Drug kingpin Tony Mokbel has been ordered to face a fresh trial on drug charges pre-dating his escape to Greece in a decision that split Victoria's Court of Appeal.
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Mokbel was hiding out in Bonnie Doon in March 2006, ahead of his infamous fugitive stint, when he was convicted of importing two kilograms of cocaine from Mexico.
His conviction was overturned by three appeal judges in December, after they found there had been a miscarriage of justice caused by his barrister, gangland lawyer and police informer, Nicola Gobbo.
In a 2-1 split decision on Friday, Justices David Beach and Robert Osborn said Mokbel should face a new trial.
But after the conviction was overturned in December, crown prosecutor Rowena Orr said no new trial would be held, regardless of what the court was to decide.
Mokbel was sentenced to 12 years behind bars and ordered to serve at least nine, a sentence that began after his capture in Athens in 2008. He had served the full sentence by the time of his appeal.
The judges said they had that in mind in making their decision, but determined the practical futility would not be an overriding factor.
"While no doubt the activities of Ms Gobbo and Victoria Police ... should be thoroughly condemned, we are not persuaded that such condemnation should take the form of an acquittal in the present case," the two judges said.
Ms Gobbo was registered three times as an informer for Victoria Police between the late 1990s and late 2000s, giving handlers information about underworld figures including those she represented legally.
The fact his conviction was quashed constituted a "significant deterrent to the repetition of such conduct" by Victoria Police, they said.
While all three judges acknowledged the case against Mokbel remained strong, Court of Appeal President Chris Maxwell was the only dissenting voice, favouring acquittal.
The fact Mokbel had served his entire sentence was his most significant consideration, and the ultimate conclusion was reinforced by the decision of prosecutors not to proceed with a fresh trial, he said.
Mokbel still has another appeal case underway linked to Ms Gobbo's informing, which prompted a nearly two-year, multi-million dollar royal commission into Victoria Police's use of informers.
Justice Maxwell said in February that Mokbel's appeal and seven others involving Ms Gobbo were being treated as a "top priority" by the court.
Mokbel's other appeal could be heard as early as July.
Australian Associated Press
