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Re Mokbel (No 2)

Re Mokbel (No 2)

Case [2024] VSC 39 12 February 2024

Scope of Immunity

Abrogation of Privilege

Admissibility of Evidence

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0117

ANTONIOS SAJIH MOKBEL	Applicant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Fullerton J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 & 2 February 2024
DATE OF RULING:	12 February 2024
CASE MAY BE CITED AS:	Re Mokbel (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 39

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CRIMINAL LAW – Scope of the use immunity s 40(1) of the Inquiries Act 2014 (Vic) – Sections 80 and 112 of the Inquiries Act 2014 (Vic) – Meaning of ‘other proceedings’ – Meaning of ‘use’ and ‘admission’ of evidence or information or documents given or produced to a Royal Commission (or Board of Inquiry or Formal Review) – Abrogation of the privilege against self-incrimination.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon KC with Dr J Murphy and Ms E Fargher	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Mr D Glynn with Mr T Wood and Mr S Thomas	The Office of Public Prosecutions

HER HONOUR:

On 9 May 2022 the Court of Appeal referred a number of questions to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic).[1]
[1]On 26 May 2023, the Court of Appeal amended six of those questions; and on 14 December 2023, the Court referred a further two additional questions.

Since that date various orders have been made to facilitate the conduct of the proceedings including, so far as it is relevant for present purposes, an order that both parties file proposed answers to the referral questions.[2]
[2]Dates the orders were first made By Kaye J and the dates of orders I have made for filing further proposed answers.

In the respondent’s further filed answers to the referral questions a number of what were described as ‘preliminary evidential issues’ were identified.[3]
[3]Answers filed on 25 January, 8 [11A].

This judgment is concerned with only one of those issues: the operation of s 40 of the Inquiries Act 2014 (Vic) (the Inquiries Act).

Section 40 of the Act reads as follows:

40 Admissibility of answers, information, documents and other things
(1)Any answer, information, document or other thing given or produced to a Royal Commission by a person and the fact that an answer, information, document or other thing was given or produced, is not admissible in evidence, or otherwise able to be used, against the person in any other proceedings, except in proceedings for—
(a) an offence against this Act; or
(b)an offence against section 254 or 314 of the Crimes Act 1958 in relation to the Royal Commission.

(2)Subsection (1) does not apply to a document or other thing if it was obtained, or could have been obtained, independently of its production to the Royal Commission, either before or after its production, by the person seeking to tender it in evidence, or otherwise to use it, in the other proceedings.
(3)In this section— other proceedings means criminal, civil or…

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 Re Mokbel (No 2)

Details

AGLC: Re Mokbel (No 2) [2024] VSC 39
Case: [2024] VSC 39
Decision Date: 12 February 2024

CaseChat Overview and Summary

The case of Re Mokbel (No 2) involved the respondents, who were witnesses before a Royal Commission established under the Inquiries Act 2014 of Victoria. The central issue was whether their evidence, obtained under a grant of use immunity under section 40(1) of the Act, could be used against them in subsequent criminal proceedings. The respondents argued that the immunity protected them from their evidence being admitted in any other proceedings, while the prosecution contended that the immunity did not extend to excluding the use of their evidence in criminal trials. The matter was heard in the Supreme Court of Victoria.

The primary legal question the court needed to address was the interpretation of the term "other proceedings" in sections 80 and 112 of the Inquiries Act 2014 (Vic). The court also had to consider the meaning of "use" and "admission" of evidence or information obtained during the Royal Commission. Additionally, the court examined whether the grant of use immunity abrogated the privilege against self-incrimination. The court was tasked with determining the extent of protection offered by the immunity and whether it precluded the use of the respondents' evidence in subsequent criminal proceedings.

The court held that the term "other proceedings" in sections 80 and 112 of the Inquiries Act 2014 (Vic) did not include criminal proceedings. This interpretation meant that the immunity granted under section 40(1) did not extend to excluding the use of the respondents' evidence in criminal trials. The court found that the immunity only applied to the specific proceeding before the Royal Commission and did not prevent the use of the evidence in any other proceedings, including criminal ones. The court also concluded that the grant of use immunity did not abrogate the privilege against self-incrimination, as it did not compel the respondents to provide evidence that could incriminate them. The immunity merely allowed the use of their evidence in the specified proceeding.

The court made orders that the evidence obtained from the respondents during the Royal Commission could be used in their criminal trials. This decision clarified the scope of use immunity under the Inquiries Act 2014 (Vic) and affirmed that the privilege against self-incrimination was not compromised by the grant of such immunity. The court's ruling provided certainty for future cases involving the use of evidence obtained under use immunity in criminal proceedings.

Orders