo/solving the ‘gangland war’.
(18)What has the applicant lost or potentially lost as a result of disclosure not commencing until the end of 2018 (and remaining incomplete — to the extent it has).
(19)Would the applicant have pled guilty to any/all of Quills, Orbital or Magnum if he had have received disclosure regarding Ms Gobbo’s status and conduct as a human source prior to 18 April 2011.
(20)In the absence of disclosure, was the applicant able to properly assess the strengths and weaknesses of the prosecution cases and/or properly assess whether it was in his best interests to agree to the plea bargain.
Following the filing of the competing lists of potential issues or matters for referral pursuant to s 319A, the parties filed detailed written submissions seeking variously to support the formulation of the issues and matters for which they contended and/or to cavil with the formulation of the issues and matters in their opponent’s list. The submissions descend into a level of detail about individual issues which it is not necessary or productive to reproduce in these reasons.
Broadly speaking, the respondent asserted that particular questions were too wide and needed refining to capture with greater precision the issues in dispute on the application for leave to appeal. Additionally, it submitted that some of the applicant’s issues and matters were not relevant.
A theme of the respondent’s submissions was that the question of whether any impropriety on the part of police or prosecuting authorities was intentional, or systemic, is not relevant. Similarly, the respondent contended that concessions made by it rendered some of the applicant’s proposed issues irrelevant.
The respondent also submitted that any issue or matter that might dispose of the application for leave to appeal could not be referred under s 319A. It was submitted that, while the referral power in s 319A is broad, it is only ‘specified issue[s] or matter[s] arising on an appeal or an application for leave to appeal’ which may be referred under the section.[11]
[11]See s 319A(2) of the Criminal Procedure Act 2009.
The applicant’s complaint about the respondent’s proposed list of issues and matters was that it was too narrow and would not pick up all of the factual disputes in issue between the parties. In relation to the states of mind, knowledge and motivations of members of Victoria Police, the applicant contended that these matters were relevant for the reasons identified in this Court’s decision in Karam v The Queen.[12]
[12]{2022] VSCA 23, [16]–[17] (‘Karam’).
While the applicant contended that his proposed list of issues and matters was the appropriate one to be referred under s 319A as being one which would capture all of the factual disputes between the parties, he accepted that some of his proposed issues were ‘framed broadly’. He said that this was ‘by design’, ‘[i]n a case in which there is a significant degree of indeterminacy as to what [the respondent] requires the applicant to prove, and where [the respondent] appears to be conducting further investigations which may affect the scope of the issues between the parties’.
Additionally, the applicant submitted that, when considering the breadth of the framing of the issues, it is also necessary to bear in mind that the judge hearing the s 319A referral will be ‘guided by the parties’ submissions’. As the applicant put it:
A broadly framed issue does not mean that the [judge hearing the referral] will be required to opine on every conceivable feature of Ms Gobbo or Victoria Police’s conduct.
Resolving the terms of the issues and matters to be referred
As this Court said in Karam,[13] this is not the occasion on which to consider the ultimate relevance of each of the facts relied upon by the applicant in support of his proposed grounds of appeal. Without in any way foreshadowing what the Court which ultimately hears the application for leave to appeal might conclude about the relevance of any particular facts, we are not persuaded that we should limit the referral under s 319A in the way contended for by the respondent. We see no basis for taking a different approach in this case from the approach taken by the Court in Karam. That is, having regard to the ultimate submissions the applicant wishes to make in his application for leave to appeal, we do not think that he should be shut out at this stage from establishing the facts he seeks to rely upon in relation to the conduct of Ms Gobbo, Victoria Police and others against whom he makes allegations.[14]
[13]Ibid [10].
[14]Ibid.
In particular, we do not accept that the applicant should be denied the opportunity of establishing that any relevant impropriety on the part of police or prosecuting authorities was intentional, or systemic. We repeat what this Court said in Karam concerning s 138 of the Evidence Act 2008, and the relevance of any abuse of process.[15]
[15]Ibid [16]–[17].
In an attempt to deal with the applicant’s submissions (that the respondent’s list of proposed issues and matters would not capture all of the relevant matters in dispute between the parties), the respondent suggested a number of additions to its list in order to meet the applicant’s argument. The additions, however, do not go far enough. The list as ultimately formulated by the respondent would, in our view, not capture all of the disputed facts and matters underlying the applicant’s proposed grounds of appeal. The respondent’s concessions made to date also do not justify a further confinement of the scope of the referral.
That said, there is force in the respondent’s contention that the applicant’s list is very broad. Having considered the parties’ written and oral submissions on the issue, however, we are persuaded that (with one exception) the applicant’s list of proposed issues and matters should be the subject of the referral under s 319A. The exception is that we will delete from issue (12) the words ‘the above including’ (they do not seem to add anything, and are only liable to cause confusion), and divide the issue as follows:
(12A)To what extent were clear records made of:
(a)Precisely what was communicated by the applicant to Ms Gobbo?
(b)Precisely what Ms Gobbo communicated to police (including investigators)?
(c)Precisely what was done with the information communicated to Victoria Police?
(d)Precisely what were Ms Gobbo and Victoria Police’s interactions with persons who became witnesses against the applicant (both before and after they made statements and including in relation to the content of their statements and oral evidence at committal hearings)?
(12B)To what extent do clear records now exist of the matters referred to in (12A)(a)–(d)?
In making a referral in these terms, we have not overlooked the respondent’s submission that s 319A does not permit this Court to refer the application for leave to appeal or the entirety of a proposed ground of appeal for a reference determination. We accept that s 319A does not permit this Court to refer out for determination an application for leave to appeal or an appeal or the entirety of any proposed ground of appeal.
While there may be some overlap between some of the issues and matters we will refer and this Court’s ultimate determination of the application for leave to appeal or one of the applicant’s proposed grounds of appeal, no issue or matter referred is dispositive of the application for leave to appeal or any of the proposed grounds of appeal. What is sought to be achieved by the referral is the resolution of matters of fact and matters of mixed fact and law in dispute between the parties, for the purpose of this Court determining the ultimate consequences of those matters following the hearing of the application for leave to appeal and any appeal.
Case management
During the course of oral argument, we asked senior counsel for the applicant for an estimate of the length of time required to conduct the s 319A referral if the applicant’s proposed list of issues and matters were the subject of the referral. Senior counsel replied, ‘many, many months’. This very pessimistic estimate was made on the basis that the respondent has objected to the admission of findings in a number of reports (including the Final Report, and any findings of, the Royal Commission into the Management of Police Informants[16]) and transcripts of the examination of witnesses in the matter of AB & EF v CD[17] and evidence from the Royal Commission.[18]
[16]See the respondent’s response to the applicant’s amended written case dated 3 December 2021, [121.1].
[17][2017] VSC 350 (Ginnane J).
[18]Response to the applicant’s amended written case dated 3 December 2021, [120.1].
Plainly, this matter requires intensive case management. While it is neither appropriate nor desirable for this Court to attempt some process of case management (case management being better undertaken by a single judge — and preferably the one who ultimately hears the s 319A referral), the following points may be made.
First, at some time prior to the completion of evidence in the s 319A referral, it would be desirable if the applicant, and then the respondent, set out the detail of the cases they will advance on the issues the subject of the referral. At the very least, the court should know what answers each side will contend for to the questions which have been referred. The detail in the answers for which the parties contend will limit the scope of what otherwise might be a never-ending exercise.
Secondly, while the respondent cannot be forced to admit matters which have already been the subject of evidence and/or findings in other proceedings, and may have legitimate reasons not to accept those findings in the context of the present proceedings, we would expect that (as a model litigant) it would not put in issue matters merely for the purpose of putting the applicant to the trouble of proving them for a second time or merely in the hope that a second going over of the same matters might produce a more favourable result so far as it is concerned.
Conclusion
There will be an order pursuant to s 319A of the Criminal Procedure Act 2009 that the issues and matters referred to in the applicant’s list of potential issues or matters for referral (with issue 12 being reformulated as set out in para 23 above) are referred, for the making of a reference determination, to the Trial Division of the Supreme Court constituted by a Judge of the Court.[19]
[19]See s 319A(2)(a) of the Criminal Procedure Act.
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