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Applicant V CD (A Pseudonym) First Respondent EF

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Applicant V CD (A Pseudonym) First Respondent EF SUPREME COURT OF VICTORIA COURT OF APPEAL S APCI 2017 0082 AB (a pseudonym) Applicant v CD (a pseudonym) First Respondent EF (a pseudonym) Second Respondent S APCI 2017 0083 EF (a pseudonym) Applicant v CD (a pseudonym) Respondent S APCI 2017 0087 EF (a pseudonym) Applicant v CD (a pseudonym) First Respondent AB (a pseudonym) Second Respondent --- JUDGES: FERGUSON CJ, OSBORN and McLEISH JJA WHERE HELD: MELBOURNE DATE OF HEARING: 4, 5, 6, 7 September 2017 DATE OF JUDGMENT: 21 November 2017 MEDIUM NEUTRAL CITATION: [2017] VSCA 338 JUDGMENT APPEALED FROM: [2017] VSC 350; [2017] VSC 351 (Ginnane J) --- JUDICIAL REVIEW – Public interest immunity – Whether proposed disclosures by Director of Public Prosecutions subject to public interest immunity – Disclosure of identity of police informant to convicted persons – Risk of substantial miscarriage of justice – Whether disclosures capable of providing substantial assistance in challenging convictions – Risk to informant safety – Assurances of confidentiality by police – Whether distinct public interest in duty of care arising from assurances – Assurances inform public interest in protecting informant safety – Whether error balancing public interests – No error – Jarvie v Magistrates Court of Victoria at Brunswick [1995] 1 VR 84, Sankey v Whitlam (1978) CLR 1, Baini v The Queen (2012) CLR 469 considered. COURTS AND JUDGES – Reasons – Whether factual findings open on the evidence – Whether error in finding as to level of risk to informant – Whether error in finding police could take steps to protect informant – No error. EQUITY – Confidence – Disclosure of identity of police informant – Whether obligation of confidence where disclosure might provide assistance to convicted person in challenging convictions – Iniquity defence – Whether information reveals likelihood of serious misdeed of public importance – Appeal dismissed. HUMAN RIGHTS – Right to fair hearing – Whether Court required to ensure fair hearing where no notice to affected persons – Whether any limitation of Charter rights demonstrably justified – No failure to comply with fair hearing right – Charter of Human Rights and Responsibilities Act 2006 ss 6(2)(b), 7(2), 24(1) and 25(2)(b). --- APPEARANCES: Counsel Solicitors For AB Mr P J Hanks QC with Victorian Government Mr E M Nekvapil and Solicitors Office Ms F L Batten For EF Mr P W Collinson QC with Minter Ellison Ms C M Harris For CD Dr S B McNicol QC with Office of Public Prosecutions Mr C T Carr and Mr M Hosking Counsel acting as Amicus Mr W B Zichy-Woinarski QC Russell Kennedy Curiae with Ms J Davidson Counsel intervening on Ms K M Evans Victorian Equal Opportunity behalf of Commissioner and Human Rights Commissioner Counsel intervening on Ms R Orr QC with Ms A Pavleka, behalf of the Commonwealth Mr M Wilson Commonwealth Solicitor for Director Public Prosecutions COURT OF APPEAL 459 Lonsdale Street, Melbourne, VIC 3000 Introduction 1 EF1 became a police informer in 2005 and remained an informer until about January 2009. At the time that she was recruited as a police informer, members of Victoria Police assured EF that her identity and role as a police informer would remain confidential. Whilst a police informer EF acted as a barrister for Mr Antonios (‘Tony’) Mokbel and a number of his associates. 2 During the period EF acted as a police informer, Mr Tony Mokbel was convicted of a number of offences as were a number of his associates. Many of the associates pleaded guilty. All but one of them (Mr Zlate Cvetanovski) have served their sentences in prison. Mr Tony Mokbel also remains in prison. He has exhausted his appeal rights. 3 Following the convictions of Mr Tony Mokbel and his associates, a confidential report was prepared by the Hon Murray Kellam QC as the delegate of the Commissioner of the Independent Broad-based Anti-corruption Commission (‘the Kellam Report’) concerning the handling by Victoria Police of EF. A copy of the Kellam Report was provided to the Victorian Director of Public Prosecutions (‘the Director’). The Kellam Report recommended in Recommendation 12 that the Director consider whether any prosecutions had resulted in a miscarriage of justice by reason of evidence having been obtained through breach of legal professional privilege or release by EF of confidential materials. The Director formed the view that his duty of disclosure as a prosecutor required him to inform Mr Tony Mokbel and six of his associates (‘the Convicted Individuals’) about two matters contained in the Kellam Report: first, that EF had given information to police about the particular Convicted Individual at the same time as she was acting for him (in possible breach of legal professional privilege and/or in breach of her duty of confidentiality); and 1 This judgment has been anonymised by the adoption of a pseudonym in place of the name of the Second Respondent/Cross-applicant. AB v CD 3 THE COURT secondly, that EF had provided information to police about other persons for whom she acted who had then made statements against particular Convicted Individuals (again in possible breach of legal professional privilege and/or in breach of EF’s duty of confidentiality). 4 [*Redacted]. She has lost faith in Victoria Police. Her loss of faith followed the publication of information in the press which she believes identified her as a police informer and which she believes can only have come from within Victoria Police. 5 Having been advised by the Director of the terms in which he proposed to make disclosures to the Convicted Individuals, both the Chief Commissioner of Police (‘the Chief Commissioner’) and EF sought declarations that the information the Director proposed to disclose is protected by public interest immunity (‘the PII proceeding’). They rely, in particular, on the effect that such disclosures would have on the risk of death to EF and her children. EF also brought a separate proceeding against the Director based on alleged breach of confidence (‘the breach of confidence proceeding’). In that proceeding, EF sought declaratory relief and a permanent injunction restraining the Director from disclosing the information to the Convicted Individuals. 6 The trial judge dismissed both proceedings.2 EF and the Chief Commissioner seek leave to appeal from the trial judge’s decisions. 7 For the reasons which follow, we would grant EF and the Chief Commissioner leave to appeal in the PII proceeding but we would dismiss the appeals. 8 We would grant EF leave to appeal in the breach of confidence proceeding but we would dismiss that appeal also. 9 In the PII proceeding, the trial judge carefully weighed up the risk to EF’s life 2 AB & EF v CD [2017] VSC 350R (‘PII Reasons’); EF v CD [2017] VSC 351R (‘BOC Reasons’). AB v CD 4 THE COURT and to the lives of her children against the public interest in disclosing the information to persons who may have been wrongfully convicted. He came to the view that disclosure of the information was not protected by public interest immunity. We are of the same view. 10 Before proceeding further, we note that both before the trial judge and before this Court, EF’s position was that disclosure of the information to one of the Convicted Individuals would result in disclosure to all of them. Consequently, the case was run on the basis that if the information would provide substantial assistance to one of the Convicted Individuals such that it outweighed the risk to EF and her children’s lives, then that was all that needed to be established to defeat the claim for public interest immunity. 11 We also note that to ameliorate the effect of the Convicted Individuals not being parties to the proceedings, amici curiae were appointed. The amici curiae appeared before the trial judge and also on the appeal. The Victorian Equal Opportunity and Human Rights Commission (‘VEOHRC’) also intervened in the PII proceeding3 and was represented both at first instance and on appeal. 12 Before the appeal commenced, the Commonwealth Director of Public Prosecutions (‘the Commonwealth Director’) sought leave to intervene. The Commonwealth Director had been provided with a copy of the trial judge’s PII Reasons after his judgment was delivered and formed the view that she was obliged to disclose portions of those reasons and the Kellam Report to Mr Tony Mokbel (who was convicted of a Commonwealth offence prosecuted by the Commonwealth Director in 2006). The Commonwealth Director’s application for leave to intervene was heard at the commencement of the appeal. We reserved the question of whether leave should be granted and said that we would deal with it in these Reasons. We permitted the Commonwealth Director to address us on the substantive matters she 3 Pursuant to s 40(1) of the Charter of Human Rights and Responsibilities Act 2006. AB v CD 5 THE COURT wished to ventilate in the appeal should leave to intervene be granted. 13 In our view, leave to intervene should be granted. The Commonwealth Director is directly affected by this Court’s decision.4 At present, she is in effect constrained in the performance of her duty of disclosure. This is because, were she to disclose the same information to Mr Tony Mokbel as that proposed to be disclosed by the Director, she would undoubtedly be met by applications by the Chief Commissioner and EF that mirror the applications that they made in the PII proceeding against the Director.5 The Commonwealth Director has a vital interest in the issue of public interest immunity being determined. The 2006 Commonwealth prosecution of Mr Tony Mokbel forms part of the factual matrix in which the issue of public interest immunity is to be determined. As it transpired, the Commonwealth Director was able to assist us to reach our determination with submissions that were not fully presented by any other party or the amici curiae.6 The trial judge’s reasons 14 It will be necessary to refer to and discuss the trial judge’s reasons in some detail when we are considering the proposed grounds of appeal.
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