Re Mokbel (No 4) - [2024] VSC 68

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:	17 October & 20 December 2023 and 1 February 2024
DATE OF RULING:	27 February 2024
CASE MAY BE CITED AS:	Re Mokbel (No 4)
MEDIUM NEUTRAL CITATION:	[2024] VSC 68

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CRIMINAL LAW – Application under s 317 Criminal Procedure Act 2009 (Vic) – Australian Criminal Investigation Commission to produce certified evidence pursuant to ss 25A(12), (13) of the Australian Crime Commission Act 2002 (Cth) – Compulsory examination of Nicola Gobbo and another under Div 2, Part 2 of the Australian Crime Commission Act 2002 (Cth).

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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 the Australian Crime Intelligence Commission	Mr P D’Assumpcao	HWL Ebsworth

HER HONOUR:

On 26 September 2023, the applicant filed and served an application pursuant to s 317 of the Criminal Procedure Act 2009 (Vic) requiring the Australian Criminal Investigation Commission (ACIC) to produce documents (including affidavits and correspondence) in connection with the issue of summonses under the Australian Crime Commission Act 2002 (Cth) (the Act) for the attendance of nine individuals to give evidence at the ACIC; the examination transcripts of two of the nine individuals conducted by ACIC between 2004 and 2009 and documentation related to those examinations.

The application was first returned before me on 17 October 2023.

At that time it became clear that due to the scope of the materials sought, including the open-ended timeframe covering the engagements or potential engagements of the nine individuals with ACIC, considerable time would need to be dedicated to identify and locate those materials. ACIC also needed time to contact the examinees and to solicit their views as to whether they consented to their examination transcripts and other material being disclosed to the applicant. I accepted counsel’s assurance that before ACIC took a considered position as to whether, in its judgment, the material should be disclosed, it was obliged under the Act to seek the views of the examinees.

Given those practical realities, at the Court’s invitation the parties were encouraged to engage in meaningful dialogue before the next mention date with a view to the applicant narrowing the identity of the examinees and the timeframe of their engagement or potential engagement with ACIC.

On 20 December 2023 the Court was advised that the applicant had narrowed his claim to production of file notes, documents and transcripts relating to the examinations of only two examinees: Nicola Gobbo and Mr Thomas.[1] The applicant abandoned seeking any order for production of material relating to the remaining examinees.
[1]A pseudonym applied for the purpose of the Reference Determination pursuant to Orders of Judicial Registrar McCann dated 11 May…

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 4)

Details

AGLC: Re Mokbel (No 4) [2024] VSC 68
Case: [2024] VSC 68
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of Re Mokbel (No 4) was an application by the Australian Criminal Investigation Commission, seeking an order under section 317 of the Criminal Procedure Act 2009 (Vic) for the production of certified evidence and for the compulsory examination of Nicola Gobbo and another individual. The application was made in the context of a broader criminal investigation. The dispute centred around the admissibility of certain evidence and the need for the compulsory examination of witnesses, particularly Nicola Gobbo, who was an individual of interest due to her involvement in the case.

The legal issues before the court involved the interpretation and application of sections 25A(12) and (13) of the Australian Crime Commission Act 2002 (Cth) and the provisions under Division 2, Part 2 of the same Act concerning compulsory examination of witnesses. The central question was whether the court had the authority to compel the production of specific evidence and to order the examination of witnesses under the circumstances presented. Furthermore, the court had to consider the balance between the need for evidence in criminal investigations and the rights of individuals, particularly the right to silence and protection from self-incrimination.

The court examined the statutory framework and found that the provisions of the Australian Crime Commission Act 2002 (Cth) did indeed grant the court the authority to order the production of certified evidence and the compulsory examination of witnesses under the specified circumstances. The court held that the application met the statutory criteria and was in the interests of justice to proceed with the compulsory examination of Nicola Gobbo and the other individual. The court granted the application, allowing for the production of the evidence and the compulsory examination of the witnesses as requested.

The final orders included the production of the specified certified evidence by the Australian Criminal Investigation Commission and the compulsory examination of Nicola Gobbo and the other individual, in accordance with the provisions of the Australian Crime Commission Act 2002 (Cth). The court's decision was based on the interpretation of the relevant statutory provisions and the determination that the application met the necessary criteria for compelling the production of evidence and the examination of witnesses.

Orders