R v Mokbel

Supreme Court of Victoria|2012-03-01|Before: WHELAN J

CRIMINAL LAW - Application to change pleas of guilty - Evidence illegally obtained as search warrant affidavits not sworn - Principles applicable on applications to change plea - Admissibility of illegally obtained evidence - Application refused.

1 On 18 April 2011 Antonios Mokbel was arraigned and pleaded guilty to one count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, a further count of trafficking in a drug of dependence in an amount not less than a large commercial quantity, and a count of incitement to import a prohibited import. These charges respectively related to police operations referred to as Magnum, Quills, and Orbital. At the time of those pleas the prosecutor advised the Court that other pending drug matters, referred to by reference to police operations named Kayak, Landslip, Matchless and Spake would be discontinued. Counsel on behalf of Mokbel sought an adjournment for eight weeks in order to prepare plea material. The plea was further adjourned a number of times at the request of Mokbel's legal advisers. It was eventually fixed for hearing on 18 October 2011.

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:

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