Z Mokbel v The King
[2024] VSCA 259
•1 November 2024
| 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 interest immunity. I will make a non-disclosure order in respect of all of them. These are my reasons for making that order.
Background
On 27 November 2009 the applicant was convicted of three charges of obtaining financial advantage by deception following a jury trial. On 18 December 2009 she was sentenced to a total effective sentence of two years and nine months.[1] This sentence was wholly suspended for a period of two years and nine months. The sentence has expired.
[1]R v MZ [2009] VCC 1817.
The prosecution case was that, between July 2002 and October 2005, the applicant signed three blank applications for finance which were later completed with false financial and personal information by her co-accused Kamel Khoder, also known as Karl Khoder (‘Mr Khoder’). The applications, directed to three different financial institutions, obtained a total value of $2,255,500.
On 4 October 2006 Mr Khoder was arrested and charged with deception offences in relation to his completion of applications for finance, including the applications for finance signed by the applicant. On 9 November 2006 the applicant was arrested and charged.
Following charges being laid, the applicant retained barrister Nicola Gobbo (‘Ms Gobbo’) between April and September 2007 to confer with her, provide advice, and prepare documents in respect of the criminal prosecution.[2] Ms Gobbo also provided advice and other legal services to Mr Khoder during this time.
[2]Respondent, ‘Response to Applicant’s Written Case (Conviction)’ 7 February 2024, [4].
On 3 July 2008 Mr Khoder pleaded guilty to seven charges and undertook to give evidence against the applicant and her husband, Horty Mokbel. Mr Khoder did, in fact, give evidence for the prosecution in the applicant’s trial.
[Redacted]
[Redacted].[3] [Redacted].[4]
[3][Redacted].
[4][Redacted].
As is now well known, between 16 September 2005 and 13 January 2009, the applicant’s one-time barrister, Ms Gobbo, was a registered informer with Victoria Police. Evidence given at the Royal Commission into the Management of Police Informants (‘RCMPI’) and referred to in the Commission report has revealed that Ms Gobbo provided police with information about the applicant, her husband Horty Mokbel, and Mr Khoder.
These revelations prompted the applicant to appeal her conviction. The appeal advances a single ground:
Ground 1: A fundamental irregularity occurred in the applicant’s trial that was productive of a substantial miscarriage of justice, in that Victoria Police and/or the Office of Public Prosecutions failed to disclose that the applicant’s former barrister — Nicola Gobbo — was:
(i)A human source for Victoria Police, and
(ii)Had been providing information about the applicant’s case to Victoria Police while she was either acting (or ostensibly acting) for the applicant.
In the applicant’s written case, she expands upon the use to which disclosure of Ms Gobbo’s status might have been put on her behalf:
5.12 Had Ms Gobbo’s status as a Human Source for Victoria Police been disclosed, it is almost inevitable that:
1. Further witnesses could have been called and cross-examined at the committal so as to understand what information had been provided to the SDU and disseminated within Victoria Police;
2. An application for a permanent stay of the prosecution would have been made on the basis that the investigation was irreparably tainted and that the prosecution was an abuse of process.[5]
[5]Applicant, ‘Application for Leave to Appeal Against Conviction Applicant’s Amended Written Case’, 27 October 2023, [5.12].
The Chief Commissioner seeks to be excused from his disclosure obligations in respect of the documents because he submits the information contained in them are matters of state. He asks that the Court consider and grant public interest immunity pursuant to s 130 of the Evidence Act and make an order pursuant to s 416A of the CPA. Because, as I outline below, I find that the documents are disclosable and contain information that is a matter of state [redacted], the task required is the balance of factors that weigh both for and against disclosure of the documents pursuant to s 130 of the Evidence Act.
Before considering the competing interests in relation to the subject documents, I will briefly describe the obligation of disclosure and the application made by the Chief Commissioner.
Disclosure and Non-disclosure Orders
The obligation of disclosure is imposed on the Crown in its broadest sense. It is a ‘golden rule’ legislated[6] and founded in common law. It is ongoing. A failure to discharge the obligation can result in a miscarriage of justice.[7]
[6]Criminal Procedure Act 2009, s 111.
[7]Roberts v The Queen [2020] 60 VR 431, [56] (Osborn JA, T Forrest JA, Taylor AJA); [2020] VSCA 58.
Section 416A of the CPA provides that a law enforcement agency in possession of any information, document or thing relevant to an alleged offence may apply for a non-disclosure order.[8]
[8]Criminal Procedure Act 2009, s 416A(1)(b).
By s 416A(3), the order excusing disclosure may be founded in the existing power of the court, including the power to make orders for the restriction of material pursuant to public interest immunity:
(3) The court may make any order or other decision that it has the power to make, that has the effect of excusing or preventing the disclosure of information relevant to the alleged offence.[9]
Public Interest Immunity
[9]Criminal Procedure Act 2009, s 416A(3).
Section 131A of the Evidence Act 2008 (‘the Act’) extends the application of the doctrine of public interest immunity contained in s 130 of the Act to material to be produced pursuant to disclosure obligations.[10]
[10]Chief Commissioner of Police v Crupi (2024) 98 ALJR 1131, [15] (Gageler CJ, Edelman and Beech-Jones JJ); [2024] HCA 34.
Where objection is taken to the production of material, that objection will be determined having regard to s 130 of the Act. The interpretation of that section is informed by the common law, and the process adopted is in keeping with the process required at common law.
Section 130 of the Act describes the task for the Court in determining an objection to production in a series of steps. Section 130(1) contains the threshold requirement and relevant balancing act, requiring first that the evidence to be adduced must be properly categorised as relating to ‘matters of state’. Where that threshold is met, the Court will determine whether public interest weighs in favour of preserving confidentiality or in favour of disclosure.
The exercise of determining whether the relevant material is properly categorised as relating to matters of state is informed by a non-exhaustive list of considerations outlined in s 130(4).
I am satisfied that the threshold in s 130(1) is met. The information contained in the documents relate to matters of state.
The balancing exercise is likewise informed by a non-exhaustive list of matters required to be considered. These are outlined in s 130(5):
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.[11]
[11]Evidence Act 2008, s 130(5).
This balancing exercise compares the potential significance of the relevant information to the applicant’s case, with the public interest in maintaining confidentiality of said information as it relates to matters of state.
The public interest in the administration of justice requires that a party have access to evidence that is relevant to the issues in their case. It is this relevance that is to be balanced against any harm that might be caused by the release of the information the subject of the claim. The public interests compete.
In respect of that competition, the Courts have consistently stated that a more liberal approach to production is to be taken in a case involving serious criminal charges against an accused than might be taken in a civil case.[12]
[12]R v Debono (2012) 225 A Crim R 585, [23] (Kyrou J); [2012] VSC 476, citing with approval R v Cox [2005] VSC 249, [9] (Kaye J); Sankey v Whitlam (1978) 142 CLR 1, 42 (Gibbs ACJ), 61–2 (Stephen J); [1978] HCA 43; Alister v R (1984) 154 CLR 404, 414 (Gibbs CJ), 431 (Murphy J), 437–8 (Wilson and Dawson JJ), 456 (Brennan J); [1984] HCA 85; Commonwealth v Northern Land Council (1993) 176 CLR 604, 618 (Mason CJ, Brennan, Deane, Dawson, Gaudron and McHugh JJ); [1993] HCA 24.
In serious criminal offences, the liberty of an applicant will frequently be at stake and, where that is the case, the balance must tilt in favour of individual liberty.[13]
[13]Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, 89 (Brooking J).
[Redacted].[14] [Redacted].[15]
[14][Redacted].
[15][Redacted].
[Redacted].
[Redacted].[16]
[16][Redacted].
It is for the Chief Commissioner to satisfy the Court that the public interest in maintaining the secrecy of the information outweighs the public interest in the administration of justice that requires that the applicant have access to materials that advance his case.
Consideration
Risk
I have accepted that the documents are matters of state [redacted]. It is a weighty consideration.
Assistance
The documents do not contain exculpatory material in relation to the applicant and the convictions she appeals. The documents do not assist in this way.
In her current appeal, the applicant argues that a permanent stay application would have been available to her, had the evidence of the role played by Ms Gobbo been disclosed to her. There is information within the documents the subject of this application that may have assisted to either supplement or amplify that argument at trial and may, therefore, be of assistance in the appeal that is currently brought, or in an appeal slightly reframed.
[Redacted]
Given the case that was run at trial and the formulation of the appeal, the assistance that might be garnered from the information is not mere or slight. It does not match the significance of the disclosed fact that her one-time barrister provided information to police, not only about her, but also about her co-offender, but in my view, the assistance it would provide [redacted], confined to the issue of unfairness.
[Redacted].
The balance
[Redacted].[17] [Redacted].[18]
[17][Redacted].
[18][Redacted].
[Redacted].[19]
[19][Redacted].
Considerations include the fact that the information is relevant to a criminal appeal.
The common law requires that a more liberal approach be adopted where the production in question is to be made in a criminal matter rather than in a civil claim. The stakes in a criminal case, often involving the liberty of the accused, warrant a differing approach. It is for this reason that it has been observed that, where the liberty of a person is at stake, it might make an order that confidential material be produced more likely.[20]
[20]Sankey v Whitlam (1978) 142 CLR 1, 42 (Gibbs ACJ), 61–2 (Stephen J); [1978] HCA 43.
Whilst this is a criminal appeal, the applicant is not currently in custody, nor was she ever incarcerated for the offences of which she was convicted. She received an entirely suspended sentence. The applicant cannot rely on this factor to balance in favour of the release of information. Indeed, the nature of the offence and subject matter of the proceedings, also relevant to the balance, must be viewed as being of relatively low seriousness. These are factors to consider against the weighty matter of risk in release.
In concluding consideration of the factors in s 130(5), I understand that the information has not been published. I cannot conceive of a way in which the information might be provided to the applicant in a way that would ameliorate risk, nor was the Chief Commissioner able to suggest a method that would reduce that risk.
Decision
Whilst I find that some information contained in the documents would be of assistance to the applicant, the risk in release is significant. The applicant in this criminal appeal cannot call on factors of similar weight to tip the balance in favour of releasing the information and taking that risk.
I find that the information should be restricted from release and will make a non-disclosure order in respect of the documents in this matter as described in the Chief Commissioner’s application.
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