Director concedes conviction was tainted by substantial miscarriage of justice
Date of Judgment: 15 December 2020, 16 April 2021
Practice Group: Organised Crime and Counter Terrorism
Court: Court of Appeal – Victoria
Partner Agency: Australian Federal Police
Summary of charges:
Mr Tony Mokbel was charged with one count of being knowingly concerned in the importation into Australia of a prohibited import, a trafficable quantity of cocaine, contrary to the former section 233B(1)(d) of the Customs Act 1901 (Cth).
Mr Mokbel had been charged with importing 1.9kg of cocaine into Australia. One of the barristers that represented Mr Mokbel was Ms Nicola Gobbo. The Commonwealth Director and Mr Mokbel at the time were unaware that Ms Gobbo was simultaneously registered as an informer with Victoria Police.
Shortly prior to the conclusion of the trial, Mr Mokbel absconded to Greece. He was found guilty in absentia by a jury and, on 31 March 2006, sentenced to 12 years’ imprisonment. Mr Mokbel appealed to the Victorian Court of Appeal and the High Court of Australia, with both appeals refused. He has already served his sentence for this charge.
On 19 August 2020, after being informed of Ms Gobbo’s status as a Victoria Police informer, Mr Mokbel instituted a fresh appeal against his conviction. On 15 December 2020, the Commonwealth Director conceded that there was a substantial miscarriage of justice in Mr Mokbel’s trial and conceded the appeal.
The Court of Appeal ordered a re-trial. The Commonwealth Director discontinued the re-trial on the basis that there was no public interest in prosecuting Mr Mokbel again for an offence for which he had already served his full sentence.
The Court of Appeal unanimously agreed that the Commonwealth Director’s concession regarding the conviction was properly made. By a majority, the Court also accepted that a re-trial should be ordered as opposed to an acquittal.
The Court found that no information Ms Gobbo provided to Victoria Police was shared with the prosecuting authorities or used in the trial. The Court further found that the Commonwealth Director did not know of Ms Gobbo’s undeclared conflict at any time prior to the conclusion of Mr Mokbel’s trial and subsequent appeals.
The Court found that Ms Gobbo’s failure to declare her conflict to Mr Mokbel denied Mr Mokbel of his right to make an informed choice as to his legal representatives. That resulted in Mr Mokbel being denied a fair trial and, as conceded by the Commonwealth Director, to a substantial miscarriage of justice.
Mr Mokbel sought an acquittal whereas the Commonwealth Director sought an order for a re-trial in circumstances where it was accepted that any such trial would be discontinued. This position was based on the fact that while it was accepted that there remained sufficient evidence on which it was open for a jury to convict him, Mr Mokbel had served the entirety of his sentence. As a result, the Commonwealth Director considered it was not in the public interest to re-try him.
The Court ordered a re-trial and the Commonwealth Director subsequently filed a discontinuance.