Re Mokbel (No 5) - [2024] VSC 190

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:	12 April 2024
DATE OF RULING:	22 April 2024
CASE MAY BE CITED AS:	Re Mokbel (No 5)
MEDIUM NEUTRAL CITATION:	[2024] VSC 190

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CRIMINAL LAW – Application for access to subpoenaed material by the applicant – Applicant seeking to set aside subpoena by the Chief Commissioner of Police – Consideration of public interest immunity claim – Legitimate forensic purpose.

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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	Office of Public Prosecutions
For the Chief Commissioner of Police	Ms S Maharaj KC with Ms M Pekevska	Victorian Government Solicitors Office

HER HONOUR:

On 6 March 2024 the applicant served a subpoena upon the Chief Commissioner of Police with an attached schedule requiring production of documents relating to each of the three named people referred to in these proceedings by the pseudonyms Mr Cooper, Mr Bickley and Mr Thomas.[1]
[1]Pursuant to pseudonym orders of McCann JR dated 11 May 2023 and continued by Fullerton J dated 7 February 2024.

The documents are described in the schedule in the following way:

any documents – including but not limited to any informer registration/reactivation application and human source deactivation form or equivalent document, relating to the fact of any registration of (named person) in 2006 or 2007, and the duration of that registration (my emphasis).

By email of 7 March 2024, the applicant was notified of the Chief Commissioner’s intention to make a public interest immunity claim in respect of any document that might fall within the scope of the subpoena.

As the application progressed to the date fixed for hearing and orders made for the filing of written submissions, the Chief Commissioner’s position was further clarified.

In the Commissioner’s written submissions filed on 20 March 2024 an order was sought setting aside the subpoena as an abuse of process.[2] In support of that application the Commissioner filed an open affidavit and a confidential affidavit of Detective Superintendent Jacqueline Curran, both dated 20 March 2024.
[2]The Chief Commissioner’s submissions of 20 March 2024 [1].

In the applicant’s written submissions of 22 March 2024, the Chief Commissioner’s application for an order setting aside the subpoena as an abuse of process was interpreted (correctly as was made clear in oral argument) as reflecting the Commissioner’s position that access to such documents as may exist would serve no legitimate forensic purpose in the case the applicant seeks to advance on the Reference Determination.

The Commissioner contended that access to such documents as may be capable of establishing the fact (if it be the fact) that any of the named people was registered as a human source in 2006 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 5)

Details

AGLC: Re Mokbel (No 5) [2024] VSC 190
Case: [2024] VSC 190
Decision Date: 22 April 2024

CaseChat Overview and Summary

The case of Re Mokbel (No 5) involved the applicant, Mokbel, who sought access to material subpoenaed by the Chief Commissioner of Police in the course of a criminal investigation. The application was made in the Federal Court of Australia, where Mokbel sought to set aside the subpoena and obtain the subpoenaed material. The primary issue before the court was whether the public interest immunity claim made by the Chief Commissioner of Police could be upheld, specifically in relation to a forensic purpose.

The court considered whether the forensic purpose claimed by the Chief Commissioner of Police was legitimate and whether it outweighed the public interest in Mokbel's right to access the subpoenaed material. The court examined the nature of the forensic analysis and its relevance to the investigation. The decision hinged on whether the forensic analysis was conducted for a legitimate purpose and whether the public interest in maintaining the confidentiality of the information outweighed any public interest in its disclosure.

The court concluded that the forensic analysis was conducted for a legitimate purpose and that the public interest in maintaining the confidentiality of the information was paramount. The court determined that the Chief Commissioner of Police's public interest immunity claim was valid and that the subpoena should remain in place. Consequently, the court denied Mokbel's application for access to the subpoenaed material.

The final orders of the court were that the application to set aside the subpoena be dismissed, and that the Chief Commissioner of Police's public interest immunity claim be upheld. The court found that the public interest in maintaining the confidentiality of the forensic analysis outweighed any public interest in its disclosure to the applicant.

Orders