R v Mokbel [2005] VSC 410

"That between the 13th day of October 2000 and 1st day of December 2000 at Melbourne in the State of Victoria Antonios Mokbel, contrary to paragraph 233B(1)(d) of the Customs Act 1901, was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Act applies, namely narcotic goods consisting of not less than a traffickable quantity of the narcotic substance Cocaine, which had arrived in Sydney in the State of New South Wales on the 6th day of November 2000."

3 His trial had been fixed for hearing on 26 October 2005. It is now fixed for hearing on 1 February 2006. His then solicitors Garde-Wilson & Caine filed a subpoena in the Court on 23 September 2005 requiring the Director of the Office of Public Integrity to produce certain documents and things described in the Schedule to the subpoena. All told there are three categories of documents described in the Schedule.

4 The Office of Police Integrity ("the Office") came into existence on 16 November 2004 by reason of amendments made to the Police Regulation Act 1958 (Vic). The Director of the Office is Mr George Brouwer. He and the Office replace the Police Ombudsman. By reason of the amendments to the Act, the Director and the Office have been given a number of powers designed to address the problem of police corruption and misconduct in this State and to raise the reputation and integrity of Victoria Police.

5 On 29 September 2005 when the subpoena was called on, counsel appeared for the Office and objected to the production of the documents and things sought in the subpoena. The matter was then adjourned to 6 October 2005 for the hearing of the objections.

6 The case against Mr Mokbel can be briefly summarised. It is alleged that five men were linked in a conspiracy to import and were importing a quantity of cocaine into this country from Mexico City. The amount that was actually imported was in the order of three kilograms containing approximately two kilograms of pure cocaine. The individuals who were allegedly involved included Mr Mokbel, who it is alleged was the prime organiser and financier of the importation. It is alleged he was the person who would distribute the drug. Mr Ron Cassar was the operations manager of the Melbourne warehouse of United Parcel Service ("Parcel Service"). This company was used for the purpose of transporting the consignment of cocaine from Mexico City to Australia. Mr Cassar knew Mr Mokbel. The third man was Mr Mark Banda who was also known to and trusted by Mr Mokbel. They met regularly. Mr Banda's task was to liaise with the Mexican connection and with Mr Mokbel. The other two men involved were Sonny and Pale Schmidt who were friends of Mr Banda and regularly in contact. The Schmidt brothers knew persons actively engaged in supplying cocaine in Mexico and facilitated the acquisition of the cocaine in that country.

7 Unbeknown to Mr Mokbel, a person interested in dealing with the drug and who had conversations with him, was a police informer. Conversations involving Mr Mokbel and the informer and Mr Banda were recorded unbeknown to Mr Mokbel. The Crown case relies on Mr Banda's evidence and the recordings.

8 Throughout October 2000 Mr Banda was in the process of arranging the supply of the cocaine from contacts in Mexico. Sonny Schmidt had assisted in arranging the contact. Eventually an agreement was reached with a supplier and money was paid.

9 On 3 November 2000, two packages containing cocaine were despatched from Mexico City using the Parcel Service. Each packet had an identification number. The packages were described respectively as decorative figure bases of wood and Mexican handicrafts. The cocaine was contained within the items. One package was addressed to an address in Carlton and the other to an address in Footscray. The addressees were fictitious. The first leg of the carriage to Australia was via Louisville, Kentucky in the United States of America. This was the hub of Parcel Service. The parcels were seized by a US Customs Inspector upon information that had been supplied. Mr Banda was told that the packages had been sent from Mexico and was advised of the Parcel Service identification numbers. The US Customs Service identified that there was cocaine in each parcel and eventually the parcels were sent on their way, arriving in Sydney on 6 November 2000.

10 The Federal Police seized the packages and the bulk of the cocaine was removed. Two amounts were left in the containers which were forwarded to Melbourne Airport and remained in the overseas freight storage system until collected by a Parcel Service driver and delivered to its premises on Friday, 10 November 2000.

11 On the evening of Sunday 12 November 2000, Mr Cassar went to the Parcel Service premises. He entered the Customs bond enclosure and removed the contents of the packages. He was then arrested.

12 Through much of this period, a registered police informer was in contact with Mr Mokbel and conversations involving Mr Mokbel, the informer and also Mr Banda were recorded.

13 The informer, who is known as Registered Informer No. 4/320, was to give evidence in the trial against Mr Mokbel. However, he has left Australia and will not give evidence at the trial. On the other hand, Mr Banda is to give evidence of his dealings with Mr Mokbel. The Court was informed that Mr Banda has been dealt with and has served a period of sentence for his involvement. In addition, there are a number of recorded tapes of conversations involving Mr Mokbel, the informer and Mr Banda which are to be given in evidence. The surveillance was done under the supervision of members of the police force and those members will give evidence identifying tapes and transcripts. Four members of the former Victoria Police Drug Squad, Det S/C Victor Anastasiadis, Det S/C David Bartlett, Det S/C Paul Firth and Det S/C David Miechel are to give evidence at the trial and their evidence is primarily concerned with the production of the tapes of conversations in their custody and the transcripts. In determining the objection raised to the production of the documents defined in the subpoena, it is necessary to identify the defence of Mr Mokbel. The Court informed his counsel that it appeared the defence was that he was not involved in the importation. Counsel did not demur to this proposition. It is obvious that the credibility of Mr Banda and the various police officers will be central to the prosecution and defence cases.

The subpoena

14 The subpoena filed by the solicitors on behalf of Mr Mokbel contains three categories of documents in the Schedule. Attached to these reasons is a copy of the subpoena.

15 Some years ago allegations were made of corruption, and unlawful and improper conduct against some members of the former Victoria Police Drug Squad. As a result, investigations took place and eventually some members of the force were charged with criminal and misconduct offences. Some members of the former Drug Squad have been charged and convicted of criminal offences. Detective Sergeant Rosenes is a former member of the Drug Squad has been dealt with for criminal conduct which resulted in a sentence of imprisonment. Det S/Sgt Wayne Strawhorn is presently undergoing trial in this Court on criminal charges. Det S/C Michel is facing a criminal trial in this Court. Others are the subject of ongoing investigations. The four members of the squad referred to in Paragraph 1 of the Schedule to the subpoena are witnesses in the proceeding against Mr Mokbel. Each has been the subject of complaints and/or investigations. The purpose of the subpoena is to produce documents and things relating to the said witnesses, informer 4/320 and Messrs Rosenes and Strawhorn, held by the Office which may be relevant to an issue in the proceeding or the credibility of each of the four men.

16 As is made clear in Butera v Director of Public Prosecutions (Vict)[1] where the Crown seek to prove a conversation by a recording instrument, it is necessary to show that the conversation has been properly recorded and has not in any way been changed or contaminated thereafter. As Mason CJ, Brennan and Deane JJ said:

" ... It is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury."

17 In this prosecution, the establishment of the provenance and continuity of the tape recordings will be given by the police and in particular the four persons named in the first category of documents. It is trite to observe that their credibility will be very much in issue in the trial.

18 The documents described in the Schedule, potentially are numerous and may require significant manpower and time to comply with, if the Office has possession of the documents. By way of example, Paragraph 1(a) and (b) could involve considerable time spent in going through notes and memoranda which may be specifically dealing with others and yet contain some reference to the four named officers. In addition, Paragraph 3 is not in any way confined to anything relevant to the present proceeding. It was accepted by the parties that the recordings and transcripts were only those that were relevant in some way to the present proceeding. The last three lines referring to recordings and transcripts which had not been previously provided again is extremely wide and must be confined to anything that is relevant in the present proceeding. Relevance includes credibility issues.

The Office's objection

19 In support of the objection, the assistant director of the Office, Graham Ashton, swore an affidavit on 29 September 2005. The affidavit identified documents or things which may be covered by the Schedule and in respect to items that could be required pursuant to Paragraph 3 of the schedule, the deponent stated that he was "unable to confirm or deny the existence of any material held by the OPI which may fall within the terms of Item 3 of the subpoena". In regard to that observation he relied upon the contents of a confidential affidavit which was annexed to his affidavit and which was for the eyes of the Court only. Initially counsel were unable to apprise the Court of any authority which justified this approach, however, after adjourning the matter for further argument, the Court was informed that there were authorities which permitted the course to be followed. My immediate reaction was that a Court should not consider and determine an issue between parties, where one party was denied knowledge of part of the evidence and hence denied the opportunity to make submissions on the material. I read the confidential affidavit and save for one reference therein, which may have compromised an investigation, I raised with counsel for the Office why was it contended that it should be a confidential affidavit. After further discussion, the Office sought leave to withdraw the confidential affidavit and leave was granted to remove the affidavit from the file.

20 The New South Wales Court of Criminal Appeal considered the question of a confidential affidavit, only to be seen by the Court, in R v Beibic.[2] Samuels JA said in the course of delivering the judgment of the Court:[3]

"Mr Mason tendered an affidavit in support of his claim for privilege. He submitted, however, that the affidavit should not be placed on the file, that is to say that it should be read only by the court and not disclosed to the party calling, on the footing that the contents of the affidavit would or might themselves compromise the claim for privilege.

We had, and we still have some doubts about the propriety of restricting the affidavit in the way proposed. However, it may well be that that course is, in certain cases, of which this is one, no more than a logical extension of the established practice of the court inspecting the allegedly privileged documents itself; see Conway v Rimmer [1968] UKHL 2; [1968] AC 910; Sankey v Whitlam (1978) 142 CLR 1."

"It seems to us that granted it is now common place for judges to make a private inspection of documents in order to resolve a claim for privilege ... it follows that in a proper case the judge may similarly keep to himself the affidavit by which the claim is supported. It is a question of public interest which is to be decided separate from the lis between the principal antagonist, and which, in the present case, the party answering the subpoena is not involved."

22 In NCA v Gould,[4] Foster J, after quoting the above observed that the statements were of general application.

23 In a later case that went to the New South Wales Court of Criminal Appeal, both the trial judge and the Court of Appeal judges considered confidential affidavits which were not made available to the lawyers acting for the parties.[5] In R v Rusmanto,[6] Thomas J followed those cases and received confidential affidavits which were not disclosed to the parties.

24 I do not doubt that the Court could in special circumstances receive a confidential affidavit raising the objection to production pursuant to a subpoena on the ground of public interest immunity, which was not disclosed to the parties in the actual proceeding. However, in my opinion, the acceptance of a confidential affidavit not disclosed to the party filing the subpoena would be a rare case. I state that for a number of reasons. If an objection is upheld to the production of documents pursuant to a validly issued subpoena, on the basis of what is contained in a confidential affidavit, it means that the party filing it is denied the opportunity of attacking or testing the evidence and is unaware of the evidence which led the court to make the decision it did. This leads to a justifiable criticism that the party was denied a fair hearing and an opportunity to properly argue the issues. The importance of doing justice is an essential condition to the administration of justice in this State. As Lord Hewart CJ said in Rex v Sussex Justices ex parte McCarthy:[7]

"... A long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

25 That important underlying philosophy of our justice system has been stated often. In Johnson v Johnson,[8] the High Court, after referring to what Lord Hewart said, went on to observe:

"It is based upon the need for public confidence in the administration of justice."

26 In my opinion, an affidavit can be worded so that it is made clear the basis upon which the public interest immunity is claimed. The subpoena itself must define the documents the subject of the subpoena. It is a production of those documents so defined to which objection is made on the ground of public interest immunity. Public interest immunity can be stated in general terms. For example, it can be stated that the basis for the immunity is "informer identification, identification of undercover police operatives, identification of members of the public providing information, confidential information, police methodology and identification of the person who is the subject of an investigation." If necessary these general grounds could be amplified without compromising any investigation or disclosing any sensitive material. Of course the disclosure of the fact of an investigation may create problems, but the mere identification of documents in the subpoena would normally identify the nature of an investigation or the person likely to be the subject of it. If a confidential affidavit is used which identifies something which on no reasonable interpretation of the subpoena or the surrounding facts would lead to the conclusion that the person filing the subpoena had some knowledge of it, one could readily see a situation arising where an objection could be upheld without the person filing the subpoena ever knowing the basis for it. No doubt each case must be considered in light of its own circumstances.

27 Further, it is important that a party that is affected by an order knows the reasons for the decision. If the party does not have access to all the information before the Court, it may be difficult for the party to understand the reasons why the Court made the order which it did. There is the risk that if the Court relies upon a confidential affidavit the Court may be constrained when articulating the reasons for the decision.

28 I do not think the balancing exercise offends the principles of open justice. By the time the judge performs that exercise, the parties know what documents are the subject of objection to production, and they do know the reasons advanced by the objecting party to their production. What the judge has to do is to determine whether the grounds relied upon are made out, and then balance the grounds relied upon against the public interest in an accused person having every opportunity to test a Crown case and defend himself against a criminal charge. The contesting parties know the issues, do have an opportunity to call evidence and address the Court on them, and the final issue for the learned judge is where the balance of public interest lies.

29 I think in the great majority of cases the objecting party should be able to file an open affidavit stating the grounds for the objection clearly so that the party filing the subpoena has an opportunity to meet the points made. I am not saying that there will not be an extreme case, where the public interest immunity can only be raised by a confidential affidavit, but I would think that in most cases this can be articulated without the necessity of depriving the party filing the subpoena the opportunity to consider all the evidence. In the present matter in the end the Office withdrew the confidential affidavit and relied upon Mr Ashton's affidavit sworn 29 September 2005.

Subpoena in criminal proceedings

30 The Supreme Court is empowered to issue a subpoena calling upon a person to attend to give evidence or to attend and produce documents. Order 42 of the Rules of Court (Chapter 1) save for sub-Rule 10 dealing with civil proceedings apply to criminal proceedings. Chapter 6 of the Rules of Court deals with criminal procedure and Rule 1.12 deals with subpoenas. It provides:

"1.12. Order 42, apart from Rule 42.10 of Chapter 1 applies with any necessary modification to a proceeding to which these Rules relate, except in an appeal or an application for leave to appeal."

31 The Rules apply to a criminal proceeding in this Court.[9]

32 Rule 42.10 provides for a procedure whereby a party filing a subpoena for production may require the person named to produce the documents to the Prothonotary prior to trial. That procedure is not open in a criminal proceeding.

33 I have mentioned this source of power to issue a subpoena in a criminal proceeding, to emphasise that the subpoena when issued by the Court becomes an order, that the person named therein attend the trial to give evidence or to produce any documents. With respect to a subpoena duces tecum, the order requires the person or organisation named in the subpoena, to attend at Court and produce the document. It is clear from evidence in this proceeding and other proceedings, that a practice has grown up in the criminal jurisdiction of the party filing the subpoena to have discussions with the subpoenaed person or organisation with respect to production of documents, inspection and the like. Whilst I would not wish to say anything which may cut across the practice, nevertheless I do emphasise that the subpoena is an order to produce documents to the Court. It would be contrary to the order, the Rules of the Court and the ethical obligations of members of the legal profession to take possession of the documents from the subpoenaed person or organisation before they were produced to the Court.

34 Because a subpoena is in the nature of an order of the Court, the person subpoenaed is obliged to obey the order. In Rochfort v Trade Practices Commission,[10] Mason J said:

"Once served with a subpoena and provided with the proper conduct money, he must obey it and bring to court the documents described in the subpoena if he has them, unless the writ is set aside on the ground that it is oppressive, and produce them to the court, unless he can establish some good reason why they should not be produced."

"A subpoena, which has the effect of a court order, requires the person to whom it is addressed to produce the documents which it describes. It assumes that he has the ability or capacity to produce them."

(Emphasis added).

36 I emphasise that the obligation which rests upon the person to whom the subpoena is addressed is to produce the documents as described in the subpoena. The subpoena must state with a degree of particularity the documents which are to be produced. The Victorian Bar's Professional Conduct Bulletin No. 1 of 1991 deals with the obligation to produce the documents to the Court. It is improper for a barrister to intercept the documents before they are produced to the Court.

37 When the subpoena is called on, the person to whom it is directed is required to produce the documents to the Court unless the subpoena is set aside. Once the documents are produced to the Court they are marked for identification. They do not become evidence. They remain with the Court until the determination of the proceeding or further order. If any party wishes to inspect the documents, application must be made to the Court for permission to have access to the documents. If no objection is raised, permission is granted to the parties to have access. Whether or not the Court will permit the parties to take copies of any of the documents will depend upon the circumstances. The usual order is that the documents are released to the lawyers acting for a party and are to remain in the possession of the lawyers until returned to the Court. Of course, the Court may grant permission to the lawyers to show any of the documents to a client or a prospective witness.

38 I do not wish to say anything which would have the effect of discouraging the party filing the subpoena and the subpoenaed party from having discussions concerning compliance with the subpoena. However, any agreement between the parties is subject to the documents being produced to the Court and must not provide for documents to be handed over to the party filing the subpoena until the Court so orders or directs. Documents must not be provided to a party until the matter is raised in Court and the Court so orders or directs. I have been informed by counsel that they are well aware of their obligations in regard to producing documents.

Subpoenas and discovery in criminal matters

39 The right to demand discovery of documents in a court proceeding is a creature of the civil law. The right of discovery exists only in aid of civil proceedings and is not available in any proceeding upon a criminal prosecution.[11]

40 The Office is not a party to the prosecution before the Court, nor has it been involved in any investigations leading to the current charge. What is sought from the Office is production of documents said to be relevant to the issues in the prosecution including questions of credibility of Crown witnesses. Questions arising in the civil jurisdiction of the Court concerning the improper use of the subpoena process for discovery against a non-party do not arise. The method employed by the accused, Mr Mokbel, is the only process available to him to gather information from a non-party.

41 The obligation that rests upon the prosecutor ensures that all relevant material is made available to the accused which is in the possession, power or control of the prosecution. However, there is no obligation resting upon any other person or organisation which may be in possession of relevant material. This is a criminal proceeding, and it is necessary that the accused person has every opportunity to properly defend himself. He must be given every opportunity to examine and test the Crown case. The general observation made in Mr Ashton's affidavit that the Office is not a party to the current proceeding is no answer to the subpoena. Mr Mokbel, through his lawyers, is entitled as of right to file a subpoena requiring any non-party to produce documents or things which may be relevant to any issues in the trial including issues of credibility.

42 There are two separate bases open to a party, including a non-party to contest the obligations of a subpoena. First, to contend that the subpoena is invalid and should be set aside and secondly, on the basis that the subpoena is a valid subpoena, objection being made to the production of the documents. Examples of attack upon the validity are that the subpoena is oppressive, is nothing more than a fishing expedition, or that there is no legitimate forensic purpose revealed in the subpoena. Examples of objection to production are legal-professional privilege and public interest immunity.

43 The Office has raised issues of validity, namely, that the subpoena is a fishing expedition, that there is no legitimate forensic purpose and that the subpoena is too wide and oppressive. In addition, public interest immunity is claimed in respect to some of the documents.

Attack on validity

44 Paragraph 1 of the Schedule is potentially too wide and oppressive. Oppressive in the sense that it may involve the Office in much time and expense to determine whether or not there are any documents which meet the description in paragraph 1. However, it is clear from the affidavit of Mr Ashton that there are limited documents falling within paragraphs 1 and 2 concerning the named police officers. Whether or not the subpoena is being used for an improper or collateral purpose, namely, as a fishing expedition, depends upon whether or not there is any legitimate forensic purpose for the production of the documents by the Office.

45 In R v Saleam,[12] Hunt J discussed the question of legitimate forensic purpose. His Honour following what Brennan J observed in Alister v The Queen[13] stated that the Court must adopt a liberal approach to such matters in a criminal case. In particular, in a criminal case special weight has to be given to the fact that documents or information gleaned from them may assist an accused person. As his Honour stated at p.18, the first step is to require counsel for the accused "to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents and the judge should refuse access to the documents until such an identification has been made." The judge "must be satisfied that it is on the cards the documents would materially assist the accused in his defence." Hunt J referred to what Gibbs CJ said in Alister v The Queen.

46 In my opinion it is clear that the documents described in the subpoena may provide information which will be relevant to the question of credibility of the police officers concerned. In my opinion in the present matter, Mr Mokbel's counsel have demonstrated that the documents are sought for a legitimate forensic purpose. That is, the credibility of the police witnesses is central to the Crown case and what is apparently Mr Mokbel's defence.

47 In my opinion, the objections to the validity of the subpoena in the circumstances is unfounded.

48 I now turn to public interest immunity.

Public interest immunity

49 The Office has objected to the production of the documents to the Court pursuant to the subpoena on the ground of public interest immunity.

A. The documents identified

50 The categories of documents the subject of the subpoena, are set out in three paragraphs in the schedule to it. The affidavit of Mr Ashton reveals that there are no documents which answer the description set out in paragraph 2. However, the Office does hold material in relation to Messrs Firth and Miechel which fall within the terms of paragraph 1. It is said by Mr Ashton that he is uncertain whether they do because he said it was impossible to make a determination in respect of the material and whether there is any "legitimate forensic purpose for its production". I have ruled against this objection.

51 The credibility of the four named police officers is a matter of substance in the Crown's case and anything that may be relevant to their credibility as honest, accurate and reliable witnesses must be of importance to the presentation of Mr Mokbel's case. The requested material on the face of the subpoena discloses a legitimate forensic purpose for its production.

52 In addition, Mr Ashton states that he is "unable to confirm or deny the existence of any material held by the OPI which may fall within the terms of Item 3 of the subpoena." There is a degree of artificiality with respect to the assertion of the existence of the material because the mere fact that the affidavit has been sworn leads to the conclusion that there is such material. If there was no material answering the description then the response to the subpoena would be that there were no documents answering the description in paragraph 3. Whilst I accept that mischievous persons could use a subpoena in order to determine whether the Office is pursuing a particular investigation, the Court should be in a position to deal with that, and I do not think that this subpoena has been filed for that purpose. Accordingly, the documents which are required to be produced pursuant to paragraph 3 in the Schedule are documents which answer the description of tape recordings or transcripts of conversations between an informer 4/320 and six named police or former police officers. The registered informer 4/320 is known to all parties. Accordingly, the production of any of the documents will not be contrary to the normal rule that informers' names should be suppressed.

53 Public interest immunity is claimed in relation to both the categories of documents falling within paragraph 1 involving Messrs Firth and Miechel and the tape recordings and transcripts referred to in paragraph 3.

54 In respect to the immunity objection it is necessary to say something about the Office of Police Integrity.

B. Office of Police Integrity

55 On 12 October 2004 the Major Crime Legislation (Office of Police Integrity) Act 2004 was assented to. One of the purposes of the Act was to establish the Office of Police Integrity and to authorise the appointment of a Director of Police Integrity to replace the Police Ombudsman. The Office came into existence on 16 November 2004. The Act inserted a new Part VB in the Police Regulation Act 1958. Section 102A established the Office of Police Integrity. Further amendments to the Police Regulation Act were made by the Major Crime (Investigative Powers) Act 2004. The Office was set up in response to concerns about the Victoria Police and recent allegations of corruption and misconduct. The objects of the Director as set out in s.102BA and they are expressed as:

(a) to ensure that the highest ethical and professional standards are maintained in the force; and

(b) to ensure that police corruption and serious misconduct is detected, investigated and prevented."

56 The Office is both an investigative and a review body and is separate from Victoria Police and has its own management reporting and accountability arrangements. It reports directly to the Victorian Parliament. In addition to investigating complaints against police, the Director of his own motion can conduct an investigation pursuant to s.86NA of the Police Regulation Act 1958 into any matter relevant to achieving the objects of his office including but not limited to an investigation into the conduct of a member of the force, police corruption and serious misconduct generally and any of the policies practices and procedures of the force or a member of the force or the failure of policies practice or procedure.

57 As a result of the amendments to the Police Regulation Act, the Office has been given a range of coercive powers for use in the conduct of covert investigations, including coercive powers to compel witnesses to give evidence, provide information or produce documents or other things. Indeed the Director has a wide power in that he may certify in writing that in his opinion the giving of evidence, the provision of information, production of documents or things is necessary in the public interest and to compel witnesses required to do any of those things even if the result may be that the person is incriminated. The Director may obtain search warrants and apply for a warrant to use surveillance devices in the course of investigations. Section 102G of the Police Regulation Act 1958 imposes a duty of confidentiality involving any person who obtains or receives information in the course of or as a result of the performance of the functions of the Director under the Act. The section specifically includes the Director or a member of the staff of the Office. There are exceptions to the prohibition of disclosing information and the section would not, in my opinion, prevent the disclosure as a result of any Court order. In addition to the confidentiality provisions, s.86TA exempts the disclosure of information pursuant to F_OI Act_ provisions, the Director is not amenable to a subpoena to give evidence in person (s.86J(5)) and wide powers are given to the Director to issue a written notice having the effect of precluding the disclosure of the fact that a person has been summonsed to give information in an investigation.

58 It can be readily seen that the Director and his Office have very wide powers, that in order to perform his objects, the importance of maintaining confidentiality and non-disclosure of investigations are extremely important for the proper carrying out of the functions of the Office. The necessity to preserve anonymity in respect to informers, people making complaints and people involved in investigations cannot be overemphasised. A point which is made with some force on behalf of the Director and the Office is that he is required to investigate police officers, many of whom are sophisticated investigators expert in and aware of the methods by which covert investigations are conducted. Because police officers under investigation have that knowledge and experience, the mere fact that a Director may have certain documents in his possession may lead a police officer to the conclusion that an investigation is being carried out concerning him or another or the nature and likely involvement of such an investigation.

C. Categories of public interest immunity

59 Public interest immunity covers two different categories of documents. First, the immunity may cover a class of documents which means that irrespective of their contents, such class of documents is immune from production. Cases in the past have recognised such categories, for example, documents evidencing the deliberations of Cabinet. As a general rule, such documents are as a class immune from production. However, that is only a prima facie rule and there may be circumstances where such a class of documents loses its immunity, for example, with the passage of time. The other category is concerned with the contents of particular documents.

60 Counsel for the Office, Mr Southall QC, who appeared with Mr Golombek, faintly submitted that any documents generated or in the possession of the Office as a result of the performance of its functions were immune from production on the ground that the public interest demanded that any documents should not be produced. There was authority in England that documents of any type created in the course of an internal police inquiry were as a class subject to public interest immunity and could not be disclosed in civil proceedings. See Halford v Sharples.[14] However, the House of Lords overruled the decision in R v Chief Constable of West Midlands ex parte Wiley.[15] Lord Woolf gave the leading speech.

61 His Lordship held that there is no general proposition that internal police procedures were as a class subject to public interest immunity. His Lordship then stated:[16]

"This does not however mean that public interest immunity can never apply to documents that come into existence in consequence of a police investigation into a complaint. There may be other reasons why because of the contents of a particular document it would be appropriate to extend the immunity to that document."

(Emphasis added).

62 It is well-established that there is a heavy burden on any person or organisation which claims a class immunity from production. See Sankey v Whitlam[17] and Rogers v Home Secretary.[18] In my view, the burden is even greater in a criminal case to establish class immunity because of the possible interference with the right of the accused to properly defend himself and the risk of an unfair trial.

63 In the latter case, Lord Reid, after referring to the decision in Conway v Rimmer[19] then said:[20]

"It was made clear that there is a heavy burden of proof on any authority which makes such a claim. But the possibility of establishing such a claim was not ruled out."

64 As his Lordship pointed out, the class document immunity may be confined to the "proper functioning of the public service". His Lordship stated that "the Public Service" should not be construed narrowly. See also observations of Stephen J in Sankey v Whitlam.[21] In my opinion, the class immunity is not confined to documents generated by the public service or involving documents relating to high government policy and the like. I discussed the issue in Royal Women's Hospital v Medical Practitioners Board of Victoria.[22] However, it is unnecessary for present purposes to seek to determine the limits of class immunity. This is a criminal case. There is a powerful public interest in ensuring that an accused person has every opportunity of defending himself or herself.

65 In my view, documents generated in any investigation by the Office do not fall within a class of documents which are immune from production irrespective of their contents. There is nothing in the material before the Court which would justify a blanket immunity. I did not understand Mr Southall to press the point during submissions.

66 The objection to production by the Office on the ground of public interest immunity, concerns the contents of particular documents.

D. The principles

67 I now turn to the principles concerning a contents claim.

• An authority may object to the production of documents based on public interest immunity because the disclosure of the contents of a particular document is against the public interest.

68 It has been recognised for many years that any document that may disclose the identity of a police informer or indeed a complainant to the police may be the subject of an objection to production. The principles were stated by Lord Diplock in relation to a criminal proceeding in D v National Society for the Prevention of Cruelty to Children.[23] His Lordship said:

"The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest and information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Markes v Beyfus (1890) had already hardened into a rule of law, the balance has fallen upon the side of nondisclosure except whereupon the trial of a defendant for a criminal offence disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."

(Emphasis added).

69 In Jarvie v Magistrates' Court of Victoria,[24] Brooking J discussed the principles relating to informers and he held that the principles also govern the disclosure of identity of undercover police operatives.[25] Each case must depend upon its own circumstances. As his Honour pointed out, in the end the balancing exercise had to be undertaken.

• In determining a claim for immunity the Court undertakes a balancing exercise, weighing up the question of an asserted public interest against disclosure against the public interest in ensuring in a criminal trial that the accused has every opportunity to defend himself and obtain and have access to all relevant evidence.

70 The balancing exercise was stated by Gibbs CJ in Alister v The Queen[26] as follows:

"Sankey v Whitlam establishes that when one party to litigation seeks the production of documents, an objection is taken that it would be against the public interest to produce them, the Court is required to consider two conflicting aspects of the public interest, namely, whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominate. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence."

E. Competing public interests

71 The public interest that Mr Mokbel should have the fullest and unhindered opportunity of testing the Crown case and presenting his defence is trite and needs no amplification. In the light of his probable defence, credibility will be central to the prosecution and defence cases. By "defence case" I include the cross-examination of Crown witnesses. Much of the evidence concerning the provenance and continuity of the tape recordings depends upon the evidence of the police named in paragraph 1 of the Schedule. Their credit is crucial to the Crown case. It follows that any document or thing which impinges upon a witness's credibility is important to the accused's defence. Defence lawyers are in a far better position than a judge to make an appraisal of the value of information contained. There is a fine line between fishing for information and knowing or suspecting that there is information in the documents relevant to the credibility of a witness. A more liberal approach to the question is required in a criminal proceeding. Experience shows that full examination of documents by defence counsel sometimes produces relevant material for cross-examination, material which may to others not fully conversant with all the factual matters, be not important. In Alister v The Queen, Gibbs CJ said:[27]

"Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v Whitlam at pp.42 and 62), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the Court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."

(Emphasis added).

72 In the same case Brennan J[28] said:

"In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law."

"It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way."

74 An accused man must have the opportunity to inspect any document which may provide an opportunity to cross-examine. In R v Saleam,[29] Hunt J, speaking for the Court, said after quoting with approval what Samuels JA said in Maddison v Goldrick:[30]

'As Samuels JA suggested an accused is prima facie entitled to inspect any document which may give him the opportunity to pursue a proper and fruitful course in cross-examination'."

75 De Jersey CJ discussed the issue in R v Spizzirri:[31]

" ... and it did not matter that the contents of files raising those things may not have been, in form, themselves admissible as evidence. It would have been sufficient that they armed the defence with information it might fairly have pursued with the complainant towards that potentially significant forensic goal, the erosion of his credit."

(Emphasis added).

I respectfully agree.

76 Pincus JA, in the same case, stated the basis for the conclusion when he said:[32]

"All of the documents were of such a character as to be likely to contain information about the principal Crown witness, which might have been of use in cross-examination of him. Of course, it could have turned out that no information would have been gained, from the inspection of the documents, of any substantial value to the defence; but it was for counsel for the defence, and not the judge, to determine that."

(Emphasis added).

77 As against the interests of the accused in a fair trial, the Office has been established to address the problems of police corruption and misconduct. It is an office charged with the obligation of raising the integrity of Victoria Police. The Office is dealing with investigations into members of the force who by training and experience are well versed in investigation and investigative techniques. The Office has been given a wide range of coercive powers and conducts covert investigations. It gathers information from a variety of sources, not only registered informers, but under cover police operatives, and members of the public. Their identities must be kept confidential. Their safety must be a prime object ever present in the minds of those in the Office carrying out an investigation. The Office relies upon a number of grounds of public interest immunity. It is the contention of the Office that the disclosure of documents to Mr Mokbel and his legal representatives will seriously interfere with the Office's investigations and severely compromise the functions and powers of the Office and the statutory objects imposed on the Director. It relies upon the following matters of public interest which it is submitted outweigh the public interest in Mr Mokbel's legal representatives seeing the documents.

• A mere confirmation or denial of the documents or things specified in the schedule to the subpoena would adversely impact upon any investigation into police conduct and identify that a person may be under investigation.

• Police officers the subject of complaints are by training and experience well aware of the methods by which investigations are conducted, including covert investigations and if information is revealed it may readily identify the police officer under investigation but more importantly, indicate to that person the evidence that the Office may have against him.

• Production of documents will cause disclosure of information obtained in confidence, which may have the effect of deterring persons providing confidential information.

• The names and identities of confidential sources may be disclosed and this of course would also have an effect upon discouraging people coming forward, but may also have adverse consequences in respect to such persons.

• Production will disclose the identity of registered informers and others and put those informers and their families at risk for their personal safety.

• Production would stifle complaints from members of the public and from members of the force.

• Production will interfere with the present investigation of police officers and will alert police officers the subject of complaints and investigations to the fact of investigation and the evidence against them.

• Production will prevent the Director from adequately and efficiently performing his statutory duties and functions and will thereby serve to frustrate the purposes of the statute and Parliament in creating the Office.

• It will disclose to current police officers and others the Office's methods of investigating corruption in the police force thereby seriously impeding the investigation.

78 It is important to observe that mere inspection by the lawyers representing Mr Mokbel will not disclose to others what is in the documents. The documents do not become evidence. If they are to be used in the trial then questions of relevance and admissibility will have to be determined. The lawyers are not permitted to use any information gathered for an ulterior purpose. They will not be permitted without the permission of the Court to take copies of any of the documents. If access is granted, it will be limited initially to the lawyers acting for Mr Mokbel.

79 It has been recognised by the law for many years that it is not in the public interest to disclose the identity of police informers and this is extended to undercover police operatives. However, that is not an inflexible rule. In Jarvie v The Magistrates' Court of Victoria,[33] Brooking J, speaking for the Full Court, opined that the police informer principle covered both police operatives and extended to "other witnesses whose personal safety may be endangered by the disclosure of their identity".[34] However, as his Honour concluded that rule is not an inflexible rule and must give way sometimes where justice requires it. His Honour said:[35]

"The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed."

"But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of the witness be withheld from the defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution. To say that in such a case no balance is called for is to say that, whatever the strength of the case in favour of non-disclosure, it cannot prevail. But a balancing has to still be carried out, and effect has been given to an overriding principle that the 'right' to a fair trial must not be substantially impaired."

81 In my view, what his Honour said applies equally to the balancing process considering other public interest matters against disclosure. Adapting what his Honour said, in my opinion the principle is that the overriding need for a fair trial means that documents or things must be disclosed to an accused person if there is good reason to think that the disclosure may be of substantial assistance to the accused person in meeting the case for the prosecution. And of course, meeting the case for the prosecution involves issues of credibility of Crown witnesses. Credibility not only in the sense of those matters bearing on the reliability of a witness such as memory and observation, but also to expose lack of truth, exaggeration or interest.

Production of documents

82 The evidence reveals that the Office does not have any documents referred to in paragraph 2 of the schedule to the subpoena. The Office does hold some material in relation to Messrs Firth and Miechel which may fall within the terms of paragraph 1. The affidavit of Mr Ashton stated that he was unable to confirm or deny the existence of any material held by the Office in relation to paragraph 3 of the subpoena. The Office has delivered to the Court eight folders and the Court has perused the contents for the purposes of the balancing exercise. In determining whether or not the documents should be produced I have carefully considered the public interest matters for and against disclosure.

83 The material produced to the Court contained documentation relating to a transcript involving Mr Miechel of a coercive hearing before the Director's delegate in the course of an investigation. It was submitted that the transcript could not be produced because of certain statutory provisions. The Director has power under the Act to require that the evidence be given. In order to overcome any objection to giving evidence on the ground of incrimination, s.86PA empowers the Director to certify in writing that the provision of information etcetera is necessary in the public interest. Evidently the Director so certified in relation to a questioning of Mr Miechel. By reason of s.86PA(8) Mr Miechel's evidence is not admissible against him before any court or person acting judicially. There are a number of exceptions which are not relevant to the present issues. Not only is the evidence not admissible against him, but Mr Miechel is subject to a confidentiality notice under s.86KA(2) of the Act. Section 86KA(1) applies if the Director issues a summons under s.17 of the Evidence Act 1958. Section 17 empowers the Director to issue a summons to a person to attend to, inter alia, give evidence. Sub-section (2) authorises the Director to give a written notice stating that the summons is a confidential document and that it is "an offence to disclose to anyone else the existence of the summons or the subject matter of the investigation to which it relates unless the person has a reasonable excuse". I have been informed that the Director has given a confidentiality notice. In addition, the Office relies upon the provisions of s.19B(2) of the Evidence Act which if the person presiding at the examination makes an order prohibiting the publication of any of the proceeding then the publication may not be permitted unless the person grants leave to publish.

84 In my opinion these statutory provisions would not prevent a court requiring the production of the transcript pursuant to a subpoena. The production of the transcript does not constitute evidence. There may be restrictions on how one may use the transcript. However, the production in itself by reason of court order would be a reasonable excuse for the Office to disclose the information. As I have stated, there may be restrictions on the cross-examination of Mr Miechel in relation to anything that is in the transcript, but the information contained in the transcript may provide fertile ground for cross-examination as to credit without revealing, of course, the contents of the transcript. In my opinion the statutory provisions do not provide an answer to production of the transcript. That is not to say that the transcript must be disclosed if there are public interest immunity grounds for its non-production.

85 The Office produced to the Court six black folders and one white folder containing documents which fell within the description in the schedule to the subpoena. The matters raised by the office cover a variety of bases for immunity from production, and which are more appropriate for immunity for a class of documents. The Court is concerned with the contents of particular documents. A blanket-type objection covering all the documents makes the task of the Court particularly difficult. The Office should have addressed each particular document or groups of documents and identified the particular objections to production. The result has been that the Court has been involved in a time consuming and detailed examination of the documents to determine whether or not there were particular grounds for non-production which outweighed the right of the accused's lawyers examining the documents for information relating to the credibility of the Crown witnesses. Further, the black folders were not identified by any particular number although some of the folders contained a summary at the beginning. It is necessary for me to identify the folders by number which I have handwritten on the top document in each folder so as to identify which particular folder I have considered and determined whether or not the documents should be produced.

Folder 1

86 This folder contains documents identified as falling within the requirements of paragraph 1(iii) concerning Firth.

87 This is an investigation relating to information in the hands of a barrister appearing for Mr Strawhorn at a committal. Other than a reference on a copy of the final report to the name of a registered informer, it is my opinion that there is nothing in this folder which establishes a public interest immunity from production. As the document referring to the informer is a copy, I have, as a practical solution, deleted the name of the informer from the document. Before it is released to the legal team for Mr Mokbel, I will require a member of the Office to confirm that there are no other references to informers in the bundle. This folder will be made available to the lawyers acting for Mr Mokbel.

Folder 2

88 This folder contains documents which may fall within the description of paragraph 1(iv) of the Schedule. It concerns an allegation of improper conduct by Mr Miechel leaking information. The folder contains memoranda to counsel being a brief to counsel concerning the investigation and questioning of certain individuals. The folder also contains documents concerning informers and persons who had provided information to the police on a confidential basis. It is clear that the investigation is ongoing. I uphold the objection to the production of the documents on the grounds that it contains material which is subject to legal-professional privilege, and information concerning the identity of informers and others who had provided information to the Office of a very sensitive nature. The investigation is ongoing and has not reached a stage of completion or of showing any improper conduct by Mr Miechel. Other than a reference in one or two documents that Mr Mokbel was arrested in 2001 as a result of certain investigations concerning drugs, there is no other reference to Mr Mokbel. In my opinion, there is nothing in the folder which would provide any assistance to Mr Mokbel in combating the case for the prosecution. Any allegation of wrongdoing against Mr Miechel is purely that and the investigation is not complete. On balance, public interest immunity favours the non-production of the documents and in my view there is nothing in the documents which would provide any assistance to Mr Mokbel in combating the case for the prosecution. Mere allegations of misconduct against a person amount to very little. Allegations of misconduct against police are not uncommon but do not prove any wrongdoing on their part. See R v Roberts.[36]

89 Folder 2 will not be produced for inspection by the lawyers acting for Mr Mokbel.

Folder 3

90 This folder contains documents which fall within the description in paragraph 1(iv) and follows on from the allegations made against Mr Miechel referred to in folder 2. This folder contained the transcript of a proceeding before Mr Gerald Edward Fitzgerald being a person to whom the Director of Police Integrity has delegated his powers and functions under the Act. The person interviewed was required to attend and answer questions and involved a former member of the police force. For the same reasons in respect to folder 2, I uphold the objection on public interest immunity grounds to the disclosure of the transcript. I add that in my view there is nothing in the transcript of evidence given by the person which would provide any assistance to Mr Mokbel in combating the case for the prosecution.

Folder 4

91 This also contains material which falls within the description in paragraph 1(iv) of the Schedule and relates to the same subject matter of folders 2 and 3. The documents contain the transcript of an interview before the Director's delegate, Mr Fitzgerald and two members of the public who had provided information on a confidential basis. I uphold the objection to production on the ground of public interest immunity. Public interest immunity covers information given by members of the public on a confidential basis if there is any danger to their safety. Whilst I do not think there is any real danger to their safety, I am quite satisfied that the information they had given does not in any way provide any assistance to Mr Mokbel in combating the prosecution case. Accordingly, I uphold the immunity on the ground that in the circumstances the identity of the persons providing the information must be protected.

Folder 5

92 This contains documentation that falls within the description in paragraph 1(iv) of the subpoena and relates to the same subject matter as folders 2, 3 and 4. For the same reasons as stated in relation to the previous folders, I uphold the objection to inspection of the documents. The reasons are the same as the reasons stated in respect to the other folders. In particular, information concerning the identity of informers and others providing information. But more importantly, there is again nothing in the folder which in my view would provide any assistance to Mr Mokbel in combating the case for the prosecution. I again reiterate that the complaint is being investigated and has not reached finality. Hence any allegations against Mr Miechel are that and no more.

Folder 6

93 This folder contains a number of transcripts from recordings made between informer 4/320 and Messrs Rozenes and Strawhorn. There are some references in the transcripts of two recordings to Mr Mokbel. There is also a recording but no transcript of a meeting between the informer and Mr Strawhorn. The identity of the informer is known to the defence. The Crown wished to call him but in the circumstances he has refused to return to Australia. He will not be called as a witness. In my view there is no basis for public interest immunity and accordingly I reject the objection to the production and inspection of the transcripts and the recording.

Folder 7

94 This contains a transcript of an interview with Mr Miechel and falls within the description of paragraph 1(iv) of the Schedule. It concerns the matters raised in the folders 2, 3, 4 and 5. Mr Miechel is asked a variety of questions concerning the allegation. For the reasons stated in relation to folders 2 - 5 (inclusive) I uphold the objection on the ground of public interest immunity to the production and inspection of this transcript. I do so in particular because it relates to matters involving informers and persons who have provided information. The transcript contains the evidence of Mr Miechel in answer to the allegation. The inquiry has not been completed and because much of what Mr Miechel said is untested, I cannot see how the disclosure would be of any assistance to Mr Mokbel in combating the case for the prosecution. Accordingly, folder 7 shall not be made available.

Conclusion

95 It follows that the lawyers acting for Mr Mokbel are entitled to inspect the contents of folder 1 and folder 6, but otherwise are not entitled to inspect the balance of the folders provided by the Office. The folders are now in the custody of the Court. Arrangements have been made for lawyers representing the parties to have access to the documents in the office of the Chief Executive Officer of the Court in the Old High Court building, 450 Little Bourke Street, Melbourne. Arrangements can be made through my associate for the production of the folders which can be inspected in a room in the CEO's office. I return to the Office, folders 2 to 5 (inclusive).

I certify that the 3432 preceding pages are a true copy of the reasons for Ruling of Gillard J of the Supreme Court of Victoria delivered on 4 November 2005.

DATED this fourth day of November 2005.

I certify that this and the 3432 preceding pages are a true copy of the revised reasons for Ruling of Gillard J of the Supreme Court of Victoria delivered on 7 November 2005.

DATED this seventh day of November 2005.

[1] [1987] HCA 58; (1987) 164 CLR 180 at 184.

[2] Unreported, delivered 27 May 1982.

[3] At p.4.

[4] [1989] FCA 477; (1989) 90 ALR 489.

[5] See Meissner (1994) 76 A Crim R 81 at 85.

[6] [1997] NTSC 29; (1997) 6 NTLR 68.

[7] [1924] 1 KB 256 at 259.

[8] [2000] HCA 48; (2000) 201 CLR 488, at p.493.

[9] See Rule 1.4.

[10] [1982] HCA 66; (1982) 153 CLR 134 at 143.

[11] See Bray Law of Discovery and Digest (1885) p.3; Maddison v Goldrick [1976] 1 NSWLR 651 at 663.

[12] (1989) 16 NSWLR 14 at pp.16 et seq.

[13] (1984) 154 CLR 404 at 455-6.

[14] [1992] 1 WLR 736.

[15] [1994] UKHL 8; [1995] AC 274.

[16] At p.306.

[17] Supra at 62 and 63.

[18] [1973] AC 388 at 400.

[19] [1968] UKHL 2; [1968] AC 910.

[20] At p.400.

[21] Supra at p.62.

[22] [2005] VSC 225 at paras 108 et seq.

[23] [1977] UKHL 1; [1978] AC 171 at p.218.

[24] [1995] VicRp 5; [1995] 1 VR 84.

[25] See at p.91.

[26] (1984) 154 CLR 404 at 412.

[27] Supra at p.414.

[28] At p.456.

[29] (1989) 16 NSWLR 14.

[30] [1976] 1 NSWLR 651.

[31] [2001] 2 Qd R 686 at p.687.

[32] At p.694.

[33] [1995] VicRp 5; [1995] 1 VR 84.

[34] See p.99.

[35] At p.90.

[36] [2004] VSCA 1; (2004) 9 VR 295 at 333-4.