R v Mokbel (No 2)
[2005] VSC 502
•19 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1502 of 2001
| THE QUEEN | Plaintiff |
| v | |
| MOKBEL | Defendant |
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JUDGE: | GILLARD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September, 6 and 13 October and 14 December 2005 | |
DATE OF RULING: | 19 December 2005 | |
CASE MAY BE CITED AS: | R v Mokbel (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 502 | |
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CRIMINAL PROCEEDING – Subpoena duces tecum – Objection to production – Grounds of objection to production – Public interest immunity – Interests of accused to fair trial.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Young | Solicitor for Commonwealth D.P.P |
| For the Accused | Mr P.G. Priest Q.C. with Ms N.M. Gobbo | Garde-Wilson & Caine; McNamaras |
| For the Chief Commissioner of Police | Mr G. Maguire | James Syme, Victorian Government Solicitor |
TABLE OF CONTENTS
The criminal proceeding................................................................................................................... 2
The subpoena...................................................................................................................................... 3
Objection by the Chief Commissioner of Police......................................................................... 4
Subpoena in criminal proceedings................................................................................................. 5
Attack on validity............................................................................................................................... 6
Public Interest Immunity................................................................................................................. 7
Conclusion......................................................................................................................................... 14
HIS HONOUR:
This is the return of a subpoena duces tecum filed by the solicitors acting for an accused person in a criminal proceeding in this Court. The party to whom the subpoena is directed appeared and objected to the production of some of the documents described in the Schedule to the subpoena.
The criminal proceeding
The Queen in the right of the Commonwealth has filed an indictment in this Court against Antonius Mokbel (“Mr Mokbel”). He is charged with one offence in the indictment as follows:
“That between the 13th day of October 2000 and 1st day of December 2000 at Melbourne in the State of Victoria Antonios Mokbel, contrary to paragraph 233B(1)(d) of the Customs Act 1901, was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Act applies, namely narcotic goods consisting of not less than a traffickable quantity of the narcotic substance Cocaine, which had arrived in Sydney in the State of New South Wales on the 6th day of November 2000.”
His trial was fixed for hearing on 26 October 2005 but the trial date was vacated and has now been fixed for 1 February 2006. His then solicitors, Garde‑Wilson & Caine filed a subpoena in the Court on 23 September 2005 requiring the Chief Commissioner of Police to produce certain documents and things described in the Schedule to the subpoena. All told there are three categories of documents described in the Schedule.
On 29 September 2005, when the subpoena was called on, counsel appeared for the Chief Commissioner and objected to the production of some of the documents and things sought in the subpoena. The matter was then adjourned to 6 October for the hearing of the objections. Some of the documents were produced on that occasion and access was granted to the lawyers representing Mr Mokbel to enable them to inspect some of the documents. The matter was further adjourned to 13 October 2005, when further documents were produced to the Court, and finally, on 14 December 2005, the last of the documents were produced. Objection was taken to the inspection of the documents on a number of grounds including public interest immunity. Access was granted to some of the documents.
The case against Mr Mokbel has been summarised by the Court in the ruling I have given in respect to documents produced by the Police Integrity Office. See The Queen v Antonios Mokbel [2005] VSC 410, paragraphs 6 – 13 (inclusive).
The subpoena
The subpoena contained three categories of documents in the Schedule. Attached to these reasons is a copy of the subpoena.
Some of the documents subpoenaed concern allegations of corruption, unlawful and improper conduct made against members of the former Victoria Police Drug Squad.
I have discussed the circumstances in paragraph 15 of the earlier Mokbel ruling. In paragraphs 16 and 17 of that ruling I noted the importance of the conversations involving Mr Mokbel, which were recorded by an instrument under the control of the men named in paragraph 1 of the Schedule, and in particular the question of their credibility, which will be very much in issue in the trial.
The documents described in the Schedule potentially are numerous and indeed I have been informed by Mr Maguire acting on behalf of the Chief Commissioner that there are many diaries that have to be inspected to see which notes satisfy the description in paragraph 1 of the Schedule. Compliance with paragraph 1 will require significant manpower and time to comply with, and arguably is oppressive in the circumstances. However, as I observed in argument, the documents or things are confined to those which came into existence or were otherwise created during the course of investigations into police corruption that were conducted or are currently being conducted by the Ethical Standards Department of the Victoria Police, but which, more importantly, contain allegations of corrupt, illegal or improper conduct by any of the four named members of the former Drug Squad. This observation materially assisted those in the Ethical Standards Department to comply with paragraph 1 of the Schedule. In addition, paragraph 3 is not in any way confined to anything relevant to the present proceeding. It was accepted by the parties that the recordings and transcripts were only those that were relevant to the present proceeding. In addition, the last three lines referring to recordings and transcripts that had not been previously provided, are extremely wide and must be confined to anything that is relevant in the present proceeding; ‘relevant’ here includes credibility issues.
Objection by the Chief Commissioner of Police
In support of the objections, the Victorian Government Solicitor acting on behalf of the Chief Commissioner has filed four affidavits. Peter Eugene De Santo, a Detective Acting Superintendent of the Victoria Police attached to the Ethical Standards Department, swore three affidavits on 28 September, 5 October and 19 October 2005 respectively. The fourth affidavit was sworn by Dannye Moloney, Commander of the Victoria Police on 13 October 2005. The latter affidavit was extremely helpful and is the result of discussions held between the Bench and Mr Maguire of Counsel. Commander Moloney in paragraph 4 identifies documents and materials in respect of which no claim for public interest immunity is made, although one box of documents was subject to an embargo until 20 October 2005. The Commander identified the documents which are subject to public interest immunity objection. The Commander also referred to the current position in relation to the production of the investigators’ diaries, which shows that considerable work has been done in relation to them and it is anticipated that in the end, copies of the completed relevant portions of the members’ diaries will be made available. Finally, an objection is made on the ground of legal‑professional privilege in relation to the Task Force preparing documents for the purpose of obtaining legal advice from the Director of Public Prosecutions.
The grounds relied upon for public interest immunity non‑disclosure are the identification of informers and the concern that confidential information will be revealed. Furthermore, information that will be disclosed concerning ongoing investigations will reveal investigative and management techniques utilised by the Task Force, and detailed aspects of intelligence gathered by the Victoria Police relating to police corruption and relationships between police and career criminals. The Commander expressed the view that the documents, if released, could cause irreparable, serious harm to the ongoing operations of the Victoria Police in the Ethical Standards Department.
In a nutshell, the bases for the objections are informer identification, confidential information, police methodology, identification of targets for investigation and the disclosure of material arising out of the exercise of the coercive powers found in s.86Q of the Police Regulation Act 1958, which obliges a members of the force to furnish relevant information, produce a relevant document or answer a relevant question. A member of the force who does not comply with the coercive direction commits a breach of discipline. It is accepted under s.86Q(3) that any information, document or answer is not admissible in evidence before any court save for a few exceptions which are not presently relevant.
Subpoena in criminal proceedings
In the earlier ruling, I discussed the power of the Court to issue a subpoena and the resulting obligation, because it was an order of the Court, to produce the documents to the Court. I also dealt with the procedures involved once the documents are produced. In addition, I discussed the rule that there is no discovery in criminal matters and that subpoenas are therefore extremely important in a criminal proceeding to enable the accused to gain access to documents and things in the possession, power or control of a non‑party.[1]
[1]See paras 38 – 41.
I wish to emphasise again that the filing and issue of a subpoena results in an order of the Court requiring production of the documents. Some of the observations made in the affidavits in support of the objections to production appear to condone a practice of documents being forwarded directly to the party filing the subpoena. As I observed in my earlier ruling in this proceeding, whilst I would not seek to discourage the practice of the parties having discussions, any agreement relating to production of documents must result in the documents being provided to the Court. Mr Maguire has reassured me that the members of the force do understand that the documents must be produced to the Court.
Attack on validity
The Chief Commissioner, through her counsel, has raised questions of relevance and oppressiveness. The affidavits have also raised the same questions. The subpoena has a potential to be oppressive. However, in the course of submissions with counsel I emphasised that the extent of the discovery was to some degree confined by the wording of the subpoena, and after discussion with counsel, Mr Maguire accepted that that was so. Further, at later hearings, it was very apparent that the Chief Commissioner and her officers were taking all steps to strictly comply with the subpoena.
On Tuesday 13 December 2005, the last documents were produced to the Court. I commend the Chief Commissioner and her team on the efforts made to provide the documents. With respect to the questions of relevance, I am satisfied for the reasons that I gave in my earlier ruling, that the subpoena was directed to issues which revealed a legitimate forensic purpose, and in my view sought documents that were relevant to issues in the trial.[2] In my opinion, the objection to the validity of the subpoena on the basis that it sought irrelevant material is unfounded.
[2]See paras 44-46.
However, I wish to emphasise that in so far as Mr Mokbel’s legal advisers are seeking information going to the credit of the four named policeman who are to give evidence in the trial, the mere fact of allegations and indeed the laying of charges against a person do not of themselves establish any evidence attacking the credibility of the person. Mr Mokbel’s legal advisers should bear that in mind when inspecting the documents.
A helpful summary of the law relating to credibility and to the relevance of allegations or complaints being made against a person is found in the judgment of Batt JA in R v Roberts.[3] All counsel would be well advised prior to trial to re-visit what his Honour said and understand the limited scope of attacking the credibility of a witness based upon allegations of corrupt behaviour, investigations into conduct and the laying of charges.
[3](2004) 9 VR 295 at pp.319 et seq.
In the end, Mr Maguire, counsel for the Chief Commissioner, relied upon the public interest immunity objection to the production of some of the documents produced and also claimed legal professional privilege in relation to some documents.
Public Interest Immunity and Legal Privilege
The Chief Commissioner has objected to the production of some of the documents produced to the Court pursuant to the subpoena on the ground of public interest immunity and legal professional privilege.
A. The documents identified
During the period from 29 September to 13 December 2005, the Chief Commissioner produced documents which were ultimately marked as Exhibits AC1, AC23 and AC25 – AC27 marked for identification. The nature of the documents can be ascertained from the description given to each exhibit. All told there are nine exhibits which are the subject of objection. They are AC12, AC13, AC14, AC15, AC16, AC17, AC22, AC23B and AC27. I interpolate to note that Exhibit AC23 is divided into two parts numbered AC23A and AC23B. Exhibit AC24 MFI comprises the documents produced by the Office of Public Integrity.
With respect to Exhibit AC13, an objection was taken to access being granted until 20 October 2005. Accordingly, the legal representatives for Mr Mokbel have the right to access Exhibit AC13 marked for identification.
B. The principles
In my earlier ruling[4] I discussed public interest immunity and the categories of the same. There is no suggestion by counsel for the Chief Commissioner that the objection is based upon a class of documents. The documents are objected to on the basis of their content. I also discussed the principles relating to a claim for public interest immunity and the competing public interest.[5] I refer to the principles without repeating them. I noted that the courts adopt a more liberal approach to the inspection of documents in criminal proceedings. I have already stated the objections on the ground of public interest immunity with particular reference to ongoing sensitive investigations, disclosure of the methods employed by the investigating team, the protection of the identity of informers and undercover police operatives, and the non-disclosure of private information.
[4]At paras 59 et seq.
[5]At paragraphs 67 et seq.
It is now necessary to perform the balancing exercise with respect to each exhibit which is the subject of the objection.
Exhibit AC12 MFI
This exhibit contains a number of documents concerning what is described as an AIO50 ongoing investigation. The objection taken is that the investigation has not been completed, and accordingly if access was given to the legal representatives for Mr Mokbel, information may be revealed which may jeopardise the ongoing investigation. As a general proposition it may be a good ground for refusing production of documents if the production is likely to jeopardise an ongoing investigation. As Lord Reid said in Conway v Rimmer:[6]
“The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a pending prosecution; but after a verdict has been given or it has been decided to take no proceedings there is not the same need or secrecy.”
(Emphasis added).
[6][1968] AC 910 at 953.
His Lordship’s general rule that it would be wrong to require disclosure was stated in respect to a civil case. Different considerations would apply in my opinion in a criminal case; on the one side, the importance of the police investigation not being jeopardised in any way, and on the other side, the right of the accused to have all information to ensure that his trial is fair. The mere assertion that it is an ongoing investigation, per se, does not as a general proposition apply in a criminal case. Something more has to be demonstrated; namely, a real risk that the ongoing investigation may be jeopardised.
However, in performing the balancing exercise, I do not overlook the question whether any information disclosed in the documents would be of any assistance to the accused. In making that observation I remind myself of the fact that the accused’s counsel are in a better position than I am to make an appraisal of the information and its worth, nor do I overlook the observation made by Gibbs CJ in Alister’s case that it is enough if it appears to be “on the cards that the documents will materially assist the defence”.
The investigation concerns allegations made by one Drago Komljenovic that members of the Drug Squad had planted drugs on him. Included in the file are the depositions in relation to charges against him. There is also a copy of the prosecutor’s brief and a folder concerning the allegations. My perusal of the documents causes me to raise the question why they have been produced in compliance with the subpoena. Other than a reference to an allegation involving Paul Firth which does not appear to loom large in the investigation, there does not appear to be much else which is relevant to any of the four officers named in the subpoena. The allegations mainly concern members of the force who have either been convicted or who are presently undergoing trial. I am not persuaded that the mere fact that it is an ongoing investigation is a proper objection to the documents being produced for inspection by Mr Mokbel’s lawyers. It follows that I disallow the objection to their production.
Exhibit AC14 MFI
Included in the box of documents constituting this exhibit are three folders, which contain minutes of various meetings of the Task Force Ceja Steering Committee. Other than an odd reference to one or other of the four named individuals and also a reference to Mr Mokbel, there is nothing in those papers which could in any way give any assistance to Mr Mokbel in his trial. As they contain information relating to a huge variety of topics relating to the Task Force and its functions, it would not be in the public interest to have those disclosed. I am quite satisfied that the non‑disclosure would not in any way prejudicially affect Mr Mokbel’s defence.
In addition, there are five files concerning various investigations. One folder, AIOC63, deals with the fabrication of the entries relating to a drug task force. Allegations of malfeasance were made against a number of the persons named in the subpoena. The investigation is proceeding somewhat slowly. I see no reason why that document should not be disclosed.
The next folder, being AIOC67, also concerns allegations of malfeasance, namely, that some $10,000 was stolen from a suspected drug dealer. Allegations have been made against two of the persons named in the subpoena. This file reveals that further investigation is required. Although it is an ongoing investigation, in my view there is no reason why the document should not be made available for inspection by Mr Mokbel’s legal representatives.
The third file, being AIOC92, concerns the alleged theft of a heating mantle intended for destruction. One of those persons the subject of the allegation is an officer named in the subpoena. Again this investigation has not been finalised. In my view, there is no reason that this document should not be produced.
There is another allegation of corruption in folder AIOC60, concerning the alleged theft of a variety of items during an operation at Elwood in late 1999. Amongst those persons the subject of the allegations are two of the persons named in the subpoena. This investigation has been completed and it was recommended that certain of the documents be placed under the investigation IOC118. In my view, there is no basis for refusing access to that file.
The final file is IOC75. This concerns an allegation of unlawful disclosure of information by two of the officers named in the subpoena to a former police member. This is an ongoing investigation. However, there is nothing in the file which in my view precludes its production and accordingly the file is available for inspection. However, the balance of AC14, comprising the minutes of meetings, is not available for inspection.
Exhibit AC15 MFI
This exhibit comprises a variety of documents concerning investigation status reports, briefing papers, unedited reports, a number of cassettes and one disk concerning a discipline interview by Mr Firth.
The documents contained in this box are in my view subject to the public interest immunity objection. They contain status reports summarising investigations in relation to a variety of allegations, some of which are ongoing. They reveal police methodology in investigating complaints against members of the force, and finally they reveal the identities of informers and undercover police operatives. In my opinion the objection taken to their production is well founded and the documents will not be made available for inspection.
Exhibit AC16 MFI
These documents relate to a variety of matters including documents concerning three of the four persons identified in the subpoena. Included amongst the documents is a profile of two of the persons named in the subpoena. I see no reason why those documents should not be disclosed. They show a history of allegations, all of which were not substantiated. In addition, there is an interview, pursuant to s.86Q of the Police Regulation Act 1958, involving Mr Firth. The investigation concerns possible breaches of discipline. By reason of s.86Q(3) any information provided during the course of the interview is not admissible in evidence before any court. However, for reasons I stated in the first ruling, that does not mean to say that what is included in there may not provide some basis for investigation by the lawyers representing Mr Mokbel and accordingly, in my view, that interview should be made available.
A document relating to AIOC23 relates to a matter which does not, in my view, have anything to do with any issue in the pending trial against Mr Mokbel, including any credibility issue, and accordingly that should not be made available.
The balance of the documents included in this exhibit in my view are subject to public interest immunity. They relate to ongoing investigations, the possibility of revealing the names of police informers or police operatives, and the methodology used by the police in investigation. They will not be disclosed.
Exhibit AC17 MFI
The first bundle of documents concern edited versions of investigators’ diaries. In my view the objection to their production is unfounded. They will be made available.
Exhibit AC22 MFI
This exhibit comprises three binders of material containing correspondence files, civil litigation files and advice files. Objection is taken to their production on the grounds of public interest immunity and legal privilege.
The first file was produced in order to obtain legal advice concerning a subpoena filed on behalf of Mr Mokbel in late 2003/early 2004. The documents were brought into existence for the purpose of obtaining advice and in my view are covered by legal professional privilege. Accordingly, they will not be disclosed.
The second file concerns a civil proceeding brought by a person against a former member of the force, which does not on the face of it appear to be relevant to any of the allegations made against the four persons named in the subpoena. There is a claim for legal professional privilege in that certain documents came into being for the purposes of obtaining advice and accordingly they are privileged from production. Identities of informers are noted and in my view the documents should not be disclosed on the ground of public interest immunity. I may say that from my reading of the documents, there is nothing in them which would provide any information to assist Mr. Mokbel in the defence of the charge.
The final folder relates to material extracted from a general correspondence file which also relates to the claims made the subject of the civil proceeding. I uphold the objection to production on the ground of pubic interest immunity because of the concern of revealing informants, but in any event there does not appear to be any material in the folder which in any way furthers the defence of Mr Mokbel. I uphold the objection to exhibit AC22 MFI.
Exhibit AC23B MFI
This exhibit contains the diary entries of a Senior Constable Michael for the period from 5 July 2002 to 14 January 2004, and which are unedited. The edited version forms part of exhibit AC23A MFI. I uphold the objection. In any event access is granted to the edited versions by the legal representatives acting for Mr Mokbel being Exhibit AC 23A MFI.
Exhibit AC27 MFI
Exhibit AC25 comprises the edited diaries of two members of a force. There is no objection taken to their inspection. Exhibit AC27 MFI is the unedited version. I uphold the objection to their inspection on the grounds that the documents may reveal the names of informers and police operatives, and private information concerning people which has nothing to do with the charge against Mr Mokbel.
Exhibit AC24 MFI was tendered on 4 November 2005 and was not to be disclosed for a period of seven days. That exhibit will now be made available.
Conclusion
Exhibits AC12, AC13, part of AC14, part of AC16, and AC17 are available for inspection. The grounds for objection are disallowed.
I propose to return to the Chief Commissioner of Police the exhibits which in my opinion are not subject to production. They are part of exhibit AC14, exhibit AC15, part of AC16, and exhibits AC22, AC23B and AC27.
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