Z Mokbel v The King - [2024] VSCA 259

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…

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 Z Mokbel v The King

Details

AGLC: Z Mokbel v The King [2024] VSCA 259
Case: [2024] VSCA 259
Decision Date: 1 November 2024

CaseChat Overview and Summary

The case of Z Mokbel v The King involved an appeal against conviction by the appellant, who had been convicted and sentenced to a wholly suspended gaol sentence. The Chief Commissioner of Victoria Police applied for a non-disclosure order regarding certain documents pursuant to sections 416A(1)(b) of the Criminal Procedure Act 2009 and s 130 of the Evidence Act 2008. The documents in question were relevant to issues raised in the appeal and contained information that was a matter of state. The Chief Commissioner argued that the documents contained information that could assist the appellant in their appeal, but the risk of disclosure outweighed the benefits. The court was required to determine whether the documents should be disclosed to the appellant or if a non-disclosure order should be made.

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