SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0251
S EAPCR 2020 0180
| ANTONIOS MOKBEL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16, 21 December 2021 |
| DATE OF JUDGMENT: | 21 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 366 |
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CRIMINAL LAW – Conviction – Application for leave to second appeal – Public interest immunity – Prima facie statutory provision prohibiting disclosure of certain information – Application by CCP seeking order that he not be required to produce certain documents – Means by which application is to be heard and determined – Whether CCP’s affidavit and submissions should be provided confidentially to applicant’s lawyers, or whether amicus curiae should be appointed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms R Shann SC with Ms S Seoud | Sarah Tricarico Lawyers Pty Ltd |
| For the Respondent | Mr B Kissane QC with Ms R Sharp | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Chief Commissioner of Police | Ms S Maharaj QC with Mr J Bayly and Ms M Pekevska | Victoria Police |
BEACH JA:
In proposed ground 7 of the applicant’s amended notice of application to second appeal against conviction,[1] the applicant asserts that his convictions ‘constitute substantial miscarriages of justice as a result of the failure to disclose financial payments made by Victoria Police to prosecution witnesses’. By letter dated 16 February 2021, the applicant’s legal representatives requested that the Chief Commissioner of Victoria Police produce to the Court and the parties all documents in his possession ‘which detail any inducements provided to witnesses other than [Mr Cooper][2]’.
[1]See s 326A of the Criminal Procedure Act 2009.
[2]A pseudonym.
On 12 August 2021, the Chief Commissioner filed an application in this Court, together with a confidential affidavit of Assistant Commissioner Christopher Gilbert (‘the confidential affidavit’) and confidential submissions of the Chief Commissioner (‘the confidential submissions’). At the same time, the Chief Commissioner filed documents relating to expenditures made with respect to certain individuals (‘the subject documents’).
By his application, the Chief Commissioner seeks an order that he not be required to produce the subject documents or disclose their contents. The Chief Commissioner’s application has been served on the applicant and the respondent. The confidential affidavit, the confidential submissions and the subject documents, however, have not been served on either party.
The Chief Commissioner resists the production of the subject documents, and any requirement to serve the confidential affidavit and the confidential submissions, on the basis that the applicant has no legitimate forensic purpose in seeking their production and/or ‘because they are subject to a prima facie statutory prohibition on disclosure’ and/or because they are subject to public interest immunity (PII) in accordance with s 130 of the Evidence Act 2008 (Vic)’. As part of his case, the Chief Commissioner also contends that the subject documents ‘would not substantially assist the applicant in this proceeding’.
The Chief Commissioner’s application is fixed for hearing in this Court on 2 February 2022. Subject…
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- AGLC
- Mokbel v The Queen [2021] VSCA 366
- Case
- [2021] VSCA 366
- Decision Date
CaseChat Overview and Summary
The court examined the statutory provisions concerning the disclosure of certain information and the implications for the applicant's right to a fair trial. It was necessary to balance the public interest in maintaining the confidentiality of the information against the applicant's right to present his case fully. The court assessed whether the existing protections were sufficient or if additional measures, such as appointing an amicus curiae, were required to ensure that the applicant's legal arguments could be properly evaluated without compromising sensitive information.
In reaching its decision, the court determined that the applicant's affidavit and submissions should be provided confidentially to his legal team, as this approach would allow for an effective review of the application while maintaining the necessary protections. The court found that appointing an amicus curiae was not necessary in this instance, as the confidentiality measures in place were adequate to address the concerns raised. The court's ruling ensured that the applicant could pursue his application without compromising the integrity of the legal process or the protection of sensitive information.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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