Re Mokbel (Ruling No 1) - [2024] VSC 26

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…

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 (Ruling No 1)

Details

AGLC: Re Mokbel (Ruling No 1) [2024] VSC 26
Case: [2024] VSC 26
Decision Date: 7 February 2024

CaseChat Overview and Summary

The case of Re Mokbel (Ruling No 1) involved an application for access to unredacted documents that were subpoenaed by the applicant. The dispute was between the applicant, who sought the documents, and the Office of the Special Investigator and the Chief Commissioner of Police, who raised public interest immunity claims. The case was heard in the Federal Court of Australia.

The court had to determine whether the public interest immunity claims were valid and, if so, whether the applicant's need for the documents outweighed the public interest in maintaining the secrecy of the information. The court also considered whether pseudonym orders should be granted to protect the identity of individuals mentioned in the documents. Furthermore, the court had to assess whether the applicant had a legitimate forensic purpose for accessing the documents.

The court found that the public interest immunity claims were valid, as the information sought was highly sensitive and could potentially harm national security. However, the court also found that the applicant had a legitimate forensic purpose for accessing the documents, as they were necessary for the applicant's defence in a criminal trial. The court granted pseudonym orders to protect the identity of individuals mentioned in the documents. Ultimately, the court allowed the applicant limited access to the unredacted documents, subject to certain conditions and restrictions.

The final orders of the court included granting the applicant access to certain unredacted documents, subject to the conditions and restrictions outlined in the judgment. The court also granted pseudonym orders to protect the identity of individuals mentioned in the documents. The court emphasised the importance of balancing the applicant's right to a fair trial with the public interest in maintaining the secrecy of sensitive information.

Orders