| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0036 |
| ZAHAROULA MOKBEL | Applicant |
| v | |
| THE KING | Respondent |
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| JUDICIAL REGISTRAR: | McCann JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2024 |
| DATE OF JUDGMENT: | 1 November 2024 |
| CASE MAY BE CITED AS: | Z Mokbel v The King |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 259 |
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CRIMINAL LAW – Appeal against conviction – Application by the Chief Commissioner of Victoria Police for non-disclosure order pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 and s 130 of the Evidence Act 2008 – Where the subject document is relevant to issues raised in the appeal – The Chief Commissioner of Victoria Police’s ongoing obligation of disclosure – Where the subject documents contain information that is a matter of state – Public interest immunity claim – Where documents contain information that may assist the applicant in their appeal – Where that assistance [redacted] – [Redacted] – Where the applicant’s conviction resulted in a wholly suspended gaol sentence – Where it is not possible to provide the information to the applicant with the risk ameliorated – Where balance of factors in s 130 of Evidence Act2008 does not favour disclosure – Non-disclosure order made in respect of all the subject documents.
Criminal Procedure Act 2009; Evidence Act 2008.
R v MZ [2009] VCC 1817; Roberts v The Queen [2020] 60 VR 431; Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131; R v Debono (2012) 225 A Crim R 585; R v Cox [2005] VSC 249; Sankey v Whitlam (1978) 142 CLR 1; Alister v R (1984) 154 CLR 404; Commonwealth v Northern Land Council (1993) 176 CLR 604; Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84; AB v CD & EF [2017] VSCA 338; [Redacted].
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| Counsel | |||
| Applicant: | Mr CK Wareham | ||
| Respondent: | Mr JCJ McWilliams | ||
| Chief Commissioner of Victoria Police | Ms GA Coghlan KC, with Ms D Price | ||
Solicitors | |||
| Applicants: | Sarah Tricarico Lawyers Pty Ltd | ||
| Respondent: | Office of Public Prosecutions | ||
| Chief Commissioner of Victoria Police | Victorian Government Solicitor’s Office | ||
MCCANN JR:
Overview
On 9 August 2024 the Chief Commissioner of Victoria Police (‘the Chief Commissioner’) filed an application for a non-disclosure order pursuant to s 416A(1)(b) of the Criminal Procedure Act 2009 (‘CPA’) and s 130 of the Evidence Act 2008 in relation to one entire document and portions of three other documents (‘the documents’) that he considers may be disclosable to the applicant, Ms Zaharoula Mokbel (‘the applicant’) in her appeal. The Chief Commissioner seeks an order that he be excused from disclosing the documents because, he argues, they ought be subject to public interest immunity.
[Redacted].
Having inspected the documents, read the submissions and affidavit material, both open and confidential, and having heard submissions from counsel for the Chief Commissioner in closed court in the absence of the parties, I have formed the view that the documents are disclosable, but ought be subject to public…
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- AGLC
- Z Mokbel v The King [2024] VSCA 259
- Case
- [2024] VSCA 259
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Chief Commissioner had an ongoing obligation to disclose the documents under the Evidence Act 2008, the application of the public interest immunity claim, and whether the balance of factors in section 130 of the Evidence Act 2008 favoured disclosure. The court considered the potential assistance to the appellant from the documents, the risk of disclosure, and the nature of the information contained within them. The court also took into account the appellant's conviction and the wholly suspended gaol sentence. Ultimately, the court found that the risk of disclosure could not be ameliorated and that the balance of factors did not favour disclosure.
The court concluded that a non-disclosure order should be made in respect of all the subject documents. The court noted that the appellant's conviction had resulted in a wholly suspended gaol sentence, which meant that the risk of disclosure did not outweigh the potential assistance to the appellant. The court found that the information contained within the documents was a matter of state and that the public interest immunity claim applied. The court held that it was not possible to provide the information to the appellant with the risk ameliorated and that the balance of factors in section 130 of the Evidence Act 2008 did not favour disclosure.
The final orders of the court were that a non-disclosure order be made in respect of all the subject documents. The court found that the Chief Commissioner had fulfilled their obligation of disclosure and that the non-disclosure order was necessary to protect the public interest. The court held that the risk of disclosure outweighed the potential assistance to the appellant and that the balance of factors in section 130 of the Evidence Act 2009 did not favour disclosure.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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