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Mokbel v The Queen

Mokbel v The Queen

Case [2021] VSCA 366 21 December 2021

Conviction

Public Interest Immunity

Statutory Interpretation

Appeal

Criminal Law

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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…

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 [2021] VSCA 366
Case: [2021] VSCA 366
Decision Date: 21 December 2021

CaseChat Overview and Summary

The matter in Mokbel v The Queen involved the respondent, the Crown, and the applicant, a criminal defendant, with the case being heard in the High Court. The dispute centred on the applicant's application for leave to appeal against his conviction, particularly regarding the handling of sensitive information protected by statutory provisions. The central legal issue was whether the applicant's affidavit and submissions should be provided confidentially to his lawyers, or if an amicus curiae should be appointed to assist the court.

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