By Tammy Mills
Tony Mokbel has been ordered to face a retrial on drug-trafficking charges that were quashed because of the Lawyer X scandal.
However, despite the Court of Appeal ruling on Friday, prosecutors won’t pursue a new case against the Melbourne gangland identity.
Nicola Gobbo (right) with her client Tony Mokbel after she won bail for him in 2002. Credit:Vince Caligiuri
Mokbel’s 12-year sentence for importing a commercial quantity of cocaine – the charge which led to his infamous escape to Greece – was quashed by the Court of Appeal on December 15 because former barrister Nicola Gobbo acted as his lawyer while informing on him to police.
Commonwealth Director of Public Prosecutions Sarah McNaughton, SC, decided last year that a new trial won’t be sought after conceding a miscarriage of justice had occurred in the original trial.
“The director has already determined in this matter to not conduct a retrial,” Commonwealth lawyer Rowena Orr, QC, told the court last year.
Friday’s judgment was arguably more of an academic exercise in whether to record a retrial or an acquittal next to Mokbel’s name.
The Tony Mokbel infamous arrest shot in Greece.
His legal team, led by Bret Walker, SC, had argued for an acquittal to be entered into the record because Mokbel would never receive a fair retrial because of the amount of publicity the case had received. Ordering a retrial, the lawyer argued, would undermine the public’s confidence in the integrity of the criminal justice system.
But the court, in a majority ruling from justices David Beach and Robert Osborn, said they were “far from persuaded” that a fair trial could not be held and the very quashing of the conviction in itself condemned the conduct of Victoria Police in utilising Ms Gobbo.
The judges said an order of a retrial would leave the decision for further prosecution to the proper decision-makers.
Justice Chris Maxwell, however, said Mokbel had already been fully punished because he had served the entire portion of his 12-year sentence.
The court ordering an acquittal, Justice Maxwell said, was not like a jury returning a not guilty verdict and in this case, said nothing about Mokbel’s guilt.
“Indeed, it is common ground that there is sufficient evidence to support a conviction on the importation charge,” Justice Maxwell said.
“Rather, the judgment of acquittal gives formal expression to the appellate court’s conclusion that there should be no retrial.”
Friday’s decision doesn’t mean Mokbel will be released. He is still serving time on Victorian drug charges, which he’s also appealing because of the involvement of Ms Gobbo, dubbed Lawyer X before her identity as the barrister who was registered as police informer 3838 was revealed.
Con Heliotis talks to the media in March 2006 after Mokbel, his client, failed to show up to court. Ms Gobbo is pictured in the background.Credit:Simon O'Dwyer
A critical aspect of the appeal to the Victorian convictions, which is being fought by Victorian Director of Public Prosecutions Kerri Judd, is Ms Gobbo’s role in Mokbel’s extradition from Greece.
Mokbel’s capture in 2007 formed the centrepiece of law enforcement’s widely publicised successes during the Melbourne gangland war.
Mokbel skipped the country in March 2006, days before he was supposed to go back into custody to await the jury’s verdict to the cocaine importation charges.
He was convicted in his absence to a nine-year minimum sentence with a 12-year maximum for importing three kilograms of cocaine in candles from Mexico. He was arrested in Greece and extradited back to Australia in May 2008.
He was sentenced to 30 years in prison in 2012 after pleading guilty to three charges of large-scale drug trafficking from operations codenamed Orbital, Magnum and Quills.
Mokbel’s legal team, consisting of Mr Walker, Ruth Shann, Amelia Beech and Samantha Seoud, said in submissions Ms Gobbo acted as Mokbel’s junior counsel in the original trial and informed on him.
She told police about other crimes they could investigate Mokbel for and passed on legal tactics, including the identities of defence witnesses she’d taken statements from and that though they wanted Mokbel to plead guilty, he was “too stubborn”.
She then invoiced the solicitors $75,000 for the work she did, according to the submissions.
Lawyers for the Commonwealth, Ms Orr, Raelene Sharp and Anna Martin, had argued there was no evidence that the information Mokbel relied on for his appeal was disseminated to police.
The information, the lawyers argued, was not about whether Mokbel committed the crime, but it was only Ms Gobbo’s opinion about whether he would succeed in defending the charge.
“It is notable that Ms Gobbo told Victoria Police that despite advice to plead guilty, the applicant would not do so.”
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Tammy Mills is the legal affairs reporter for The Age.
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2021-04-16 03:44:39Z
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