Mokbel v The King [2023] VSCA 114 (12 May 2023)

Last Updated: 22 May 2023

SUPREME COURT OF VICTORIA COURT OF APPEAL

S EAPCR 2020 0180

ANTONIOS SAJIH MOKBEL	Applicant
v
THE KING	Respondent

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JUDGES:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2023
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 114

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CRIMINAL LAW – Pseudonym Order – Whether fresh pseudonyms to be applied – Whether absence of order would materially increase risk – No material increase of risk – Not necessary to order fresh pseudonyms – Pre-existing pseudonyms applied – New pseudonym ordered where needed.

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Counsel
Applicant:			Ms J Condon KC
Respondent:			Mr T Wood
Chief Commissioner of Police:			Ms S Maharaj KC
Solicitors
Applicant:			Sarah Tricarico Lawyers
Respondent:			Ms A Hogan, Solicitor for Public Prosecutions
Chief Commissioner of Police:			Victorian Government Solicitor’s Office

McCANN JR:

1. The applicant, Antonios Mokbel (‘the applicant’) has applied for leave to appeal against conviction for a second time.^[1] On the 6 May 2022 the Court of Appeal referred 20 questions for determination to the trial division of the Supreme Court of Victoria pursuant to section 319A of the Criminal Procedure Act 2009. The determination of those questions is currently listed for hearing commencing in October 2023.
2. The applicant’s appeal asserts that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on appeal’.^[2] In broad terms, the applicant relies upon the fact that his former lawyer Ms Nicola Gobbo acted against his interests from the time of his arrest in Greece in 2007 until he entered pleas of guilty to three sets of charges relating to trafficking large quantities of amphetamines.^[3]
3. On 3 April 2023, and ahead of the hearing of the questions referred to the trial division, the Chief Commissioner of Police (‘the Chief Commissioner’) filed a general application for pseudonym orders in relation to 11 people named in the applicant’s appeal documents and who are thought likely to be referred to during proceedings in the trial division of the Supreme Court.^[4]
4. The Court has previously made suppression orders in respect of the identification of nine of the 11 individuals the subject of the Chief Commissioner application.^[5]
5. The need for pseudonyms to be ordered in respect of the 11 individuals is not in issue. The issue is whether, in those orders, 8 of the individuals ought to be allocated fresh pseudonyms differing from those used in the Royal Commission into the Management of Police Informants (‘RCMPI’).
6. Of the 11 persons, 10 were assigned pseudonyms during the RCMPI. The Chief Commissioner seeks a pseudonym order in respect of the person not the subject of a suppression order and not assigned to pseudonym during the RCMPI.^[6] The pseudonym as sought for this individual (‘Witness Q’) is not opposed. The Chief Commissioner does not seek a change to the allocated pseudonyms in relation to two of the individuals.^[7]
7. The Chief Commissioner argues that the continued use of the RCMPI pseudonyms for the eight persons will ‘exacerbate existing risks to their safety’ due to the likelihood that their continued use will allow some members of the public ‘to decipher the true identities behind the pseudonyms used by the RCMPI’ and that a change in assignment of pseudonyms is necessary to protect the safety of those eight individuals.^[8]
8. The applicant’s opposition to the allocation of new pseudonyms for the eight individuals identified by the Chief Commissioner is generated, in part, by the concern that to allocate new pseudonyms now will lead to further delay in these proceedings, cause confusion for the parties, witnesses and the court and frustrate the understanding of these proceedings by the public more generally.^[9] The applicant also submits that there is no evidence of a materially elevated risk to the individuals in not making the order.^[10]
9. The Chief Commissioner has failed to satisfy the Court that it is in the interests of the administration of justice that new pseudonyms be applied to the 8 individuals. The application for pseudonym orders is granted. The pseudonym ordered in respect of the person not allocated a RCMPI pseudonym is ‘Witness Q’. The pseudonyms ordered in respect of the remaining 10 individuals are as they were allocated by the RCMPI
10. These are my reasons for decision.

The relevant law

11. The Open Courts Act 2013 does not limit or otherwise affect the making of an order concealing the identity of a person.^[11] The power to make a pseudonym order is in the Court’s inherent jurisdiction. Before the Court will make such an order it needs to be satisfied that there is ‘a proper foundation which establishes that if the orders are not made, the administration of justice will be prejudiced’.^[12] There must be ‘a demonstrable justification’ based on cogent evidence not merely an assertion based on expressed belief or opinion.^[13]
12. The categories of risk are not closed. The exceptions to the principle of open justice are many and varied and cannot be prescriptively identified.^[14] The test is whether it is necessary to make an order to prevent the frustration of the administration of justice.^[15] It follows that the issues for consideration are what is the risk and, is the order is necessary.
13. In considering this application, in addition to submissions made during the hearing, I have had regard to:

(a) Open and Confidential affidavits of Scott Wallace sworn on 27 March 2023;

(b) Confidential submissions in support of the pseudonym application submitted by the Chief Commissioner;

(c) The applicant’s submissions on pseudonyms filed 27 March 2023; and

(d) Affidavit of Sarah Tricarico affirmed on 27 April 2023.

Risk and necessity

14. The true identities of each of the individuals who currently have pseudonyms allocated them by the RCMPI are known to the applicant. The risk, articulated in the material filed by the Chief Commissioner is that it is members of the public who might be able to track the pseudonyms through published detail of the forthcoming proceedings in the Supreme Court and thereby be able to discern their true identity or name of the individuals.^[16] The Chief Commissioner submits that the risk to their safety, should their true identity be revealed arises from their role as informants or witnesses in criminal proceedings.^[17] The risks of both identification and potential for harm are further outlined in both the open and confidential affidavits. I accept that there are risks to the individuals if their true identities are revealed.
15. The applicant submits that the onus of establishing necessity rests with the Chief Commissioner and a general, unspecified assertion of risk will be insufficient.^[18] In a case where there is already a risk to persons, ‘the question of whether a further suppressive order should be made resolves to a question of whether the absence of the order would materially increase the risk’.^[19]
16. In relation to the risk of disclosure of identity, it was acknowledged that the layering of identities and names with the allocation of fresh pseudonyms will create confusion for the participants in the hearing and thereby increase the risk of inadvertent use of real names, or previous pseudonyms, during proceedings by counsel, witnesses or the Court.
17. The applicant submits that the assertion of risk to the eight persons is a barely stated belief which lacks detail.^[20] The applicant further submits that it is not explained how the amount of information now attached to a Royal Commission pseudonym would allow a member of the public to discern the identity underlying that pseudonym.^[21]
18. As discussed above, applying another level of pseudonyms ahead of the s 319A hearing is not without risk to the identity of the individuals. An alternative approach would be to review and revise material from the hearing to remove identifying information prior to publication. The Chief Commissioner conceded, during the hearing, that this course would be adopted whether fresh pseudonyms were adopted or not.
19. I accept the applicant’s submissions on the issue of risk and find that it will not be materially increased by using the already allocated pseudonyms. I also find that orders for fresh pseudonyms are not necessary. The identity of the individuals are suppressed. The extant pseudonyms are used in documents that are referred to in material filed to date and can be used during proceedings to allow the hearing to proceed in open court, thus upholding the principal of open justice. To the extent that sensitive details in respect of any of the individuals is ventilated during the hearing or included in published rulings or judgments those can be reviewed and applications made in relation to any information deemed to be the source of additional risk.
20. I order that the pseudonym of Witness Q be used in respect of the individual not currently allocated a pseudonym as identified in the material filed by the Chief Commissioner and that the pseudonyms adopted by the RCMPI in respect of the remaining 10 individuals, the subject of the Chief Commissioners application be used to refer to them in these proceedings.

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^[1] On 10 September 2020 the applicant filed a notice of application for leave to appeal against conviction and supporting documents pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’).

^[2] See CPA, s 326C.

^[3] Applicant ‘Application for Leave to Commence a Second Appeal Against Conviction’ 13 September 2021 at [9].

^[4] Respondent ‘Submissions of the Chief Commissioner of Police in Support of Application for Pseudonym Order’ 21 April 2023.

^[5] Ibid at [12].
^[6] Ibid at [20.1].
^[7] Ibid at [20.2]–[20.3].

^[8] Ibid at [11] and [14].

^[9] Applicant, ‘Applicant’s Submissions on Pseudonyms’ 27 March 2023 [2]–[3].

^[10] Ibid [16].

^[11] Open Courts Act 2013 s 7(d).

^[12] Secretary Department of Justice and Regulation v Zhong (No 2) [2017] VSCA 19 [8].

^[13] PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSCA 513 [73]; Zhong (No 2) [2017] VSCA 19 [4] quoting ABC v D1; Ex parte The Herald & Weekly Times Limited [2007] VSC 480 [65]–[71].

^[14] Zhong (No 2) [4].

^[15] See e.g. ESB v Victoria [2010] VSC 479 [12]; AX & Anor v Stern & Anor [2008] VSC 400 at [12]; ABC v D1 [2007] VSC 480 [42]–[60].

^[16] Respondent ‘Submissions of the Chief Commissioner of Police in Support of Application for Pseudonym Order’ 21 April 2023 [14].

^[17] Ibid [1], [8].

^[18] Applicant, ‘Applicant’s Submissions on Pseudonyms’ 27 March 2023 [8], [10].

^[19] Ibid at [11].

^[20] Applicant, ‘Applicant’s Submissions on Pseudonyms’ 27 March 2023 [16].

^[21] Ibid.