Police Member 1 (a pseudonym) v Antonios Sajih Mokbel
[2025] VSCA 34
•13 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0153 |
| POLICE MEMBER 1 (A PSEUDONYM) & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Applicants |
| v | |
| ANTONIOS SAJIH MOKBEL & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | NIALL CJ, EMERTON P and J FORREST AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 January 2025 |
| DATE OF JUDGMENT: | 13 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 34 |
| JUDGMENT APPEALED FROM: | Mokbel v DPP (Suppression) [2024] VSC 784 (Beach JA) |
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COURTS AND JUDGES – Appeal – Refusal to grant suppression order – Whether order necessary to prevent real and substantial risk of prejudice to proper administration of justice – Applicants were witnesses against whom judge made findings of criminal conduct – Applicants had no opportunity to respond to findings – Whether judge failed to consider injustice and harm to applicants resulting from publication of their identities – Whether judge erred in failing to consider whether publication of identities would not advance the principle of open justice – Whether judge considered irrelevant and extraneous factors – Judge properly considered risk of loss of confidence in and access to justice – Primacy of principle of open justice – Not necessary to suppress identities of applicants – Leave to appeal granted – Appeal dismissed.
Open Courts Act 2014, ss 1(aa), 4, 14, 14A, 17, 18(1)(a).
Browne v Dunn (1893) 6 R 67; Hogan v Australian Crime Commission (2010) 240 CLR 651.
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| Counsel | |||
| Applicants: | Ms RL Enbom KC with Mr C O’Beirne | ||
| First Respondent: | Ms J Condon KC with Dr JR Murphy | ||
| Second Respondent: | Mr S Thomas | ||
| Intervener: | Mr MJ Hoyne | ||
Solicitors | |||
| Applicants: | Corrs Chambers Westgarth | ||
| First Respondent: | Sarah Tricarico Lawyers Pty Ltd | ||
| Second Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
| Intervener: | Thomson Geer | ||
NIALL CJ
EMERTON P
J FORREST AJA:
Introduction
The first respondent, Antonios Mokbel, has applied for leave to bring a second or subsequent appeal[1] against his convictions in July 2012 for serious drug offences. On 18 April 2011, he pleaded guilty to two counts of trafficking in a drug of dependence contrary to the Drugs, Poisons and Controlled Substances Act 1981 and one count of incitement to import 100 kg of MDMA contrary to the Criminal Code (Cth). He now contends that these convictions involved a serious miscarriage of justice because the proceedings against him were fundamentally irregular on account of the unlawful conduct of Victoria Police.[2] That conduct relates specifically to the use of Ms Nicola Gobbo as a police informer while she was acting as his lawyer.
[1]Pursuant to s 326A of the Criminal Procedure Act 2009.
[2]Mokbel v DPP (suppression) [2024] VSC 784, [1]–[2] (‘Ruling’); Mokbel v The Queen [2022] VSCA 83, [5]–[6] (Beach, McLeish and Kennedy JJA) (‘Mokbel CA’).
In May 2022, pursuant to s 319A of the Criminal Procedure Act, this Court[3] referred 25 factual issues arising in Mr Mokbel’s proposed appeal for determination by Fullerton J sitting in the Trial Division. In so doing, the Court sought findings that would form the factual basis upon which it could determine Mr Mokbel’s application for leave to appeal and any appeal for which leave was granted. Referral question 9 was as follows:
Did the process by which those who became (and remained) witnesses against [Mr Mokbel] involve conduct by Victoria Police and/or Ms Gobbo which was improper or unlawful or otherwise undermining of the administration of justice (or its appearance)?
[3]By orders made and amended between May 2022 and June 2024.
On 25 November 2024, Fullerton J published her findings (the ‘Reference Determination’)[4] to the parties to that proceeding (Mr Mokbel and the Victorian Director of Public Prosecutions) and the Chief Commissioner of Police.[5]
[4]Mokbel v The King [2024] VSC 725R (‘Reference Determination’).
[5]Ruling, [2].
In answer to referral question 9, Fullerton J made findings of unlawful conduct by the applicants, Police Member 1 and Police Member 2 (respectively ‘PM1’ and ‘PM2’ and collectively, ‘the police members’).[6] Her Honour found that the police members, along with two other police officers and Ms Gobbo, had engaged in a joint criminal enterprise to attempt to pervert the course of justice on or about 22 April 2006, when a person known as ‘Mr Cooper’ — an associate of Mr Mokbel — attended the St Kilda Road Police station for questioning, and subsequently agreed to plead guilty to certain charges and give evidence against Mr Mokbel. Mr Cooper was represented by Ms Gobbo at the time but, unbeknownst to him, Ms Gobbo was working for the police.
[6]Reference Determination, [1010].
The finding of criminality against the police members was sought by Mr Mokbel, who submitted that findings of criminal conduct should be made against the persons involved in orchestrating Mr Cooper’s plea.
Following discussion with counsel for the parties about concerns over whether counsel had complied with the rule in Browne v Dunn[7] when questioning the police members — to which we will refer in more detail later — Fullerton J’s chambers sent a restricted copy of the Reference Determination to the solicitors acting for the police members, together with an order that they notify the Court of any application by the police members to suppress their names from publication.
[7](1893) 6 R 67; Ruling, [24].
Suppression order proceeding
On 4 December 2024, pursuant to the inherent jurisdiction of the Court and/or s 17 of the Open Courts Act 2013 (the ‘Act’), the police members applied for a proceeding suppression order prohibiting ‘the publication anywhere in Australia of a report of the proceeding and any information derived from the proceeding, which identifies (by name, image or particulars) [PM1] and [PM2] as being the members who the Court has found were party to a joint criminal enterprise to attempt to pervert the course of justice’. The order sought is expressed to apply for the lifetime of each of PM1 and PM2.
The police members sought the suppression order on the ground that it was necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that could not be prevented by other reasonably available means: s 18(1)(a) of the Act.
The basis for the application was that the identification of the police members occurred in circumstances where they were not put on notice that findings of criminality would be sought against them and were given no opportunity to defend themselves; this, it was argued, meant that they would suffer reputational harm and harm to their wellbeing if their identities were disclosed.
Pursuant to s 11 of the Act, the Court notified relevant news media organisations of the police members’ application. Counsel for Nine Network Australia Pty Ltd, Seven Network (Operations) Pty Ltd, and The Herald and Weekly Times Pty Ltd (collectively, ‘the media parties’) appeared and were granted leave to be heard on the application.
On 18 December 2024, Beach JA refused the police members’ application for a suppression order, holding that the order was not necessary to prevent a real and substantial risk of prejudice to the proper administration of justice.[8]
[8]Ruling, [38].
The police members now seek leave to appeal against the refusal. The proposed grounds of appeal are detailed and are set out in full below. The principal contention is that the judge failed to have proper regard to the unfairness visited on the police members by the process engaged in by Fullerton J or to the harm that they will suffer from the publication of their identities. Both of these factors are said to give rise to a real and substantial risk of prejudice to the proper administration of justice by reducing confidence in and access to justice.
For the reasons that follow, the proposed grounds of appeal are not made out. The application for leave will be granted but the appeal will be dismissed.
Relevant provisions of the Act
Section 1(aa) of the Act specifies that one of the main purposes of the Act is ‘to recognise and promote the principle that open justice is a fundamental aspect of the Victorian legal system which maintains the integrity and impartiality of courts and tribunals and strengthens public confidence in the system of justice’.
Section 4 confirms the primacy of the principle of open justice and provides:
4Principle of open justice prevails unless circumstances require displacement
(1)A court or tribunal is to have regard to the primacy of the principle of open justice and the free communication and disclosure of information in determining whether to make a suppression order.
(2)A court or tribunal is only to make a suppression order if satisfied that the specific circumstances of a case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information.
The provisions of the Act governing the making of ‘proceeding suppression orders’, such as the one now sought, are ss 17 and 18(1).
Section 17 provides:
17 Court or tribunal may make proceeding suppression order
A court or tribunal on one or more of the grounds specified in section 18 may make a proceeding suppression order to prohibit or restrict the disclosure by publication or otherwise of —
(a) a report of the whole or any part of the proceeding;
(b) any information derived from a proceeding.
Section 18(1) reflects the terms of s 4 and relevantly provides:
18 Grounds for proceeding suppression order
(1)A court or tribunal other than the Coroners Court may make a proceeding suppression order if satisfied as to one or more of the following grounds —
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means;
Example
Another reasonably available means may be directions to the jury.
(b)the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;
(c)the order is necessary to protect the safety of any person;
(d)the order is necessary to avoid causing undue distress or embarrassment to a complainant or witness in any criminal proceeding involving a sexual offence or a family violence offence;
(e)the order is necessary to avoid causing undue distress or embarrassment to a child who is a witness in any criminal proceeding;
…
Section 14 provides that in making an order, the Court must be satisfied on the basis of evidence or sufficient credible information that the grounds for making the order have been established. Section 14A(1) requires a court making a suppression order to give a statement of reasons that sets out –
(a) the reasons for the terms of the order; and
(b)the reasons for the duration, grounds and scope of the information covered by the order.
However, no statement is required if, among other things, a statement would render the suppression order ineffective: s 14A(2)(d).
The course of the reference hearing
It is necessary to set out in brief compass what occurred before Fullerton J in regard to the evidence given by the police members.
In making the Reference Determination, Fullerton J conducted a hearing over 61 sitting days, in the course of which 38 witnesses gave evidence, 15 of whom were former or serving members of Victoria Police.
Each of the police members was called to give evidence. PM1 was compelled to do so by subpoena served by Mr Mokbel; PM2 was compelled by subpoena served by the Director. They each gave evidence over a number of days.
Prior to giving their evidence, both PM1 and PM2 applied for and were granted certificates under s 128 of the Evidence Act 2008. PM1 sought a certificate on the basis that his evidence might tend to prove that he had committed the offences of attempting to pervert the course of justice or misconduct in public office; PM2 sought a certificate because of his concern that he ‘may be exposed to a common law charge of perverting or attempting to pervert the course of justice (or conspiring to do the same) and/or misconduct in public office’.
Each of PM1 and PM2 was questioned extensively about his knowledge of and involvement in the arrangements at St Kilda Road Police station for Mr Cooper’s arrest and the circumstances surrounding Mr Cooper’s decision to plead guilty and give evidence against Mr Mokbel.
PM1’s evidence was interrupted for several days by a medical emergency and questions arose as to his ability to give further evidence. Detailed reports about PM1’s mental state were produced. Those reports were, in turn, relied on in the suppression order application.
It is common ground that in the course of either member giving evidence it was not squarely put to PM1 or PM2 that they had engaged in any criminal activity. In particular, it was not put to either of them that they had engaged in a joint criminal enterprise with Ms Gobbo and other police officers to attempt to pervert the course of justice in their dealings with Mr Cooper’s arrest and questioning. As the police members now submit, in respect of PM2, the high point identified by Mr Mokbel in argument was that it was put to PM2 in general terms that there was a plan for Ms Gobbo to be at the police station following Mr Cooper’s arrest. It was not put to PM2 that he had been part of that plan and nor were any particulars of the plan put to him, such as when and how the plan had been devised and with whom he had devised the plan.
However, after the close of evidence, in his written closing submissions on referral question 9, Mr Mokbel sought that a finding of criminal conduct against the police members be made by the judge. In her responsive written closing submissions, the Director pointed out that Mr Mokbel was seeking findings of criminality against the police members in circumstances where counsel had not complied with the rule in Browne v Dunn and neither PM1 nor PM2 had been put on notice during their evidence of the proposed finding. Mr Mokbel continued to seek the finding against the police members, but proposed a mechanism for dealing with the absence of notice, namely, that the police members could be given notice and then given an opportunity to be heard as to any restrictions on the publication of Fullerton J’s findings insofar as it contains information about them.
The issue was discussed in oral closing submissions which is set out in full in the Ruling of Beach JA. For ease of reference we reproduce it below. It began with Fullerton J referring to the concern expressed by the Director and continued:
HER HONOUR: My judgment will be published to the parties and then the parties and third parties who I will name at the time, will then be given an opportunity to invite me to ensure that the copy that is published publicly is appropriately changed, if appropriate, to ensure ongoing protections of various people and the like. Obviously, the judgment that goes to the Court of Appeal won’t look like that. But, I think that goes some very considerable distance to addressing what is put against you by the [Director]. Namely, that you are seeking a finding of criminality against various individuals, in circumstances where they were not informed in strict terms in advance, that those findings would be made although as the [Director] probably acknowledges, the s 128 certificates weren’t granted in the abstract. They were granted because of concerns that those officers had that — the questioning may expose them to criminal liability.
[MR MOKBEL’S COUNSEL]: Indeed, Your Honour.
HER HONOUR: So I think — I make that clear to the parties. Obviously, the Court of Appeal wants to get the judgment as quickly as possible, as does Mr Mokbel, for that matter. But there might be a slight delay before the matter is the subject of public record. It will be, but it may be in an abridged form.
[MR MOKBEL’S COUNSEL]: And just to assist, Your Honour, we have dealt specifically with this issue in our reply … and we say that the court may consider it appropriate … to [have] notice [given] … to these parties prior to the publication of judgment, to permit them to be heard as to restrictions. But, we certainly don’t agree that they’ve got an entitlement to be heard before Your Honour.[9]
[9]Ruling, [24].
A little later, counsel for the Chief Commissioner made the following request:
[CHIEF COMMISSIONER’S COUNSEL]: There was just one matter in respect of the notice issue that Your Honour just mentioned. I just thought it might be a convenient time to seek permission from the court, both on procedural fairness, but also a welfare issue, to share the submissions with those relevant members, so the first they don’t hear of it is in some months, in terms of a draft judgment. May I just seek - - -
HER HONOUR: Well, … I am disinclined, I should say, to allow or to require the parties to provide their submissions to third parties, because there are a great number of them. Similarly the court does not really want to take on the obligation of providing — as you know, they’re each 300 pages long, and that is just a huge administrative exercise. But surely the Commissioner and current and former members of the police service would be satisfied in knowing that they will be given the opportunity to be heard as to whether there will be any public publication, or public identification of any of them, having engaged in improper conduct or unlawful conduct at a later date. …
So I can’t, I think, oblige you. If the applicant — [to Mr Mokbel’s counsel], you don’t want to be sharing the applicant’s submissions?
[MR MOKBEL’S COUNSEL]: No.
HER HONOUR: It’s just too big a task. Because being clear, once they’re in the public arena, there’s no control over them really.
[MR MOKBEL’S COUNSEL]: No.
HER HONOUR: The press will want them. You know, other interested agencies will want them, and before we know it the matter is out of hand.
[MR MOKBEL’S COUNSEL]: Yes, and the matters that have been raised can be — we say — met by Your Honour’s proposal, which is to give forewarning prior to judgment as to whether or not there should be any redactions made over the judgment to protect those concerns. But not in advance of that.
HER HONOUR: No.
[MR MOKBEL’S COUNSEL]: No, it’s not appropriate, with respect.[10]
[10]Ruling, [25].
Her Honour decided to adopt the course proposed and made orders accordingly. The Director did not speak against that course.[11]
[11]In summary, counsel for the Chief Commissioner sought permission, on procedural fairness and welfare grounds, to provide the written closing submissions to the police members. Her Honour refused the request because of administrative concerns and confirmed that the mechanism proposed meant that the police members could at a later date be heard (if necessary) as to publication restrictions.
It is on this basis that the police members now submit that, as a result of the mechanism proposed by Mr Mokbel, which was not opposed by the Director, the proceeding took ‘an unconventional course’. Her Honour did not hear submissions about, or decide, whether she should abstain from making the finding of criminality sought by Mr Mokbel, in circumstances where the rule in Browne v Dunn had not been complied with and the police members had been deprived of the opportunity to respond to a serious charge of corruption. This course was followed because it was considered that any unfairness in making a finding of criminality against the police members in those circumstances could be remedied by the mechanism proposed by Mr Mokbel, which was the opportunity to seek publication restrictions and redactions.
The primary judge’s Ruling
Having set out the background to the application for the suppression order, the judge referred to the material filed in support of the application, namely, two affidavits of the solicitor for the police members, Daniel Marquet, sworn on 2 December 2024 and 4 December 2024 respectively. These affidavits exhibited transcript of the evidence given by the police members before Fullerton J, transcript of relevant discussion between Fullerton J and counsel, and a number of medical reports dealing with the health of PM1.
The judge summarised relevant parts of Mr Marquet’s evidence as follows:
(1)The police members have instructed him that prior to the Reference Determination being provided to them, ‘They had no knowledge of a submission having been made at the referral hearing that they had committed a criminal offence’. As Mr Marquet then put it, ‘They both informed [him] of their distress at learning about the finding’.
(2)PM1 has given instructions that he is still receiving treatment from his psychiatrist for psychiatric conditions referred to in the medical reports exhibited to the seventh confidential affidavit.
(3)PM2 has given instructions that, over the last four years, PM2 has had regular discussions with his general practitioner ‘about the effect that the Nicola Gobbo matters were having on his mental health’. While PM2 has been provided with referrals to a psychologist and psychiatrist, he has ‘hesitated to make any appointments as he had hoped that he could put the matters behind him’.
(4)PM2 has also given instructions that ‘about three weeks ago, he suffered a heart attack’; ‘as a consequence of the heart attack, he has had a stent put in place’; and ‘he will be on medication for the rest of his life’.
(5)Both of the police members ‘have expressed deep concern … about the public disclosure of the court’s finding that they have committed a criminal offence’. They are concerned about the effect on their mental health and ‘their broader lives’. PM1 is retired, but is concerned that there will be adverse impacts on the roles he currently plays in an organisation where he is a volunteer. PM2 is retired. He does not have any plan for immediate employment, but is concerned about the potential for adverse impacts on his employment prospects should he seek employment in the future.[12]
[12]Ruling, [9].
Having set out the relevant provisions of the Act, the judge recorded the submissions made by the police members about the constraints of their position as witnesses at the hearing; that is, their lack of ability to make submissions and their inability to utilise the Court’s processes to obtain relevant documents or determine the evidence to be led either by way of their own oral testimony, documentary evidence, or oral evidence from other relevant witnesses. The judge recorded the submissions that, had they been parties to the proceeding before Fullerton J, they might have led further and different evidence in relation to the issues the subject of the criminality findings, and their status as witnesses meant that they were not afforded the procedural fairness afforded to parties to a proceeding. They had no ability during their evidence or afterwards to respond to the serious allegation that they had committed the criminal offence that was found.
The judge set out in full the police members’ summary of argument. Once again, for convenience, we reproduce the argument as recorded by the judge:
It is evident from the nature of the finding made against them, that if the suppression order sought is not made, then the police members will suffer significant prejudice to their reputation (with consequent harm) and their wellbeing. The prejudice is not only personal in nature but also extends to the proper administration of justice. If people cannot come to court confident that some kinds of information can be protected from disclosure if necessary (such as their identity as someone found to have committed a criminal offence in the peculiar context that they did not have an opportunity to defend themselves) then confidence in and access to justice may be undermined.
In circumstances where the disclosure of the identities of the police members as people who have been found to have committed a criminal offence will cause serious harm to them and where they were not afforded the procedural fairness afforded to parties to defend themselves, and given that publication of their identity would not materially assist an understanding of the proceeding, a suppression order is necessary to prevent prejudice to the proper administration of justice.[13]
[13]Ruling, [14].
His Honour noted the police members’ description of the order that they sought as ‘a narrow suppression order over their identity, and related redactions to the reference determination’.[14] The judge also noted that counsel for the police members had sought to make it clear before him that the application was not made simply on the basis of non-compliance with the rule in Browne v Dunn. Counsel had submitted that the application was made, ‘as a result of a forensic choice made by Mr Mokbel, and a course adopted by the presiding judge in respect of the non-compliance with the rule in Browne v Dunn’.[15]
[14]Ruling, [15].
[15]Ruling, [16].
The judge then reproduced transcript from those parts of the hearing before Fullerton J relied on by the police members that we have set out above.
His Honour examined the extent, if any, to which there had been non-compliance with the rule in Browne v Dunn in respect of the evidence given to Fullerton J by the police members. He observed that while the police members were not informed in strict terms in advance that particular findings of criminality would be sought, they had applied for and been granted certificates under s 128 of the Evidence Act. Nonetheless, at no stage during the evidence of the police members was it specifically put to them that they had engaged in any criminal activity, nor that they had committed the crimes in respect of which they had sought the s 128 certificates, or, more specifically, that they had engaged in a joint criminal enterprise to attempt to pervert the course of justice.
His Honour concluded that it was not for him to determine, as if sitting on appeal, whether there was any relevant failure by the police members’ counsel to comply with the rule in Browne v Dunn. It was sufficient for him to deal with the suppression order application on the basis that, while the issue of whether or not the police members had engaged in the criminal offences for which they had sought certificates was a live issue between the parties, the allegations that they actually engaged in that criminal offending were never directly put to them, and the rule in Browne v Dunn was thus breached.
Turning to consider whether the suppression order sought should be made, the judge first clarified his understanding that Mr Mokbel’s position before Fullerton J was not that a suppression order should be made in order to protect the police members but merely that the police members have the opportunity to be heard as to ‘restrictions’.
Having identified the question for determination by reference to the terms of the statute, his Honour (again) recorded the police members’ submission that confidence in and access to justice would be undermined if a suppression order were not made. It would be quite unjust to identify them when they had been denied an opportunity to defend themselves and they would suffer significant prejudice to their reputations and wellbeing if a proceeding suppression order was not made.
Having regard to these contentions, his Honour said:
When one considers the circumstances relied upon by the police members, one could easily conclude that it would not be unreasonable for a proceeding suppression order to be made. Indeed, one might positively conclude that it would, in all the circumstances, be reasonable to make such an order. However, as I have already said, that is not the statutory test which must be applied in this case.[16]
[16]Ruling, [35].
In the paragraph following, which begins with the judge confirming that he had considered the evidence relied upon and the submissions made by the police members, the judge applied the statutory test, concluding that he was not persuaded that it was necessary to make a suppression order so as to prevent a real and substantial risk of prejudice to the proper administration of justice.
Referring to the counterfactual — that is, the effect on the administration of justice if the suppression order was made — his Honour observed that rather than preventing risk of prejudice to the proper administration of justice, it was more likely that the redactions sought by the police members would undermine confidence in the administration of justice by making it less transparent, potentially causing questions to be asked as to what else about the Lawyer X scandal was being hidden from public view. His Honour also commented that some of the redactions would make the Reference Determination difficult to follow.
The judge rejected the proposition that failure to make the suppression order would undermine access to justice because witnesses against whom serious allegations might be made may choose not to come forward. This submission, his Honour said, overlooked the power of the Court to issue subpoenas and make other orders compelling relevant witnesses to give evidence. Furthermore, the fact that the totality of the redactions sought by the police members might be narrow or modest, did not mean that it had been shown that the order sought was necessary to achieve the purpose set out in s 18(1)(a) of the Act.
Proposed Grounds of Appeal
The police members now apply for leave to appeal the refusal of the application on the following grounds:
Ground 1: The learned primary judge erred in not considering the risk of confidence in the justice system being undermined by reason of the public identification of the applicants as police officers found to have committed a crime in the performance of their duties in circumstances where they were denied two fundamental rights which the justice system afford to witnesses, namely the right to defend oneself and the right to not be the subject of an adverse finding when denied the right to defend oneself.
Ground 2: The learned primary judge erred in not considering the extent to which the profound and permanent damage that would be caused to the applicants from their public identification as police officers found to have committed a crime in the performance of their duties in circumstances where they were denied fundamental rights, would exacerbate the risk of a loss of confidence in the justice system.
Ground 3: Alternatively to grounds [1] and [2], if the learned primary judge did consider the matters therein, and did conclude that there was no risk of a loss of confidence in the justice system or that any such risk was not real and substantial, and that, therefore, there was no basis to make an order under s 18(1)(a) of the Open Courts Act 2013 (Vic), then his Honour erred in failing to give reasons or adequate reasons for so concluding.
Ground 4: The learned primary judge erred in not considering whether disclosure of the identities of the applicants in a report of the finding that they committed a crime in the performance of their duties would advance the open justice principle in all the circumstances including the circumstances in which the finding was made.
Ground 5: The learned primary judge erred in considering an irrelevant matter, namely whether the proceeding suppression order sought by the applicants would promote confidence in the administration of justice.
Ground 6: The learned primary judge erred in taking into account an extraneous matter in undertaking the statutory task in s 18(1)(a) of the Open Courts Act 2013 (Vic), namely the additional and separate application by the applicants for redactions to the reference determination which required separate determination in the event that his Honour was satisfied that the proceeding suppression order sought by the applicants was necessary.
Grounds 1–3: Failure to consider the injustice and harm to the police members
The police members’ submissions
The police members argued grounds 1, 2 and 3 together, submitting that the judge failed to consider the effect on the administration of justice of the public identification of them as police officers found to have committed a crime in the performance of their duties, in circumstances where they were denied two fundamental rights which the justice system affords to witnesses: the right to defend oneself, and the right to not be the subject of an adverse finding when denied the right to defend oneself. His Honour, it was submitted, also failed to consider the profound and permanent damage to the police members that would ensue from their identification in these circumstances. It would result in the permanent destruction of their reputations, and it would also likely result in them suffering profound harm to their health and wellbeing, noting that both are highly vulnerable in this regard.[17]
[17]The police members point out that the unchallenged evidence before the judge included that PM1 is suffering severe psychiatric illness and public identification risks exacerbating this, and PM2 is suffering multiple health problems including mental health problems and a recent heart attack.
In the alternative, it was submitted that if the judge did take these matters into consideration, it was not reflected in his Honour’s reasons, which are said to be inadequate.
According to the police members, the finding of criminality against them was made by Fullerton J after the proceeding took an unconventional course proposed by Mr Mokbel, at the expense of fairness to them. Those circumstances were central to their application for a suppression order and the judge failed to consider them. This resulted in the judge failing to consider whether those circumstances made it necessary for a suppression order to be made to prevent a real and substantial risk of prejudice to the proper administration of justice of a kind recognised in the authorities.
The police members argued that the proceeding would never have taken the unconventional course it took had Mr Mokbel submitted to Fullerton J what he now submits, namely, that there is no basis to make publication restrictions or redactions, rather than submitting, as Mr Mokbel did before her Honour, that this was an appropriate mechanism available to address any unfairness arising from non-compliance with the rule in Browne v Dunn.
The police members submit that the prejudice to the proper administration of justice in the publication of their identities lies in the procedural and substantive unfairness arising from them:
(a)not having had an opportunity to defend themselves by reason of non-compliance with the rule in Browne v Dunn and not being party to the proceeding;
(b)being deprived of any argument, and decision, as to whether it was appropriate for Fullerton J to abstain from making the criminality finding given non-compliance with the rule, as a result of Mr Mokbel proposing the unconventional course; and
(c)as witnesses, not having had an opportunity to be heard in relation to that unconventional course and not being able to appeal the criminality finding made against them as of right.
According to the police members, the circumstances in the Reference Determination hearing were referred to by the judge in an imprecise and incomplete way at [24]–[25] of the Ruling. Most significantly, the judge did not refer to the unconventional course that the proceeding took, which was a matter that was the subject of submissions by them. His Honour’s reasoning was extremely brief and did not consider, in addition to the above circumstances, the unchallenged evidence in relation to the personal harm that public identification of the police members would cause, and whether, taking into account those matters, public identification carried a real and substantial risk of prejudice to the proper administration of justice of the kind identified in the authorities relied upon.
In addition, they say, identifying them carries a risk of prejudice to the proper administration of justice by undermining public confidence in the legal system, insofar as the public would rightly observe the law to be inadequate and unfair if it were unable to protect from disclosure information likely to result in harm to witnesses who have suffered unfairness, and have no other recourse to address that unfairness.
Submissions in opposition
Mr Mokbel, for reasons that are opaque, vigorously opposes the suppression order. The media parties also oppose the order, but for reasons that are understandable, as the order would impinge on their ability to report on Mr Mokbel’s proposed appeal and, potentially, on Lawyer X matters more generally.
As each of grounds 1, 2, and 3 allege a discrete error, Mr Mokbel made submissions on each ground individually.
In relation to ground 1, Mr Mokbel submits that, when read as a whole, it is plain from the Ruling that the judge did consider the asserted risk to confidence in the justice system. Moreover, the police members’ reliance on examples of the exercise of the discretion by other courts as if they were precedent amounts to no more than a complaint that the judge did not assess the risk of public confidence in the way that the police members submit he should have.
As to ground 2, Mr Mokbel submits that, by virtue of the fact that the application for a suppression order was made pursuant to s 18(1)(a) of the Act and not s 18(1)(c) which provides for the making of a proceeding suppression order where it is ‘necessary to protect the safety of any person’, the only way in which the asserted harm was relied upon was in connection with ‘confidence’ in the administration of justice. The judge understood that harm was relied on in this limited way and considered it appropriately. Moreover, the fact that the judge did not deal separately with the evidence of harm is unsurprising — having rejected the submission as to the risk to public confidence, his Honour had no reason to consider exacerbating factors.
Alternatively, Mr Mokbel submits that it can be inferred that the judge did consider the evidence of harm but gave it little weight. Importantly, his Honour assured the police members that he would only address the psychiatric evidence ‘in a sensitive and delicate way’ and ‘without any detail’, which explains why his Honour did not refer to specific details of the harm.
In relation to ground 3, Mr Mokbel submits that the judge’s reasoning is plain, particularly when considered in light of the discussions that took place during the hearing. He relies on the following passage from Oswal v Carson which concerns an interlocutory application:
[W]hen, as here, the application at first instance is one concerning a matter of practice and procedure, more often than not the reasoning need not be in-depth. In some instances, the judge’s reasoning may be apparent from the exchange with counsel during submissions and a review of the transcript will disclose the reasoning. In summary, all that is required is reasoning which explains in short compass how and why one party succeeded and the other lost.[18]
[18][2013] VSC 355, [48] (Ferguson J).
Mr Mokbel submits that such an approach is appropriate noting that s 14A(1) of the Act does not impose any specific requirements for reasons in respect of the refusal of an suppression order, as it does for the making of a suppression order. Having regard to s 14A(3) of the Act, which stipulates that a failure to give reasons does not affect the validity of a suppression order, he submits that the requirements for reasons as to the making, and impliedly refusing, of a suppression order are undemanding.
The media parties filed detailed written submissions, but only spoke to those of their submissions that did not repeat submissions made by Mr Mokbel.
The media parties point out that while Beach JA was prepared to accept that there had been a breach of the rule in Browne v Dunn, his Honour recognised that the breach had occurred in specific circumstances, which included requests for certificates under s 128 of the Evidence Act. This was a situation in which everybody was aware of the potential findings of criminal conduct. While this was not specifically put to PM1 or PM2, it was necessary to consider whether any reduction in confidence in the administration of justice went so far as to constitute a risk to the proper administration of justice. Damage to confidence in the administration of justice does not necessarily result in prejudice to the proper administration of justice. The mere fact that a small number of people (the witnesses and their families) might think that witnesses were treated unfairly does not necessarily involve a risk to the proper administration of justice.
The media parties submitted that there was no failure to consider relevant matters in this case, but rather an unhappiness with the outcome.
Discussion of grounds 1–3
The statutory requirement relied upon by the police members for a proceeding suppression order in this case is that it is necessary to prevent a real and substantial risk of prejudice to the administration of justice which cannot be prevented by other means means: s18(1)(a) of the Act. This must be considered in light of the primacy of the principle of open justice and the free communication and disclosure of information, as set out in s 4 of the Act. The Court may only make a suppression order if satisfied that the specific circumstances of the case make it necessary to override or displace the principle of open justice and the free communication and disclosure of information. The test of necessity prescribed by the Act is a high one and the police members carried the onus of justifying the making of the order.
As McHugh JA explained in John Fairfax & Sons v Police Tribunal (NSW):
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it.[19]
[19](1986) 5 NSWLR 465, 476–7 (McHugh JA) (‘John Fairfax’).
Although John Fairfax was a case decided under the common law, the principle remains the same under statutory provisions as to open justice, as the High Court made clear in Hogan v Australian Crime Commission.[20] In Hogan, the High Court considered s 50 of the Federal Court of Australia Act 1976, as then enacted, which was in similar terms to s 18(1)(a) of the Act.[21] Section 50 empowered the Federal Court to ‘make such order forbidding or restricting the publication of particular evidence, or the name of a party or witness, as appears to the Court to be necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth’. The High Court observed:
As it appears in s 50, ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’.
…
It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics.[22]
[20](2010) 240 CLR 651; [2010] HCA 21 (‘Hogan’).
[21]See Hogan (2010) 250 CLR 651, 659 [6]; [2010] HCA 21.
[22]Hogan (2010) 240 CLR 651, 664 [30]–[31] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ) (citations omitted); [2010] HCA 21.
It follows, as the judge pointed out, that whilst in the present case it might be reasonable to make a proceeding suppression order, that is insufficient to satisfy the statutory threshold of necessity.
The order sought by the police members is modest in its effect on the publication of the Reference Determination itself: it involves little more than the redaction of names and limited parts of what is a very long and detailed judgment. However, its scope is breathtaking. The proposed order seeks to prevent the media (or anyone else) from any reporting disclosing the identities of the persons found by Fullerton J to have engaged in the impugned conduct, and to do so until their deaths. It has potentially far-reaching effects. Compliance would require vigilance, potentially over decades, in the reporting of what occurred in April 2006 to secure Mr Mokbel’s convictions. That conduct, involving Ms Gobbo and several members of Victoria Police, forms part of a scandal of sizeable proportions that has significantly impacted public confidence in the administration of justice in this State.
In this case, the judge concluded that the process that was adopted for the publication of the Reference Determination following the evidence of the police members, combined with their specific vulnerabilities, meant that there were reasonable grounds for de-identifying them. His Honour stated that it would be ‘reasonable’ to make the suppression order, having regard to those matters. However, as just discussed, that is not the test. It must be established by the police members that it was necessary to do so in order to prevent a real and substantial risk to the proper administration of justice.
We are well satisfied that the judge had regard to the two matters to which he is said not to have given proper consideration: the ‘unconventional’ solution urged upon and adopted by Fullerton J to remedy the (alleged) failure by counsel to apply the rule in Brown v Dunn in respect of the evidence of the police members; and the extent of the personal harm (reputational, physical and mental) that the police members may suffer if their identities are revealed.
In relation to the latter, this application was made under s 18(1)(a), not s 18(1)(c) — which at times is relied upon in relation to mental health consequences for the person making the application. We accept that the evidence as to the police members’ physical and/or mental health is a relevant consideration in determining whether the application under s 18(1)(a) is made out. This is because the basis for the application is essentially, as we will discuss in a moment, one of unfairness, and that it is proper to take into account the consequences of any asserted unfairness.
The judge referred to the medical opinions exhibited to the affidavit of Mr Marquet and to the submissions that were made on behalf of the police members about the impact of the disclosure of their identities on the physical and/or mental health of each of them. PM1’s mental health is very fragile, due it seems, to exposure to shock and trauma over decades in the police force. For his part, PM2 now suffers from a range of serious health conditions, which are likely to be worsened by stress. These matters were taken into account by the judge. That his Honour did not detail the matters contained in the medical opinions concerning PM1, or deal explicitly with PM2’s health conditions, was necessary, as the judge discussed with counsel, in dealing with these issues in a sensitive way by not exposing any detail in his judgment.
As to the alleged failure to take into account the ‘unconventional’ course urged on Fullerton J by Mr Mokbel, the judge proceeded on the basis that the rule in Browne v Dunn had not been complied with, although he made no specific finding in that regard. His Honour also referred expressly to what the police members described as the consequences of that non-compliance, being the denial of asserted rights to be heard and defend themselves.
In our view, the police members’ submissions misunderstand the nature of the rule in Browne v Dunn (with any asserted ‘right’) and the consequences of non-compliance. The basis of the rule is that of fairness. The rule does not confer on a witness independent rights of the kind asserted by the police members. It is an obligation upon counsel in adversarial litigation (civil and, to a modified extent, criminal) requiring counsel, in the event that they wish to contradict the version of a witness called by their opponent, to put the version for which counsel (and their client) contends.[23] It binds counsel and operates as between parties to the litigation. It does not provide a corollary right to a party or a witness.
[23]R v Coswello [2009] VSCA 300, [3]–[10] (Nettle JA); R v Thompson (2008) 21 VR 135, 157 [111]–[112] (Redlich JA); [2008] VSCA 144.
As a general proposition, when counsel breaches the rule in Browne v Dunn, it is up to the opposing party, through counsel, to raise the breach and argue as to what course should be undertaken to remedy it. The judge must then determine what is to be done. One solution is to re-call the witness, who is then given the opportunity to accept or contradict the opposing version. Another is to direct the jury to consider the fact that the witness was not challenged on this issue or given the opportunity to rebut the proposition, and that that should be taken into account in weighing up the opposing versions. In some cases there may be no need for any direction or re-call as it is patently apparent that the witness would not accept the contrary proposition.
The police members rely on the statement in MWJ v The Queen[24] that one corollary of the rule in Browne v Dunn is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with the rule.[25] They complain that because Fullerton J readily accepted the solution proposed by Mr Mokbel, no consideration was given to whether her Honour should abstain from making adverse findings against them. The course suggested by Mr Mokbel was adopted without reference to them. And, significantly, they say, Mr Mokbel, having proposed that they should be heard as to ‘restrictions’ on publication, at no point indicated to Fullerton J that he would object to a suppression order being made. According to the police members, had Mr Mokbel told her Honour that he would object, Fullerton J might not so readily have adopted the course that he proposed.
[24](2005) 80 ALJR 329; [2005] HCA 74 (‘MWJ’).
[25]MWJ (2005) 80 ALJR 329, 339 [38]–[39] (Gummow, Kirby and Callinan JJ).
We understand part of the complaint directed at the Ruling to be that the judge did not properly take into account the twists and turns in this unconventional approach. We reject that submission.
The judge had regard to submissions and transcript concerning the course that was followed. Some of it is reproduced in the Ruling. His Honour well understood that the police members were excluded from discussions about how to respond to the concern raised by the Director. He well understood that Mr Mokbel proposed the solution that was adopted and that Mr Mokbel did not alert Fullerton J that he would oppose the making of a suppression order. It is implicit that the judge understood that there was little if any discussion of alternative means of dealing with the issue and that the police members had no opportunity to argue that the findings ought not to be made. It was then a matter for his Honour to consider whether this procedural history, along with the evident harm to reputation and wellbeing that would accompany exposure of the police members as persons against whom findings of criminality had been made, made it necessary to override or displace the principle of open justice and the free communication and disclosure of information in order to prevent the risk of prejudice to the proper administration of justice.
The basis for the rule in Browne v Dunn is fairness in the context of adversarial litigation. Its relevance to the police members’ application is that of the general concept of fairness embodied in the rule. It may be accepted that, in having findings of criminality made against them in the circumstances described, the police members have suffered some unfairness and that the adverse consequences of the unfairness might to some extent be ameliorated by the order they seek.[26] However, the question for the judge was whether, in accordance with s 18(1)(a) of the Act, the police members had established that there was a real and substantial risk of prejudice to the administration of justice if a proceeding suppression order was not made. In this regard, the question of fairness to the witnesses (and the consequences of any unfairness) is relevant but it is not determinative. The true question to be answered is whether in all the circumstances the requisite level of necessity has been established.
[26]We observe that it is common place in court proceedings for a witness’ evidence to be rejected by the trier of fact. Where the rejection of the witness’ evidence is based upon the credibility (or lack of it) of the witness it may carry the implication that the witness has committed perjury. However, the witness has no right to be heard on the question. It is an incident of being a witness in adversarial litigation that he or she does not enjoy the rights accorded to parties in that litigation.
In our view, the judge addressed this issue appropriately. The Ruling discloses that he properly considered the risk of confidence in the justice system being undermined by the public identification of the police members and the extent of the damage that would be caused to them. However, notwithstanding the evident unfairness to the police members, his Honour decided that it was not necessary to override or displace the principle of open justice and the free communication and disclosure of information in order to prevent the risk of prejudice to the proper administration of justice. The asserted prejudice to the proper administration of justice (loss of confidence in the justice system and compromised access to justice) did not meet the statutory threshold. While it might have been reasonable to suppress the identities of the police members in the circumstances, it was not necessary to do so.
We consider that it was open to the judge to reach this conclusion. Indeed, we consider his Honour’s conclusion to be correct.
Both of the police members must feel that there is no end to their vulnerability to the public excoriation that has been directed to many who had the misfortune to come within Ms Gobbo’s orbit. The events giving rise to Fullerton J’s finding are almost 20 years old. Neither of them is well, and both fear, no doubt correctly, that their reputations and wellbeing will be damaged by publication of the finding. However, the existence of those fragilities is not enough, even in combination with the ‘unconventional’ approach taken to remedy the (possible) breach of the rule in Browne v Dunn, to necessitate the making of a suppression in order to avoid a real and substantial risk of prejudice to the administration of justice.
Grounds 1, 2 and 3 are not made out.
Ground 4: Open justice
Submissions
The police members submit that the primary judge was wrong to not consider the fact that publication of their identities would not materially advance the principle of open justice — that is, identifying the police members in a report of a finding of criminality would not materially assist in an understanding of what has occurred in the proceeding or otherwise assist in the achievement of the objectives underlying the principle of open justice. The suppression order would not prevent the publication of a report of the finding that four former police officers had engaged in criminal conduct of the kind found.
Importantly, it is submitted, the suppression order would not prohibit the reporting of an aspect of the proceeding that occurred in open court, as Mr Mokbel sought the criminality finding in his written closing submissions and discussion of the issue in oral closing submissions only referred to the finding of criminality against ‘various individuals’.
Discussion of ground 4
There is no substance to this ground.
The judge considered whether the disclosure of the identities of the police members would advance the principle of open justice. He observed that it was more likely that the redactions sought by the police members would undermine confidence in the administration of justice because it would make the Reference Determination less transparent, potentially causing questions to be asked about what else about the Lawyer X scandal was being hidden from public view. In other words, in this case, it could not be said, as it was in Lee v Deputy Commissioner of Taxation[27] and other (similar) Federal Court cases referred to by the police members, that suppression of identities would not make any difference to the public’s ability to understand what had gone on in the proceeding. The history and gravity of the Lawyer X scandal heightens the need for transparency.
[27](2023) 296 FCR 272; [2023] FCAFC 22.
Ground 4 is rejected.
Grounds 5 and 6: Irrelevant and extraneous considerations
Submissions
The police members submit that the judge was wrong to consider whether the suppression order would ‘promote’[28] confidence in the administration of justice, as this question was irrelevant to the task in s 18(1)(a) of the Act. They submit further that the judge was wrong to have relied on the redactions to the Reference Determination that the police members had proposed, as they were a matter extraneous to the task mandated by s 18(1)(a) of the Act.
Discussion of grounds 5 and 6
[28]Ruling, [36].
Once again, these grounds have no substance. The redactions sought by the police members were relevant to the formulation and the consequences of any suppression order. If it were necessary, for example, to consider whether or not publication of the identities of the police members would materially advance the principle of open justice, the actual redactions sought would clearly be relevant.
The word ‘promote’ was used in the phrase, ‘rather than promoting confidence in the administration of justice’, which preceded his Honour’s finding that suppressing the members’ names would make the Reference Determination less transparent, a matter of some concern in the context of the Lawyer X scandal. The phrase is peripheral, at best, to the judge’s decision.
Grounds 5 and 6 are not made out.
Conclusion
Leave to appeal will be granted. However, the grounds of appeal having not been made out, the appeal must be dismissed.
SCHEDULE OF PARTIES
POLICE MEMBER 1 (A PSEUDONYM) First applicant POLICE MEMBER 2 (A PSEUDONYM) Second applicant and ANTONIOS SAJIH MOKBEL First respondent DIRECTOR OF PUBLIC PROSECUTIONS Second respondent and NINE NETWORK PTY LTD, SEVEN NETWORK (OPERATIONS) LIMITED AND HERALD AND WEEKLY TIMES PTY LTD Intervener
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