Re Mokbel (No 4)
[2024] VSC 68
•27 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: | 17 October & 20 December 2023 and |
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 2023.
In respect of Ms Gobbo what was sought were examinations conducted with her between 2004 and 2009 including but not limited to her sworn evidence that was to form the basis of a brief of evidence known as Landslip 2 (my emphasis) and in respect of Mr Thomas examinations on 6 and 9 September 2004 and 1 December 2004 where Mr Horgan SC was the examiner (also my emphasis). Emphasis has been added to highlight the fact that the applicant was apparently aware of the dates of Mr Thomas’s examinations (although not the subject matter of those examinations), and he was aware of the subject matter of Ms Gobbo’s examination although not the date of that examination.
The procedure in s 25A(12) and (13) of the Act is the only statutory mechanism by which any of that material can be made available to the applicant in these proceedings.
On 20 December 2023, at the request of ACIC, I issued a certificate pursuant to s 25A(12) of the Act.[2]
[2]Despite some misgivings as to whether the process provide for in s 25A(12) and (13) applied in these proceedings given the applicant’s status as a person who is challenging his convictions in contrast to a person who has been charged with an offence before a federal court or before a court of a State or Territory, I acquiesced with the agreed position of the parties that it should be taken to apply.
That section provides:
(12) If:
(a) a person has been charged with an offence before a Federal Court or before a court of a State or Territory; and
(b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person;
the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court.
On 22 December 2023 the Court received a compendium of materials falling within the scope of the certificate (the certificate material). That material was received under cover of correspondence from solicitors for ACIC.
The only examination of Ms Gobbo produced pursuant to that certificate was an examination conducted on 13 December 2006 pursuant to a summons issued on 5 December 2006. Other material relevant to that examination was provided.
Each of the transcripts of Mr Thomas’s examinations in September and December 2004 were produced. Other material relevant to those examinations was also provided.
Section 25A(13) governs the release of certificate material. It provides:
If:
(a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and
(b) the court, after examining the evidence, is satisfied that the interests of justice so require; the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person.
Put simply, I am empowered to make the certificate material available to the applicant if, after examining the material, if I am satisfied that the interests of justice so require.
I regard the obligation to be satisfied that the interests of justice ‘require’ me to disclose the certificate material as dictating a firm conclusion that the material should be disclosed in the interests of justice.
The concept of what is comprehended by in the interests of justice, or what the interests of justice might require or dictate in a particular context, has most frequently been considered in criminal proceedings or quasi criminal proceedings.
On any view of the authorities to which I was referred by the parties, whether the interests of justice require me to order the disclosure of some or all of the certificate material to the applicant in these proceedings, calls for the exercise of a broad discretion. The competing considerations that are at play on this application include, on the one hand, the applicant’s interests in agitating in these proceedings what he submits is a systemic course of improper and/or illegal conduct on the part of Victoria Police, and Ms Gobbo as their agent, which undermined his right to be treated fairly as a criminal accused and, on the other, the public interest in ensuring that the statutory mechanisms in the Act which are designed to investigate organised crime are not undermined or even neutralised by revealing the product of those processes.
Both parties filed written submissions in which they addressed how those competing considerations should be weighed in the context the operation of the Act and the legal principles that should apply to the construction of various sections of the Act.
It was the agreed position of the parties that the application could be determined without the need for an oral hearing.
The operation of the Act
The ACIC has a range of functions. They are set out in s 7A of the Act. So far as is relevant here, they include undertaking special operations or investigations. They also include the collection, correlation, analysis and dissemination of criminal information and intelligence.
Division 2 of Pt 2 to the Act deals with examinations. An examiner, appointed under Div 3 of Pt 2 of the Act, may conduct an examination for the purposes of a special operation or investigation.[3] An examiner may summon a person to appear before the examiner to give evidence.[4] It is an offence for a person who is summoned not to attend as required.[5] Further, a person appearing as a witness must not refuse or fail to answer a question that he or she is required to answer by the examiner.[6] Additionally, an examination must be held in private and the examiner may give directions as to the persons who may be present during the examination.[7]
[3]Section 24A of the Act.
[4]Section 28(1) of the Act.
[5]Section 30(1) of the Act.
[6]Section 30(2)(b) of the Act.
[7]Section 25A(3) of the Act.
Because of the confidentiality inherent in the examination process, with corresponding protections afforded to examinees, an examiner has power to make directions relating to the use and disclosure of examination material obtained during the examination process.[8] These are referred to as confidentiality directions, permitting the examiner to direct that the material that is gathered or information revealed in the examination process must not be used or disclosed or may only be dealt with as the examiner specifies. I note that a confidentiality direction was given at the conclusion of each of Mr Thomas’s examinations and the examination of Ms Gobbo.
[8]Section 25A(9) of the Act.
It is an offence for a person to use or disclose ‘examination material’ contrary to a confidentiality direction, except where the use or disclosure of the material is pursuant to ss 25A(12) or(13) of the Act.
Section 12 provides that where the ACIC carries out a special operation or investigation, and if it obtains evidence of an offence against a law of the Commonwealth or of a State or Territory, ‘being evidence that would be admissible in a prosecution for the offence’ in the course of that operation or investigation, the Chief Executive Officer is required to assemble the evidence and provide it to a relevant law enforcement or prosecuting authority of the Commonwealth, a State or Territory. That statutory obligation is also conditioned by the terms of any confidentiality direction concerning the examinations.
Section 51 is a secrecy provision. The effect of s 51(2) of the Act provides that a person to whom the section applies (namely, members of the staff of the ACIC, as well as the Chief Executive Officer, Examiners and Board members) commit an offence if the person records or divulges, what is, in effect, official information acquired in the performance of their duties, except in very limited circumstances of no present relevance on this application.
The evidence on the application
On 9 February 2024 ACIC filed both open and confidential affidavits by Jason Leigh Hall.
Mr Hall is currently the National Examinations Manager with the ACIC. In that role he is responsible for the oversight and management of the use of ACIC’s coercive intelligence gathering powers, including the management and minimalization of risks associated with its coercive examinations. I also note that he has extensive experience as a law enforcement officer and that he was a member of Victoria police between 1999 and 2016, including as a supervisor of a joint task force into serious and organised crime.
There was no suggestion in the submissions filed by the applicant that Mr Hall was not appropriately qualified to give evidence, including offering his opinion as to the risks and consequences to ACIC and the examinees personally were the certificate material disclosed.
Mr Hall addressed a range of factors in both his open and confidential affidavits which, in his view, are of preponderant concern to ACIC were I to order that the certificate material be disclosed to the applicant.
I accept Mr Hall’s analysis of the value of the ACIC’s statutory power under the Act to summons a person and require them to answers questions under threat of penalty. I also accept that an examination process in which the examinee is assured their evidence will be dealt with on a confidential basis, with the limits of any publication or disclosure to third parties (including law enforcement encapsulated by the confidentiality direction), is a process designed to address serious organised criminal activity, particularly where it is of an enduring nature, and where it is otherwise impenetrable to general law enforcement because of the complex nature of relationships of members of criminal groups.
In both affidavits Mr Hall emphasised that the confidentiality provisions are designed to protect examinees from both the threat of harm and actual exposure to harm, and to protect the efficacy of the examination function as an investigative and intelligence gathering tool. Mr Hall encouraged me to accept that were the certificate material disclosed to the applicant the credibility and integrity of the compulsory examination regime established under the Act would be undermined.
He offered the opinion that,
exposure of the identities of examinees through the disclosure of the certificate materials may have a chilling effect and deter future examinees from participating fulsomely with the examination process. This would have an immediate and… most likely a detrimental effect on the ACIC’s ability to gather intelligence.
In his open affidavit he deposed to the fact of a risk to both Ms Gobbo and Mr Thomas were the certificate material disclosed. The nature and extent of the risk was elaborated upon in his confidential affidavit.
The confidential affidavit reflected what Mr Hill regarded as additional risks and concerns that would, or might, materialise were I to order disclosure of the certificate material.
Consideration
I acknowledge that the examination power under the Act and the processes inherent in the exercise of that power, including the confidentiality provisions, are designed to collect intelligence and to enable ACIC to undertake a searching investigation into an examinee’s knowledge of current or planned criminal activity thereby supplying critical intelligence to law enforcement agencies to combat serious and organised crime.
I also accept that the safety of examinees is a relevant consideration in the exercise of the discretion under s 25A(13) and, in many cases, that might be a consideration entitled to considerable weight. However, after reading the certificate material thoroughly, I can detect nothing that was covered in the course of any of the four examinations, whether in the questions asked by counsel assisting or in the answers given by the examinees, that would expose either of them to an identifiable or threat to their safety at this time or in the foreseeable future, namely 20 years after Mr Thomas was examined and 15 years after Ms Gobbo was examined. Furthermore, there was nothing in the confidential affidavit to identify any particular aspect of any of the examinations which is said to pose or heighten any risk to the safety of either of the examinees at this time.
The concerns expressed for Mr Thomas’s safety and his family in Mr Hall’s confidential affidavit resulting from his examinations in September and December 2004, must be viewed in the context of the currency of the matters being investigated by ACIC at that time and the course of the examinations of him referable to those investigations. That state of affairs must also be considered at this time in the context of the fact that by July 2006 it was publicly known that Mr Thomas had provided assistance to police, including by giving signed statements supplementing the briefs of evidence in a number of operations in which Mr Mokbel was either the suspect or one of a number of suspects.
I have found it unnecessary to assess Mr Hall’s expressed concerns for Mr Thomas’s safety at this time in any greater detail because, having reviewed the transcripts of his examinations carefully, I am not persuaded they have any material bearing, or any sufficient material bearing either on the referral questions or the applicant’s proposed answer to those questions and the facts underlying those proposed answers.
Without saying more than is necessary, I am satisfied that the examinations conducted on 6 September 2004 and 9 September 2004 do not reveal any obvious or discernible link to Mr Mokbel by name, or to any of the various police operations that are the subject of consideration in these proceedings. The examination of Mr Thomas conducted on 1 December 2004 is in a different category. It does concern what was, at that date, a matter in which Mr Mokbel was apparently suspected of having some involvement at the time of his extradition. Those proceedings were however discontinued in April 2009 well prior to the plea negotiations in April 2011 that culminated in him entering pleas of guilty to charges laid referable to operations Orbital, Quills and Magnum, including on terms that a number of pending trials would not be prosecuted. There is simply nothing in the questions asked of Mr Thomas in the December 2004 examination, and even less in the answers he provided, that would in any way advance the applicant’s case in these proceedings.
Accordingly, I am not satisfied that is in the interests of justice to require disclosure of the certificate material as it relates to Mr Thomas to the applicant.
I have come to a different conclusion with regards to the certificate material as it relates to Ms Gobbo.
The concerns expressed by Mr Hall for Ms Gobbo’s safety in the confidential affidavit must, in my view, be heavily qualified given the notoriety that now attends her role as a human source between 2005 and 2009, following revelations of her identity in 2018 and the considerable media attention that resulted from the revelation,[9] the establishment of the Royal Commission where her role as a police informant for Victoria Police was the subject of the Letters Patent[10] and her evidence before the Royal Commission in 2019.
[9]AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2019] HCA 6.
[10]On 13 December 2018, her Excellency, the Honourable Linda Dessau AC, signed letters patent appointing the Honourable Margaret McMurdo AC as Commissioner of the Royal Commission into the Management of Police Informants.
That state of affairs is in direct contrast to the situation that prevailed in December 2006 when Ms Gobbo was summonsed to appear before ACIC and compulsorily examined. At that time, she was providing information and intelligence to Victoria Police about many of her clients, including Mr Mokbel, with the obvious threat to her safety were that to be revealed or discovered. It is important to add that there is nothing in the transcript of the examination before ACIC in December 2006 where her role as a police informant is revealed by her. Whether the examiner or counsel assisting was aware of that fact is not something I can discern with any certainty from the questions asked of her.
It follows that were it known in 2006 (or at any time before 2018) that she had been examined by ACIC under compulsion, the threat to her safety would be both real and acute. Although she is likely to be currently at risk because of the role she played as a police informer in the past, there is nothing in the certificate material that heightens that risk at this time.
I am also unable to give any weight to what Mr Hall described as the ‘negative impact’ or ‘chilling effect’ on future examinations under the Act as a relevant consideration bearing upon the exercise of the discretion in s 25A(13) of the Act. In Jean Ross v Chief Examiner and Chief Commissioner of Police,[11] the Court said of a similar provision under state legislation:[12]
The provision does not invite consideration by the court called upon to make a decision whether to make restricted evidence available of any suggested hypothetical wider ramifications flowing from an order under the section. Indeed, to try and predict, and to take into account, what future witnesses may or may not do, would be to take into account an irrelevant – and potentially vitiating – consideration.[13]
[11][2014] VSCA 254.
[12] Major Crime (Investigative Powers) Act 2004 (Vic).
[13](2014) 45 VR 220, [72].
While I accept that the confidentiality that ordinarily attaches to the subject matter of an examination is a relevant consideration bearing on the exercise of the discretion under s 25A(13), a factor that is also entitled to be accorded significant weight in the discretionary balance[14] on this application the weight of that factor is greatly diminished. It is clear from the way the applicant has framed his application for access to the certificate material that he is aware that Ms Gobbo was examined about the subject matter of what became the brief of evidence against him for a charge of perverting the course of justice, the culmination of what is described in these proceedings as Landslip 2, even if he was unaware of the date of that examination.
[14]See Donelly A (a pseudonym) v The King (2022) SASCA [174] (Doyle CJ).
The applicant did not address in any detail in his submissions what he contends to be the relevance of having disclosed to him what Ms Gobbo revealed about her knowledge of Mr Mokbel’s conduct in what was, at one time, alleged to be an attempt by him to pervert the course of justice (Landslip 2). I am satisfied however, from my analysis of the materials before me in these proceedings, including, in particular, Agreed Facts 115 to 117 and 160 and 160A in the Joint Statement of Agreed Facts[15] and coupled with what is comprised in the certificate material relating to the examination of Ms Gobbo (including materials she was asked to identify in the course of the examination) that the presentation of the applicant’s case is likely to be materially advanced by revealing the extent of Ms Gobbo’s involvement in what became ultimately the brief of evidence in Landslip 2.
[15]Amended Joint Statement of Agreed Facts filed 8 January 2024.
Further, I note that Ms Gobbo breached the confidentiality of the examination processes in which she participated by reporting to her handlers about those processes during the currency of her registration as a human source.[16] That fact was not drawn to my attention in the evidence relied upon by ACIC in resisting disclosure, from which I infer Mr Hall was unaware of it.
[16]VPL 4001.0004.00165.
Finally, I do not give Ms Gobbo’s views [17]that as a matter of legal principle I should not release the certificate material to the applicant as entitled to any weight in the discretionary exercise in which I am engaged. It seems to me to be an open inference that the documents and information upon which she was examined, the very document which she suggests are covered by legal professional privilege, were documents and information she revealed to investigating police in July 2006 in breach of that same privilege i.e., after her registration as a human source in September 2005 but prior to the examination in December 2006. To suggest in correspondence in February 2024 that her client has a right to claim privilege over those documents, and the legal conference in which they generated, and that I should not deprive him of the right to mount that claim is, in my view, an unconscionable position for her to advance on his behalf.
[17]Conveyed to the court via her solicitors in their correspondence with ACIC in February 2024.
The circumstances in which those same documents were made available to ACIC for the purpose of the examination is not clear from the certificate materials. However, a compelling inference is that they were supplied by Victoria Police. I am also prepared to draw the inference that they were party to a ruse with Ms Gobbo that she should be compulsorily examined by ACIC about the documents and the circumstances in which they were generated thereby gaining the protection of the secrecy provisions under the ACC Act to protect her identity as the source of that information before the documents was ‘formally’ disclosed to investigating police by ACIC at the conclusion of the examination process. I should emphasise I have no view at all as to whether ACIC was party to that ruse. That is however a state of affairs that the applicant ought be permitted to explore in these proceedings if he wishes.
Conclusion
For the reasons set out above, I am satisfied that the interests of justice require disclosure to the applicant of the certificate material as it relates to the examination of Ms Gobbo on 13 December 2006. I am not satisfied that the interests of justice require disclosure of the certificate material as it relates to Mr Thomas.
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