Re Mokbel (Ruling No 1)
[2024] VSC 26
•7 February 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 & 1 February 2024 |
DATE OF RULING: | 7 February 2024 |
CASE MAY BE CITED AS: | Re Mokbel (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 26 |
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CRIMINAL LAW – Application for access to unredacted documents subpoenaed by the applicant – Consideration of public interest immunity claims mounted by the Office of the Special Investigator and the Chief Commissioner of Police – Consideration of pseudonym orders – 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 with Ms M Pekevska | Victorian Government Solicitors Office |
| For the Office of the Special Investigator | Mr B Woinarski with Mr D Kazatsky | Russell Kennedy Pty Ltd |
HER HONOUR:
The applicant has sought access to an unredacted version of a document headed ‘Statement of Material Facts on the Spey Brief’ (the SOMF).
That document was prepared by the Office of the Special Investigator (the OSI). Although the document is undated, it is clear from the submissions of counsel for the OSI to which I will presently refer that it was prepared some time in 2021.
The OSI objects to the applicant being provided with the SOMF in its entirety. At my request in December 2023, counsel for the OSI provided me with a version of the SOMF which, save for very few redactions, comprises a document extending over 57 pages and 272 numbered paragraphs. That document has been retained by me as a confidential document since that date.
On the resumption of proceedings in January 2024, the Chief Commissioner of Victoria Police (the Chief Commissioner) provided me with a version of the SOMF with additional redactions corresponding with various colour coded subcategories of a claim of public interest immunity, identified in an open affidavit by Detective Acting Inspector Luke McDonald,[1] dated 12 January 2024, on behalf of the Chief Commissioner. A confidential affidavit sworn by the same deponent, on the same date,[2] was also read in support of the Chief Commissioner’s claim. A confidential exhibit was marked LM-1 in that affidavit.[3]
[1]Open affidavit of Detective Acting Inspector Luke McDonald dated 12 January 2024.
[2]Confidential affidavit of Detective Acting Inspector Luke McDonald dated 12 January 2024.
[3]Exhibit LM-1 – a copy of the table of proposed PII redactions made by the Chief Commissioner of Police (the Chief Commissioner).
The OSI, the Chief Commissioner and the applicant rely upon written submissions which were filed at my direction.[4] No oral argument was advanced by any party.
[4]The orders made by Fullerton J on 20 December 2023 included the filing of a confidential affidavit by the Chief Commissioner but did not include the filing of any confidential submissions. The applicant objected to me reading the chief Commissioner’s confidential submissions. I have not taken them into consideration in ruling on the Commissioner’s public interest immunity claims.
On 4 February 2024, submissions were also filed by solicitors acting for two people who are referred to by their given names throughout the SOMF. In the event that the OSI is unsuccessful in restricting production of the SOMF in its entirety, and the SOMF is made available to the applicant and/or the document is otherwise admitted as evidence in the proceedings, they seek an order that pseudonyms be applied to the names of their clients. No evidence was called in support of that application.
The establishment of the OSI
The Office of the Special Investigator (the OSI) was established by s 12 of the Special Investigator Act 2021 (the SI Act),[5] following the recommendations of the Royal Commission into the Management of Police Informants.[6] Under the SI Act the OSI was granted the necessary powers, and given the necessary resources, to investigate whether, within the records of the Royal Commission or otherwise, there was sufficient evidence to prove the commission of criminal offences by Nicola Gobbo, or by current or former members of Victoria police in connection with their use of Ms Gobbo as a human source, and to provide to the Director of Public Prosecutions (the DPP) briefs of evidence in order for the Director to determine whether a criminal charge or charges should be filed against any or all of those individuals.
[5]Since repealed by the Special Investigator Repeal Act 2023 (No 31 of 2023) (Vic).
[6]Victoria, Royal Commission into the Management of Police Informants, Final Report (2020).
The Hon Geoffrey Nettle AC KC was appointed the Special Investigator. Pursuant to s 99 of the SI Act, the Special Investigator had a duty to report to the Parliament on matters relating to the performance of the OSI’s duties and functions.
On 8 December 2022, after an extensive investigation, a brief of evidence known as the ‘Spey Brief’ was forwarded to the DPP for her consideration. The SOMF formed part of that brief of evidence. The SOMF does not bear the name of the Special Investigator as the person who ‘authored’ the document. Neither is it expressed as reflecting the views of the Special Investigator. In this application, I proceed on the basis that the document was likely to have been prepared with input from a range of people working within the OSI, and that it was likely to have been reviewed and approved by the Special Investigator before it was included as part of the Spey Brief.
A memorandum accompanying the brief of evidence sought a determination by the DPP pursuant to s 41 of the SI Act that the OSI be permitted to file charges of attempting to pervert the course of justice against five persons identified by name being Ms Gobbo, Officer Sandy White (a pseudonym applied for the purposes of these proceedings),[7] Officer Peter Smith (a pseudonym also applied for the purposes of these proceedings), and the two officers earlier referred to as a former and currently serving police officer who seek pseudonym orders before the document is released to the parties.
[7]Pursuant to pseudonym orders of Fullerton J dated 7 February 2024.
Other than Ms Gobbo, the remaining four individuals are to be called as witnesses in the Reference Determination hearing.
Both versions of the SOMF under consideration on the application permit me to fairly describe the document as a detailed synthesis of an extensive body of evidence (comprehensively footnoted throughout) in support of what was said to be the detailed planning and implementation of a joint criminal enterprise to pervert the course of justice, ultimately reflected in an agreement, to which the five named individuals were parties, that Mr Cooper (a pseudonym applied for the purposes of these proceedings)[8] should become a prosecution witness, inter alia, against the applicant, and the various steps each alleged offender took each took in achieving that objective.
[8]Pursuant to pseudonym orders of McCann JR dated 11 May 2023.
On 16 March 2023, the DPP notified the OSI that she had determined a charge sheet should not be filed against any of the named persons. The Director was of the opinion that there was no reasonable prospect of conviction of any of the five named individuals on a charge of attempting to pervert the course of justice.
Thereafter the Special Investigator and the Director engaged in a course of correspondence concerning the Director’s decision that charges against the five named individuals would not be initiated. The Special Investigator also corresponded with then Attorney General concerning the Director’s decision, after which the Attorney General sought the views of the Special Investigator as to the likelihood of any of the then pending investigations by the OSI resulting in successful prosecutions. That correspondence, together with the full text of the Director’s determination not to prosecute the five individuals the subject of the Spey Brief, was annexed to the submissions of counsel for the OSI. While the five individuals were named in the correspondence and in the Director’s determination, their names were redacted from the annexed copies of the correspondence to counsel’s submissions.
On 20 June 2023 the Special Investigator, in accordance with s 91 of the SI Act, reported to the Parliament the fact that the Director had determined that criminal proceedings should not be initiated. That document is a matter of public record. The five people were not identified, by name, in the Special Report to Parliament. They were described in that document as the ‘alleged Spey offenders’.
The position of the OSI
The OSI opposes production of the SOMF on four bases: first a claim of public interest immunity; second that the SOMF is not evidence; third that the SOMF does not contain the opinion of an expert; and fourth that the applicant has not demonstrated he has a legitimate forensic purpose in being permitted access to the document.
No authority was advanced in support of the proposition that grounds two and three provide a principled basis upon which a Court might or should disallow production of the SOMF in its entirety. I propose to consider the submissions advanced in support of those two grounds in the context of considering whether the applicant has demonstrated a legitimate forensic purpose in compelling production of the SOMF, before turning to the separate submission that the document should be withheld from production on the basis that there is a recognised public interest in concealing from disclosure the identities of the five individuals the OSI regarded as having engaged in criminal conduct, in circumstances where, it is submitted that the prosecution of those individuals, at some unspecified future date, might be frustrated or prejudiced.
No legitimate forensic purpose
Both in structure and form, the SOMF is a summary of primary evidential material which, as I have already observed, is heavily footnoted to identify that source material, material which I understand has been the subject of separate disclosure to the applicant by the Chief Commissioner.
Notwithstanding that disclosure, it appears to me that the narrative rendering of that material in a chronological format might bring added perspective and coalescence to the primary source material. For that reason, I am satisfied that the applicant has a demonstrated forensic interest in being permitted access to the SOMF in that form in the case he seeks to make in answering a number of questions on the Reference Determination. Those questions include but are not limited to referred question 17, which concerns whether there was a pattern of improper or unlawful practices by Victoria Police at a high level in relation to the use of Ms Gobbo as a human source in seeking to solve Melbourne’s gangland war.
Additionally, although on occasions the SOMF includes some express and implied conclusions of fact drawn by the author or authors as to what the evidence in the Spey Brief is capable of establishing about the criminal conduct of police in their dealings with Ms Gobbo in April 2006, that fact does not deprive the document of potential forensic utility on the Reference Determination. While in the questions referred for determination I am not invited to opine about the criminal liability of police and/or Ms Gobbo in her dealings with police and Mr Cooper in April 2006 (or for that matter at any other time), given the applicant’s proposed answers to some of the referred questions, the conduct of police and Ms Gobbo vis-à-vis each other and Mr Cooper (dealings which the OSI considered as capable of bearing that criminal complexion), is not a matter the applicant should be deprived of considering in the preparation and presentation of his case.
Ruling the issue of legitimate forensic purpose
Accordingly, I am satisfied that there is reasonable possibility that the SOMF will materially assist the applicant in the preparation and presentation of his case on the reference determination. I accept that the test I have applied in coming to that conclusion, has been restated and refined in the context of the production of documents to an accused to assist in defence of a criminal charge(s). In the somewhat unusual circumstances of this case, I have approached the application of the test by giving special consideration to the nature of a referral under s 319A of the Criminal Procedure Act 2009 (Vic), including the fact the Reference Determination proceedings are adversarial in nature, imposing upon the applicant the burden of establishing, on the balance of probabilities, the underlying facts that he contends are relevant to discharging the onus in answering the questions referred in the way he proposes they should be answered, and the facts inherent in or underlying those proposed answers.[9]
[9]Rob Karam v R [2022] VSC 808R, [16] (Osborn JA).
Public interest immunity
In advancing a claim for public interest immunity over the entire document, the OSI is seeking to prevent each of the five individuals named in it as parties to a joint criminal enterprise to pervert the course of criminal justice from knowing that fact and from knowing the evidence that has been assembled in support of proof of their criminal guilt.
It was not submitted by the OSI that disclosure of the identities of the five individuals to the applicant or third parties, including, for example, media interests, would be contrary to the public interest. In that regard, pursuant to an order I made on 1 February 2024, I note that the Chief Commissioner of Police has in his possession a form of the SOMF where the identity of the five named individuals is not concealed, although the names of two individuals (being officers of the SDU) have since been overwritten by the Victorian Government Solicitors Office (VGSO), at the Commissioner’s request to apply the pseudonyms given to them in the Royal Commission. I propose to make orders that those pseudonyms be applied in these proceedings. In contrast, Ms Gobbo’s name is not concealed in the document neither are the names of the former and current police officers.
I accept what was put in writing by the solicitors for the former and current police officers, to the effect that they have not been provided with, and have not otherwise seen a copy of the SOMF in either a redacted or unredacted form. Their application for pseudonym orders is advanced solely on the basis that they have been ‘given to understand’ that the document recommends that charges should be laid against their clients, and that fact ‘is highly likely to be prejudicial to [their clients]’.[10] I will return to consider that submission and the pseudonym orders that are sought to conceal the identity of the two individuals.
[10]Email from the solicitors for the former and current police officers to the Chambers of Fullerton J, Thursday 1 February 2024, received 7:36pm.
To be clear, the submission advanced by the OSI in support of its submission that the document should be suppressed in its entirety is limited to the proposition that there is a recognised public interest in concealing from disclosure to the individuals themselves that the OSI regarded them as having engaged in criminal conduct which rendered them liable to prosecution, in circumstances where, it is submitted, the prosecution of those individuals at some unspecified future date might be frustrated or prejudiced if that information is disclosed to them at this time.
Ruling on the OSI claim for public interest immunity
In my view, a matter worthy of significant weight in both determining whether the OSI has demonstrated there is a public interest in preserving the possibility of future prosecutions on the facts of this case, assuming the first hurdle has been passed, and of similar, if not preponderant weight, in the balancing exercise engaged when a claim of public interest immunity is mounted,[11] is the fact that the SI Act has since been repealed thus bringing to an end the role of the OSI and its statutory role as an investigator under the Act.
[11]HT v The Queen (2019) 269 CLR 403.
Self-evidently, that does not foreclose upon the possibility that the Director might, either of her own volition or after receipt of a supplementary brief of evidence from investigating police, reconsider prosecuting the five individuals, or some of them, at some future date. The applicant does not submit to the contrary. What was submitted on the applicant’s behalf was that I would regard that possibility as remote in the extreme given the express views of the current holder of the Office of Director of Public Prosecutions that there is no reasonable prospect of securing a conviction, inter alia, because of what she considered to be material deficiencies in the brief of evidence.
In light of the history of this matter, and, given the passage of time since the events the subject of the brief of evidence, together with the fact that the OSI has now been disbanded, there is, in my view, an air of unreality in the suggestion that a reconstituted team of investigating police might be designated the task of revisiting or even reviewing the Spey brief of evidence.
I am not persuaded that the OSI’s claim for public interest immunity over the entirety of the SOMF has been made out.
The Chief Commissioner’s claim for public interest immunity over residual parts of the SOMF
In addition to seeking an order in these proceedings that the various pseudonym orders made by the Royal Commissioner to protect the identity of officers from the Source Development Unit (the SDU) who gave evidence in the Royal Commission, or who were otherwise identified in documents produced to the Commission (some of whom are named in the SOMF), the Chief Commissioner seeks orders protecting the identity of four other people who are named in the SOMF.
I am satisfied on the basis of what is deposed to in the open affidavit of Detective Acting Inspector Luke McDonald, reinforced by what is contained within his confidential affidavit, that the public interest immunity claimed over the identities of those four people is made out. I am satisfied that disclosure of the identities of each of the four people (being former SDU members and other covert members of that unit) would create an increased risk of safety to them and the safety of their families.
The remaining public interest immunity claims made by the chief Commissioner fall into five different categories identified by a colour code reproduced in Detective Acting Inspector McDonald’s open supporting affidavit. The only colour coded redactions that the Chief Commissioner is asking to be applied to the SOMF prior to disclosure to the applicant are ‘red’ redaction to designate confidential human sources, protected witnesses, covert operatives, or other people who would be placed at risk were their identity revealed; ‘yellow’ redaction to designate confidential police training, tactics, methods and equipment; ‘pink’ redaction to represent personal information, including information about a person’s health; and ‘green’ redaction where ‘bio data’ might undermine the anonymity of the SDU handlers.
In an exhibit to the confidential affidavit of Detective Acting Inspector McDonald each of the various public interest immunity claims are identified referable to the corresponding colour-coded category and then by reference to the content to be redacted from nominated pages of the SOMF and paragraph number. In total 21 redactions are sought between pages 3 and 56 of the document.
Save only for two proposed redactions, namely to paragraphs 37 and 38 on page 7 of the SOMF, I am satisfied, having regard to the contents of the open and confidential affidavit, that the various colour-coded categories of a claim for public interest immunity are properly made. I am also satisfied that the balance is struck in favour of redaction where the overwhelming public interest is in preserving the anonymity of named persons who may be vulnerable to the risk of harm and preserving the covert nature of a variety of methods deployed by police in the investigation of organised criminal activities.
I am satisfied that the redactions in paragraphs 37 and 38 in the SOMF should be lifted. The content of those two paragraphs are reproduced as Agreed Fact 31 in the Joint Statement of Agreed Facts filed by the parties in the proceedings.
The pseudonym orders sought on behalf of the current and former police officer identified in the SOMP as an alleged criminal offender
The solicitors for the two named individuals referred in their submissions to Secretary, Department of Justice in Regulation v Zhong (No 2),[12] in which the Court of Appeal endorsed a number of principles to be considered by a court when an application for a pseudonym order is sought. It is unnecessary to set out those principles in detail. Suffice to note that while a court is entitled to take into account the individual personal circumstances affecting the person, including whether there is a real risk of a person suffering psychological harm as a result of the publication of his or her name in proceedings, the Court went on to say:
… in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the orders is necessary.[13]
[12][2017] VSCA 19, [5] (Santamaria, Ferguson and McLeish JJA) (‘DPP v Zhong’).
[13]See also Director of Public Prosecutions v EN [2023] VSC 724.
No evidence was called in support of the application for pseudonym orders for either of the named individuals.
In the submissions advanced on their behalf, it was asserted that publication of their names as alleged offenders ‘will cause an impact on their psychological well-being and may result in a risk to their personal safety in circumstances where they may not be charged and may never be’.[14]
[14]Undated and unsigned submissions forwarded under cover of an email from Corrs Chambers Westgarth to the Chambers of Fullerton J, Monday 5 February 2024, received 8:12am.
It was also submitted that were the SOMF available to media interests by the tender of the document in evidence, ‘harm to the individuals’ mental health and the mental health of members of their families [may result]; a potential risk to their safety (and potentially the safety of their immediately family) [may result] and the fairness of any future trial if charges were ever laid against them [may be impacted]’.
Earlier in this judgment I have remarked upon what I consider to be the remote possibility that any of the named police officers will face criminal charges in connection with their dealings with Ms Gobbo in 2005 in the future. Quite apart from that observation, the fact that I have no evidence of any kind upon which to make an assessment of the fact, or extent, of any actual psychological harm, or the risk that either of the individuals, or their families, may suffer harm of that kind, renders the ultimate determination of whether the principal rule of open justice should cede to the interests of an individual is difficult if not impossible. I do not consider that this is a case where I am in a position to rely on my own judicial experience and draw appropriate inferences concerning the risk of harm of the kind contended for.[15]
[15]See DPP v Zhong (n 12).
In short, having regard to the way in which the submission has been advanced, and in particular, in the absence of any evidence to support it, I am unable to be satisfied that the balance should be struck in favour of the individuals concerned.
The application that pseudonyms be applied to the SOMF to conceal the identity of the current and former police officers before its disclosure to the applicant is refused.
It is not yet clear to me whether the SOMF, which will be redacted to meet the concerns of the Chief Commissioner prior to disclosure to the parties, will be either tendered in the proceedings or its contents referred to in the proceedings. In the interim, I propose to make an order limiting disclosure of the redacted SOMF to the lawyers acting for the parties. I invite counsel for either the applicant or the respondent to advise me, in due course, whether the SOMF will be tendered, or might be tendered, and/or its contents might be referred to in the proceedings. In the event that that was to occur, solicitors for the two individuals may wish to make further submissions, and adduce evidence in support of an application for a suppression order, or an order that the SOMF not be disclosed to media interests.
In the interim, I make an order limiting disclosure of the redacted SOMF to the parties.
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