Re Mokbel (No 3)
[2024] VSC 50
•16 February 2024
| 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 he made on Officer Black’s behalf.
I made it clear to Mr Gullaci that although he was not obliged to file any evidence or make any further submissions in support of the application under s 128, he should consider his position if he sought a certificate before Officer Black gave evidence, that is, if he sought a certificate in effect governing the entirety of Officer Black’s evidence before his evidence commenced.
I stood the matter down until 2:00pm.
At 2:06pm, an affidavit from Officer Black was filed. Counsel also filed written submissions, which he adduced orally. After I adjourned to consider my decision on the application, a further affidavit from Officer Black was filed. Counsel also filed additional submissions.
The application for the grant of a s 128 Certificate
Neither the applicant nor the respondent sought to be heard on the application.
Although the views of the parties are relevant on an application for the grant of a certificate under s 128, they are not determinative.
For present purposes it is unnecessary to set out s 128 in full. Suffice to emphasise that s 128(1)(b) provides that if a witness objects under s 128(1)(a) to giving particular evidence, or evidence on a particular matter, because the evidence may tend to prove that the witness has committed an offence arising under Australian law,[3] it is for the Court to determine whether there are reasonable grounds (or not) for the objection.
[3]Or is liable to a civil penalty under s 128(1)(b) Evidence Act 2008 (Vic) which has no relevance here.
The onus is on the person taking the objection to satisfy the Court both that particular evidence that it is anticipated they will give may tend to prove that an offence has been committed and that there are reasonable grounds for the Court to find that state of affairs exists. The witness is not required to satisfy the Court that the anticipated evidence will establish their criminal liability or for the Court to form a concluded view that it will. The onus is discharged when the Court is satisfied, on balance, that there are reasonable grounds to find that the evidence may tend to prove the commission of an offence.
The collected authorities on what may constitute reasonable grounds offer limited guidance on how the section might be applied in a given set of circumstances. They do speak, however, of an assessment of the risk of a prosecution being initiated as capable of informing the question whether there are reasonable grounds that the evidence may tend to prove the commission of an offence. It follows that, were a Court to find that there is no risk at all of a person being prosecuted because, for example, there is an immunity from prosecution or the witness has been indemnified,[4] or, no increased risk of a prosecution because the evidence has been otherwise disclosed and no prosecution launched, reasonable grounds may not be made out. On the other hand, I accept that a Court may be persuaded there are reasonable grounds even where the risk of prosecution is small.
[4]R v Bikic [2001] NSWCCA 537.
I also accept that s 128 should not be narrowly construed being facilitative in its intended operation as advancing the interests of justice where a witness might refuse to give otherwise relevant evidence on the basis that their answers to questions asked of them might reveal their criminal guilt.
The evidence on the application
Officer Black exhibited to his first affidavit three statements which were tendered as exhibits in the Royal Commission into the Management of Police Informants.[5] He also gave evidence before the Royal Commission over several days. The transcript of his evidence was not exhibited.
[5]Victoria, Royal Commission into the Management of Police Informants, Final Report (2020) (the Royal Commission final report).
I understand Officer Black was required to give that evidence and to produce those documents to the Royal Commission. That is, he did not do so voluntarily. That being the case, the privilege against self-incrimination was abrogated by operation of s 33 of the Inquiries Act2014 (Vic), with the use immunity in s 40 of that Act operating to prevent his evidence or his statements being used or admitted against him in proceedings to establish his criminal liability. The use immunity in s 40 of the Act does not extend to prevent the use or admission of the evidence he gave to the Royal Commission (or the statements he provided to the Royal Commission) in these proceedings.[6]
[6]Re Mokbel (No 2) [2024] VSC 39.
In his first affidavit,[7] Officer Black asserts the positive belief that he has not committed any criminal offence in his dealings with Ms Gobbo.[8] He does not identify, either in the statements exhibited to his affidavit or any extracts of his evidence before the Royal Commission, that he has admitted to criminal conduct of any kind or that he gave evidence of any conduct or state of mind from which his criminal liability might be inferred.
[7]Affidavit of Officer Black dated 15 February 2024.
[8]Ibid [8].
In his second affidavit, Officer Black exhibited additional evidence in the form of correspondence in June 2023 between his solicitors and the Hon Geoffrey Nettle KC AC in his capacity as Special Investigator under the Special Investigator Act (No 50 of 2021) (Vic).[9] I will return to consider the relevance of that evidence.
[9]Insert act as repealed.
Counsel’s submissions
I was invited to consider the application for a s 128 certificate on the basis that Officer Black’s statements, his evidence before the Royal Commission, and documentation generated within the SDU in the course of his dealings with Ms Gobbo reflect the general scope of the evidence he will give in these proceedings.
The basis of Officer Black’s objection to giving evidence in these proceedings was set out in Mr Gullaci’s submissions in the following terms:[10]
Officer Black makes the objection with respect to the following matters and/or areas:
(a) All of his dealings with Nicola Gobbo (‘Gobbo’), while he was a police officer, during the period that Gobbo was being used as a source of information either formally or informally;
(b) His involvement with the use of the information provided by Gobbo in the circumstances set out at a) above;
(c) His use of Gobbo as a source of information either formally or informally.
[10]Submissions of Jason Gullaci SC dated 15 February 2024.
Officer Black’s stated concern is that if he is required to give evidence in these proceedings about those matters without the protection of a s 128 certificate, his answers might be able to be used against him, in the sense of supplying prosecuting authorities with evidence capable of supporting the laying of criminal charges and providing prosecuting authorities with a source of admissible evidence.
Mr Gullaci nominated two offences that may ‘tend to prove’ Officer Black has committed a criminal offence under s 128(1)(a):[11]
Black is concerned that his dealings with Gobbo, as outlined above, may tend to prove he has committed an offence being either attempting to pervert the course of justice or misconduct in public office.
[11]Section 128(1)(a) Evidence Act 2008 (Vic).
Both are offences at common law.[12]
[12]Submissions of Jason Gullaci SC (n 8) 3.
Given the constituent elements of the common law offence of misconduct in public office[13] and the notorious difficulties inherent in proving that offence, I am not satisfied that there are reasonable grounds for Officer Black to object to giving evidence in these proceedings on the basis that his evidence may tend to prove his commission of that offence. Mr Gullaci did not seek to persuade me to any different view by taking me to the detail of what is said to be the exposure of Officer Black to the risk of being criminally prosecuted for that offence.
[13]R v Quach (2010) 27 VR 310; Macdonald v R; Obeid v R; Obeid v R (2023) 412 ALR 167; R v Macdonald; R v Obeid; R v Obeid (No 18) (2021) 394 ALR 125.
In the result, on the evidence before me on the application, I am not satisfied there is any appreciable risk of the Office of Director of Public Prosecutions (ODPP) prosecuting Officer Black for that offence in his capacity as one of a number of officers in the SDU who dealt with Ms Gobbo in 2005 at a time when he was receiving information from her and engaging with her as a human source in discharging his designated duties as a police officer within the SDU.
The remaining question is whether I am satisfied that there are reasonable grounds for Officer Black’s objection to giving evidence on the basis that it may tend to prove that he has committed the common law offence of attempting to pervert the course of justice.[14]
[14]A common law offence with the applicable penalties codified in s 320 of the Crimes Act 1958 (Vic).
The constituent elements that offence are:
(a) an intentional act or acts (done);
(b) with the intention of justice not being done to another person.
I do not understand that the ODPP has ever received a brief of evidence from investigating police into the suspected criminal conduct of Officer Black as a member of the SDU in his dealings with Ms Gobbo where the charge under consideration was the common law offence of attempting to pervert the course of justice. I also note that there was nothing in the report of the Royal Commissioner to identify or suggest his liability for that offence.[15] The Royal Commission did find that his conduct may have breached either or both s 125 or s 166 of the Victoria Police Act 2013 (Vic). Proceedings for breaches of the Victoria Police Act are disciplinary in nature.
[15]The Royal Commission final report (n 5).
There is no evidence before me that Officer Black has been the subject of any disciplinary proceedings following the recommendations of the Royal Commission, or at any other time. Neither is there any material before me to suggest that prior to the Office of Special Investigator ceasing to exist as of February 2024,[16] the Special Investigator had assembled a brief of evidence in which Officer Black was suspected of having committed that offence. This is in contrast to the position of two other members of the SDU who were the subject of the Spey brief of evidence which was forwarded by the OSI to the ODPP in December 2022 for the consideration of the Director. I have had the occasion in these proceedings to consider the impact of the Director’s decision not to prosecute the five people named as alleged offenders (two of whom have had pseudonyms applied in these proceedings)[17] when ruling on a public interest immunity claim by the OSI over the statement of material facts (the SOMF) which accompanied the brief of evidence.[18]
[16]Special Investigator Repeal Act 2023 (No 31 of 2023) (Vic).
[17]Orders of the Honourable Justice Fullerton dated 2 February 2024.
[18]Re Mokbel (No 2) (n 6).
In dealing with the submission advanced by the OSI in January 2024[19] that the SOMF should not be disclosed to the parties, inter alia, in order to prevent disclosure to the five named alleged offenders of the assembled evidence against them, evidence which, in the opinion of the Special Investigator, was sufficient to establish their guilt of the offence of attempting to pervert the course of justice in their dealings with Ms Gobbo, I made the following observation:[20]
In my view, a matter worthy of significant weight in both determining whether the OSI has demonstrated there is a public interest in preserving the possibility of future prosecutions on the facts of this case, assuming the first hurdle has been passed, and of similar, if not preponderant weight, in the balancing exercise engaged when a claim of public interest immunity is mounted, is the fact that the SI Act has since been repealed thus bringing to an end the role of the OSI and its statutory role as an investigator under the Act.
Self-evidently, that does not foreclose upon the possibility that the Director might, either of her own volition or after receipt of a supplementary brief of evidence from investigating police, reconsider prosecuting the five individuals, or some of them, at some future date. The applicant does not submit to the contrary. What was submitted on the applicant’s behalf was that I would regard that possibility as remote in the extreme given the express views of the current holder of the Office of Director of Public Prosecutions that there is no reasonable prospect of securing a conviction, inter alia, because of what she considered to be material deficiencies in the brief of evidence.
In light of the history of this matter, and, given the passage of time since the events the subject of the brief of evidence, together with the fact that the OSI has now been disbanded, there is, in my view, an air of unreality in the suggestion that a reconstituted team of investigating police might be designated the task of revisiting or even reviewing the Spey brief of evidence.
[19]Submissions of the OSI dated 19 January 2024.
[20]Re Mokbel (No 1) [2024] VSC 26.
I remain firmly of that view.
I do accept, however, that the OSI Report to Parliament on 24 June 2023 does refer to incomplete investigations that were due to have been finalised in 2024, and to the fact that charges might have been justified were those investigations to be ongoing. Doubtless with that in mind, in May 2023, the Special Investigator wrote to Mr Gordon, solicitor, and invited Mr Gordon to meet with him and members of the OSI to discuss whether any of his then clients, including Officer Black, would agree to being interviewed as a witness. In that letter he confirmed that if they agreed to make a statement and, if it was ‘full and frank’ he would support the grant of an indemnity from prosecution by the ODPP.
I understand that Officer Black declined that invitation.
The relevance of the offer being made on this application is said to be that whatever gaps in the admissible evidence against others that the Special Investigator must have perceived could be filled by information supplied by Officer Black must equally have been identifiable gaps in the admissible evidence against Officer Black.
It was then submitted that despite the passage of the legislation in February 2024 foreclosing on any ongoing or resumed investigation into any suspected criminal conduct of Officer Black by the OSI,[21] were he required to give evidence in these proceedings without the protection of a s 128 certificate, his evidence might be both a source of information for Victoria Police to pursue in an investigation into Officer Black’s dealings with Ms Gobbo initiated by them and a source of admissible evidence against him in any prosecution Victoria Police considered available and appropriate.
[21]I note that the OSI was still in existence in July 2023 when Kaye J granted s 128 certificates to Officers Flynn and Dale for the purpose of these proceedings.
Without any evidence one way or the other as to whether Officer Black has been the subject of disciplinary proceedings, I am not able to draw an inference that the Chief Commissioner of Police is disinclined to pursue disciplinary proceedings against him. Further, so far as is relevant here, I am unable to infer that that Commissioner has no interest in initiating any criminal investigation into his conduct as a member of the SDU between 2005 and 2009. I simply observe that there is no evidence that the Commissioner has, to date, investigated any officers of the SDU for any suspected criminal conduct in their dealings with Ms Gobbo as a human source (or for that matter investigated any members of Victoria Police for criminal conduct in the context of her use as a human source more generally). That is not to say the Commissioner will not do so despite my view that it is unlikely.
I do not understand that the DPP, whomever might occupy that position under the Public Prosecutions Act[22] has any statutory authority to initiate an investigation into suspected criminal offending of any kind. This is to be contrasted with the Director suggesting that a further investigation by Victoria Police might be undertaken to supplement a brief of evidence the Director considers to be deficient in material respects. It was obviously in exercise of that power that Ms Judd KC informed the Special Investigator in 2023 that she would reconsider her decision not to prosecute the alleged offenders the subject of the Spey brief were she provided with additional evidence implicating them in criminal conduct.
[22]Public Prosecutions Act 1994 (Vic).
Conclusion
Despite the passage of time since the events the subject of these proceedings, and despite the fact that there has been no investigation by Victoria Police to date into the conduct of police members who dealt with Ms Gobbo, both factors in my view rendering the risk of a future prosecution of Officer Black small, I cannot exclude it entirely, however remote it is at this time.
I am ultimately persuaded that without the protection of a s 128 certificate, Officer Black’s evidence in these proceedings may prove to be ‘the tipping point’.[23]
[23]Submissions of Jason Gullaci SC (n 10).
For these reasons, I am satisfied there are reasonable grounds for Officer Black to take the objection to giving evidence and that in those circumstances, a s 128 certificate should issue.
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