Re Mokbel (No 6) - [2024] VSC 305

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…

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 6)

Details

AGLC: Re Mokbel (No 6) [2024] VSC 305
Case: [2024] VSC 305
Decision Date: 12 June 2024

CaseChat Overview and Summary

The parties involved in this case were Mokbel, the respondent, and the Director of Public Prosecutions (DPP), the applicant. The dispute pertained to the withdrawal of Agreed Fact 93 from the Statement of Agreed Facts, which had been filed under the orders of the Judicial Registrar. The case was heard in the High Court of Australia. The legal issue before the court was the interpretation of the term ‘agent of police’ within the context of the agreed facts and the consideration of procedural fairness in relation to the withdrawal of the agreed fact.

The court examined the meaning of ‘agent of police’ as used in the agreed facts, considering whether it included all individuals acting on behalf of the police, including those acting in a private capacity. The court also considered the principles of procedural fairness, particularly whether the respondent had been given a fair opportunity to respond to the application to withdraw the agreed fact. The court held that the term ‘agent of police’ was broad enough to encompass individuals acting on behalf of the police, including those in a private capacity. Furthermore, the court found that the respondent had been afforded procedural fairness as they had been given the opportunity to respond to the application.

The court concluded that the application to withdraw Agreed Fact 93 was appropriate, given the interpretation of ‘agent of police’ and the procedural fairness considerations. The court allowed the application, permitting the withdrawal of the agreed fact. The court's decision provided clarity on the interpretation of ‘agent of police’ and reinforced the importance of procedural fairness in legal proceedings. The respondent's application to withdraw Agreed Fact 93 was successful, and the court's decision was in favour of the DPP.

Orders