The fallout from the Lawyer X scandal continues in Victoria, with the Court of Appeal ordering a retrial for underworld kingpin Tony Mokbel despite him being acquitted last year.
The back story
Mr Mokbel was on bail during his jury trial in 2006 for importing a commercial quantity of a border controlled drug, a charge which related to the importation of more than two kilograms of cocaine from Mexico.
But presumably seeing the ‘writing on the wall’, Mokbel fled to Greece just day’s before the trial’s completion.
He was found guilty and sentenced in his absence to 12 years in prison, with a minimum of 9 years; a sentence which did not begin until 2008 after he had been captured in Athens and extradited back to Australia.
Mokbel has served the full sentence for that offence, but remains in custody for other offences.
In December 2020, Mokbel’s sentence for importation was quashed in the state’s Court of Appeal.
During the appeal hearing, the Commonwealth Director of Public Prosecutions (CDPP) Sarah McNaughton SC, conceded a miscarriage of justice had occurred as a result of Lawyer X, Nicola Gobbo, acting as a police informant while representing Mokbel.
But although Mokbel’s appeal lawyer, Bret Walker SC, argued that a verdict of acquittal should be entered, the appeal court instead ordered a retrial.
The CDPP then decided that it was against the public interest to proceed with such a trial, withdrawing the importation charge.
Remains behind bars
However, this does not mean Mr Mokbel is set free – as he is still serving sentences for other offences.
In 2012, Mokbel was sentenced to 30 years in prison after being found guilty of large commercial drug supply and other offences for his role masterminding an elaborate drug syndicate.
Mr Mokbel’s fight to be released from prison continues, as he has seven other appeals based on grounds related to Ms Gobbo’s unethical dealings on foot.
These appeals have been allocated priority, and could be heard as early as July this year.
Lawyer X fallout
Mr Mokbel’s case is one of more than 1,000 which are in the process of being as a result of being tainted by the conduct of Ms Gobbo.
Gobbo was registered three separate times as an informer for Victoria Police between the late 1990s through until 2011.
Three other men have already successfully appealed their convictions due to the former Victorian defence barrister’s misconduct.
The role of the Commonwealth Director of Public Prosecutions
The role of the CDPP is to prosecute offences against Commonwealth law.
In doing so, it follows a set of guidelines outlined in the prosecution policy. This policy provides a two-stage test that must be satisfied before a prosecution is commenced:
- there must be sufficient evidence to prosecute the case; and
- it must be evident from the facts of the case, and all the surrounding circumstances, that the prosecution would be in the public interest.
The first determines whether there is sufficient evidence to prosecute a case taking into consideration the elements of the offence as well as what is required to establish the offence and prove it in a court of law. This includes consideration for the fact that there needs to be a reasonable prospect of obtaining a conviction.
Secondly, determining ‘public interest’ prosecutors will consider all of the provable facts and all of the surrounding circumstances, these vary from case to case but typically include:
- whether the offence is serious or trivial;
- any mitigating or aggravating circumstances;
- the youth, age, intelligence, physical health, mental health or special vulnerability of the alleged offender, witness or victim;
- the alleged offender’s antecedents and background;
- the passage of time since the alleged offence;
- the availability and efficacy of any alternatives to prosecution;
- the prevalence of the alleged offence and the need for general and personal deterrence;
- the attitude of the victim;
- the need to give effect to regulatory or punitive imperatives; and
- the likely outcome in the event of a finding of guilt.
Generally, the more serious the alleged offence is, the more likely it will be that the public interest will require that a prosecution be pursued.
While the CDPP acts on behalf of the Commonwealth, the New South Wales Director of Public Prosecutions (DPP) undertakes the same role in respect of state offences here.