Goussis v The King [2022] VSCA 197

Judgment (13 paragraphs)

[1]

The applicant refutes the CCP's suggestion of an 'orthodox' or 'usual' approach to securing sensitive documents, submitting that the approach needs to be tailored to the circumstances of each case. He submitted that relevant considerations include the level of complexity, the volume of material making up the case, the volume of the subject material and any particular need to achieve transparency for the applicant and the broader community. The applicant urged that the Court determine the question at the outset, rather than return to the issue during the course of consideration of the subject material in the absence of a contradictor.
Should the Court determine that assistance is required, the applicant submits that his counsel should take on the role of contradictor given their knowledge of the factual history of the matter and the ground of appeal. It is contended that this level of assistance could not be provided by counsel without such knowledge.
The evidence that the applicant contends is fresh and compelling in his single ground of appeal includes material that was generated by Victoria Police which was not disclosed to him until after his trial. In the circumstances, it was submitted that the involvement of the applicant's own counsel would increase the level of trust he holds in the process undertaken and the conclusions reached in the determination of the CCP's claims. Doubtless, it would also have an impact on the trust the applicant has in the appeal process as a whole.
In oral submissions, counsel for the applicant confirmed that his written and oral submissions were made on instructions following advice as to the ethical issues that may arise upon giving a confidentiality undertaking. Counsel also assured the Court that every caution would be exercised to avoid the risk of unwitting disclosure.

[2]

As noted above, the applicant's present application for leave to appeal against conviction relates to fresh evidence which was only revealed to him after he had exhausted his appeal rights.
It seems to me that in an appeal of this nature, and where the applicant has requested that the Court be provided with assistance beyond that offered by the CCP, I ought not to proceed without a contradictor. Having concluded that a contradictor will be required, the question arises as to whom ought fill the role.
The CCP submits that an amici should be appointed to assist the Court. It is true that this Court has been assisted in matters similar to the present by an amici appointed for this purpose. As observed by Beach JA in the matter of Mokbel v The Queen,[9] amici appointed for such a purpose would themselves be required to provide an undertaking and that the risk in respect of the dissemination of sensitive information would be no less than in the instance that the applicant's own counsel provide such an undertaking.
As outlined above, the CCP asserts that this is a simple case and that there is not a large volume of documents. Nonetheless, it is a second appeal with an intricate matrix of facts of both evidentiary and procedural relevance, all of which is in the current understanding of the applicant's legal team. The volume of subject materials is also not determinative in itself. In Mokbel, Beach JA considered that the size of the task includes the materials required for an amicus counsel 'to acquire an appropriate understanding of the circumstances of this case in order to properly answer the Chief Commissioner's arguments resisting the disclosure of the subject documents.'[10]
On this analysis, the appointment of amici fails to mitigate the risk in respect of the security of the subject documents as compared to the applicant's own counsel. It also creates additional delay and cost and may be unlikely to provide the same level of assistance as would be provided by counsel with existing knowledge of the proceeding and the ground of appeal. As such, I am of the view that the applicant's legal representative should fill the role of contradictor.
The release of privileged or prohibited documents to the applicant's legal practitioners presents a potentially difficult ethical situation for them, a dilemma expressly referred to in the authorities provided by the CCP. The legal team for the applicant is highly experienced and has requested that the court proceed on the basis of undertakings. As such, I have confidence that they will be able to navigate the process for which they have advocated.
In balancing of the competing risks and reaching my conclusions, I have had regard to the authorities cited by counsel for the CCP.[11]
As in the matter of Mokbel, the confidential submissions and affidavit filed by the CCP in this matter describe the subject documents and the privilege or prohibition which attaches to them in some detail. In my view, the provision of those materials alone to the applicant's legal representatives will be sufficient for counsel to consider and counter the CCP's objections to production, as well as consider the relevance of the material to the applicant's case.
Subject to further submissions I will make orders and give directions in conformity with these reasons.

At a glance

Court

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Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (4)

Goussis v The King [2022] VSCA 197 (16 September 2022)