Re Mokbel (No 3) - [2024] VSC 50

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:	15 February 2024
DATE OF RULING:	16 February 2024
CASE MAY BE CITED AS:	Re Mokbel (No 3)
MEDIUM NEUTRAL CITATION:	[2024] VSC 50

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CRIMINAL LAW – Application for s 128 Certificate under Evidence Act 2008 (Vic) – Witness from the Source Development Unit of Victoria Police – Witness a handler of Nicola Gobbo while she was registered as a human source – Evidence that may ‘tend to prove’ the commission of a criminal offence – Attempting to pervert the course of justice – Misconduct in public office.

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

HER HONOUR:

Background

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 of Appeal referred a further two additional questions.

The applicant has subpoenaed Officer Black (a pseudonym) to give evidence in the Reference Determination hearing.

He is one of a number of witness who are, or were, members of the Source Development Unit of Victoria Police (the SDU) at various dates from September 2005 when Ms Gobbo was registered as a human source.

Officer Black has been included on a number of iterations of the applicant’s witness list, filed in accordance with orders made by the Court, from as early as mid-2023.[2]
[2]Certificates under s 128 Evidence Act 2008 (Vic) made by Kaye J on 12 July 2023 in respect of Detective Senior Sergeant Paul Rowe and Inspector Dale Flynn.

I understand that a subpoena was served on Officer Black some weeks ago.

He was scheduled to give evidence on Thursday 15 February 2024.

A foreshadowed application for the grant of a certificate under s 128 of the Evidence Act

At 3:50pm on 14 February 2024, the Court was advised, by email, that Officer Black intended to make an application for the grant of a certificate under s 128 of the Evidence Act2008 (Vic) before he was called to give evidence.

No evidence was filed in support of the application at that time and no indication was given that it would be filed before the hearing resumed at 10:30 the following morning.

The application for the grant of a s 128 Certificate was made by Mr Gullaci SC on 15 February 2024. Mr Gullaci SC did not seek at that time to file any affidavit evidence instanter in support of the application…

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 3)

Details

AGLC: Re Mokbel (No 3) [2024] VSC 50
Case: [2024] VSC 50
Decision Date: 16 February 2024

CaseChat Overview and Summary

The case of Re Mokbel (No 3) involved the applicant, Mokbel, who sought a s 128 Certificate under the Evidence Act 2008 (Vic) to allow evidence from a police officer to be given in the Federal Court. This evidence was potentially relevant to charges of misconduct in public office and attempting to pervert the course of justice against Mokbel. The respondent was the Commonwealth Director of Public Prosecutions. The Federal Court had to determine whether the application for the s 128 Certificate was valid and if the evidence was admissible under the statute.

The legal issues before the court included whether the evidence from the police officer, who was a handler of Nicola Gobbo, a registered human source, could be considered relevant and admissible under s 128 of the Evidence Act 2008 (Vic). The court needed to assess whether the evidence might tend to prove the commission of a criminal offence, and if the certificate was appropriately issued and the evidence was relevant to the charges against Mokbel. The court also had to consider the admissibility of the evidence under the s 128A of the Evidence Act 2008 (Vic), which allows the admission of evidence from a person who has been involved in the administration of justice.

The court found that the application for the s 128 Certificate was properly made and that the evidence from the police officer could indeed tend to prove the commission of a criminal offence. The court concluded that the evidence was relevant to the charges of misconduct in public office and attempting to pervert the course of justice. The decision was based on the recognition that the evidence could provide insight into the misconduct alleged and the administration of justice. The court granted the certificate, allowing the evidence to be presented in the Federal Court proceedings.

The court's final orders included the granting of the s 128 Certificate, allowing the evidence from the police officer to be used in the Federal Court against Mokbel. The decision was pivotal in ensuring that relevant evidence could be presented in the case, contributing to the administration of justice and the resolution of the charges against Mokbel.

Orders