Mokbel v The Queen [2021] VSCA 366

2 On 12 August 2021, the Chief Commissioner filed an application in this Court, together with a confidential affidavit of Assistant Commissioner Christopher Gilbert ('the confidential affidavit') and confidential submissions of the Chief Commissioner ('the confidential submissions'). At the same time, the Chief Commissioner filed documents relating to expenditures made with respect to certain individuals ('the subject documents').

3 By his application, the Chief Commissioner seeks an order that he not be required to produce the subject documents or disclose their contents. The Chief Commissioner's application has been served on the applicant and the respondent. The confidential affidavit, the confidential submissions and the subject documents, however, have not been served on either party.

4 The Chief Commissioner resists the production of the subject documents, and any requirement to serve the confidential affidavit and the confidential submissions, on the basis that the applicant has no legitimate forensic purpose in seeking their production and/or 'because they are subject to a prima facie statutory prohibition on disclosure' and/or because they are subject to public interest immunity (PII) in accordance with s 130 of the Evidence Act 2008 (Vic)'. As part of his case, the Chief Commissioner also contends that the subject documents 'would not substantially assist the applicant in this proceeding'.

5 The Chief Commissioner's application is fixed for hearing in this Court on 2 February 2022. Subject to any further order, pursuant to s 30(1) of the Open Courts Act 2013, the application will be heard in a closed court.

6 At issue between the applicant and the Chief Commissioner today is the way in which the Chief Commissioner's application will be heard and determined.

7 The Chief Commissioner contends that the applicant and his lawyers should be excluded from the hearing, and that the Court can be assisted by counsel appearing as amici curiae.

8 The applicant contends that it is his counsel and solicitors who should appear on the Chief Commissioner's application for the purpose of opposing it. To that end, he submits that, subject to the signing of appropriate confidentiality undertakings, his solicitors and counsel should be provided with the confidential affidavit, the confidential submissions and the subject documents.

9 The applicant asserts that it is his solicitors and counsel who are best placed to make submissions about whether there is any legitimate forensic purpose in seeking the production of the subject documents, and whether those documents would or would not substantially assist the applicant in the proceedings he has filed in this Court.

10 The Chief Commissioner submitted that any concerns this Court might have about it being assisted properly and/or the absence of a contradictor and/or fairness to the applicant 'can be amply addressed through its broad discretion to appoint an amicus curiae to assist it'. Relying upon authority (including Jackson v Wells;[3] The Commonwealth v Northern Land Council[4] and Seymour v Price[5]) the Chief Commissioner submitted that there is a strong presumption in cases such as the present that the parties' legal representatives should not be granted access to information over which a public interest immunity claim is asserted, unless and until the claim has been considered by the court and rejected. The Chief Commissioner submitted that, while the relevant authorities did not deal with the procedure to be adopted in relation to a claim based on a statutory secrecy provision of the kind relied upon in this case, the same principles must apply. It was submitted that nothing in any of the judgments given by the High Court in HT v The Queen[6] affects these principles.[7]

11 The Chief Commissioner submitted that the information contained in the confidential affidavit and the confidential submissions was 'of the highest sensitivity'. It was submitted that this Court is 'well equipped to study and rule on them' and that the circumstances did not justify 'the extraordinary step' of granting the parties' legal representatives access to them. The Chief Commissioner described this case as 'extraordinary because of the nature of the statutory provision at issue and the risk of death or serious injury that would result from disclosure'. I interpolate that this is a submission that has been made and not been found to be dispositive in the Chief Commissioner's favour in a number of proceedings in this Court involving Lawyer X and the Royal Commission into the Management of Police Informants.[8]

12 In support of his submissions that the applicant's legal representatives should be the contradictor for the purpose of determining the Chief Commissioner's application, the applicant noted that any contradictors appointed by the Court would be officers of the court, and that they would receive confidential material only after having signed undertakings not to disclose the contents to the applicant (or anyone else). He also noted that the argument on the Chief Commissioner's application will be held in closed court, with the applicant excluded. The applicant submitted that it was his counsel who were best placed to be the contradictor, having reviewed many thousands of documents provided by the Victorian Government Solicitor's Office and the Office of Public Prosecutions, together with documents they had accessed from the Royal Commission and Lawyer X proceedings. The significance of the material over which the Chief Commissioner's claims are made would, if the applicant's counsel were the contradictors, be determined by reference to this material and the 'broader factual matrix of the case overall'.

13 The applicant also submitted that the backdrop to this matter is the corrupt conduct of Victoria Police and Ms Gobbo and the 'very significant steps taken by Victoria Police (including by use of public interest immunity claims) to withhold Ms Gobbo's status as a human source from the applicant and others.' In those circumstances, the applicant submitted that he had a particular interest in having lawyers he trusts act as the contradictor to the Chief Commissioner's claims.

14 Further, the applicant submitted that, since the Chief Commissioner appeared to accept that additional people (namely amici) needed to be provided with the confidential materials, the risk for this Court to assess at this stage was the extent of any additional risk that might be created if those people were the applicant's legal representatives as opposed to amicus. It was submitted that, in that sense, this case is very different from the authorities relied upon by the Chief Commissioner. The applicant submitted that the risk of unwitting disclosure to the applicant was particularly low because of the level of experience in his legal team and the fact that the issue in question is not one which requires the applicant to provide instructions to his legal representatives.

15 In my view, notwithstanding the use of amicus counsel in the circumstances of cases such as Madafferi v The Queen[9] and Zirilli v The Queen,[10] subject to appropriate confidentiality undertakings, the applicant's legal representatives should be the contradictor to the Chief Commissioner's application.[11] The issues of legitimate forensic purpose and whether any or some of the subject documents will or will not substantially assist the applicant's case is one best litigated by legal representatives who have a thorough understanding of the applicant's proceedings in this Court, and the bases upon which they have been brought. In my opinion, it is unrealistic to expect that amicus counsel could, in any reasonable timeframe, 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.

16 That said, and because of the detail of the description of the material in the subject documents (including the verbatim setting out of relevant passages of the subject documents) in the confidential affidavit,[12] I do not think it is necessary for the applicant's legal advisors to be given access to the subject documents themselves. I would leave that issue for determination (if necessary) during the course of the actual hearing of the Chief Commissioner's application. As presently advised, it seems to me that the Chief Commissioner's application will be able to be heard and determined by reference to the confidential affidavit and its exhibits, and without recourse by the Court or the parties to the subject documents.

17 In deciding that the applicant's counsel should be the contradictor to the Chief Commissioner's application, I have not disregarded the passages in the authorities (specifically, Jackson, Northern Land Council and Seymour) on which the Chief Commissioner relied. Those cases do not preclude the taking of the course I propose. It is the particular facts and circumstances of the present case which has led me to conclude that the applicant's counsel should be the contradictor. In that regard, it seems to me that such risk as the Chief Commissioner is concerned about in relation to the provision of the confidential affidavit and confidential submissions to counsel is realistically the same, whether the documents are provided, on appropriate confidentiality undertakings, to the applicant's counsel or to counsel who are appointed as amici curiae.

18 In the event that I reached the conclusion I have reached, the Chief Commissioner requested that he be given an opportunity to consider withdrawing some or all of the confidential affidavit and confidential submissions, and/or providing the parties' representatives with redacted versions, 'with highly sensitive information including on the topic of specific past and ongoing security arrangements that may jeopardise those arrangements and the safety of persons obscured'. I propose to give the Chief Commissioner the opportunity he seeks, on the basis that any specific detail in the material he has filed which is not germane to the issues that need to be litigated on his application, should be removed both from the copies provided to the Court and the copies ultimately to be provided to the parties. What I envisage is the possible provision, by the Chief Commissioner, of a common confidential affidavit and submissions which will be used and relied upon by both the Court and the parties (rather than different documents being provided to the parties from those provided to the Court).

19 Subject to further submissions, I will make orders in conformity with these reasons.

[1] See s 326A of the Criminal Procedure Act 2009.

[3] [1985] FCA 100; (1985) 5 FCR 296 ('Jackson').

[4] [1993] HCA 24; (1993) 176 CLR 604 ('Northern Land Council').

[5] [1998] FCA 1224 ('Seymour').

[7] See in particular, HT (2019) 269 CLR 403, 423 [45] (Kiefel CJ, Bell and Keane JJ) and 434 [77] (Gordon J).

[8] See, for example, AB v CD [2017] VSCA 338; AB v CD [2019] VSCA 28; and Chief Commissioner of Victoria Police v Chairperson of the Royal Commission into the Management of Police Informants [2020] VSCA 214.

[9] [2021] VSCA 1 ('Madafferi').

[10] [2021] VSCA 2 ('Zirilli').

[11] For completeness I note that the applicant's senior counsel in this application was one of the amici curiae in each of Madafferi and Zirilli.

[12] More particularly, the fourth exhibit to that affidavit.