Mokbel v The Queen - [2022] VSCA 83

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,…

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 Mokbel v The Queen

Details

AGLC: Mokbel v The Queen [2022] VSCA 83
Case: [2022] VSCA 83
Decision Date: 6 May 2022

CaseChat Overview and Summary

The case of Mokbel v The Queen involved a significant appeal against conviction in the context of criminal law. The applicant, Mokbel, sought leave to appeal against his conviction on the basis that there had been an abuse of process due to the activities of Nicola Gobbo, a former barrister turned informer, and failures to disclose her involvement. Mokbel contended that the undisclosed activities of Gobbo and related failures to disclose, including financial payments made by Victoria Police to prosecution witnesses, resulted in a substantial miscarriage of justice. The court was required to determine whether the evidence obtained was unlawful or improper and if the undisclosed financial transactions had indeed caused a miscarriage of justice.

The legal issues before the court included whether the activities of Nicola Gobbo and the undisclosed financial payments constituted a substantial miscarriage of justice, whether the evidence obtained was tainted by these issues, and if the failure to disclose these matters was a breach of procedural fairness. The court also had to consider the appropriate terms of referral to the Trial Division for a reference determination, in light of the recent decision in Karam v The Queen. The court's task was to carefully weigh the evidence and submissions from both parties, considering the implications of these disclosures on the fairness and integrity of the trial.

The court meticulously examined the evidence and submissions, applying the principles established in Karam v The Queen. It concluded that the issues raised were complex and required a detailed examination by the Trial Division. The court determined that the appropriate terms of referral would ensure that the Trial Division could thoroughly investigate the matters in issue, including the impact of Gobbo's activities and the undisclosed financial payments. The court granted leave for the appeal and referred the case back to the Trial Division for a comprehensive determination of the issues. The final orders included the referral of the case to the Trial Division and the setting of terms to guide that inquiry, ensuring that the applicant's claims could be fully and fairly examined.

Orders