R v Mokbel

2 In an entirely unrelated matter in the County Court the admissibility of evidence obtained under search warrants was being challenged on the basis that the purported affidavits relied upon when obtaining those warrants had been signed but not sworn or affirmed. On 29 September 2011 the County Court judge ruled one of the search warrants invalid, and made a subsequent ruling to the same effect in relation to another warrant. On 18 October 2011 the County Court judge ruled that the evidence obtained as a result of the relevant search warrants was not to be admitted. This ruling was made pursuant to s 138 of the Evidence Act 2008. The County Court judge made this ruling after hearing evidence from a number of officers of Victoria Police in relation to the purported affidavits signed in the particular case and in relation to police practices generally. A further ruling to the same effect was made in relation to other warrants in the same matter on 25 October 2011.

3 On 18 October 2011 senior counsel on behalf of Mokbel made an application to change his pleas. The basis of the application was set out in a document provided to the Court which, in its relevant part, read as follows:

"Apparently Victoria Police officers routinely do not swear affidavits but simply sign them. They are then certified by a senior officer as being sworn.

This has the capacity to affect thousands of criminal prosecutions. It is certainly not confined to Mokbel.

Mokbel's cases depend substantially, if not wholly, upon evidence obtained on warrants by Victoria Police ...

As a result, Mokbel wishes to change his plea to not guilty and to then challenge the warrants."

4 On 11 November 2011 the Court of Appeal delivered judgment on an interlocutory appeal by the Director of Public Prosecutions from the County Court Judge's ruling in the unrelated matter.[1] The Director's appeal was dismissed.

5 As it was an appeal from a discretionary ruling, the Director was required to demonstrate that the decision to exclude the evidence was not reasonably open to the trial judge.[2]

6 The Court (Warren CJ, Buchanan and Redlich JJA) expressed concerns about the reasoning and conclusions of the trial judge,[3] but was ultimately satisfied that the relevant factual findings could reasonably have been reached and held that the decision to exclude the evidence was open to the judge.[4] It added an important caveat to this decision. The Court said:

"Although we have concluded that the appeal must be dismissed we would not wish it to be thought that the discretion should necessarily be exercised in the same way were the same issues to arise again for consideration in similar circumstances. We have identified error in his Honour's reasons and expressed our serious reservations as to various findings made by his Honour. It should not be assumed that we would have made like findings or that we would have exercised the discretion in the same way had a finding of inadvertent or careless conduct been made."[5]

7 When this application was first made, on 18 October and 19 October, counsel for the prosecution submitted that the application should be rejected without any further inquiry into the facts of this particular case. In a ruling on 16 November 2011 I rejected that submission.

8 The prosecution filed and served statements by the police officers who had purportedly sworn affidavits in the course of the Quills, Orbital and Magnum investigations, and by the police officers before whom those affidavits were purportedly sworn. Counsel on behalf of Mokbel sought an adjournment of three weeks in order to consider those statements. That application was opposed. On 24 November 2011, I granted the three week adjournment sought, emphasising that the adjournment was granted notwithstanding my view that it was very important that the matter be decided as soon as possible.

9 Counsel on behalf of Mokbel advised the prosecution that they wished to cross-examine a number of deponents and persons before whom affidavits were purportedly sworn. Those officers were called and cross-examined in December 2011 and January 2012. On 21 December 2011, I made directions as to subpoenas, the filing and service of any further material upon which Mokbel proposed to rely and of his written submissions, the filing and service of submissions in response, and the hearing of final submissions, which I fixed for Monday 20 February 2012. There was controversy in relation to the subpoenas which was resolved in late January 2012. I varied the orders as to the filing and service of further material and submissions, while maintaining the date for final submissions at 20 February 2012.

10 On 6 February 2012, Mokbel filed and served written submissions, which annexed further documents upon which he proposed to rely. Those documents were in due course tendered with one additional document.[6] On 13 February 2012, the prosecution filed and served its submissions in response. On Friday 17 February 2012, it was necessary for me to adjourn the final submissions for one week to Monday 27 February 2012, due to the illness of one of the counsel. I extended the time for the filing and service of submissions in reply on behalf of Mokbel.

11 On Thursday 23 February 2012, a written memorandum was received from counsel on behalf of Mokbel seeking a further adjournment to a date to be fixed. On Friday 24 February 2012 I heard the application for a further adjournment and I refused it. On Sunday 26 February 2012 Mokbel suffered a mild heart attack and underwent a medical procedure. On Monday 27 February 2012, after hearing evidence, I adjourned the hearing of the final submissions for a period of two weeks.

12 On Tuesday 28 February 2012 the Evidence (Miscellaneous Provisions) Amendments (Affidavits) Bill 2012 was passed by the Legislative Assembly. Section 5 of that Bill introduced a new section, s 165, to the Evidence (Miscellaneous Provisions) Act 1958. Section 5 is taken to have come into operation on 12 November 2011.[7] The new s 165 reads as follows:

"(1) If an affidavit signed before 12 November 2011 by a person and by a person duly authorised to administer oaths contains words indicating that the first person states that the affidavit is made on oath or affirmation -

(a) it is not, and was not at any time, necessary that -

(ii) the first person signed the affidavit in the presence of the person duly authorised to administer oaths; or

(iii) the person duly authorised to administer oaths signed the affidavit in the presence of the first person; or

(iv) if the first person signed the affidavit in the presence of a person duly authorised to administer oaths, the person so authorised observed the person signing the affidavit; or

(v) the affidavit contained the statement required by section 126; and

(b) the words indicating that the first person states that the affidavit was made on oath or affirmation are and are taken always to have been effective by way of oath or affirmation even if anything referred to in paragraph (a)(i) to (v) was not done or did not occur.

(2) A warrant, an order, a summons or other process issued or made by a court or a judicial officer in reliance, directly or indirectly, on an affidavit referred to in subsection (1) is not invalid only by reason of the fact that, but for subsection (1), the affidavit would not have been duly sworn or affirmed.

(3) For the purposes of the prosecution of an alleged offence, the fact that, but for subsection (1), an affidavit would not have been duly sworn or affirmed is to be disregarded in determining whether evidence obtained in reliance, directly or indirectly, on that affidavit ought to be admitted.

(4) Subject to subsection (3), this section does not limit a discretion of a court -

(a) to exclude evidence in a criminal proceeding; or

(b) to stay a criminal proceeding in the interests of justice.

(5) This section does not affect the rights of the parties in -

(a) the proceedings known as Director of Public Prosecutions (Vic) v Marijancevic (No 264 of 2011), Director of Public Prosecutions (Vic) v Preece (No 263 of 2011) and Director of Public Prosecutions (Vic) v Preece (No 265 of 2011) in the Supreme Court of Victoria, Court of Appeal; or

(b) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the validity of -

(ii) a warrant, an order, a summons or a process issued or made in reliance, directly or indirectly, on an affidavit referred to in subsection (1); or

(c) any other proceeding in which a court, before the day on which the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 receives the Royal Assent, has made a ruling on the admissibility of evidence obtained under a warrant, an order, a summons or other process issued or made in reliance, directly or indirectly, on an affidavit that, but for subsection (1), would not have been duly sworn or affirmed.

(6) In this section affidavit includes a document purporting to be an affidavit."

13 On Wednesday 29 February 2012 I listed the matter for mention. Counsel on behalf of Mokbel indicated that instructions would be sought to make a constitutional challenge to the legislation. Reference was made to the principles in Kable v Director of Public Prosecutions for New South Wales.[8] It was suggested that notices to the relevant Attorneys-General would need to be given. Reference was also made to the Charter of Human Rights and Responsibilities Act 2006. Later that day, counsel on behalf Mokbel served and forwarded to the Court detailed submissions in reply and sought an urgent hearing the following day.

14 On Thursday 1 March 2012 at the request of both parties I heard the final submissions. At the request of both parties, at 2.15pm that day, I announced my decision that Mokbel's application for leave to withdraw his pleas of guilty was refused.

15 I indicated when announcing my decision that Mokbel had failed to establish that a miscarriage of justice would occur if he were not given leave to withdraw his pleas. I said then that this conclusion was not dependent on the validity of the purported affidavits impugned before me, the validity of the warrants obtained on the basis of those purported affidavits, or the admissibility of the evidence obtained improperly or in contravention of the law or in consequence of an impropriety or contravention of the law. I nevertheless went on to rule that nine affidavits had not been properly sworn as they purported to be. The affidavits were those in Exhibit 1, Tabs 12, 17, 20, 22, 23, 26, 28 and Exhibit 2, Tabs 2 and 4. I ruled that the warrants obtained in reliance upon those affidavits were invalid. I further ruled that the evidence obtained under those invalid warrants was admissible under s 138 of the Evidence Act 2008.

16 Later that same day, the Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 was passed in the Legislative Council and it received Royal Assent on that day. I will refer to this Act as the "validating Act".

17 With my concurrence, the parties submitted written submissions prompted by the passage of the validating Act and Royal Assent, after I had announced my decision and my rulings, but on the same day. I delayed signing the order refusing Mokbel leave to withdraw his guilty pleas.

18 In a written submission filed on 5 March 2012, the prosecution submitted that the validating Act applies because my ruling was not made before the day on which the validating Act received Royal Assent. Accordingly, it was submitted, the nine affidavits which I had ruled were not properly sworn must be treated as having been validly sworn.

19 The submission on behalf of Mokbel was as follows:

"His Honour, the learned trial judge has made his ruling and given reasons. He must now give full reasons for that ruling as he undertook to the parties to do. Any unhappy party can appeal".

20 The written submission made on behalf of the prosecution as to the effect of the validating Act seems to me to be correct. This conclusion does not affect the outcome of the application. As I announced at the time, my conclusion that Mokbel had failed to establish that a miscarriage of justice would occur was not dependent on my conclusions as to the validity of the affidavits and the warrants and the admissibility of the evidence. In any event, I ruled that the evidence obtained under the invalid warrants was nevertheless admissible.

21 The prosecution submitted that I should proceed to give full reasons for the decision and rulings made on 1 March 2012 because the case had been argued and a ruling had been given before the validating Act was passed, because of the unusual circumstances which occurred on the day the ruling was given and the legislation was passed and assented to, and because counsel for Mokbel had not accepted that the validating Act does apply.

22 I agree with the submission made by both the prosecution and counsel for Mokbel that I should give full reasons for the decision and rulings I announced, even though the validating Act now requires the conclusion that all of the affidavits are to be treated as having been validly sworn. The validating Act entirely removes the fundamental premise upon which Mokbel's application for leave to withdraw his pleas of guilty was made. For the reasons which I now set out in detail, that application failed in any event.

23 I signed the order refusing leave which I made on 1 March on 13 March 2012.

Relevant history and outline of prosecution cases

24 It is necessary to set out some of the history of the relevant matters and to outline the nature of the prosecution cases on the charges to which Mokbel pleaded guilty on 18 April 2011.

25 On 24 August 2001 Mokbel was arrested on a Commonwealth cocaine importation charge. He was convicted and sentenced for that offence in this Court in March 2006. The offence had been committed between 13 October 2000 and 1 December 2000.[9]

26 When Mokbel was arrested and charged with the Commonwealth cocaine importation offence, he was also charged with a number of drug offences under Victorian law.[10] These Victorian offences arose out of a police drug operation known as Kayak.

27 The Kayak offences were allegedly committed in the same time span as the importation offence was committed, between October 2000 and December 2000. The charges related to dealings between Mokbel and a person referred to as "Josh"

28 Mokbel was charged with trafficking in a commercial quantity of MDMA, trafficking in methylamphetamine and trafficking in cocaine in relation to the Kayak matter.

29 Another police operation concerning Mokbel prior to his arrest on 24 August 2001 was known as Landslip. The Landslip matter concerned what was alleged to be a conspiracy between Mokbel and others to traffick in methylamphetamine in a quantity not less than a commercial quantity. Mokbel's involvement in the Landslip conspiracy was alleged to have ceased upon his arrest in August 2001.

30 Mokbel was charged with conspiring to traffick in a commercial quantity of methylamphetamine in relation to the Landslip matter.

31 Between 1 September 2002 and 11 April 2003 Mokbel was alleged to have committed an offence of trafficking in methylamphetamine in a quantity not less than a large commercial quantity at Rye. The relevant police operation was known as Matchless.

32 The allegation was that a methylamphetamine manufacturing facility had been established in a house in Rye where methylamphetamine was produced for three separate syndicates; one allegedly associated with Mokbel's brother, Milad Mokbel; one allegedly associated with a person named Jacques El-Hage; and one constituted by Mokbel and persons assisting him.

33 Milad Mokbel and Jacques El-Hage have each pleaded guilty and been sentenced for offences of trafficking in a commercial quantity of methylamphetamine in relation to this Rye laboratory.[11]

34 Mokbel was charged with trafficking in a large commercial quantity of methylamphetamine in relation to the Matchless matter.

35 Between 19 December 2003 and 19 March 2006 Mokbel was alleged to have trafficked in methylamphetamine in a quantity not less than a large commercial quantity and to have also trafficked in MDMA. The relevant police operation was known as Spake.

36 Spake concerned an alleged clandestine methylamphetamine and MDMA manufacturing facility established on a rural property at Toolern Vale.

37 Mokbel was charged with trafficking in a large commercial quantity of methylamphetamine and with trafficking in MDMA in relation to the Spake matter.

38 The first offence in time to which Mokbel pleaded guilty on 18 April 2011 is alleged to have been committed between 1 February 2005 and 15 August 2005. The offence is trafficking in MDMA in a quantity not less than a large commercial quantity. The alleged offence was the subject of a police operation referred to as Quills.

39 What is alleged in brief summary is the following[12]:

• In 2004 Mokbel went to the premises of a company which manufactured general cleaning products named Chemical Image Pty Ltd pretending to be a bricklayer who needed chemicals to clean bricks. He formed a relationship with the director of that company, [X], and an employee, [Y]. He bought chemicals from them, paying grossly inflated prices. The chemicals he acquired were legal, but could be used in the manufacture of MDMA and other amphetamine related substances.

• By about February 2005 the association between Mokbel and [X] had reached the point where an associate of Mokbel's acting on his behalf, one Abdullah Radi, installed a pill press at the Chemical Image premises. Thereafter MDMA pills were pressed at those premises using powder supplied by Mokbel. At Mokbel's instigation, [X] purchased a second pill press using cash supplied to him by Mokbel. [X] and [Y] became, in effect, manufacturers of MDMA pills for Mokbel.

• Whilst this pill manufacturing enterprise was underway, in June 2005 Mokbel undertook a series of dealings with two persons who he believed to be potential suppliers of MDMA and other chemicals related to drug manufacturing from international sources, but who were in fact undercover officers of the Australian Federal Police.

• Some problems were experienced with each of the two pill presses which operated at Chemical Image, although substantial quantities of pills were produced there. Mokbel gave [X] the funds to purchase a third pill press. This pill press was purchased in July 2005 and it was used to produce pills at a garage in Craigieburn by a person engaged by [X] and [Y], with Mokbel's approval, named [Z]. The garage was at [Z's] residence in Creighton Way, Craigieburn.

40 Mokbel was charged with trafficking in a large commercial quantity of MDMA in relation to the Quills matter and he has pleaded guilty to that charge.

41 The evidence upon which the prosecution proposes to rely against Mokbel on the Quills matter is said to fall into three major components.

42 The first component is the evidence of [X], and to a lesser extent [Y]. In broad terms, it is said that [X] will give direct evidence as to the events alleged and as to Mokbel's orchestration of the entire arrangement, and that [Y] will support his account.

43 The second component of the prosecution case is said to be constituted by surveillance evidence of meetings between [X] and Mokbel on three occasions in July 2005 and on one occasion in September 2005. There is also evidence of intercepted telephone calls between [X] and Radi.

44 The third component of the evidence relied upon is the evidence of two undercover officers of the Australian Federal Police in relation to their dealings with Mokbel whereby it is alleged that Mokbel sought to import substantial quantities of chemicals for the purpose of illegal drug manufacture. There is an aspect of the recorded conversations which, it is said, link the product sought to be imported with the product being manufactured by the various pill presses.

45 There are three search warrants obtained in the course of the Quills investigation, under which material was obtained upon which the prosecution relies, where there was an issue before me as to whether the affidavit sworn in support of those warrants was properly sworn.

46 The first is a warrant in relation to the Creighton Way, Craigieburn residence. The prosecution contends that a pill press, a tablet counter and a fluid bed dryer were located and that 31,592 tablets with the logo "120" stamped onto them containing 35% MDMA were also found there. This evidence is said to be probative of the existence, nature and size of the ecstasy trafficking enterprise. The logo "120" is significant. The prosecution contends that when Mokbel was discussing the quantity of MDMA in each pill with one of the undercover federal officers, Mokbel had said that "120 is good" and that "120 we always do". This is the aspect of the recorded conversations with the undercover federal officers which, the prosecution maintains, links the product sought to be imported with the product being manufactured.

47 The second warrant is in relation to premises at Dods Street, Brunswick, where a mobile telephone said to have been given to [X] by Mokbel was located with a phone number for Mokbel, denoted "TM", in its memory.

48 The third warrant concerns the Chemical Image factory. Swabs taken from the factory floor under this warrant are said to reveal the presence of MDMA.

49 The evidence obtained from the Craigieburn residence and the Chemical Image factory are said to reveal the nature of the enterprise and to support the evidence of [X] and [Y]. The pills with the logo "120" are said to link the pill pressing enterprise with the discussions with the undercover officers of the Australian Federal Police. The mobile phone supports the evidence of [X] and is said to be evidence in support of an association between him and Mokbel.

50 The alleged dealings with the undercover federal police referred to above are the basis of the second charge (in time) to which Mokbel pleaded guilty in April 2011, which is the Commonwealth offence of urging the commission of the offence of importation of a prohibited import being a commercial quantity of MDMA. The operation referable to these activities is known as Orbital.

51 On 25 October 2005 Mokbel was arrested by the Australian Federal Police in relation to the Orbital matter.

52 Mokbel was charged with the Commonwealth offence of incitement to import a prohibited import in relation to the Orbital matter and he has pleaded guilty to that charge.

53 The evidence upon which the prosecution proposes to rely on the Orbital matter is substantially constituted by the evidence of the two undercover officers and the recordings they made of their discussions with Mokbel, but the prosecution also relies on all the Quills evidence to prove Mokbel was conducting an MDMA manufacturing enterprise at the time of his dealings with the federal officers.

54 On 1 October 2009 the prosecution applied to file a joint presentment/indictment on the Orbital and Quills matters. On the day Mokbel pleaded guilty, 18 April 2011, that joint presentment/indictment was filed by consent, and it was to the charges on that joint presentment/indictment that he pleaded guilty.

55 In February and March 2006 Mokbel was tried in relation to the cocaine importation offence which he had committed in late 2000. On Monday 20 March 2006 he failed to appear at his trial. He was convicted and on 31 March 2006 he was sentenced in his absence to a term of imprisonment of 12 years with a non-parole period of 9 years.

56 It is alleged that Mokbel lived in hiding within Victoria from the time when he absconded from his trial until October 2006 when he was transported across Australia by road to Fremantle. It is alleged that he left Australia on a yacht in November 2006, and that he arrived in Greece in around December of that year where he lived in hiding until he was arrested on 5 June 2007.

57 The final offence in time to which Mokbel pleaded guilty in April 2011 was a charge that during this time, between 5 July 2006 and 5 June 2007, at Melbourne and at other places he trafficked in methylamphetamine in a quantity that was not less than a large commercial quantity. The police operation referrable to this alleged offence is called Magnum.

58 The prosecution alleges that whilst in hiding after absconding from his trial, whilst making arrangements to flee the country, and whilst living in Greece, Mokbel conducted a large scale methylamphetamine manufacturing and distribution enterprise. It is alleged that many others played a role in this enterprise. Among the more significant alleged associates are Joseph Mansour and Bartholomew Rizzo. They are each now serving terms of imprisonment.[13] It is alleged that Mansour and Rizzo undertook many of the necessary activities themselves, but that they also delegated activities to others. It is alleged that Rizzo maintained computerised accounts recording the financial transactions of their component of the enterprise. These accounts were referred to as "the bill".

59 The commencement date for the offence to which Mokbel pleaded guilty is said to be the first date which appears in the bill.

60 Associates of Mansour and Rizzo who have been convicted and sentenced for offences arising out of their participation in this alleged enterprise include Robert Benedetti,[14] Christopher Ferraro[15] and Jamie Saro.[16] Others convicted and sentenced, who were allegedly associated more directly with Mokbel himself, include Chafic Issa,[17] Andrew Ryan,[18] David Tricarico[19] and George Elias.[20]

61 The way in which the enterprise was allegedly structured was that Mokbel arranged for the methylamphetamine to be manufactured and delivered to Mansour and Rizzo. Once the methylamphetamine was delivered to Mansour and Rizzo an entry was raised in the bill in favour of Mokbel at amounts which varied between $40,000 and $47,500 per pound. Mansour and Rizzo would then on-sell the methylamphetamine at a profit for themselves. In that way Mansour and Rizzo accumulated a debt to Mokbel for what was, in substance, the wholesale supply of methylamphetamine. During the period 5 July 2006 to 5 June 2007 the total amount Mansour and Rizzo allegedly incurred and owed to Mokbel was in excess of $4,000,000.

62 At one point in 2007 a person involved in the drug trafficking enterprise began cooperating with police. As a result of that cooperation police put in place telephone intercepts which enabled them to monitor calls being made by Mansour and Rizzo. The calls upon which the prosecution rely were made between 15 May 2007 and 5 June 2007. There are many phone calls between Mansour and Mokbel.

63 Mokbel was charged with trafficking in a large commercial quantity of methylamphetamine between 5 July 2006 and 5 June 2007 in relation to the Magnum matter and he has pleaded guilty to that charge.

64 The evidence upon which the prosecution proposes to rely against Mokbel is said to fall into five major components.

65 The first component is the evidence of Joseph Mansour. It is said that Mansour will give evidence describing the nature of the enterprise conducted, as alleged, and Mokbel's supervening role.

66 The second component is the evidence of telecommunication intercepts involving, principally, Mokbel, Mansour, Rizzo, Tricarico, and Elias. I have listened to many of these phone intercepts in the course of this and related matters. In the absence of some explanation as to which I can only speculate, the phone intercepts constitute compelling evidence supporting the prosecution case in relation to the nature of the enterprise and Mokbel's role in it, in my view.

67 The third component concerns the purchase of the yacht "Edwena" and the arrangements made for Mokbel's flight from Australia. The evidence in this area is substantially documentary, supplemented by evidence from innocent parties involved in the relevant transactions and by evidence from Mansour, from another participant in the drug enterprise referred to as RHS 3030, and from a participant in the enterprise concerning Mokbel's flight named Angela Verykios (or Nissirios). Documents contained from Greek and Australian financial institutions form part of this component of the evidence.

68 The fourth component of the evidence is evidence of the person referred to as RHS 3030. He did not have direct dealings with Mokbel, although it is said that he was present on occasions when Mansour and Rizzo did talk to him over the telephone. Like Mansour, he gives a description of the nature and scope of the enterprise. He obtained copies of "the bill" and provided them to police.

69 The fifth component of the evidence is "the bill" itself. Two versions of the bill were obtained in April 2007 from RHS 3030. An additional page of the bill was seized by police at Rizzo's residence on 5 June 2007.

70 There are a number of warrants under which evidence was obtained upon which the prosecution proposes to rely in the course of the Magnum investigation, which were obtained in reliance upon affidavits as to which an issue was raised concerning whether they were sworn or not before me. In substance, the warrants fall into two groups. In the first group is a series of warrants executed approximately contemporaneously with Mokbel's arrest in Greece upon the residences of alleged members of the trafficking enterprise in Victoria and members of their families. Drugs, cash and equipment were found which are said to constitute evidence of the nature of the enterprise allegedly conducted in Victoria. That evidence does not, in isolation, directly implicate Mokbel. The "bill" is an important part of the prosecution case. What is said to be the final page of the "bill" was seized from Rizzo's house under one of these warrants.

71 The second group of warrants are those under which documents were obtained from financial institutions in Australia and in Greece. These documents form part of the documentary evidence in relation to the purchase of the "Edwena" and the arrangements for Mokbel's flight and, it is said, also evidence the fact that proceeds of the drug trafficking enterprise conducted in Victoria were used to finance Mokbel's flight and his life in hiding in Greece, thereby revealing his role in that enterprise.

72 Mokbel was arrested in Greece on 5 June 2007. Extradition was sought by Australian authorities. Extradition was unsuccessfully contested by Mokbel in the Greek courts. He also took proceedings unsuccessfully contesting his extradition in the Australian courts.[21]

73 Mokbel was eventually extradited, and he arrived in Melbourne in the custody of the Australian Federal Police on 17 May 2008. He unsuccessfully sought permanent stays of the drug charges against him, and of a charge of murder of which he was subsequently acquitted, on the basis of the circumstances of his extradition and prejudicial publicity.[22]

74 Mokbel was re-committed for trial in relation to the Kayak charges on 5 December 2008, and was committed for trial in relation to the Spake charges on 6 March 2009, the Orbital charge on 6 April 2009, the Quill charges on 27 May 2009, the Landslip charges on 3 June 2009, the Matchless charges on 19 June 2009, and the Magnum charge on 23 October 2009.

75 Mokbel was acquitted of a murder charge against him in September 2009. Another murder charge was discontinued.

76 Mokbel's applications for stays based upon the circumstances of his extradition and upon prejudicial publicity substantially delayed the commencement of his various trials.

77 In relation to the drug related charges, the prosecution wished to proceed with a trial on the Magnum offence first. A number of trial dates were fixed and vacated at the request of Mokbel's legal advisers who needed more time to address and obtain instructions upon the substantial amount of material provided to them by the prosecution, and in particular telephone intercept and surveillance material.

78 On 18 April 2011 all the drug related matters pending in this Court against Mokbel were listed at the request of the prosecution. A further presentment was filed in relation to the Magnum matter, setting out Mokbel's prior convictions. The joint presentment/indictment in the Orbital and Quills matters was filed by consent. Mokbel was then arraigned, and he pleaded guilty to one count of trafficking in a drug of dependence in an amount not less than a large commercial quantity (the Magnum matter), a further count of trafficking in a drug of dependence in an amount not less than a large commercial quantity (the Quills matter), and a count of incitement to import a prohibited import (the Orbital matter).

79 The prosecutor advised the court that the other pending matters (Kayak, Landslip, Matchless and Spake) would be discontinued.

80 As indicated, the plea hearing was adjourned a number of times at the request of Mokbel's legal advisors, and on 18th October 2011 this application to change his pleas was made.

81 Various warrants were issued in the course of the Orbital investigation. The affidavits in support of those warrants were sworn by federal officers before a solicitor employed in the Commonwealth Office of Public Prosecutions, a deputy registrar of the Magistrates' Court of Victoria, and a justice of the peace. No evidence was led suggesting that those affidavits were not properly sworn.

82 In the course of the Quills investigation a number of warrants were obtained on the basis of affidavits sworn by and before police officers in a section of Victoria Police known as the special projects unit. The evidence before me is that affidavits sworn by officers in the special projects unit were done correctly. Warrants obtained by the special projects unit concerned the telephone intercepts and surveillance.

83 A number of search warrants were obtained and executed in the course of the Quills investigation by police officers who were members of the major drug investigation division of Victoria Police. A number of affidavits purportedly sworn in support of applications for those warrants were the subject of controversy before me. As I have indicated, three of those warrants led to the seizure of items proposed to be relied upon by the prosecution.

84 In relation to the Magnum investigation warrants relating to the telephone intercepts and surveillance were obtained by the special projects unit. The evidence before me is that the affidavits in support of those warrants were properly sworn.

85 There were a number of search warrants obtained in the course of the Magnum investigation by police officers who were members of a group called the Purana taskforce within Victoria Police. A number of affidavits purportedly sworn in support of those search warrants were the subject of controversy before me. As I have indicated, some of those warrants produced evidence upon which the prosecution proposes to rely.

86 The evidence before me was not confined to those affidavits where it is contended that they had not been properly sworn and which also resulted in warrants pursuant to which material was seized upon which the prosecution proposes to rely. Evidence about the purported swearing of affidavits which do not relate to warrants which led to the seizure of material upon which the prosecution proposes to rely is of assistance in a consideration of the affidavits purportedly sworn in support of search warrants which did result in material upon which the prosecution proposes to rely. A table marked "A" setting out what I have described as the contentious affidavits is annexed to this judgment.

87 Thirteen Victoria Police officers, or former officers, directly involved in the purported swearing of affidavits gave evidence. A list of the 13 officers or former officers and their current and former positions is set out on the annexed table marked "B". For convenience, I will generally refer to them by their surnames. In addition, evidence was given by Acting Superintendent Michael Hermans, and a transcript of evidence which he had given in Marijancevic was tendered. His evidence primarily concerned investigations he has undertaken in relation to training. Further, a transcript of evidence given by Superintendent Guerin in the matter of Marijancevic was also tendered.[23]

88 A number of documents concerning Victoria Police training, and concerning Victoria Police's response to the position revealed in Marijancevic were tendered.

89 In the course of the evidence there was a tendency on the part of all of the witnesses, and of counsel, to refer to the person who purportedly administered the oath as the "witness", in the sense that a signature to a document may be witnessed. Amongst the witnesses, there was also confusion about, and difficulty in differentiating between, affidavits, statutory declarations, and witness statements with acknowledgments of liability for the penalties for perjury. A number of witnesses attempted to describe the varying practices which had been followed throughout their careers in obtaining search warrants. Before turning to the submissions and to the evidence, a brief review of the relevant legislative history is of assistance. It is also necessary to identify what the minimum requirements were for swearing affidavits at the relevant time.

Relevant legislative history and relevant minimum requirements

90 Prior to the 1958 consolidation, legislation had been passed in Victoria empowering a police magistrate to issue a search warrant when satisfied of certain matters "by information upon oath laid by any member of the police force of a rank not below that of inspector".[24]

91 Prior to the consolidation in 1958, legislation in Victoria had adopted, in substance, legislation in the United Kingdom providing for statutory declarations.[25]

92 At the time of the 1958 consolidation, s 465 of the Crimes Act 1958 empowered a stipendiary magistrate to issue a search warrant when satisfied "by information upon oath laid by any member of the police force of a rank not below that of inspector" of various specified matters.

93 Until 1990, police physically attended before a judicial officer to obtain a search warrant. Training documents located by Hill and tendered before me, which are clearly from the pre-1990 period, include a document headed "Crimes Act 1958 (Section 465)" and entitled "Information for Search Warrant". The document sets out the factual grounds relied upon and contains jurat details at its conclusion recording swearing by the police officer applicant before a stipendiary magistrate. Broadly, this reflects the evidence given by some police officers before me of their recollection of pre-1990 procedures.

94 Witness statements containing an acknowledgment of liability for the penalties of perjury were introduced as amendments to the Justices Act 1958 by the Justices Act 1972. Statements containing an acknowledgment signed by the person making the statement in the presence of a member of the police force could thereafter be used in committals. In practice, almost all police statements (including those by police themselves) thereafter have had this acknowledgment and have been witnessed by a police officer. Thus, after 1972 police officers were routinely concerned with statutory declarations (as they had been by then for many decades) and with statements acknowledging a liability for perjury. These documents were not sworn, they were witnessed.

95 The Drugs Poisons and Controlled Substances Act 1981 introduced a form of search warrant referrable to suspected contraventions of the provisions of that Act (then in s 98). The provision required the relevant judicial officer to be satisfied by "information on oath".

96 In September 1990 three noteworthy legislative changes occurred.

97 First, s 465 of the Crimes Act 1958 and s 81 of the Drugs Poisons and Controlled Substances Act 1981 (the successor provision to s 98) were amended so as to provide that search warrants could be issued by a magistrate satisfied of the requisite matters "by evidence on oath or by affidavit".

98 Second, s 123C of the Evidence Act 1958 was amended so as to include amongst the list of persons before whom an affidavit could be sworn or taken: "A member of the police force of or above the rank of sergeant or for the time being in charge of a police station".

99 Finally, the Magistrates' Court Act 1989 provided, by s 75, that an affidavit supporting an application for a search warrant could be a "copy of an affidavit transmitted by facsimile machine".

100 Victorian legislation does not, and never has, set out the precise wording of the oath. Before the commencement of the Evidence Act 2008 and the Statute Law Amendment (Evidence Consequential Provisions) Act 2009 in 2010, the relevant provision in the Evidence Act 1958 was s 100(1), which provided:

"Any oath may be administered and taken in the form and manner following: The person taking the oath shall hold the Bible or the New Testament or the Old Testament in his uplifted hand and shall repeat after the officer administering the oath or otherwise say the words 'I swear by Almighty God that ...' followed (with any necessary modifications) by the words of the oath prescribed or allowed by law without any further words of adjuration imprecation or calling to witness."

101 Other lawful forms of oath were expressly preserved by s 100(4), which provided that any oath may be administered "in any manner which is now lawful".

102 Section 100(5) of the Act directed those administering oaths to do so in the form provided for in s 100(1) without question unless the person about to be sworn objected, or the person administering the oath thought the oath would not be binding on the conscience of the person about to be sworn. A proviso to s 100(5) expressly provided that no oath would be deemed illegal or invalid by a breach of that provision.

103 The legislative requirements, insofar as they are expressly provided for, are now to be found in the Evidence (Miscellaneous Provisions) Act 1958. Those provisions do not apply to any of the affidavits in issue before me.

104 The minimum required for a valid oath at common law was some form of words, spoken or assented to by the deponent, whereby he or she swore, or in some manner called upon a higher power, so as to bind his or her conscience.[26] The mere signing of a document was not enough.[27]

105 Formal defects in the administration of an oath have never been necessarily fatal. The Full Court of this Court in R v Shuttleworth[28] considered an appeal against a conviction for perjury in a case where the question arose as to whether the clerk administering the oath in the Court of Petty Sessions had been authorised to do so. The Full Court said:

"We think a very broad interpretation should be given to the authority of courts to administer oaths, and they should be protected in their administration of the oath as long as it is clear that the witness was face to face with the oath and accepted it and pledged his oath to the truth of his statement, although the administration might be in some respect defective."[29]

106 The provisions of the Evidence Act 1958 applicable at the relevant time proceed on the assumption that all affidavits will be sworn before an authorised person. In this respect, I refer in particular to s 100, s 123C and s 126. Even s 100(4), which preserved all other lawful forms of the oath, assumed that the oath would be "administered" by someone. In this case, every contentious affidavit purports to have been sworn before the person who had signed it as the authorised person. If that is not what had occurred, the document is false and misleading, whether what had been done by the deponent may have met the minimum requirements of an oath or not.

107 There is no statutory or other legal requirement for the deponent to sign in the presence of the authorised person. The standard common form of the affidavit oath includes the deponent swearing "that is this is my [true] name and handwriting".[30]

108 In light of the above, my conclusion as to what was the minimum necessary for the contentious affidavits to have been properly sworn, as they purported to be, is:

(1) the deponent must have uttered words that amounted to swearing to the truth of the contents of the affidavit, or assented to words to that effect uttered by another; and

(2) this must have been done in the presence of the authorised person who signed it.

109 Detailed written submissions were made by both parties. I will very briefly summarise the main points made.

110 In the principal submissions filed on behalf of the applicant, reliance was placed on Marijancevic, the submission being that the position here was, in essence, indistinguishable from the position there. It was submitted that invalid warrants meant the evidence directly obtained under them was illegally obtained and that other evidence would also be tainted. It was submitted that almost all the contentious affidavits were not properly sworn. It was submitted that a decision on admissibility under s 138 of the Evidence Act 2008 could not and should not be made on this application. Earlier submissions on the legal principles applicable on an application to change pleas were adopted.[31]

111 In the earlier adopted submissions, the authorities concerning change of plea applications were reviewed in detail. I will turn to those authorities shortly. The key matter contended for on behalf of Mokbel was the following:

"...the accused pleaded guilty on the basis of what may be an erroneous belief that the evidence that would be fatal to his defence would be admissible. The plea was taken against this backdrop. The changed circumstance means that it would be a miscarriage of justice if the plea could not be withdrawn".

112 Reliance was also placed on the fact that some search warrants had not been executed by the warrant holder at a time when the relevant legislation (since amended) required that to be done.

113 It was also submitted that the pleas of guilty were obtained on the basis of a failure by the prosecution to disclose that affidavits purportedly sworn had not been sworn.

114 On behalf of the prosecution, it was submitted that Mokbel had failed to establish that any relevant miscarriage of justice would occur if leave to withdraw his pleas were refused. It was submitted that all he had done was to assert denial of an opportunity to have some of the evidence against him ruled inadmissible. Mokbel had failed to produce evidence about his decision to plead guilty and, it was submitted, there was no evidence he had been induced to plead guilty by a mistaken belief concerning the search warrants. In this respect, it was submitted that Mokbel's pleas were entered as part of a "plea bargain" and that the inference should be drawn that he made a "forensic choice" to plead guilty because he considered it to be in his best interests to do so.

115 It was submitted that a number of the contentious affidavits had not been proved to have been improperly sworn, and that the evidence obtained under warrants obtained on the basis of improperly sworn affidavits was admissible under s 138 of the Evidence Act 2008.

116 The prosecution also submitted that even if all the evidence directly obtained under the impugned warrants was excluded, there would still be substantial cases against Mokbel on the charges to which he had pleaded. This is not a case, it was submitted, where exclusion would mean there was no case against the applicant. It was submitted that the submissions about indirect tainting were nothing more than assertions.

117 Both parties made detailed submissions about the police evidence and about specific affidavits.

118 In submissions in reply on behalf of the applicant it was submitted that Mokbel had been induced to plead guilty by impropriety and that he had done so when not in possession of all the relevant facts. While maintaining the submission that a ruling under s 138 could not and should not be given, detailed submissions on the application of s 138 were made, should that primary submission not be accepted.

119 I will deal first with the evidence given by Superintendent Guerin in the matter of Marijancevic, the transcript of which was tendered before me,[32] and the evidence of Acting Superintendent Hermans, whose evidence in Marijancevic was also tendered before me,[33] together with documents he produced in that hearing,[34] and who also gave oral evidence before me.

120 Superintendent Guerin is attached to the crime department of Victoria Police. The crime department houses the specialist crime squads, including the homicide squad, the drug taskforce and other specialist crime squads.

121 In the course of the hearing in Marijancevic, Guerin became aware of evidence which had been given by a Senior Sergeant McIntyre in that hearing to the effect that an affidavit he had purportedly sworn in support of an application for a search warrant had not been sworn using an oath but had been merely signed. Guerin's evidence was that as a result of that he did the following:

"I went walking through the department and spoke to around 25 detectives at various work groups and asked them what their process was when they [swore] search warrants, and all of them gave me an answer consistent with the process that Senior Sergeant McIntyre described to you last week".[35]

122 In the course of his evidence in Marijancevic, Guerin had expressed views as to why this practice had developed. He referred to a number of circumstances including "the culture", a lack of understanding of the difference between a statutory declaration and an affidavit, and the fact that police would not necessarily feel obliged to raise a Bible but still feel bound by "the rules of perjury".[36] In cross-examination he had been asked about training. He was unable to remember being trained in relation to the formalities of an affidavit and he could not say how he personally had known what was required.[37]

123 The issue of training was the principal focus of the evidence of Acting Superintendent Hermans both before me and in the hearing in Marijancevic. In his evidence before me he adopted the evidence he had given in that proceeding and amplified and clarified it.

124 In Marijancevic, Hermans had said that he had been instructed to review the training documentation and other materials in relation to the swearing of affidavits for search warrants, and he had said that he had been authorised by Victoria Police to speak on behalf of the organisation in relation to what he had discovered. He had produced what he said were the relevant training materials[38] and he indicated, both in his evidence in the Marijancevic matter and before me, that in his view those materials had significant deficiencies which were now being remedied.

125 In his evidence in Marijancevic, Hermans had referred to what had occurred using the expression "poor work practices", an expression which the judge in that matter found to be unsatisfactory. Hermans had also suggested that the problem was a consequence of poor training and that the use of witness statements with acknowledgments of liability for perjury could also have been a factor.

126 The training materials produced by Hermans comprise five documents.[39]

127 The first document is headed "Victoria Police Manual - Policy Rules". This document was said to be current. Hermans suggested it had not been significantly different for some time. Apart from instructing officers that "all relevant documentation" is to be completed and checked, it does not address the matters of concern.

128 The next document is headed "Warrants" and is a document which Hermans said is used in current recruit training.[40] The section under the heading "Issue of Warrant" does not clearly relate to search warrants, but insofar as it does do so, it reflects the pre-1990 position, suggesting that warrants were obtained by a police officer swearing to the truth of information contained in a warrant before a judicial officer.

129 The third document is entitled "Searches of properties". Hermans said this was superseded training material. It was clearly prepared after 1990, as it refers to the fact that affidavits can be transmitted by fax. It gives no instruction as to how affidavits are sworn. It confusingly reflects the pre-1990 position in suggesting that it is necessary to physically attend before the judge or magistrate.

130 The fourth document is entitled "Search Warrants" and was said to be current as at August 2010 as part of the detective training materials. It sets out in great detail why it is most important that affidavits in support of search warrant applications contain all relevant facts, emphasising that those facts must be carefully and thoroughly checked. Under the heading "Affidavits in Victoria - How Sworn and Taken" some relevant information is given, but it is by no means comprehensive. What is said to be an appropriate form of oath is set out under the heading "Wording of Oath for Warrants". That wording reflects the pre-1990 position. It refers to "the information contained in this warrant" and also refers to a preparedness to "answer all questions put to me".

131 The final document is also a document said to be used in detective training. It was apparently prepared by one Emma Lobb and was referred to before me as the "Lobb document". The document emphasises the importance of affidavits being prepared in a careful and comprehensive manner. It does not address the formalities of swearing an affidavit. The form used (VP Form 708) is reproduced.

132 The training materials produced by Hermans properly and emphatically emphasise the importance of ensuring that the facts are accurately and comprehensively stated and that affidavits in support of applications for search warrants are to be very carefully prepared and checked. The material either does not address the formalities of swearing an affidavit, or it does so in an inaccurate or confusing manner. An officer who did not know how to swear an affidavit would not learn how to do it correctly from these materials, and an officer who had an incorrect understanding of what was required would not be likely to have that misapprehension corrected by these materials.

133 The training materials found by Hill to which I referred earlier are from pre-1990. As such, they do not address the relevant issue.

134 Hermans gave detailed evidence as to the steps which have now been taken to rectify the training deficiencies he had identified.[41]

135 I turn then to the evidence of the particular police officers who purportedly swore the contentious affidavits, or before whom they were purportedly sworn.

136 A significant number of the contentious affidavits concern O'Brien, as either the purported deponent or as the person before whom the affidavit was purportedly sworn.

137 O'Brien retired from Victoria Police on 1 September 2007, having joined the police force on 2 February 1977. Between 28 November 2005 and 1 September 2007 he was the officer in charge of the Purana taskforce.

138 In a statement which he adopted in his evidence[42] he said that affidavits apparently sworn or "witnessed" by him were "possibly not sworn but only signed", with four exceptions. He differentiates the four exceptions on the basis of entries in his diary which refer to particular affidavits as having been sworn.[43]

139 In cross-examination O'Brien was asked about the process which he went through when acting as what counsel described as a "witness" to an affidavit. The term "witness" was used in the same way in O'Brien's statement. The issue was not merely one of terminology. O'Brien was questioned at some length about whether affidavits had been signed in his presence.

140 In describing the process he went through O'Brien emphasised that the most important aspect of his role, as far as he was concerned, was to make sure that the affidavit was "true and correct". When asked for an explanation as to why some of the affidavits were sworn and some were not, O'Brien said he could only put it down to the fact that some of the affidavits were very long and went backwards and forwards two or three times until he was satisfied with the truth and accuracy of their contents.

141 O'Brien said that the practice of signing but not swearing affidavits was an "accepted practice" when he returned to the crime department in 2001.

142 He was questioned about his understanding of the differences between affidavits, statutory declarations and witness statements with acknowledgments. It did not seem to me that he had a clear understanding of the differences.

143 O'Brien rejected a proposition put to him that he was "cutting corners". He emphasised the amount of time and effort that was taken in checking and double checking the contents of the affidavits. He said that there was nothing in any affidavits with which he was concerned that was incorrect or inaccurate.

144 In response to the suggestion that he was "cutting corners" he also referred to the fact that nothing was gained by the practice he described.

145 He rejected the suggestion that he was deceiving the magistrate who issued the warrant.

146 It was put to him that on his own evidence he knew the correct approach but in relation to at least ten of 14 affidavits in which he was involved he ignored it. In response to that he said: "It wasn't a matter of ignoring it, as I said I consciously didn't turn my mind to it, I was concerned with what the contents of the affidavit was".

147 He was asked about a process, described by counsel for Mokbel as a form of amnesty, whereby officers could declare their involvement in this practice. I will return to that matter. O'Brien agreed he had completed a form headed "Affidavits - General Disclosure Declaration Form", a copy of which was tendered.[44] The explanation which he gave in that form was as follows:

"For the relevant period ... from 2001 to 2007 it was accepted practice at the Victoria Police Crime Department to not formally give the oath verbally when presenting an affidavit for witnessing. In most cases I did not formally swear the affidavit but signed it. On occasions these affidavits were formally sworn where I witnessed it or I swore the affidavit in the presence of another member of the police force where this occurred I made a note to that effect in my official police diary. I'm not aware of the number of affidavits to which this would apply. There would be a reference in my diary to most but not all occasions on which affidavits were sworn or signed ... It was a common practice and one which I inadvertently adopted on my return to the Crime Department in June of 2001. I also believe that the practice developed in part due to work practice of reading lengthy affidavits and checking their accuracy, correcting them and returning them to members for alteration. On occasions affidavits were returned by me a number of times for correction. In many cases discussions were held with the presenting members as to the details and accuracy of the affidavit prior to them being signed. In many of the situations I was more familiar with the content and relevance of the material in the affidavit due to having overall management of the operation/investigation to which it referred. I considered I was ethically and legally bound to ensure the accuracy and truth of the contents of the document that was to be presented to a Magistrate for consideration of a warrant application and was no less legally responsible whether the presenting member had formally sworn the document or not."

148 In response to a question from me, O'Brien said that he considered that he was liable for perjury where the practice he had described of not swearing the affidavit had been adopted.

149 When asked whether he had received any training in relation to the swearing of affidavits O'Brien said that he had not and that what he knew of the formal requirements had come to him from experience.

150 Another officer involved in a significant number of the contentious affidavits is Paxton.

151 Paxton made four statements which he adopted in his oral evidence, and he also gave oral evidence about a further search warrant which was not dealt with in the four statements.[45]

152 In summary, Paxton's evidence was that he had a general practice of holding the Bible and swearing the oath; that he did know what was required in order to swear an oath; that sometimes he would simply sign the document and produce it to O'Brien who would "witness" his signature, without an oath being administered; and that in the absence of some record, such as the diary notes relied upon by O'Brien, he could not say which affidavits had been sworn in accordance with what he says was his general practice and which had been signed and not sworn. Paxton said that he could only recall one specific occasion when he had not sworn the affidavit. He said that was because he was distracted at the time by other police requiring his attention.

153 Paxton was anxious to emphasise that, insofar as he was able to assert that particular affidavits were properly sworn, he was doing so not from an independent recollection but rather in reliance upon the evidence of others, in particular O'Brien.

154 One affidavit was purportedly sworn by Paxton before Edwards, and Paxton was adamant that all affidavits had been properly sworn before Edwards.

155 Like O'Brien, Paxton referred to the pressure under which search warrants had been obtained during the periods when the Purana taskforce was headed by O'Brien and by Ryan, in contrast to what he said was the position which pertained when Edwards was the officer in charge. He emphasised the importance that was given to the accuracy of the contents of the affidavits at all times.

156 Paxton said that he believed anything false in any of the purported affidavits could have led to him being charged with perjury. In response to the suggestion that he was "cutting corners" he said:

"The cutting of corners seems to me to be a deliberate act, by interpretation. I certainly did not make a deliberate act of avoiding the swearing of affidavits. There were circumstances that presented themselves which may have distracted me and therefore I was negligent in what I did."

157 Paxton said that he was never given any training in how to swear an affidavit and that what he learnt was through "practice", although he then added that he may have been trained but that it was a long time ago.

158 Paxton has also completed an "Affidavits-General Disclosure Form".[46] In that form he states that he "generally" swore affidavits or had them sworn before him but that there were occasions "prior to around 2008 where they were not in fact sworn". He states that this "practice ceased with the arrival of Detective Inspector Edwards at Purana".

159 Flynn was involved as either the purported deponent or the person before whom the affidavit was purportedly sworn in relation to four affidavits. In the statement which he adopted he said he had no independent recollection of the "swearing" of these affidavits but that he believed some "if not all" were not sworn but simply signed. One of these affidavits was one of those which O'Brien maintained he had sworn properly as the deponent before Flynn because of a reference to swearing in his diary. In his statement Flynn says: "I cannot refute this".

160 In his oral evidence Flynn said that there was a practice within the police force whereby affidavits were signed but not sworn. He said the practice of signing and not swearing had existed for at least ten years and was so common that he was unable to bring to mind or name a specific example of the Bible being used to swear an oath.

161 Flynn maintained that he thought the common practice as he described it was correct procedure. He said he had never looked at the applicable legislation and that he could not recall ever having had any training in relation to swearing an affidavit. He said he could not recall any superior officer pointing out to him that the oath had to be taken on the Bible. He thought the practice which he described was correct.

162 Flynn said that he thought that if the document had contained anything deliberately misleading or untruthful he could be charged with perjury.

163 He said that whilst he thought the procedure that he was following was correct he did not in fact turn his mind to whether it was correct or not during the relevant period.

164 Kennedy maintained that he did recite some form of words, which he characterised as an oath, when swearing the only affidavit of which he is purportedly the deponent which is contentious in this proceeding. He does not recall the specific instance, but in the statement which he adopted he says that he would "attest to the truthfulness" of the information in the affidavit to the "witness", and he says that he would utter the words "I swear that the information contained in this affidavit is true and correct" or similar words.

165 In cross-examination when asked whether it was his general practice in 2007 to swear affidavits by raising the Bible and uttering the oath he said that it was not.

166 Kennedy had no recollection of being trained about how to swear an affidavit.

167 Kennedy's evidence was unclear about whether he thought that his practice was correct or not, and eventually he said that he hadn't thought about it at the time.

168 He was asked about the evidence that had been given that there was a widespread practice of simply signing the document, and it was put to him that he had adopted that practice. He responded as follows:

"No, I don't believe so, your Honour. It's - I'm not saying I haven't but I don't believe so, but, as I said, I'm - I would attest to the truthfulness of the contents of the affidavit. It's, you know, it's an obligation I felt that I have to ensure the person witnessing that I was satisfied that it was right and they in turn reading it could also do so."

169 Kennedy conceded that he did not take the oath on the Bible. He was unclear as to what form of words he used.

170 It seemed to me that what Kennedy now characterises as taking a form of oath may well have been no more than asserting to his superior that the information contained in the document was accurate and correct.

171 When asked whether he had held a belief as to the consequences of not telling the truth in any of the documents referred to, Kennedy said that he "most definitely" did and that his belief was that that would be perjury. He said that at no time had he thought that anything he was doing was wrong.

172 Robertson, like O'Brien and Paxton, suggested that sometimes he did properly swear affidavits and sometimes he did not. He was only involved in one contentious affidavit in this proceeding. He was purportedly the deponent of that affidavit and the oath was purportedly taken before Ryan. He said he had no independent recollection of swearing the particular affidavit but that Ryan's practice was to have a deponent swear affidavits before him by taking a Bible in hand and saying words including "I swear by Almighty God" out loud.

173 In his cross-examination Robertson explained his understanding of evolving police practices in this area, broadly reflecting the legislative changes to which I have previously referred.

174 Robertson said that he did not always swear the oath and had not always required that the oath be sworn before him. When asked for an explanation, he said that he had regarded it as a formality and that he did not think it was fundamental. He said: "In my view it was a formality that we let slip because of ... the level of contact we had with one another on a regular day to day basis".

175 Robertson emphasised that his main concern had always been the truth of what was contained in the affidavits. He said that he had never turned his mind to the question of whether what was being done was illegal. He said that on reflection he knew that he had been "slack" and not as attentive as he should have been to the correct process.

176 When asked whether he thought there would be consequences if the contents of the documents were not true, he responded saying that he would have expected severe consequences. When asked to state what consequences he had in mind he referred to perjury and perverting the course of justice.

177 Mansell did not complete a witness statement and gave all of his evidence orally.

178 Mansell purportedly swore two affidavits in contention in this proceeding. He said that on each occasion he signed the document but did not swear it. When asked what his understanding was as to whether that was properly swearing the affidavit he said that he wouldn't have turned his mind to the question. When asked what the consequences would have been if the contents of the affidavits or purported affidavits were untrue he said that they would have been severe, and when asked specifically about perjury he responded: "Yeah, of course".

179 Mansell said he had no recollection of ever being trained in how to apply for a search warrant by affidavit. He agreed that the words on the document itself should have alerted him to the fact that he had to swear an oath but he said he did not turn his mind to the question at the time. He agreed with the suggestion put to him that he treated affidavits as akin to statutory declarations, and reference was also made to witness statements with acknowledgments.

180 Mansell said that he would have signed affidavits which were then signed by O'Brien but he had no direct recollection of doing so. He said that if he did so he would have signed it but not sworn it.

181 Mansell said that over the entire period in which he was at the crime department, which he said was a period of 18 months to two years, he never swore an affidavit using the Bible or reciting an oath.

182 Ryan had a misconception about the swearing of affidavits which differed from the rest. Ryan's understanding was that the deponent could swear the affidavit alone, using the Bible and reciting the words, and present it to the "witness" to sign afterwards. His evidence was that he thought this practice was correct. He estimated that he swore affidavits in the absence of the person before whom it was purportedly sworn on one in four or one in five occasions. He likewise did not consider it essential that a deponent take the oath in his presence when he was the officer before whom the affidavit was purportedly sworn.

183 Ryan said that in relation to the specific affidavits in contention here he could not recall whether he had been present when the deponent swore the affidavit in one case,[47] but that he could specifically recall the deponents being present on four other occasions.[48]

184 Ryan said he could recall no training which he had ever been given on swearing affidavits. He exhibited, in my view, some confusion between statutory declarations and affidavits.

185 Like the other police witnesses, he emphasised that the content of the documents was what was seen to be most important.

186 Ryan said that his belief was that whether the affidavit was sworn in the presence of the person before whom it was purportedly sworn or not, that did not affect the validity of the oath and that amongst the possible consequences for dishonesty was jail for perjury.

187 Gustke is the person before whom Ryan purportedly swore one affidavit. Gustke's evidence was that Ryan did swear this affidavit. In his cross-examination he agreed that he had not always sworn his affidavits, or ensured that affidavits were sworn when purportedly sworn before him.

188 Gustke said he did not have a clear recollection of ever being trained about affidavits.

189 Gustke gave an account of his understanding of the history of obtaining search warrants. He said the use of affidavits had not really become part of police work until the late 1980s.

190 Gustke agreed that he had been aware of a practice within the crime department of not swearing affidavits. He suggested that this practice had evolved as a result of the "dynamic nature" of the work and that there was a "cultural organisation failure". Like the other officers, he was concerned to make it clear that the emphasis was on the content and veracity of the information rather than the uttering of particular words. He expressed the opinion that people did know how to do it correctly and attributed the poor practices to the "transition" which he had described, to laziness, and to absence of training. He said that the formality of uttering the words became "secondary" or not even secondary. He rejected the suggestion that legal requirements were deliberately thwarted.

191 Gustke said that he believed that when he signed an affidavit he was bound by his oath, as was anyone who signed one before him, and that the consequence of being untruthful was perjury in certain circumstances.

192 Gustke has completed a general disclosure and declaration form, and a copy was tendered.[49]

193 Edwards maintained that during his time affidavits were always properly sworn at the Purana taskforce. He conceded, however, that he had not always personally complied with the requirements for swearing an affidavit. He particularly referred to two affidavits which were purportedly sworn before him by an officer in the homicide squad. He said that that officer maintained, and Edwards accepted, that the affidavits had been signed and not sworn. The officer concerned is Detective Senior Sergeant Ron Iddles. Edwards was prompted by that circumstance to complete a general disclosure and declaration form, a copy of which was tendered.[50]

194 Edwards did not have a specific recollection of being trained in relation to affidavits but expressed the opinion that he would be very surprised if he had not been given notes on it or taught about it throughout the years. He observed that the Evidence Act was not widely taught and that he would be "very surprised if a lot of people wouldn't be of the belief by signing the document and attesting that that is all true and correct, that they have satisfied the requirements".

195 In his general disclosure and declaration form Edwards stated amongst other things:

"My intent was always to present and have truthful and accurate information presented to the Court. I believe that untruthful information would have exposed the author to the penalties of perjury even if it had not been sworn correctly. I've not gained any advantage if I have not witnessed the document being sworn correctly and have not tried to deceive any person in any way."

196 In his oral evidence he confirmed the truthfulness of those statements.

197 There were a handful of police officers who gave evidence before me who did understand what was required and who said that what was required is what they did.

198 A search warrant obtained in relation to 28 Monash Crescent, Clayton South on 7 May 2007 was not obtained by police officers within the crime department. The affidavit in support was sworn by Wilson, then a relieving Senior Sergeant attached to the Eastern Region Division 1, before Van Rossum, then a uniform Sergeant at Box Hill Police Station. Wilson's evidence was that she could not recall swearing the particular affidavit but that her practice was to swear all affidavits saying the appropriate words out loud. She said that she thought this was what she had been taught. Van Rossum similarly said that he had no recollection of the particular affidavit but that his practice was to require a deponent to sign the affidavit in his presence, to then hand the person the station Bible which has the wording of the oath on its front cover, to ask them to recite the words, and to then sign the document when they had done so.

200 White said he could not recall swearing the particular affidavit but that his practice was to hold the Bible and say the words of the oath aloud. In cross-examination he said he could not remember being trained about swearing an affidavit and he could not recall how it was that he had learnt to swear affidavits in the way that he did, although he assumed it would have been a result of specific training and education.

201 Hill, before whom White swore his affidavit, could not recall the specific incident. He said that his practice was to require the oath to be spoken aloud. In my view, Hill demonstrated a clear understanding of what was required.

202 In view of Hill's current position as an Acting Assistant Commissioner he was asked about some of the more general issues dealt with by Hermans. He confirmed that deficiencies in training had been identified as a result of the Marijancevic matter and that they were being urgently addressed.

203 When asked whether he had been surprised about the extent of the "misunderstanding" on this issue, Hill said that it had caused concern. It was put to Hill that the root of the problem appeared to be in the crime department and he said he could not speculate on that and that he considered that there were areas of non-compliance across Victoria Police. When asked for his explanation of the problem he referred to "familiarity" and to supervisors not taking on a leadership role because of that familiarity. He said that the problem would be addressed by improvement and enhancement in training. He said that until this problem emerged he was not aware of there being any practical training on the administration of oaths.

204 In addition to the evidence concerning improvement and enhancement of training referred to by Hermans and by Hill in the course of their oral evidence, documents were tendered concerning the steps taken in response to the position revealed in Marijancevic.[51]

205 The Director of Public Prosecutions has issued a guideline pursuant to s 26(1)(b) of the Public Prosecutions Act 1994 to members of Victoria Police requiring, in substance, notification of all instances in relation to current or pending prosecutions where there is reason to believe that an affidavit was not or may not have been validly sworn or affirmed. The guideline indicates that this notification is required so that the Office of Public Prosecutions can disclose that information to accused persons.

206 Chief Commissioner's instructions have also been issued to Victoria Police members, in particular instructions denoted "CCI 15/11" and "CCI 19/11". The instruction denoted "19/11" sets out what must be done in order to properly swear an affidavit and also sets out a procedure for disclosure in relation to past practices. This is the procedure referred to by counsel for Mokbel in the course of the oral evidence as an "amnesty", and is the procedure pursuant to which the forms entitled "Affidavits - General Disclosure Declaration Form" were completed by a number of the witnesses. In substance, the instruction advises members that all instances of non-compliance with the requirements for swearing or administering oaths must be disclosed. Provided members acted in good faith, and without intending to deceive or mislead any person, members are informed that they will not be subject to any criminal or disciplinary action and that disclosure will not adversely affect transfer, promotion or other aspects of members' careers.

General conclusions as to the contentious affidavits

207 Before turning to certain specific contentious affidavits, I set out some general conclusions.

208 On the basis of the evidence I have heard my conclusion is that the general practice within the major drug investigation division at the time of the Quills investigation and within the Purana taskforce under O'Brien and Ryan at the time of the Magnum investigation was that what purported to be affidavits in support of search warrant applications were not properly sworn before the person before whom they were purportedly sworn, and that they were usually signed without any form of oath being taken.

209 My second general conclusion is that all the officers concerned in the purported affidavits which were not properly sworn believed they had bound themselves to the truth of the contents and believed they were legally liable, as if they had been sworn. Whilst there was a failure to properly swear, there was no failure to carefully and comprehensively ensure the contents of the documents they purportedly swore were accurate and complete.

210 My third general conclusion is that the principal cause of this widespread incorrect practice was an absence of adequate training. None of the officers I heard from could specifically recall any training. The training materials produced do not address the relevant issue or do so in an incorrect or confusing manner. Given the legislative changes made, as previously outlined, and the prevalent use of statutory declarations and witness statements with acknowledgments, it is unsurprising that the lack of adequate training led to ignorance or misunderstanding about what was required. In my view, Flynn, Kennedy, Mansell and Ryan were ignorant of or misunderstood what was required. It also resulted in a failure by those who did know what was required to appreciate the importance of adherence to those requirements. O'Brien, Paxton, Robertson and Gustke all fall into that category, it seems to me. The other explanations proffered such as familiarity, pressure of work, culture and so on, are not really to the point. Nothing was gained by the adoption of the incorrect practices other than, literally, a period of time measured in seconds. No advantage was obtained. If the officers concerned had known the requirements, and had appreciated why those requirements had to be adhered to, I have no doubt that they would have adhered to them. There was no reason not to do so.

211 My final general conclusion is that steps have been taken by Victoria Police in response to the situation revealed in Marijancevic. Deficiencies in training have been identified and addressed. A process directed at comprehensive disclosure has been undertaken. Otherwise, provided police members acted in good faith and make disclosure, there will be no repercussions for them.

212 Whilst many affidavits were contentious, and were the subject of evidence and submissions, there are only 12, three in the Quills investigation and nine in the Magnum investigation, which were contentious in the sense an issue was raised as to whether they had been properly sworn, and which resulted in materials being obtained upon which the prosecution proposed to rely. I will deal with each of the 12 separately. They are denoted on the annexed table marked "A" by a "yes" in the final column.

Quills: Mansour before Flynn: 20 July 2005 (Exhibit 1, Tab 12)

213 This affidavit concerns the property at Creighton Way, Craigieburn. The prosecution conceded that this affidavit was not properly sworn.

214 Having heard the evidence of Mansour and Flynn, my conclusion is that neither of them knew the correct method of swearing an affidavit and that each of them thought that what they did was correct.

215 Under a search warrant obtained on the basis of this purported affidavit, the materials to which I have previously referred, including the tablets stamped "120", found at the residence in Creighton Way, Craigieburn were obtained.

Quills: White before Hill: 15 August 2005 (Exhibit 1, Tab 14)

216 This affidavit was properly sworn. I accept the evidence of White and Hill in that regard.

217 Under a search warrant obtained on the basis of this affidavit, the mobile phone with Mokbel's number in it was obtained.

Quills: Flynn before O'Brien: 24 April 2007 (Exhibit 1, Tab 17)

218 This affidavit was not properly sworn. This was conceded by the prosecution.

219 The deponent, Flynn, thought what he was doing was correct. The authorised person, O'Brien, knew what was required, but did not always do it.

220 Under a search warrant obtained on the basis of this purported affidavit, swabs were taken at the Chemical Image factory, which produced evidence of MDMA.

Magnum: Paxton before O'Brien: 11 May 2007 (Exhibit 1, Tab 20)

221 This affidavit was not properly sworn. This was conceded by the prosecution.

222 Whilst Paxton maintained his general practice was to swear affidavits correctly, he could not say that he did so on every occasion. I think it is clear from his evidence that he did not. O'Brien, likewise, was unable to say that he always followed the correct procedure. He did not seek to rely on a diary note in relation to this affidavit. My conclusion as to the general practice is important here. I find that this affidavit was not properly sworn.

223 Both Paxton and O'Brien knew what was required but did not always do it.

224 Under search warrants obtained in reliance upon this affidavit, materials were seized from houses associated with Rizzo, Mansour, Ferraro, Tricarico and Issa on 5 June 2007. These warrants are among the group to which I previously referred where equipment, cash and other items were seized at or around the time of Mokbel's arrest which the prosecution says are evidence of the nature and extent of the drug trafficking enterprise carried on in the Magnum matter. The additional page of the bill was obtained from Rizzo's house.

Magnum: Paxton before O'Brien: undated (Exhibit 1, Tab 22)

225 My reasoning and conclusion in relation to this purported affidavit is the same as that in relation to Exhibit 1, Tab 20.

226 Under a warrant obtained on the basis of this purported affidavit, materials relied upon as evidence were obtained from Saro's house.

Magnum: Paxton before O'Brien: 29 May 2007 (Exhibit 1, Tab 23)

227 My reasoning and conclusion in relation to this purported affidavit is again the same as that in Exhibit 1, Tab 20.

228 Under warrants obtained in reliance upon this purported affidavit, materials were seized from the houses of relatives of Tricarico and Ferraro which are relied upon as evidence.

Magnum: Paxton before O'Brien: 31 May 2007 (Exhibit 1, Tab 26)

229 This is one of the four affidavits that O'Brien maintains were properly sworn because he has a diary note to that effect.

230 The starting point here is the general conclusion I reached as to the practice within Purana at the relevant time and my conclusions on earlier affidavits purportedly sworn before O'Brien where there is no diary note (Exhibit 1, Tab 17, Tab 20, Tab 22 and Tab 23).

231 I do not consider that O'Brien's diary note constitutes a sufficient basis to reach a different conclusion here to that reached in relation to the earlier affidavits and to that indicated by my conclusion as to the general practice.

232 The diary entry reads "Affidavit Re op Magnum Recorded and Sworn by D/S/S Paxton". Neither Paxton nor O'Brien has a specific recollection of the affidavit.

233 The evidence of Flynn is inconsistent with a conclusion that O'Brien's diary notes can be relied upon in this regard. Flynn says he never swore any affidavit, and yet an affidavit purportedly sworn by him on 8 November 2006 is the subject of one of O'Brien's diary notes.

234 Documents which the prosecution concedes were not sworn were signed by O'Brien as the authorised person. They purport to be affidavits when they are not. If these documents cannot be relied upon, how can the brief, somewhat cryptic, notes in O'Brien's diary be relied upon?

235 I do not find that O'Brien was being untruthful when he gave the evidence which he did. His position is a difficult one. He knows that sometimes he swore affidavits, or heard them being sworn, and sometimes he did not. He has attempted to identify occasions when affidavits were properly sworn on the basis of what he has written in his diary. I accept that he honestly believes that the diary entries are a reliable basis for reaching a conclusion that certain affidavits were amongst those that were properly sworn, as opposed to those that were not. I do not share his confidence in the diary notes as a proper basis for that conclusion, but I do not doubt his honesty.

236 Under warrants obtained on the basis of this purported affidavit, items were seized from houses associated with Ryan and Elias which are relied upon as evidence.

Magnum: Flynn before O'Brien: 7 June 2007 (Exhibit 1, Tab 28)

237 This affidavit was not properly sworn. This was conceded by the prosecution.

238 Under a warrant obtained on the basis of this purported affidavit, items were seized on 8 June 2007 from a self-storage facility at Alexandra rented by Elias.

239 Flynn was ignorant of or misunderstood what was required in swearing an affidavit. O'Brien knew what was required, but did not always do it.

Magnum: Paxton before Edwards: 21 July 2008 (Exhibit 2, Tab 1)

240 Paxton's evidence in relation to affidavits sworn before Edwards was emphatic, in contrast to his evidence concerning O'Brien and Ryan. As counsel for Mokbel pointed out in their submissions, he was adamant that affidavits were always properly sworn before Edwards, but he was unable to give such evidence in relation to O'Brien and Ryan. Paxton said that there were occasions when he did not swear affidavits, but he said that that practice ceased with the arrival of Detective Inspector Edwards.

241 Edwards' evidence was that he followed correct procedure and that "everyone at Purana did it correctly".

242 It seems to me that Mokbel has failed to establish on the balance of probabilities that this affidavit was not properly sworn.

243 In their submissions, counsel for Mokbel conceded that this affidavit was amongst a number where it was "more likely they were sworn according to law".[52] What was then submitted on behalf of Mokbel was that because general disclosure declarations had been completed by Paxton and Edwards, a trial judge would be satisfied on the balance of probabilities that the correct procedure for the vast majority of affidavits was not followed.

244 Edwards' evidence was that in relation to two affidavits purportedly sworn by Iddles in an unrelated matter, he accepted that he had not administered the oath. While this is concerning, I nevertheless conclude that Mokbel has failed to establish that this affidavit was not properly sworn.

245 Under warrants obtained on the basis of this affidavit, documents were obtained from Greek and Australian financial institutions.

Magnum: Paxton before Ryan: 28 September 2007 (Exhibit 2, Tab 2)

246 Paxton has no specific recollection of this affidavit. Ryan, in his evidence before me, maintained that he could remember this particular affidavit.[53] He said that Paxton did swear the affidavit in front of him and that he remembers it because of the unusual name, "Laiki Bank".

247 Ryan's misconception was that the oath did not need to be taken in the presence of the authorised person. Ryan says he knew that an oath was required and that it had to be said aloud. I accept that. The issue is whether Paxton did that in Ryan's presence or whether he presented Ryan with a document already signed and Ryan signed it, without hearing the oath, he being under the misapprehension that that was satisfactory.

248 Given my conclusion as to the general practice and given Ryan's misunderstanding of what was required, I am unable to accept that Ryan's recollection of the name, "Laiki Bank", is a sufficient basis for a conclusion that this affidavit was properly sworn. It seems to me that Ryan's recollection of Laiki Bank is just as easily a recollection of an affidavit he signed without Paxton having recited the oath in front of him as it is of an affidavit signed where Paxton did recite the oath in front of him.

249 I do not find that Ryan was being in any way untruthful when he gave the account he did. I simply find that his honest recollection is an insufficient basis for a finding that what I consider usually occurred did not occur here.

250 Under a warrant obtained in reliance upon this purported affidavit, documents relied upon as evidence were obtained from Greek and Australian financial institutions.

Magnum: Ryan before Gustke: 11 January 2008 (Exhibit 2, Tab 3)

251 Both Ryan and Gustke say that they can recall this affidavit and that it was properly sworn.

252 Ryan again asserts a memory of the occasion by reference to a particular circumstance. He said that it was on that day that he decided to resign from Victoria Police. He explained why the day was so significant for him, and he agreed with a suggestion put to him that that day was "etched" in his mind.

253 Gustke also gave evidence that he could recall this affidavit and that Ryan did swear it. He admitted that he had sometimes adopted the practice of merely signing affidavits or permitting the mere signing of affidavits without an oath. Gustke was not challenged on his specific recollection in relation to this affidavit.

254 In all the circumstances, my conclusion is that Mokbel has failed to establish that this affidavit was not properly sworn. Ryan's recollection seems a more reliable basis for that conclusion here because here he was the deponent, because the event was memorable, and because Gustke gives evidence to the same effect.

Magnum: Paxton before Ryan: 25 February 2008 (Exhibit 2, Tab 4)

255 My reasoning and conclusion in relation to this affidavit are the same as that in relation to the affidavit in Exhibit 2, Tab 2.

256 Ryan again says he has a memory about a name in the purported affidavit, but it seems to me that in this case that memory is an insufficient basis for concluding that the affidavit was properly sworn.

257 Accordingly, my conclusion is that the following purported affidavits, which were the basis upon which search warrants were issued under which evidence relied upon was obtained, were not properly sworn as they purported to be:

258 The general principles which apply on applications of this kind were not controversial. They are:

(1) A plea of guilty may be withdrawn with the leave of the court at any time before sentence.[54]

(2) The issue of whether leave should be granted is entirely a matter for the discretion of the court.[55]

(3) The test to be applied is whether a miscarriage of justice would occur if the leave sought was denied.[56]

259 Decided cases exemplify the circumstances in which the requisite miscarriage may be found, but they should not be used to confine them.[57] Each case must be looked at on its own facts and a decision made whether justice requires that the course of granting leave to withdraw a guilty plea should be taken.[58]

260 The applicant bears the burden of establishing that leave should be granted.[59] Otherwise there is no presumption either in favour of or against the granting of leave.[60] In R v Liberti, Kirby P (as he then was), in an oft-quoted passage, said: "... courts approach attempts at trial or on appeal in effect to change a plea of guilty ... with caution bordering on circumspection".[61]

261 The legal issue of controversy on this application concerns whether a miscarriage can be established on the basis of a guilty plea induced by an erroneous belief (assuming for present purposes such a belief is established) that certain evidence is admissible.

262 Relevant consideration of this issue is often to be found in decisions concerning appeals on convictions after guilty pleas. Authorities dealing with that situation are of assistance when determining an application to withdraw a guilty plea.[62] Judgments on appeals against refusals to grant leave to withdraw a guilty plea by trial judges often cite cases dealing with conviction appeals after pleas of guilty. Boag is one example. The procedural interrelationship between applications to withdraw and appeals against conviction after a guilty plea have been the subject of discussion in relevant cases, including R v Frantzis[63] and R v Vasic,[64] and also Marchando, Lawson v The Queen[65] and Sagiv.

263 The fundamental principles which apply when it is sought to appeal a conviction after a guilty plea are to be found in R v Forde[66] and in R v Murphy.[67]

264 Forde stands for the proposition that an appeal will be entertained only if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit that he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged.[68]

265 Murphy stands for the proposition that the categories in Forde are not exhaustive, and that the critical matter is whether there has been a miscarriage of justice, although the two Forde categories will provide a sound guide in most cases.[69]

266 The decision which is the focus of attention in this particular context is a decision of the New South Wales Court of Criminal Appeal on a conviction appeal after a guilty plea in R v Chiron.[70]

267 Chiron concerned a rape conviction. The defence was consent. The rape took place in circumstances where it was alleged that the accused was involved in a minor collision with the complainant and that he subsequently raped her after pretending to be a policeman. At the trial the prosecution sought to introduce evidence of what was said to be a similar rape previously committed by the accused. The accused was given advice that admission of this evidence would be fatal to his defence, and understood (or more accurately misunderstood) the trial judge to have observed that if this evidence were to be admitted it would be "sudden death". The judge ruled that the evidence was admissible and the accused then changed his plea to guilty. On a subsequent appeal on the conviction it was held that the trial judge's ruling on the evidence was erroneous. Notwithstanding the guilty plea, Street CJ and Nagle CJ at CL allowed the appeal, with Lee J dissenting. The Court of Appeal had before it detailed evidence, in an affidavit and given orally, by the appellant as to why he had pleaded guilty even though he said he was innocent.[71] It is necessary to consider the three separate judgments.

268 Street CJ determined that the appeal should be allowed because he considered that the circumstances revealed by the evidence, in particular the evidence as to the significance of the ruling and the trial judge's reference to "sudden death" in the mind of the accused, were such that the plea "was not a free and voluntary confession". In this respect Street CJ was alone. Both Nagle CJ at CL and Lee J found that the plea was free and voluntary.

269 Nagle CJ at CL found that whilst the plea was free and voluntary, it had been induced by an incorrect ruling as to the admissibility of evidence. He found that this constituted a miscarriage of justice because every accused is entitled to a trial in which the relevant law is correctly explained and the rules of procedure and evidence are strictly followed. In support of that approach he observed that if, after the erroneous ruling, the accused had not pleaded guilty and had been convicted, there certainly would have been a miscarriage and an appeal would have been allowed; and he questioned why the position should be different if the incorrect ruling induced the plea in circumstances where the accused was then faced with what he had been led to believe was inevitable conviction.

270 Lee J set out the general principles, drawn from Forde and from Murphy, with which both Street CJ and Nagle CJ at CL agreed, and then set out in detail the circumstances which led to the plea in the particular case. He concluded that it was not just the ruling which had caused the appellant to plead guilty. In the course of reviewing the circumstances Lee J expressly acknowledged that this was a case where there was an arguable defence of consent. He concluded, however, that there was no miscarriage of justice. Lee J said:

"A man who acknowledges his guilt to a jury in open court, in the full knowledge that what he is doing is to invite the jury to find him guilty of the charges he is facing, is not entitled, in my view, to claim that there has been unfairness to him or a miscarriage of justice, merely because he has come to a decision that his chances of acquittal have been significantly reduced by some ruling of the trial judge, which on appeal can be shown to have been wrong."[72]

271 Before reviewing some of the relevant authorities since Chiron, the position addressed in Chiron needs to be distinguished from two other situations.

272 First, under the second principle in Forde an appeal on conviction after a guilty plea will be allowed where on the facts admitted by the plea the accused could not have been convicted of the offence charged. Liberti and R v Caruso[73] are examples of this situation. Counsel on behalf of Mokbel submitted Liberti and Caruso are "closely analogous to this matter". I reject that. This matter is not a case of that type.

273 The second distinguishable circumstance may, on analysis, be a particular application of the first. In Boag the court suggested that a miscarriage may occur "... if there was no evidence upon which [the accused] could have been convicted".[74] This may be simply another way of saying that on the incontrovertible facts the accused could not have been convicted. It cannot be seen as an endorsement of Nagle CJ at CL's approach in Chiron as, on no view, was Chiron a case where there was no evidence upon which the accused could have been convicted. There was evidence in addition to the evidence erroneously admitted upon which the accused could have been convicted. The suggestion in Boag about "no evidence" has to be seen in the context of the statement made almost immediately after it, in the same judgment, that in order to establish the necessary miscarriage:

" ... there must be shown to be some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt."[75]

274 In R v Sleiman (No 1)[76] in the Court of Criminal Appeal in Victoria, Marks J, with whom Southwell J agreed, said that the possibility that a judge had made a ruling which was wrong in law at trial could not found any proper contention that there had been a miscarriage of justice where the accused had then pleaded guilty. Harper J observed that a miscarriage might be possible in those circumstances but not in that particular case.

275 In Meissner v The Queen[77] Dawson J, after referring to the fact that a person might plead guilty for many reasons other than a belief in guilt, went on:

"The entry of a plea of guilty ... will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or upon the facts admitted by the plea could not have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty ... ."[78]

Dawson J went on to give examples of the other ways, being intimidation, improper inducement, and fraud. Dawson J cited Chiron, amongst other authorities, but the page he cited was from Lee J's dissent. On that page Lee J set out the applicable general principles, with which both Street CJ and Nagle CJ at CL had agreed.

276 Frantzis[79] is a decision of the Court of Criminal Appeal in South Australia. In that case Lander J (with whom Cox and Nyland JJ agreed), reviewed a number of the cases including Chiron. After referring to the uncontroversial general legal principles that apply (by reference to Dawson J in Meissner), Lander J went on:

"The principle is clear enough, but the application of the principle has varied. In R v Chiron the majority thought that a guilty plea ought not to be a bar to appeal where the plea was entered after an adverse ruling. In R v Sagiv and R v Boag the court endorsed the principle in R v Chiron, which was the acceptance of R v Murphy, but the decisions in these cases may be more consistent with the dissenting judgment of Lee J in R v Chiron. The decision of R v Sleiman (No 1) would not be consistent with R v Chiron, certainly not in its application to the facts."[80]

277 In Frantzis the applicant had pleaded guilty after the trial judge had ruled certain evidence admissible on a voir dire. The applicant was sentenced and then appealed conviction and sentence. On the conviction appeal the applicant argued that the ruling had been wrong. The ruling concerned what was alleged to have been an illegal search. The reported part of the judgment concerns only whether that appeal should be entertained at all. With considerable misgivings, the appeal was entertained and heard. The unreported part of the judgment reveals that the search was held not to have been illegal and that the evidence had been admissible.

278 The decision in Chiron was subjected to analysis by the New South Wales Court of Criminal Appeal in R v Toro-Martinez.[81] In that case Spigelman CJ (with whom Newman and Adams JJ agreed) analysed the three judgments in Chiron.

279 Spigelman CJ observed that Street CJ had found that the plea was not a free and voluntary confession, so that it was only Nagle CJ at CL who had found that a free and voluntary plea could nevertheless result in a conviction which a Court of Appeal might find to be a miscarriage of justice because of the wrongful admission of evidence. Spigelman CJ observed that other than Nagle CJ at CL's decision in Chiron there was no decision of the New South Wales Court of Criminal Appeal which had allowed an appeal on that basis.

280 Toro-Martinez was a case concerning drug importation. A permanent stay of the proceeding had been sought on the basis that the authorities had been involved in the importation themselves. There was an alternative application that certain evidence not be admitted. When those applications were rejected at trial the accused had changed his plea to guilty. There was then an appeal on the conviction.

281 Spigelman CJ referred to some earlier decisions of the Court of Criminal Appeal indicating that a conviction appeal after a guilty plea could only be allowed if there was some real question about the guilt of the accused, and then went on:

"Nothing in the material before the court in this case suggests anything of this character. In the case of Chiron, which is the most closely analogous to the present case, there was such a basis for questioning of guilt. In the present case no attempt has been made to suggest the appellant might not be guilty. The case for the appellant rises no higher than, if certain evidence had been rejected, he would not have been found to be guilty.

Nothing is more calculated to bring the criminal justice system into disrepute than to treat it as some form of forensic game. The criminal justice system is designed to discover the truth. The protection of personal liberty embedded in our criminal procedure - including the presumption of innocence and the standard of proof beyond reasonable doubt - do not constitute an invitation to manipulate or distort the truth."[82]

"The occurrence of circumstances in which considerations of this character could be permitted to overturn a conviction after a plea of guilty, where there is not even a pretence of innocence is, to my mind, virtually inconceivable. In the application of a test as broad as 'miscarriage of justice' I am not prepared to say that there can be no such circumstances. However, they would have to be extreme, not just extraordinary. Nothing of that character appears on the facts of this case."[83]

282 A differently constituted Court of Criminal Appeal in Kouroumalos,[84] decided shortly after Toro-Martinez, cited Nagle CJ at CL's approach in Chiron with apparent approval and without reference to Toro-Martinez.[85] The particular point at issue in Kouroumalos concerned a guilty plea after what was alleged to have been inadequate or erroneous legal advice. The relevant principles as set out in Kouroumalos were adopted in Lawson.[86]

283 In R v Hura,[87] Spigelman CJ in the Court of Criminal Appeal in New South Wales, reiterated his approach in Toro-Martinez, and by reference to that case listed circumstances he had identified in the relevant authorities where the court would act notwithstanding a plea of guilty. Chiron appears in that list as a case concerned with a situation where the plea was not "a free and voluntary confession", and the citation given is to Street CJ's judgment.

284 In R v Reed,[88] a decision of the Court of Appeal in Victoria, an applicant who had pleaded guilty contended that his convictions should be set aside on the basis that he had pleaded acting on an erroneous view of the evidence against him, formed because at the time of his plea the prosecution had not given him a drug analysis report which, he contended, revealed significant deficiencies in the case against him. The prosecution had not proceeded against the applicant's co-accuseds who had not pleaded guilty. The Victorian Court of Appeal addressed the issue by reference to the principles in Forde. There was no discussion of the New South Wales cases. The decision itself turned on the particular facts. The application was refused. The Court of Appeal had before it an affidavit sworn by the appellant explaining what he said was the mistaken belief he had held, and what he said was the mistaken advice given to him which had led him to plead guilty.[89]

285 The Court of Criminal Appeal in New South Wales returned to the relevant issue in Elmir v The Queen.[90]

286 The appellant in that case had pleaded guilty to trafficking drugs. The particular trafficking was itself a controlled operation by the authorities. The appellant's co-accuseds challenged the authority under which the controlled operation had been conducted and were eventually successful in the High Court. Before that High Court ruling the appellant pleaded guilty. It was argued on appeal that the appellant's plea was tainted because of a misapprehension that the authority under which the operation had been conducted was valid. The argument was that if the appellant had known that the authority was invalid he would have objected to the admission of the evidence and argued against its admissibility under s 138 of the Evidence Act 1995 (NSW).

287 The argument put by the appellant was rejected by Tobias JA, with whom James and Price JJ agreed.

288 Tobias JA reviewed the previous cases, and in particular Chiron and Toro-Martinez. The conclusion he reached was that " ... this Court will only find that a miscarriage of justice has occurred if there is a real question about the guilt of the accused ... ".[91] He observed that in the case before the court the appellant did not suggest that he was not guilty but rather put forward the proposition that if he could have had the evidence excluded he might not have been found to be guilty. He endorsed the Chief Justice's observation in Toro-Martinez that a miscarriage could only be so found in circumstances that were extreme not just extraordinary.[92]

289 It seems to me that the insistence in Toro-Martinez and in Elmir that some circumstance referrable to actual guilt, as opposed to proof of guilt, must exist before there can be a miscarriage of justice, reflects the observations in earlier cases, such as Boag, that the kind of circumstance which might constitute miscarriage must be something that indicates that the plea was not really attributable to a genuine consciousness of guilt.

290 There have been some appellate judgments in the New South Wales Court of Criminal Appeal on decisions at trial where leave to withdraw a guilty plea had been refused, which have addressed Chiron.

291 In Marchando[93] the appellant sought to appeal a ruling by a trial judge in which he refused leave to withdraw a guilty plea. The argument that was put was that the guilty plea was a "temporary aberration" which occurred as a result of a ruling by the trial judge that particular evidence could be given by video link. The accused and the accused's legal advisers all gave evidence to the effect that the accused had always maintained his innocence and gave evidence as to the advice which he had been given.[94]

292 Marchando was decided before Toro-Martinez. Chiron was referred to in the judgment of Simpson J, with whom Wood CJ at CL and Sully J agreed. As to Chiron, he said that that case:

"... establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt ... ."[95]

293 More recently, the Court of Criminal Appeal in New South Wales dealt with the issue in Woods v The Queen.[96]

294 There, the appeal against a refusal to allow withdrawal of a guilty plea was based upon what was said to have been pressure and poor advice from the accused's legal advisers. The appellant had sworn an affidavit asserting duress by legal advisers and the Crown had relied upon an affidavit by the appellant's former solicitor.[97]

295 Hume J, with whom Latham J agreed, found that no miscarriage was established, observing that mere error by legal advisers, even imprudent or inappropriate error, as to the strength of the case against an accused was not sufficient to justify withdrawal. Hume J cited Chiron. The page cited was the page from the dissenting judgment of Lee J where the general principles were set out.

296 Spigelman CJ, in a short concurring judgment, agreed and reiterated the approach he had adopted in Toro-Martinez when he said:

"The issue on an application to withdraw a plea focuses upon the genuineness of the confession of guilt. Whether or not an accused thinks the Crown has a strong case goes to the issue of whether he is likely to be convicted. That is not the focus of attention on an application of this character."[98]

297 The final case to which I will make reference is Rotner v The Queen.[99] That is a recent decision of the Court of Criminal Appeal in New South Wales.

298 The appeal was against a refusal of leave to withdraw a plea of guilty. After review of relevant cases, Simpson J, with whom McClellan CJ at CL and Fullerton J agreed, observed that there were two components which were required for a successful appeal. They were:

"... first, some circumstance which permits a conclusion that the plea of guilty was not really attributable to a genuine consciousness of guilt, and, second, an 'issuable' question about the guilt of the applicant. Neither, alone, is sufficient."[100]

299 A passage from Kouroumalos, which cited Chiron, was described as being an elaboration on the circumstances that might justify a conclusion that the first component was satisfied.[101]

300 The approach in Rotner suggests a means of reconciling Chiron with later decisions, in particular Toro-Martinez and Elmir. Chiron is consistent with those cases if it is seen as a case where the appeal succeeded because the plea was found to have been not free and voluntary by Street CJ, and because the plea was found to have been not really attributable to a genuine consciousness of guilt in view of the significance attached by that accused in that particular case to the effect of the adverse ruling and the judge's comments about "sudden death" by Nagle CJ at CL. In my view, that is how Chiron is to be interpreted.

301 In the end, the issue in every case is whether a miscarriage of justice would occur if leave is not granted. As Lee J observed in Sagiv, the particular facts of each case must be looked at and a decision made as to what course justice requires to be taken.

Application of the legal principles on applications to change pleas

302 In this case the applicant has failed to establish that a miscarriage of justice would occur if leave to withdraw his pleas were refused.

303 Most significantly, Mokbel has not produced any evidence as to why he pleaded guilty. There is no basis upon which a conclusion could be reached that his pleas were not attributable to a genuine consciousness of guilt or that there was any "issuable" question about his guilt, to adopt the words used in Rotner.

304 It is asserted that Mokbel was induced to plead guilty by impropriety and that he was not in possession of all relevant facts. There is no evidence of his reasons for pleading guilty. The assertions made are especially inadequate given that there is considerable incriminating evidence which is unaffected by the impropriety, and given that the pleas were made after an agreement that other charges would be discontinued. The approach adopted by the applicant here is in marked contrast to cases such as Chiron, Reed, Marchando and Woods, where evidence was led explaining the circumstances of the guilty plea and addressing why the guilty plea was not, in the circumstances, attributable to a genuine consciousness of guilt.

305 But even if the assertions put on behalf of Mokbel were accepted at face value, this application must still fail because in my view it is the kind of situation rejected as a proper basis for a change of plea by Spigelman CJ in Toro-Martinez and in Woods, and by Tobias JA in Elmir, with each of whom I respectfully agree. The applicant says, not: "I am innocent and here is why I pleaded guilty" but rather: "I now realise I can't be proved guilty". In truth, Mokbel's position here could not rise above: "I now realise it will be more difficult for the prosecution to prove me guilty than I thought".

306 My conclusion that Mokbel has failed to establish that a miscarriage of justice would occur if his application to withdraw his guilty pleas were refused is not dependent on any finding or ruling as to the admissibility of the evidence obtained under search warrants issued in reliance on purported affidavits not properly sworn. I nevertheless will rule on the admissibility of that evidence in case I am wrong on the conclusion already reached, and because I am the trial judge on these matters and I must rule on admissibility whether the matters proceed on a plea hearing or at trial.

307 Admissibility of the evidence obtained under the invalid warrants is governed by s 138 of the Evidence Act 2008.

Section 138 of the Evidence Act 2008

308 Section 138 is, relevantly, divided into two parts: a rule and a non-exhaustive list of relevant considerations. The rule is that improperly or illegally obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

309 The provision requires a two-stage process. First, it is necessary to decide whether the evidence in question was obtained improperly or illegally or as a consequence of impropriety or illegality. This must be established by the party seeking to have the evidence excluded.[102] Then, it is necessary to undertake a balancing exercise, comparing the desirability of admitting the evidence with the undesirability of admitting evidence obtained in such a way. The evidence must not be admitted unless the balance is in favour of desirability. Where illegality or impropriety exists, the onus is on the party seeking admission to establish that the desirability of admission outweighs any undesirability.[103]

310 I have determined that nine affidavits were not properly sworn, and that the search warrants obtained in reliance on those purported affidavits were invalid. The evidence which was obtained under those warrants was improperly and illegally obtained.

311 The issue then is whether the prosecution has established that, in relation to this evidence, the desirability of its admission outweighs the undesirability of admitting evidence obtained in this way.

312 The Court of Appeal in Marijancevic described what is required as follows:

"s 138(1) requires the trial judge to apply a very general standard, that is, to decide whether 'the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.' Moreover, the section calls for 'an overall assessment' in the light of the factors mentioned in s 138(3). ... the assessment call[s] for a value judgment in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right"[104]

313 The question of admissibility must be determined according to the statutory balancing exercise, but the authorities on the common law discretion to exclude illegally or improperly obtained evidence continue to be of assistance.[105]

314 In R v Ireland,[106] Barwick CJ (with whom the other members of the High Court agreed) explained that the common law discretion involved balancing two countervailing public interests:

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."[107]

315 The leading case on the common law discretion, Bunning v Cross,[108] came to the High Court on appeal from a stipendiary magistrate's decision to exclude evidence obtained from a breathalyser, because the test had been administered by a police officer without authority. The analysis by Stephen and Aickin JJ of the factors bearing on the discretion in that case is important.

316 Stephen and Aickin JJ pointed out that the exercise of the discretion involved 'no simple question of ensuring fairness to an accused' but instead the weighing against each other of two competing requirements of public policy: the desirable goal of bringing wrongdoers to conviction, and the undesirable effect of curial approval to unlawful conduct.[109]

317 Stephen and Aickin JJ emphasised that the character of the authorities' conduct was highly relevant to the exercise of discretion. They noted that as incursions on personal liberty increase, the executive should not be free to disregard the safeguards in place. Toleration by the courts of wilful disregard of safeguards would effectively abrogate them.[110] They continued:

"On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law."[111]

318 In Pollard v The Queen,[112] Deane J described these two situations as the 'extreme categories' of case. His Honour emphasised the public interest in avoiding curial endorsement of unlawful police activity in these terms:

"[T]he principal considerations of 'high public policy' which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence."[113]

319 In carrying out the s 138(1) balancing exercise, it is necessary to take into account the factors set out in s 138(3). This list is not exhaustive. Some of the factors in the list by their nature favour either admission or exclusion. Others are more ambiguous. Some factors may overlap.

320 No hierarchy exists amongst the considerations. Each of them, if applicable, must be "weighed in the balance" by the judge exercising the discretion.[114]

321 I turn to consider how those considerations operate in this case.

The probative value of the evidence, and the importance of the evidence in the proceeding

322 Generally, the greater the probative value and importance of the evidence the more persuasive the argument for admission.[115]

323 But the significance of these factors can be affected by the nature of the illegality. In Bunning v Cross, Stephen and Aickin JJ thought that cogency should only be relevant where the illegality arose from a mistake:

"To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless."[116]

Even if the illegality was due to mistake, if "other equally cogent evidence, untainted by any illegality" is available to the prosecution, the case for admission of the illegally obtained evidence is weakened.[117]

324 Probative value is defined in the Dictionary of the Evidence Act 2008 as meaning "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue."

325 I turn then to the improperly sworn affidavits, and the evidence obtained under warrants issued in reliance of them.

326 Under the invalid warrant obtained in reliance on this purported affidavit pressing equipment, tablets, and other items were seized at the Creighton Way, Craigieburn residence.

327 On the issue of whether a substantial MDMA pill manufacturing enterprise was being conducted at that premises the evidence is highly probative. Whilst it is impossible to be certain, I would not expect that issue to be in contention at a trial, given the evidence of [X] and [Y]. If that were to be an issue, this evidence would be important. The evidence may also be important in relation to the size of the enterprise, if that were in issue.

328 The materials obtained under this warrant are also important because the tablets are stamped "120" and the prosecution relies upon statements made by Mokbel to the undercover federal officers referring to "120" as one matter implicating Mokbel in the enterprise. The probative value of that aspect of the evidence might be described as one factor amongst many. Mokbel's role in the enterprise would be likely to be contentious and accordingly it seems to me that that evidence is important.

329 The evidence obtained at Creighton Way, Craigieburn supports of the evidence of [X] and [Y]. As they are each co-offenders, evidence which supports them is important.

330 Swabs taken from the floor of the Chemical Image Factory under the invalid warrant issued in reliance upon this purported affidavit revealed the presence of MDMA.

331 The probative value and importance of this evidence are essentially of the same character as the evidence obtained at Creighton Way, although the probative value is lower because the evidence is less extensive.

332 There is nothing about this evidence which directly implicates Mokbel, in the way the evidence of the tablets stamped "120" is alleged to implicate him in relation to the Creighton Way evidence.

Magnum Exhibit 1 Tab 20, Tab 22, Tab 23, Tab 26, and Tab 28 Paxton and Flynn/O'Brien

333 Evidence obtained under invalid warrants issued in reliance upon these purported affidavits can be dealt with as a group.

334 Under these invalid warrants cash, drugs, drug preparation equipment and chemicals, drawings, mobile phones and computer equipment, and other items said to evidence the existence, nature and size of the drug trafficking enterprise alleged, were seized from houses associated with alleged participants in the enterprise in Victoria at the time of or shortly after Mokbel's arrest in Greece.

335 The evidence obtained is highly probative of the fact that a substantial drug trafficking enterprise was being operated in Victoria by Mansour and Rizzo and persons associated with them. It seems to me that it is unlikely that that would be contentious in a trial, given the evidence of Mansour and RHS 3030. If it was contentious, this evidence would be important.

336 The evidence is also important because it supports the evidence of Mansour and RHS 3030 who are alleged co-offenders.

337 The page of the "bill" obtained at Rizzo's house is important. That page does not form part of two earlier versions of the "bill" which police obtained from RHS 3030. It is the only documentary record of what are alleged to be the later transactions of the enterprise.

338 The evidence obtained under the invalid warrants issued in reliance upon these two purported affidavits can also be dealt with together.

339 Under these invalid warrants documents were obtained from Greek and Australian financial institutions which record or evidence financial transactions under which the "Edwena" was purchased, and was fitted out and made ready for sale, and by which Mokbel's escape and his life in Greece were financed.

340 The evidence is highly probative of the fact that the various transactions recorded did occur.

341 The evidence is important because it constitutes a component of the prosecution case that Mokbel was, in substance, at the apex of the drug trafficking enterprise conducted by Mansour and Rizzo, which it is alleged is the source of the funds.

342 The evidence gives direct support to the evidence of the co-offender, Angela Verykios (Nissirios), and also supports, albeit less directly, the evidence of the co-offender Mansour.

343 Dealing with all the illegally obtained evidence in issue in a broad way, it is highly probative. Its importance will depend upon what is really in contention if there is a trial. If it is assumed that everything is in contention, all of the evidence is important.

344 I would not describe any of the evidence as critical, in the sense that the prosecution case on any of the charges could not proceed without it.

345 In relation to Orbital, the only evidence affected is the tablets stamped "120". That assists the prosecution, but is certainly not critical.

346 In relation to Quills, the evidence is important because it supports the evidence of [X] and [Y], but it does so on an issue upon which their evidence would be unlikely to be rejected, namely that an MDMA pill pressing operation was conducted at the factory and at the Craigieburn residence.

347 In relation to Magnum, the prosecution case is strong without the evidence because of the evidence of Mansour and RHS3030 and the telephone intercepts. Notwithstanding that, the prosecution case is further strengthened by the evidence of what was obtained from the houses of Mansour and Rizzo and the others, and by the financial documentation obtained.

348 In Bunning v Cross, Stephen and Aickin JJ said that the nature of the offence charged is an important factor and that even if the offence itself is not one of the most serious crimes, the legislature's concern with such conduct, and the jeopardy to others as a consequence of it, were relevant.[118]

349 Deane J in Pollard v The Queen[119] suggested that the weight to be given to the public interest in the conviction and punishment of crime will vary according to the "heinousness" of the crime.

350 Spigelman CJ, with whom Blanch AJ agreed on this point, in R v Dalley[120] said that the public interest in the conviction and punishment of those guilty of crime is entitled to greater weight in cases of crimes of greater gravity. Simpson J, in dissent, suggested the relationship should not be seen in this rigid manner and that there may be cases where the fact that a charge is a serious one will result in a more rigorous insistence on compliance with statutory provisions concerning obtaining evidence.[121]

351 Subsequent decisions have adopted the Spigelman CJ approach,[122] and I also do so.

352 Each of the charges in this case are crimes of great gravity.

353 What is alleged, in substance, is that Mokbel was the principal of large scale commercial drug trafficking enterprises. The Magnum charge alleges that he conducted that enterprise after he had absconded from a drug trafficking trial and had been convicted and sentenced in his absence.

354 In the context of drug trafficking offences, the charges here are amongst the most serious.

The gravity of the impropriety or contravention, and whether the impropriety or contravention was deliberate or reckless

355 It is important that the courts do not condone, or be seen as condoning, unlawful behaviour, especially by the agents of the State. The relevant public policy consideration is not primarily concerned with the particular case,[123] but the impact on the particular accused is relevant.[124] Whether the conduct was part of a wider pattern of misconduct is relevant.[125] The policy behind the legislation contravened, and the restrictions it places on the use by the authorities of their powers, is also a factor.[126]

356 In R v Helmhout,[127] Hulme J considered the meaning of "reckless" in the context of s 138(3), and, without wishing to exhaustively define the term, said:

"In the context of 'improperly or in contravention of an Australian law' the concept 'reckless' must involve as a minimum some advertence to the possibility of, or breach of, some obligation, duty or standard of propriety, or of some relevant Australian law or obligation and a conscious decision to proceed regardless or alternatively a 'don't care' attitude generally"[128]

357 The Court of Appeal in Marijancevic emphasised the "fundamental role" which oaths and affirmations play in both the system of the criminal law generally, and in the process whereby search warrants are obtained in particular.[129]

358 When addressing the same issue as arises here, the Court of Appeal referred to three categories of gravity in relation to the impropriety or contravention. The Court said:

"At the least serious end of the spectrum of improper conduct would be that which did not involve any knowledge or realisation that the conduct was illegal and where no advantage or benefit was gained as a consequence of that impropriety.

In the middle of the range would be conduct which was known to be improper but which was not undertaken for the purpose of gaining any advantage or benefit that would not have been obtained had the conduct been legal.

At the most serious end of the range would be conduct which was known to be illegal and which was pursued for the purpose of obtaining a benefit or advantage that could not be obtained by lawful conduct."[130]

359 Of the nine affidavits which I have found were not properly sworn, only one - Exhibit 1 Tab 12 Mansell/Flynn - was sworn by an officer who was ignorant of or misunderstood what was required before another officer with the same state of mind. I do not consider that either of them ever adverted to the possibility that they were breaching the law or acting improperly. The contravention involved in that purported affidavit was at the least serious end of the spectrum.

360 In relation to all of the other affidavits either the purported deponent, or the person before whom the document was purportedly sworn, or both of them, knew what was required but did not do it. None of them had received adequate training, which ought to have instructed them not only as to what the requirements were but why it was important that they be adhered to.

361 In relation to each of the purported affidavits there was a deliberate contravention by one or other of the officers, or both; in the sense that they did know what the requirements were but they decided, without ever giving the matter any conscious or reasoned consideration, to dispense with them. The safeguard represented by the requirement that information was sworn to be correct was abrogated.

362 None of the officers concerned dispensed with the need to ensure the information contained in the purported affidavits was full and accurate, and, in that sense, the safeguards provided for by the law were not undermined or abrogated by the contraventions which did occur.

364 No benefit was obtained from the contravention because the officers could easily have obtained the same outcomes without contravention without any significant detriment to themselves.

365 In my view the contraventions were in the middle range referred to by the Court of Appeal in Marijancevic.

Whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights

366 Article 17 of the International Covenant on Civil and Political Rights provides that no person is to be subjected to unlawful interference with their privacy or home. In my view what occurred under the invalid warrants was inconsistent with that right. I take that into account.

Whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention

367 The evidence before me indicates that there will be no proceedings, criminal, civil, or disciplinary, against any of the officers involved. Provided they acted in good faith and make full disclosure they will not be subjected to any disadvantage in their careers.

368 The response of Victoria Police and the Director of Public Prosecutions to the position which has been revealed has been principally directed at ensuring full and complete disclosure, and an improvement in training to rectify the position.

369 In all the circumstances, I am unpersuaded that the fact that there will be no formal or informal proceedings against the police concerned is a matter to be taken into account against admission of the evidence. On the evidence I have heard, I consider that the steps taken by Victoria Police in response to the problem which has been revealed have been appropriate ones.

The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law

370 In Bunning v Cross, Steven and Aickin JJ observed that a deliberate "cutting of corners" would tend against the admissibility of evidence illegally obtained. They went on to observe, however, that in circumstances where something was unlawfully done that could easily have been done lawfully, that factor has little significance. [131]

371 In this case, the officers concerned could lawfully have obtained the search warrants which they did by spending a period of time measured in seconds swearing an oath. The material submitted would otherwise have been unchanged. Their failure to swear the oath is not a trivial matter, but the absence of any difficulty for them in complying, and the fact that they gained nothing from not complying, mitigates the seriousness of their contraventions.

372 Reliance was placed on the failure to have the warrants executed by or in the presence of the warrant holder, which was then but no longer is a requirement. This was said to be a factor which compounded the principal illegality relied upon. It was not suggested that that non-compliance was anything other than an inadvertent one where no advantage was obtained. It is not a significant factor, in my view.

373 Whilst I am mindful of the reasoning of the trial judge in Marijancevic, it seems to me that this is a clear case where all of the evidence ought to be admitted.

374 This is not a case of a wilful disregard of legislative safeguards, overt defiance of the will of the legislature, or calculated disregard of the common law.

375 The extent to which relevant safeguards were undermined is limited because there is no suggestion that the contents of the documents purportedly sworn were anything other than full and accurate.

376 The contraventions had no effect on the veracity of the evidence that was obtained and that evidence is both probative and important.

377 The offences concerned are very serious and there is significant public interest in the prosecution, conviction and punishment of persons who commit such offences.

378 The police concerned neither sought nor gained any advantage by the contraventions in the sense that the warrants would still certainly have been issued if they had not contravened the law.

379 The contraventions were, with one exception, in the middle range in terms of gravity, and were, in the sense I have described, deliberate. But the other factors to which I have referred weigh in the balance more significantly than those factors.

380 I take into account the fact that what occurred was inconsistent with the rights of the various persons affected under the International Covenant on Civil and Political Rights, and I also take into account the steps that have been taken by Victoria Police in response to the position.

381 In my view, the desirability of admitting this evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained here, and the evidence illegally obtained ought to be admitted under s 138.

382 My conclusions, announced in court on 1 March, accordingly were:

(1) Mokbel's application to withdraw his guilty pleas should be refused. This conclusion was not dependent on any finding as to the validity of the affidavits which were not properly sworn or the warrants issued in reliance upon them.

(2) Nine affidavits upon the basis of which search warrants were issued under which evidence upon which the prosecution proposes to rely was obtained were not properly sworn. The warrants were accordingly invalid and the evidence was illegally and improperly obtained.

(3) The evidence referred to is admissible under s 138 of the Evidence Act 2008 notwithstanding the impropriety and the illegality.

383 As I indicated at the outset, the validating Act now requires the conclusion that all of the affidavits are to be treated as having been validly sworn, and thereby removes the fundamental premise upon which Mokbel's application was made.

The contentious affidavits (sorted by date purportedly sworn)

26 Darradine Tce, Donvale - (spelled incorrectly)

Storage Unit 55, Alexandra Self Storage, Lot 2, Bunderboweik St, Alexandra

Various banks (Laikix2, ANZx3, NABxx2, St Georgex2)

Various banks (Westpac, CBA, American Express, Plenty Comm Credit Union)

Various banks (ANZ, Citibank, Laiki, NABx2, Westpacx4)

Note: each row of this table corresponds to a relevant search warrant. Information pertaining to an individual affidavit may be repeated across several rows if that affidavit was used to obtain multiple search warrants. Alternating colouring is used to group together each affidavit. The warrants pertaining to banks have not been separated out in the same fashion, for convenience.

List of Victoria Police officers directly involved in the purported swearing of affidavits

Frankston Sexual Offence and Child Abuse Investigation Team

Detective Sergeant / Detective Senior Sergeant

[1] DPP v Marijancevic & Ors [2011] VSCA 355. I refer to that proceeding hereafter as "Marijancevic".

[2] Marijancevic [2011] VSCA 355, [14].

[3] Marijancevic [2011] VSCA 355, [72]-[88].

[4] Marijancevic [2011] VSCA 355, [89]-[92].

[5] Marijancevic [2011] VSCA 355, [92].

[7] Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 s 2(2).

[8] [1996] HCA 24; (1996) 189 CLR 51.

[9] The sentence is at: [2006] VSC 119, and on appeal: (2010) 249 FLR 169.

[10] See DPP v Antonios Mokbel [2001] VSC 403, [2] and [6].

[11] R v El-Hage [2011] VSC 452; DPP v Milad Mokbel [2011] VSC 328.

[12] The circumstances of the alleged offence are drawn from the Prosecution Opening which has been filed and served.

[13] As to Rizzo see [2009] VSC 17 and [2011] VSCA 146. As to Mansour see [2008] VSC 226.

[14] [2009] VSC 8.

[15] [2009] VSC 121.

[16] [2009] VSC 569.

[17] [2009] VSC 633.

[18] [2009] VSC 631.

[19] [2011] VSC 53.

[20] [2011] VSC 423.

[21] Mokbel v A-G (Cth) (2007) 162 FLR 278; Mokbel v A-G (Cth) [2007] FCAFC 161.

[22] (2008) 26 VR 1 (Kaye J), (2009) 26 VR 618 (Kaye J), [2010] VSC 331 (Whelan J), and [2011] VSC 128 (Whelan J).

[24] Crimes Act 1910, s 8.

[25] See Evidence Act 1890, s 64, 65, 66, 67 and 78, (later replicated in Evidence Act 1915, s 98, 99, 100, 101, 102 and 142) adopting, in substance, the provisions of the Statutory Declarations Act 1835 (UK), the long title of which was: "An Act for the more effectual abolition of oaths and affirmations taken and made in various departments of the state, and to substitute declarations in lieu thereof; and for the more entire suppression of voluntary and extra judicial oaths and affidavits".

[26] Omychund v Barker (1744) Willes 538; 125 ER 1310; R v Sossi [1986] WAR 163; R v O'Sullivan; ex parte AG (Qld) [1988] 1 Qd R 672; R v Kemble [1990] 1 WLR 1111; McShane v Higgins [1997] 2 Qd R 373.

[27] R v Whitehouse (1900) 9 QLJ 325.

[28] [1909] VicLawRp 76; [1909] VLR 431.

[29] R v Shuttleworth [1909] VicLawRp 76; [1909] VLR 431, 434.

[30] As to the history of this form of words, see: Francis A Stringer, Oaths and Affirmations in Great Britain and Ireland (Stevens, 3rd ed, 1910) 90.

[31] The submission referred to earlier submissions dated 23 September 2011, which must be an error. The earlier detailed submissions on the legal principles on applications to change pleas were dated 14 November 2011.

[38] Tendered in the proceeding Marijancevic as Exhibit 11 and before me as Exhibit L.

[40] The page which deals with the formalities of applying for the issue of a warrant is out of order in the exhibit.

[43] Copies of the relevant diary entries were tendered as Exhibits E & I.

[48] Exhibit 1 tab 30, Exhibit 2 tab 2, Exhibit 2 tab 3, and Exhibit 2 tab 4.

[52] Defence Submissions on Change of Plea, [10]; and Defence Reply on Change of Plea, [125].

[54] R v Plummer [1902] 2 KB 339, 347, 349-50; R v Foley [1963] NSWR 1270 ("Foley"); Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293, 334.

[55] Foley [1963] NSWR 1270 and R v Sagiv (1986) 22 A Crim R 73, 80 ("Sagiv").

[56] R v Middap (1989) 43 A Crim R 362, 364 ("Middap") and R v Boag (1994) 73 A Crim R 35, 36-7 ("Boag"). In Middap, the expression used is "would". Counsel for Mokbel also used "would": Submission dated 14 November 2011, p 4. The use of "would" and "might" were discussed in McGuire v DPP & Anor [2001] VSC 11, [19]. "Would" is the accepted term, but the existence of a consequence which "might" occur is capable of being something that "would" constitute a miscarriage of justice.

[57] R v Moxham [2000] QSC 152; (2000) 112 A Crim R 142, 145 ("Moxham").

[58] Sagiv (1986) 22 A Crim R 73, 90 (Lee J).

[59] Boag (1994) 73 A Crim R 35, 36-37, R v Kouroumalos [2000] NSWCCA 453, [21] ("Kouroumalos"), R v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337, 338 [4] ("Marchando").

[60] Middap (1989) 43 A Crim R 362, 364; and Boag (1994) 73 A Crim R 35, 37.

[61] R v Liberti (1991) 55 A Crim R 120, 122 ("Liberti"). Examples of this passage being quoted can be found in Boag (1994) 73 A Crim R 35, 39 and Moxham [2000] QSC 152; (2000) 112 A Crim R 142, 144.

[62] Kirby P in Liberti (1991) 55 A Crim R 120 in the previously quoted passage expressly equated the two situations.

[63] (1996) 66 SASR 558 ("Frantzis").

[64] [2005] VSCA 38; (2005) 11 VR 380 ("Vasic").

[65] [2011] NSWCCA 44; (2011) 206 A Crim R 557 ("Lawson").

[66] [1923] 2 KB 400, 403 ("Forde").

[67] [1965] VicRp 26; [1965] VR 187 ("Murphy").

[68] Forde [1923] 2 KB 400, 403.

[69] Murphy [1965] VicRp 26; [1965] VR 187, 188 (Herring CJ and Adam J) and 190 (Scholl J).

[70] [1980] 1 NSWLR 218 ("Chiron").

[71] Chiron [1980] 1 NSWLR 218, 227-8.

[72] Chiron [1980] 1 NSWLR 218, 240.

[73] (1988) 49 SASR 465 ("Caruso").

[74] Boag (1994) 73 A Crim R 35, 37.

[75] Boag (1994) 73 A Crim R 35, 37.

[76] (1993) 113 FLR 30.

[77] [1995] HCA 41; (1995) 184 CLR 132 ("Meissner").

[78] Meissner [1995] HCA 41; (1995) 184 CLR 132, 157.

[79] (1996) 66 SASR 558.

[80] Frantzis (1996) 66 SASR 558, 574.

[81] [2000] NSWCCA 216; (2000) 114 A Crim R 533 ("Toro-Martinez").

[82] Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, 539 [28]-[29] (emphasis original).

[83] Toro-Martinez [2000] NSWCCA 216; (2000) 114 A Crim R 533, 539 [32].

[84] [2000] NSWCCA 453.

[85] Kouroumalos [2000] NSWCCA 453, [17].

[86] [2011] NSWCCA 44, [32]-[33].

[87] [2001] NSWCCA 61; (2001) 121 A Crim R 472.

[88] [2003] VSCA 95 ("Reed").

[89] Reed [2003] VSCA 95, [4] and [16].

[90] [2009] NSWCCA 22; (2009) 193 A Crim R 87 ("Elmir").

[91] Elmir [2009] NSWCCA 22; (2009) 193 A Crim R 87, 96 [39].

[92] Elmir [2009] NSWCCA 22; (2009) 193 A Crim R 87, 96-7 [40]-[41].

[93] (2000) 10 A Crim R 337.

[94] Marchando (2000) 10 A Crim R 337, 339-41 [10]-[14].

[95] Marchando (2000) 10 A Crim R 337, 338 [4].

[96] [2008] NSWCCA 83; (2008) 184 A Crim R 108 ("Woods").

[99] [2011] NSWCCA 207 ("Rotner").

[100] Rotner [2011] NSWCCA 207, [49].

[101] Rotner [2011] NSWCCA 207, [50].

[102] Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619, 626 [28].

[103] Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619, 626 [28].

[104] Marijancevic [2011] VSCA 355, [90].

[105] J D Heydon, LexisNexis, Cross on Evidence (at Service 142 - February 2012) [1765]; Marijancevic [2011] VSCA 355, [17].

[106] [1970] HCA 21; (1970) 126 CLR 321.

[107] R v Ireland [1970] HCA 21; (1970) 126 CLR 321, 335.

[108] [1978] HCA 22; (1978) 141 CLR 54.

[109] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 74.

[110] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 77-78.

[111] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 78.

[112] [1992] HCA 69; (1992) 176 CLR 177.

[113] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 202-3.

[114] Australian Securities and Investments Commission v Macdonald (No 5) [2008] NSWSC 1169, [27].

[115] R v Borg [2012] VSC 26R, [76] and R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257, 255-6[52].

[116] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 79.

[117] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 79.

[118] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 80.

[119] [1992] HCA 69; (1992) 176 CLR 177, 203.

[120] [2002] NSWCCA 284; (2002) 132 A Crim R 169, 171-2 and 189.

[121] [2002] NSWCCA 284; (2002) 132 A Crim R 169, 188-9.

[122] See, eg, R v MM [2004] NSWCCA 364; R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124, 174 [322] (Weinberg CJ).

[123] Pollard [1992] HCA 69; (1992) 176 CLR 177, 202.

[124] R v Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257, 259 [12] (Ipp AJA) and 263-4 [39]-[41], 265 [50] (Hulme J).

[125] R v McNeill (Ruling No 1) [2007] NFSC 2; (2007) 209 FLR 124, 175 [322] (Weinberg CJ).

[126] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 80.

[127] [2001] NSWCCA 372; (2001) 125 A Crim R 257 ('Helmhout').

[128] Helmhout [2001] NSWCCA 372; (2001) 125 A Crim R 257, 262-3 [33].

[129] Marijancevic [2011] VSCA 355, [56].

[130] Marijancevic [2011] VSCA 355, [67].

[131] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, 79.