Re Mokbel (No 6)
[2024] VSC 305
•12 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0117
| ANTONIOS SAJIH MOKBEL | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Fullerton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 December 2023 and 1 February 2024 |
DATE OF RULING: | 12 June 2024 |
CASE MAY BE CITED AS: | Re Mokbel (No 6) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 305 |
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CRIMINAL LAW – Statement of Agreed Facts (as amended) filed pursuant to orders of the Judicial Registrar – Respondent’s application to withdraw Agreed Fact 93 at the close of the evidence – Meaning of ‘agent of police’ – Considerations of procedural fairness.
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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 |
HER HONOUR:
At an early stage in the proceedings, Judicial Registrar McCann gave directions for the preparation of a list of agreed facts designed to clarify and narrow the facts in dispute and, if possible, to avoid the need to relitigate facts that had been fully ventilated before the Royal Commission into the Management of Informers in 2019.
On 10 March 2022, a “Proposed List of Joint Facts” was filed by the parties. It contained 405 asserted facts which the respondent was invited to consider. These facts were apparently sourced from a statement of facts prepared by the applicant from documents and other material that had either been disclosed to him or which were otherwise publicly available on the Royal Commission website.
As a preface to the “Proposed List of Joint Facts” the respondent made the following unqualified statement:
The respondent accepts any asserted fact as alleged by the applicant that are in bold black text.
This was contrasted with asserted facts in red, blue and green text, respectively a fact that was not accepted; a fact the respondent regarded as irrelevant or a fact which the respondent contended should be read in the context of other material which qualified the asserted fact in some material way.
On page 59 of the filed document, Asserted Fact 92 (in bold black text) read as follows:
On 22 April 2006, Mr Cooper (a pseudonym) was arrested on information provided by Ms Gobbo to Victoria Police. Ms Gobbo provided him with legal advice at the police station to cooperate with Victoria Police, including by becoming a witness against the applicant and others.
Asserted Fact 93 (also in bold black text) read as follows:
While purporting to give Mr Cooper (a pseudonym) independent advice, Ms Gobbo was acting as an agent of Victoria Police.
This was qualified by the following:
The respondent does not accept the inference that because Ms Gobbo was acting as an agent for Victoria police she gave advice that would not otherwise have been given. The respondent does not know whether the advice would have been any different if Mr Cooper had received advice from another lawyer or if Ms Gobbo had not been acting as an agent for Victoria police.
(My emphasis)
On 20 January 2023, the Proposed List of Joint Facts filed in January 2022 was reformulated into a document described as “Joint Statement of Agreed Facts”. It contained 393 separate facts. By that date, the asserted facts previously marked up as red, blue or green were apparently abandoned or recast in a such a way that the final form of the document was agreed. This was subject only to the proviso in a footnote on page 1 of the document, where the respondent made it clear that the facts as agreed should not be read as carrying any concession as to relevance or probative weight, or any concession that they were necessarily capable of supporting any inference the applicant might contend could be drawn from the agreed facts.
In the “Joint Statement of Agreed Facts” filed in January 2023 what had previously been Asserted Fact 92 became Agreed Fact 92 without amendment.
Asserted Fact 93 was however recast to read as follows:
While advising Mr Cooper, Ms Gobbo was acting as an agent of Victoria police.
On 8 January 2024, an “Amended Joint Statement of Agreed Facts” was filed in which Agreed fact 92 and 93 were both restated without amendment.
On 24 May 2024, I circulated a document for the consideration of the parties in advance of the preparation of their final written submissions.
One of the issues I raised concerned whether there was to be any revision of the final form of the agreed facts, including:
(a) any facts that are no longer agreed;
(b) facts which require restatement, refinement or elaboration; or
(c) any additional agreed facts.
On 3 June the respondent advised that she wished to withdraw agreement in relation to Agreed Fact 93. She also advised that Agreed Fact 25 and Agreed Fact 106 would be the subject of an agreed reformulation which would be in the form of an addendum to the Amended Joint Statement of Agreed Facts.
In so far as concerned Agreed Fact 93, the respondent submitted the evidence adduced in the proceedings as to the circumstances that obtained on the night of Mr Cooper’s arrest was suggestive of a scenario that was “more nuanced” than suggested by Agreed Fact 93 with the result that whatever meaning is to be attributed to the word “agent” the evidence adduced in the hearing does not support the concept of her acting as an agent of Victoria Police as a matter of law. This was said by the respondent to be based upon what has long been recognised as a degree of imprecision in the use of the word “agent” where either contractual and tortious liability is under consideration. So much is true.
In Kilpatrick v Kotis,[1] a case cited with approval in Tonto Home Loans Australia Pty Ltd v Tavares,[2] Campbell JA observed at [83] that when considering the concept of agency in the general sense it is, in some ways, ”imprecise“. Later in the judgment his Honour noted that in Scott v Davis,[3] when discussing the vicarious liability of a principal for the acts of that person’s agent, Gleeson CJ noted:
… the protean nature of the concept of agency, which bedevils this area of discourse. In the leading English case on the subject (Morgans v Launchbury [1973] AC 127 at 135), Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.
[1][2004] NSWSC 1265; 62 NSWLR 567, 581 [86].
[2][2011] NSWCA 389 [173].
[3](2000) 204 CLR 333 [338]-[339].
Campbell JA went on to observe at [85] that even if A is the agent of P, it is not in every circumstance in which A acts that his or her actions are counted as the action of P or attributed to P. That is, by being the agent of P, A does not lose all capacity to act in his or her own right. At [88] and [89] his Honour said:
In these ways, being “the agent of P” is not a characteristic that a person has always and in all circumstances and for all purposes.
Assume there is a court order that X, by himself, his servants and agents not undertake any work on the excavation of a particular piece of land, that on a particular day Y carries out work that is excavation of that piece of land, and X is charged with contempt of court. The court’s enquiry, in the course of deciding that charge of contempt, about whether Y is the agent of X, obviously must be one about whether, on that day, and in the course of carrying out that excavation (rather than on some other day, or in some other activity of his life), Y was acting as the agent of X. However, does it matter that Y can sometimes be the agent of X for the purpose of one legal right or obligation, but not for the purpose of a different legal right or obligation? And if it does matter, which legal right or obligation is the relevant one, for the purpose of deciding whether X is in contempt?
As the authorities make clear, in order to resolve the question whether in a particular case one person is acting or has acted as an agent of another it is important to consider the purpose for which one is asking the question.
It is that question that needs to be interrogated here.
In the course of argument Ms Condon SC made it clear that it would not be submitted on behalf of the applicant that in the course of Ms Gobbo acting as an agent of Victoria Police in advising Mr Cooper to cooperate with them, including by becoming a witness against the applicant and others, Victoria Police were exposed to any tortious or contractual liability. Rather it is the applicant’s case that Ms Gobbo was acting as agent for Victoria police on the occasion in question in the more general sense or broader sense of the word, namely by acting on behalf of Victoria police with their knowledge and approval in encouraging Mr Cooper to assist police.
In that connection, I note that at [83] of Kilpatrick v Kotis that Campbell JA referred to the Macquarie Dictionary 2nd Ed which defines “agent”, when used as a noun, as including “where a person acts on behalf of another”, that is without any necessary attribution of legal consequences or ramifications.
Although neither Mr Cooper nor Ms Gobbo gave evidence in the proceedings as to what transpired at the police station when Detective Flynn was seeking to persuade Mr Cooper to assist police (a discussion which took place in Ms Gobbo’s presence after she returned to the police station upon receipt of a phone call from Detective Flynn), Detective Flynn gave the following evidence:[4]
[4]T4521.28 – T4524.14.
Ms Condon SC: ... you agreed at the Royal Commission that that was a fairly lengthy discussion between you, Cooper and Gobbo when it's just the three of you, is that true?
Detective Flynn: I'm actually not sure how long that meeting went… I know that it's an hour between times of different people's diaries and things like that.
Ms Condon SC: Yes?
Detective Flynn: But I'm not - actually not sure how long it went for.
Ms Condon SC: All right, but you agreed at the Royal Commission it was fairly lengthy?
Detective Flynn: Yes, well whatever that is, but yes.
Ms Condon SC: And obviously you were in there alone?
Detective Flynn: Yes.
Ms Condon SC: …And it was put to you at the Royal Commission that she's in there assisting you as she had been doing since she came on board as an agent of the police in September 2005, you agreed, you said yes. Assisting you to convince him to roll over and assist the police and you said yes, do you accept you were asked those questions and you gave those answers?
Detective Flynn: Yes.
Ms Condon SC: And that's all true, isn't it, that's what she was doing in the room when you were there with Cooper, correct?
Detective Flynn: Well, as I said earlier I didn't - I don't remember her…objecting or blocking me in any way, that she was… you know, the contents of that conversation is really difficult for me to remember, and I just think it was part of what we discussed earlier. But when I was talking about reduction in gaol sentence and things like that, she was…to the best of my recollection saying…yes, that's true.
Ms Condon SC: Yes?
Detective Flynn: You know, yes.
Ms Condon SC: Yes, sorry, there's a difference though, isn't there, you've said to Her Honour she wasn't disagreeing with anything you said, correct? But what my proposition is… a bit different, she was actively assisting you, correct?
Detective Flynn: …I think her getting to agree with things, I'm saying could be interpreted as assisting.
Ms Condon SC: I’ll remind you of some of some of your evidence to the Royal Commission.
…
Ms Condon SC: This is at p6788, line 23. Question: “Because she didn't turn up - sorry, she didn't just turn up and provide legal advice, she actively assisted, she was present, wasn't she?” Your answer: “She was, yes”. Question: “With you?” And you said, “Yes, she was”. Question: “In circumstances where she wasn't I suggest simply standing back and offering legal advice. She was actively involving herself in the process of convincing this fellow”, that's Cooper, “to assist police?” Your answer: “Certainly towards the end of the interviewing process, I'd agree with that, yes”. Do you accept you were asked those questions and you gave those answers? And that's all true, isn't it?
Detective Flynn: …I just think it's a little bit of an interpretation thing, that's all, but yes...These are your words?
Ms Condon SC: Yes I know that. So do you want me to remind you about what they were? If you don't want to adopt them?
Detective Flynn: Could you read them again please.
Ms Condon SC: Yes.
Her Honour: From the top please, Ms Condon. Can I have that transcript page number?
Ms Condon SC: It's 6788, Your Honour, lines 23 to 33 - I'll read it a bit slower for you Mr Flynn. Question: “Because she didn't just turn up and provide legal advice. She actively assisted. She was present, wasn't she?” Your answer: “She was, yes”. Question: “With you?” Your answer: “Yes she was”. Question: “In circumstances where she wasn't, I suggest, simply standing back and offering legal advice. She was actively involving herself in the process of convincing this fellow to assist police?” Your answer: “Certainly towards the end of the interviewing process I'd agree with that, yes”. Now do you accept you were asked those questions, and you gave those answers, and is that the truth?
Detective Flynn: ...the only point I say is about that last answer and just the interpretation around assisting...I mean, I'm not disputing any of the facts… It's just that she - she was there, and whether she was assisting…as part of her role as a solicitor saying this is the best choice to go or not…is - is what the point I'm trying to get across.
It would appear that evidence might be encompassed by the respondent’s contention that the evidence supporting the proposition that what actually occurred in the course of the lengthy discussion between Mr Cooper, Detective Flynn and Ms Gobbo was “more nuanced” than Ms Gobbo acting as an agent for Victoria police. On the other hand, the same evidence also seems to be evidence the applicant would be entitled to rely upon as demonstrative of Ms Gobbo’s dual role in acting as an agent of Victoria Police whilst ostensibly giving Mr Cooper independent legal advice.
I do not regard the evidence extracted above, or other evidence in the proceedings bearing upon what occurred in the course of Ms Gobbo’s attendance at the police station where Mr Cooper was being spoken to (including the circumstances in which he came to be there at all) as undermining or contradicting the fact that she was at all relevant times that night a registered human source engaged by police to assist them in achieving the objectives encompassed by Operation Posse. The fact that she may also have been purporting to give legal advice to Mr Cooper (even advice that may prima facie have been sound legal advice) does not mean that she was not also acting as an agent of Victoria police by assisting them to achieve the objective of having Mr Cooper agree to assist police to dismantle the applicant’s criminal syndicate.
Irrespective of the formal status of the final version of the Joint Statement of Agreed Facts (or for that matter the status of the previous iterations of that document), it has been a document both parties were entitled to rely upon in the conduct of their cases as reflecting a statement of their joint position on facts not in dispute. Ms Condon’s use of the word “agent” in the question she asked of Detective Flynn is one example of that state of affairs. In my view it would be productive of a procedural unfairness to the applicant were Agreed Fact 93 to be withdrawn at this stage in the proceedings. Viewed in that way, I do not see anything turns upon the fact that the document was not signed by counsel, as might be the case with the documents filed as part of the pleadings in civil proceedings, or a document in the form of an evidentiary statement tendered pursuant to s 191 of the Evidence Act where leave would be required to adduce evidence that qualified agreed facts.
Of some significance in reinforcing the conclusion I have reached that Agreed Fact 93 will remain as part of the final iteration of the agreed facts in preparation of final submissions, is the formulation of Agreed Fact 391 to which no exception is taken by the respondent. It reads as follows:
The fact of Ms Gobbo being registered and acted as an informer to and agent of Victoria Police, contrary to the interests of the applicant, between 16 September 2005 on 14 January 2009, was not disclosed to any court or judicial officer in Australia or Greece prior to the conclusion of the applicant’s application to the High Court of Australia the special leave to appeal in December 2013.
(My emphasis)
I also note that it is remains open to the respondent to seek to persuade me that the fact that Ms Gobbo was acting as an agent for Victoria police on the night of Mr Cooper’s arrest is not a fact which carries any particular probative weight in answering any of the referral questions, or a fact capable of supporting proof of any further fact by a process of inferential reasoning.
The respondent’s application to withdraw her agreement to Agreed Fact 93 is refused.
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