Arnautovic v The King
[2024] VSCA 286
•26 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0077 S EAPCR 2024 0156 |
| DRAGAN ARNAUTOVIC | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH, McLEISH and OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 November 2024 |
| DATE OF JUDGMENT: | 26 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 286 |
| JUDGMENT APPEALED FROM: | R v Arnautovic (County Court of Victoria, 27 September 1999 (Conviction), Judge Crossley); Arnautovic v The King (No 3)[2024] VSC 355 (Kaye JA) |
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CRIMINAL LAW – Application pursuant to s 326 of the Criminal Procedure Act 2009 (‘CPA’) for leave to bring second appeal – Allegation of misconduct by counsel in appearing when a registered police informer and in appearing when counsel had previously advised a co-accused in terms adverse to the applicant – Evidence not compelling within the meaning of s 326C(3)(b)(iii) – Evidence not highly probative in the context of the issues in dispute at the trial of the offence including the question whether the applicant obtained a fair trial – Fact counsel a registered police informer not sufficient of itself to raise a sufficient suspicion justice miscarried – In all the circumstances of the case no connection between informing and applicant’s trial – No conflict of interest in acting for applicant after advising co-accused – Application for leave to appeal refused.
PRACTICE AND PROCEDURE – Application for leave to appeal abandoned – Application dismissed in consequence – Inherent jurisdiction to reinstate application when no determination on merits – Reinstatement unnecessary to provide vehicle for new grounds of appeal based on fresh evidence – Intention of the Legislature that cases of this kind be dealt with under the provisions of the CPA providing for second or subsequent appeals – Application dismissed.
CRIMINAL LAW – Application for leave to appeal against finding on reference determination made upon referral pursuant to s 319A of the CPA – No error in trial judge’s finding – Leave refused.
Criminal Procedure Act 2009, ss 319A, 326A, 326C, 326D, pt 6.4.
Arnautovic v The King (No 3) [2024] VSC 355, approved.
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; Baini v The Queen (2012) 246 CLR 469; Roberts v The Queen (2020) 60 VR 431; Karam v The King [2023] VSCA 318, followed.
Tognolini v The Queen (No 2) [2012] VSCA 311; Grey v The King [2024] VSCA 75; R v Szabo (2000) 2 Qd R 214; Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1; Mills v The Queen [1995] 1 WLR 511; Clarke & Ors v The Queen (1996) 91 A Crim R 46; Van Beelen v The Queen (2017) 262 CLR 565; AB v CD [2018] HCA 58; AB v CD [2017] VSCA 338; Moti v The Queen (2011) 245 CLR 456; Boardman v Phipps [1967] 2 AC 46, considered.
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| Counsel | |||
| Applicant: | Mr D Gurvich KC with Mr J Connolly | ||
| Respondent: | Ms D Piekusis KC with Ms A Martin | ||
Solicitors | |||
| Applicant: | Slades and Parsons Solicitors | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
Introduction
Background facts concerning the offending
Gobbo’s role as an informer and her involvement with the applicant and the co-accused Jackson
The reinstatement application
The conflict of interest determination
Analysis of the alleged conflict of interest
The application for leave to bring a second appeal
Gobbo’s status and role as an informer
Gobbo’s involvement with Darren Jackson
Conclusion
BEACH JA
MCLEISH JA
OSBORN JA:
Introduction
The applicant seeks to challenge a conviction for trafficking a commercial quantity of heroin between 11 September 1997 and 18 November 1997. The charge was brought on the basis of a course of continuing conduct comprising a series of incidents in accordance with the principles stated in Giretti v The Queen.[1]
[1]Girettiv The Queen (1986) 24 A Crim R 112 (‘Giretti’).
The applicant was convicted on 27 September 1999 following a 16 day trial before his Honour Judge Crossley and a jury in the County Court at Melbourne. On 13 October 1999, the applicant was sentenced to 12 years’ imprisonment with a non-parole period of nine years.
At trial, the applicant was represented by Mr Damian Sheales and Ms Nicola Gobbo (‘Gobbo’) of counsel.
Subsequently, the applicant sought leave to appeal both against conviction and sentence, but on 28 August 2000, he filed a notice of abandonment of the application with respect to conviction. In consequence, that application was dismissed.
On 19 March 2001, the applicant’s application for leave to appeal against sentence was also dismissed.[2]
[2]R v Arnautovic [2001] VSCA 34.
On 8 November 2021, the applicant filed a notice of application for leave to appeal against conviction pursuant to s 326A of the Criminal Procedure Act 2009 on the basis of fresh evidence. The proposed grounds of appeal relied on the fact that at various stages of the proceeding, including the trial, the applicant was represented by Gobbo who had been identified as a police informer after the applicant’s conviction.
On 10 November 2021, the applicant applied for leave to withdraw his notice of abandonment and reinstate his original application for leave to appeal against conviction.
The reinstatement application was made on grounds that:
(a)the applicant’s appeal against conviction was never determined on its merits; and
(b)the conduct of Gobbo and Victoria Police was such that the interests of justice required the application be granted.
In common with a number of other proceedings involving Gobbo, the facts forming the basis of the application pursuant to s 326A were not the subject of evidence or adjudication in the course of the trial process.
On 13 December 2022, Beach and Macaulay JJA referred for determination eight questions of fact to the Trial Division of this Court constituted by a judge pursuant to s 319A of the Criminal Procedure Act. These questions were:
(1) When and in what capacity did Ms Gobbo act for the applicant?
(2)When and in what capacity did Ms Gobbo act for Darren Jackson? Did Ms Gobbo influence Mr Jackson to plead guilty (and/or agree to the agreed statement of facts for his plea) and if so, how, and what impact did that have on the applicant’s trial?
(3)Did Ms Gobbo breach any professional duties owed to the applicant, or was Ms Gobbo in conflict, in her role as the applicant’s legal practitioner and her role as the legal practitioner for Mr Jackson, Mr Reid and/or Person 2?
(4)Did Ms Gobbo inform on the applicant? If so, what information did she provide to police about the applicant and when?
(5)Did Ms Gobbo breach any duties to the applicant, or was Ms Gobbo in conflict, in her role as the applicant’s legal practitioner and her role as a current or former registered police informer?
(6)Did Victoria Police, the OPP, the DPP, and/or Ms Gobbo have an obligation to disclose Ms Gobbo’s role as a current or former registered police informer? To whom did the obligation extend?
(7)What was Solicitor 1’s role in relation to the applicant’s matter, and the other Carron and Hamadan matters?[[3]]
[3]Operation Hamadan was a Victoria Police operation specifically directed at Jackson and the applicant. Operation Carron focussed on a syndicate that was trafficking drugs across state borders which included Jackson and the applicant.
(8) While Ms Gobbo acted for the applicant in his Carron/Hamadan matter:
a. Did she facilitate Person 2’s cooperation with police?
b.What ongoing assistance did she provide to the police in relation to Person 2?
c.What role did she play in facilitating any other Carron and/or Hamadan suspect’s cooperation with police or other investigatory body?
d.What role did she play in the resolution of other Carron and/or Hamadan matters?
e. What assistance did she provide police?
f. What of the above did she disclose to the applicant?
g. What knowledge of Gobbo and Victoria Police’s status as an informer did the OPP and the DPP have?
h. What of the above did Victoria Police or the Crown disclose to the applicant?[4]
[4]Arnautovic v The King (No 3) [2024] VSC 355, [12] (Kaye JA) (‘Reasons’).
On 25 June 2024, Kaye JA determined answers to the referral questions. Amongst other matters, his Honour determined in answer to question 3 that there was no conflict of interest in Gobbo acting as junior counsel on the trial of the applicant arising from the fact that she had previously acted as legal practitioner for, and given advice to, Jackson (‘the conflict of interest determination’).[5]
[5]Reasons, [117].
On 27 August 2024, the applicant sought leave to bring a second appeal against conviction under s 326A of the Criminal Procedure Act in amended form. The single ground of that application is:
Ground 1: A substantial miscarriage of justice occurred because the applicant’s trial was an abuse of process in that an ordinary fair-minded citizen, in the applicant’s position, with knowledge of all relevant circumstances, might entertain a reasonable suspicion that justice might have miscarried on account of the misconduct of Nicola Gobbo and Victoria Police.
Particulars:
(i)Gobbo was junior counsel in the applicant’s trial.
(ii)At relevant times, Gobbo represented co-accused Darren Jackson.
(iii)Gobbo influenced Darren Jackson to falsely name the applicant as the supplier of heroin that was involved in his dealings with an undercover police operative.
(iv)At material times, Gobbo was a police informer.
(v)The fact that Gobbo was a police informer was not disclosed by Victoria Police.
(vi)Gobbo breached her ethical obligations as a barrister.
On 29 August 2024, the applicant sought leave to appeal pursuant to s 319A(5) of the Criminal Procedure Act against the reference determination of Kaye JA with respect to the conflict of interest determination. The single proposed ground of appeal is that:
Kaye JA erred in determining that Ms Gobbo, in acting as junior counsel on the trial of the applicant, was not in conflict as a result of her earlier role as legal practitioner for Darren Jackson.
For the reasons which follow, we would refuse the reinstatement application. In our view, the provisions of pt 6.4 of the Criminal Procedure Act providing for a second or subsequent appeal to the Court of Appeal provide an appropriate vehicle for the applicant’s fundamental complaints and demonstrate an intention by the Legislature that cases of this kind be dealt with pursuant to those provisions.
We would refuse leave to appeal against the conflict of interest determination by Kaye JA. In our view, his Honour’s conclusion on this issue was correct.
We would also refuse leave to appeal under s 326A on the ground that we are not satisfied that the fresh evidence upon which the application for leave is based, meets the requirement of being ‘compelling’ in the necessary sense.[6]
[6]Criminal Procedure Act 2009, ss 326C, 326D.
Background facts concerning the offending
The trafficking took place between 11 September and 18 November 1997. During this period, the applicant was the subject of regular police surveillance, covert photography and videotaping, recording of conversations with undercover police officers posing as drug purchasers and covert recording of telephone conversations.
Kaye JA summarised the prosecution case as follows:
15The prosecution case was that the applicant maintained a stock of heroin hidden in two principal locations. The first location was in a paddock in Dohertys Road, Altona North, where it was alleged that the applicant kept a supply of heroin, hidden in different places beneath rocks and broken roofing tiles in the paddock (‘the Dohertys Road paddock’). The second location was a shed at the Baseball and Softball Centre in Merton Street, Altona (‘the Merton Street Centre’), where it was alleged the applicant kept a supply of heroin, hidden in the grooves of the corrugated iron wall of the shed. The heroin at the two locations, when tested, was found to range in purity between 47% and 90%, but the majority of it was between 75% and 90%. Recorded conversations involving the applicant included discussions by him of quantities in ounces, and large sums of money. In the course of the conversations, the applicant offered to sell ounces of product.
16On 12 November 1997, Jackson agreed to supply an undercover police officer, referred to as ‘Jack Jones’, with twelve ounces of heroin, three ounces of which were to be supplied on 13 November, and the remaining nine ounces on 18 November. After a meeting with the applicant on 12 November, Jackson told Jack Jones that he would supply twelve ounces to him at $7,000 per ounce.
17On the following day, the applicant supplied Jackson with three ounces of heroin. Jackson then met Jack Jones and told him that the price was $7,500, and not $7,000, per ounce. As Jones only had $21,000 in cash on him, he purchased two ounces for $15,000. The prosecution case was that the applicant was nearby when that transaction was effected.
18On 18 November 1997, Jackson and Jack Jones attended at the Merton Street Centre. Jackson then met with the applicant, who directed him to a white bag that was in bushes nearby. Jackson collected the bag, and returned to Jack Jones, who purchased the nine ounces of heroin contained in it in exchange for $67,500. Jack Jones then left the area. A short time later, members of the Special Operations Group attended at the shed area and arrested both the applicant and Jackson. A search of the shed wall revealed a quantity of nine ounces of heroin hidden inside the outer wall of the shed. A search of the applicant’s Mitsubishi van revealed a secret compartment underneath the vehicle, inside which was a further three ounces of heroin. In total, a quantity of almost 700 grams of heroin was recovered by police on that date. The applicant was charged on one Giretti count of trafficking in a commercial quantity of heroin between 11 September 1997 and 18 November 1997.[7]
[7]Reasons, [15]–[18] (citation omitted).
The evidence supporting the prosecution case that the applicant maintained a stock of heroin hidden at two principal locations included evidence of continuing activity extending over the months of September, October and November 1997. This fact and the full strength of the prosecution case are important to our ultimate conclusions. For this reason, it is necessary to set out Kaye JA’s summary of the evidence upon which the prosecution relied.
19In order to properly understand the content of the case made against the applicant at his trial, it is necessary to summarise the evidence adduced in the trial in more detail.
20As mentioned, a substantial part of the prosecution case comprised evidence which was the product of police surveillance, covert photography and videotaping, covert recording of telephone calls, and undercover police officers who posed as drug purchasers.
21On 11 September 1997, the applicant was seen at the Dohertys Road paddock, where he bent down and picked up a package underneath some rocks. The applicant removed items from the package, placed them in his tracksuit top, and replaced the package under the same rocks. After he departed, police inspected the scene and found a container underneath some rocks. The container contained 10 grams of white compressed powder, a sample of which, on analysis, was found to be 83% pure heroin. After departing from the premises, the applicant, in succession, met a number of different persons at different locations.
22On 16 September 1997, investigators returned to the Dohertys Road paddock, where they found a Berocca container, containing 67 small packages of compressed white powder. A sample from the packages, on analysis, was found to be 47% pure heroin. On the following day (17 September), the same container was retrieved by investigators. At that point, it contained 35 small packages of white compressed powder which, on analysis, was found to contain 47% pure heroin. The investigators returned to the Dohertys Road paddock and replaced the original packages with 35 packages of compressed glucodin powder.
23On 19 September, the applicant returned to the Dohertys Road property. When investigators attended subsequently, they found that the substituted packages had been removed.
24On 2 October 1997, the applicant again attended at the Dohertys Road paddock. He alighted from his vehicle and walked out of sight, behind the passenger side of the vehicle. After he had departed, investigators found a container hidden beneath a broken roof tile. The container contained three packages, each of which consisted of an amount of compressed white powder. Samples of the powder, when analysed, were found to constitute 80% heroin.
25On 3 October 1997, a covert camera was re-installed at the Dohertys Road property. At 12:27 pm, the applicant was recorded as attending at the property. There, he collected a number of packages, which he placed down his tracksuit pants.
26On 6 October 1997, investigators returned to the Dohertys Road paddock and found a Berocca vial that contained seven packages of compressed white powder. A sample of the powder, when analysed, was found to contain 78% to 84% heroin.
27On the following day, 7 October 1997, the applicant returned to the Dohertys Road paddock. Four days later, on 11 October, investigators attended at the property and found a Berocca vial containing seven packages of white compressed powder, a sample of which was found to constitute between 75% and 80% heroin.
28On 13 October 1997, investigators again attended at the Dohertys Road paddock, where they found a Berocca vial containing five packages of white compressed powder. The applicant was further recorded as attending the property on 16 October and 22 October.
29On 23 October, investigators located a ‘Doritos’ packet at the property containing two packages of white compressed powder, wrapped in clear plastic inside a red balloon. In total, the packages weighed 19.2 grams. Samples taken from each of the packages were found to constitute 80% heroin. Later on the same day, the applicant returned to the property, where he removed an item from the packet before replacing the packet in the rocky area. On the next day, 24 October, investigators, having returned to the property, found that the Doritos packet only contained one package. Later on the same day, the applicant returned to the property and removed that packet from the rocky area.
30On 26 October 1997, the applicant returned to the Dohertys Road property, where he placed an object in the rocky area.
31On 27 October 1997, a listening device and tracking device, which were installed in the applicant’s vehicle, recorded conversations involving the applicant that concerned: amounts in ounces; prices; drugs; heroin; cutting up of drugs placed in balloons; and large amounts of cash. Surveillance observations confirmed that the applicant was present in the vehicle at the times of those discussions.
32On the same day, investigators found two Berocca vials at the Dohertys Road paddock, samples from each of which, when tested, were found to be 80% heroin. Later on the same day, the applicant returned to the property, where he removed a packet from the rocky area and replaced it. On the same day, the listening device recorded the applicant talking on his mobile telephone to an unknown person, in which he referred to a female having gone and ‘picked up the drugs and dropped ’em off’.
33On 28 October 1997, the listening device recorded four conversations in which the applicant, talking on his mobile telephone to an unknown person, spoke in terms of quantities and money. On the following day (29 October), he returned to the Dohertys Road paddock. On the same day, the listening device recorded him saying to a male, ‘kilo bag, I fucking weighed it’. Subsequently, the listening device recorded him talking to another unknown person in which he said, ‘Fucking heroin mate. About how much?’. In another telephone conversation, the applicant was recorded as saying, ‘It cost $500 and $1500’. In a fourth conversation, he was recorded saying, ‘I may have a deal for you soon’.
34On 30 October 1997, investigators found a bag containing two Berocca vials at the Dohertys Road paddock. They contained packages of white powder. On the same day, surveillance officers followed the applicant to the Merton Street Centre, where they recorded the applicant bending down near the outside back corner of a corrugated iron shed at the rear of the premises. In five separate conversations recorded by a listening device on the same day, the applicant spoke in terms of ‘ounces’ and ‘grams’, and referred to large sums of money (in one conversation, $4,000, and, in another, ‘twelve grand’).
35On 31 October 1997, the applicant returned to the Dohertys Road paddock, where he removed the plastic bag. On the same day, investigators found a Berocca vial inserted in a groove in the corrugated iron walls of the shed near the Merton Street Centre. The vial contained three packages of compressed white powder, samples of which were found to constitute 75% to 80% heroin. On the same day, investigators found another Berocca vial at the Dohertys Road paddock, which contained a 3.5 gram package of compressed white powder.
36On 1 November, investigators found two Berocca vials inserted in grooves in the corrugated iron walls of the shed at the Merton Street Centre. The vials contained packages of compressed white powder, samples of which were found to constitute 60% to 80% heroin.
37On 3 November 1997, surveillance officers followed the applicant to the Merton Street Centre. The applicant was observed bending down at the outside back corner of the corrugated iron shed. On the same day, the listening device recorded three conversations, which were relevant. In one of them, the applicant said to an unknown person, ‘How much do I owe you?’, and in another, when speaking to a female on his mobile telephone, the applicant said, ‘$30,000’.
38On 4 November 1997, investigators found two vials inserted in the grooves of the corrugated iron shed at the Merton Street Centre. In total, they contained nine packages of compressed white powder. Samples of the powder, when tested, were found to constitute 70% to 90% heroin. On the same day, police who were conducting surveillance of the shed at the Merton Street Centre recorded, on videotape, the applicant attending, bending down, and removing an item from the outside back corner of the shed. On the following day, investigators checked the shed, where they found two Berocca vials inserted in the corrugated iron grooves in the outside back corner of the shed. The two vials, in total, contained nine packages of compressed white powder. In three conversations, recorded by listening device, the applicant spoke in terms of conducting a transaction.
39On 6 November 1997, surveillance officers observed the applicant at the Merton Street Centre bend down at the outside back corner of the corrugated iron shed. On the same day, in conversations recorded by the listening device, the applicant was again heard speaking in terms of transactions.
40On the following day, 7 November 1997, investigators checked the Merton Street Centre shed, where they found two Berocca vials inserted in the grooves of the shed. In combination, they contained eight packages of compressed white powder, which were believed to be the packages that were present on 5 November. On 10 November, investigators found at the shed two Berocca vials which, on this occasion, contained six of the packages.
41On 12 November 1997, Victoria Police covert operative ‘Jack Jones’ contacted Jackson and requested the purchase of twelve ounces of heroin. It was agreed that ‘Jack Jones’ would purchase three ounces of the heroin on 13 November, and the remaining nine ounces on 18 November. On the same morning, investigators attending the shed at the Merton Street Centre found two Berocca containers in the shed wall, which had the same six packages that were in place on 10 November. Later on the same morning, surveillance officers observed a meeting between Jackson and the applicant in Deer Park. At the conclusion of that meeting, Jackson contacted ‘Jack Jones’ and said that he could supply twelve ounces of heroin, and that the price would be $7,000 per ounce.
42On 13 November 1997, surveillance officers observed Jackson meet the applicant in Boundary Road, Derrimut. Jackson stepped into the applicant’s van, and they drove a short distance to a location where they stopped the van. They then entered a grassed area alongside the road where the applicant placed an item at the base of a tree. They then returned to the van and drove away. At 10:20 am, surveillance officers followed Jackson to Lansdowne Street, East Melbourne, where he met ‘Jack Jones’ in the Fitzroy Gardens. ‘Jack Jones’ had with him $21,000 in cash. Jackson informed him the actual price was $7,500 per ounce. It was agreed that ‘Jack Jones’ would purchase two ounces of heroin for $15,000.
43Jackson and ‘Jack Jones’ then left the Fitzroy Gardens in ‘Jack Jones’s’ vehicle and drove to the tree in Boundary Road, Truganina. Jackson went to the base of the tree and collected the three ounces of heroin. He handed two ounces of heroin to ‘Jack Jones’, and retained one for himself. ‘Jack Jones’ handed $15,000 cash to Jackson.
44‘Jack Jones’ then left the area. Surveillance officers observed the applicant collect Jackson and return him to Lansdowne Street, East Melbourne, where Jackson’s car was parked. Surveillance officers then followed the applicant to the Merton Street Centre, where the applicant placed an item underneath a rock adjacent to the fence line. Subsequently, investigators attended at the shed at the Merton Street Centre. They found the two Berocca containers in the wall. The first container was empty, and the second contained five packages.
45On 14 November 1997, investigators located a package under a rock at the Merton Street Centre. It contained a balloon, which contained one ounce of white powder, which, on testing, was found to constitute heroin.
46On 17 November 1997, investigators found three Berocca vials in the shed wall of the shed at the Merton Street Centre. Two of the Berocca vials were empty, and the third vial contained five plastic bags containing white compressed powder, which, on testing, constituted 61% to 75% heroin.
47On 18 November 1997, investigators again attended the Merton Street Centre. They found the three Berocca containers, which were the same containers that they had found the previous day. At 10:45 am, surveillance officers followed the applicant to James Street, Laverton North, where he placed an item underneath a rock. Investigators attending one hour later found a wrapped package that weighed 37.4 grams. The investigators replaced the item in its original location.
48At 4:45 pm on 18 November 1997, Jackson and ‘Jack Jones’ attended in Merton Street, Altona. The applicant arrived shortly afterwards and had a brief conversation with Jackson. The applicant then travelled to the shed at the Merton Street Centre, where he was observed placing a white bag in bushes near the shed. Shortly afterwards, Jackson and ‘Jack Jones’ attended the same property. ‘Jack Jones’ remained in the vehicle, while Jackson met the applicant. The applicant indicated the white bag to Jackson, who then collected it. Jackson returned to ‘Jack Jones’, who purchased the nine ounces of heroin contained in the bag from Jackson in exchange for $67,500. After ‘Jack Jones’ left the area, Jackson and the applicant were then arrested by members of the Special Operations Group.
49In a tape recorded interview conducted by the informant, commencing at 8:46 pm on 18 November and concluding at 12:33 am on 19 November 1997, the applicant gave a false explanation for his presence at the shed in the Merton Street property. He said that he had been contacted by mobile telephone by a friend of a friend who needed to borrow his vehicle for a few hours. He said that he had come to Melbourne from Ocean Grove that day for dog training. The applicant denied any knowledge of drug trafficking activities that occurred on the day. He denied being a party to any conversations between Jackson and ‘Jack Jones’ concerning drugs, and he denied allegations of previous activities involving drug trafficking.[8]
[8]Reasons, [19]–[49].
On his trial, the applicant gave evidence which attributed to Jackson the overarching role of the ongoing supplier of drugs to the applicant and attributed to the applicant the role of a drug user and occasional purchaser from Jackson of small quantities of drugs for his own use.
52The applicant gave evidence at his trial. The applicant said that he had known Jackson for about 20 years. The applicant was a professional kickboxer who had retired after a fight on 16 August 1997 as the result of a broken arm. He said that he was an occasional drug user, and his supplier was Jackson. He said that he only collected half gram quantities for his own use at the hiding place in Dohertys Road, and that he did so at Jackson’s direction. The applicant said that his attendances at the shed at the rear of the softball centre in Merton Road were to collect drugs left there by Jackson ‘and his crew’, and that he never placed drugs there. He said that he also attended the softball centre for dog training as a member of the dog club. The applicant said that he had never stored drugs at James Street or Boundary Road. He said that he had attended James Street with Jackson and he used to meet his suppliers there. The applicant would act as a tester by ‘snorting’ samples in order to ensure their quality.
53The applicant said that on 13 November 1997, Jackson had asked him to drive him to certain locations, and that Jackson wished him to be present in case something went wrong.
54In respect of 18 November 1997, the applicant said that he received a telephone call from Jackson, who asked to meet him in St Albans. The applicant said that he was going to be paid for providing ‘protection’ for Jackson. After meeting Jackson, it was agreed that the applicant would be available whenever Jackson called him back. He then received a call from Jackson and met him in the vicinity of the Merton Street centre. Jackson got into the vehicle and directed the applicant to go to the back of the softball centre to wait there. The applicant did as he was directed. He denied that he took a bag from the side of the shed and placed it on the grass. He denied having knowledge of the size of the transaction in question. He said that he had told lies in his tape recorded interview because he was in a state of shock, as his dog had been shot by police in front of him. He denied knowledge of the other drugs that were found by police on that day.[9]
[9]Reasons, [52]–[54].
The applicant’s withdrawal of his initial application for leave to appeal against conviction reflects the strength of the case against him. The application to reopen the question of his conviction turns upon a combination of issues relating to the fairness of his trial.
Gobbo’s role as an informer and her involvement with the applicant and the co-accused Jackson
The applicant’s case with respect to Gobbo falls to be considered within the framework of a sequence of events which are common ground between the parties and were summarised by Kaye JA as follows:
•3 September 1993. Gobbo was charged by Victoria Police with possession and use of cannabis and amphetamines.
•29 November 1993. Gobbo pleaded guilty to drug charges and was released on a good behaviour bond without conviction.
•July 1995. Gobbo was registered by Victoria Police as a human source.
•21 February 1996. Gobbo assisted police as part of Operation Scorn by introducing an undercover police officer to a former housemate and co-accused.
•7 April 1997. Gobbo was admitted to practice as a barrister and solicitor in the State of Victoria.
•1997 to 1998. Gobbo was employed at the office of Solicitor 1 for approximately 12 months.
•18 November 1997. The applicant was arrested.
•19 November 1997. Gobbo appeared for the applicant in the Melbourne Magistrates’ Court on a remand hearing.
•3 December 1997. Gobbo appeared for the applicant in the Melbourne Magistrates’ Court on a status hearing; Solicitor 1 appeared for Person 2 and Reid.
•16 April 1998. Gobbo appeared for Reid, and Solicitor 1 appeared for the applicant and Jackson, in the Melbourne Magistrates’ Court.
•10 June 1998. Gobbo appeared for the applicant in the Melbourne Magistrates’ Court on a committal mention hearing.
•22 June 1998. The committal hearing was held at the Melbourne Magistrates’ Court. Mr Wayne Toohey (instructed by Solicitor 1) appeared for the applicant.
•21 July 1998. Detective Senior Constable Kruger[10] and Detective Senior Constable Lim met with Gobbo. Kruger generated an information report of information, provided by Gobbo, in relation to the suspected involvement by Solicitor 1 in money laundering.
[10]Pseudonym.
•26 August 1998. Pryles & Defteros Solicitors filed a notice that a practitioner acts on behalf of the applicant.
•1 September 1998. Gobbo commenced the Victorian Bar Readers Course.
•19 November 1998. Gobbo signed the Bar Roll after completing the Readers’ Course.
•11 May 1999. Mr Damian Sheales was briefed to appear for the applicant at the trial.
•12 May 1999. Detective Sergeant Strawhorn and Detective Senior Constable Kruger met Gobbo to introduce her to Detectives Segrove and Pope regarding allegations she made relating to Solicitor 1.
•13 May 1999. Detective Pope completed an Informer Registration Application form, nominating Gobbo as a proposed informer to police in respect of allegations against her former employer, Solicitor 1.
•16 May 1999. Chris Pearson (the applicant’s solicitor) and Gobbo attend conference with the applicant at Port Phillip Prison. The applicant confirmed that he wanted to retain Gobbo as his counsel in the upcoming trial.
•19 May 1999. Gobbo was briefed to appear as junior to Mr Damian Sheales at the applicant’s trial.
•21 May 1999. Gobbo appeared in a County Court mention to request that the applicant’s trial be adjourned to 27 May 1999 in order to enable Mr Sheales to complete a trial in Western Australia and return to Victoria.
•24 May 1999. Gobbo appeared in a County Court mention on behalf of the applicant.
•26 May 1999. Acting Superintendent Sheridan approved Gobbo as a registered police informer.
•31 May 1999 to 3 June 1999. Gobbo appeared for the applicant in respect of his trial, which was not then reached.
•June – September 1999. Gobbo met with Detectives Pope and Segrove as part of Operation Ramsden, which was an investigation by the Asset Recovery Squad into financial crimes allegedly committed by Solicitor 1.
•30 August 1999. The applicant’s trial commenced with Gobbo appearing as junior counsel to Mr Sheales on behalf of the applicant.
•27 September 1999. The applicant was convicted by the jury empanelled on his trial.
•30 September 1999. Sentencing submissions were made by Mr Sheales on behalf of the applicant.
•1 October 1999. A final meeting took place between Detective Senior Constable Pope and Gobbo. Gobbo provided Detective Senior Constable Pope with no new information regarding Solicitor 1.
•13 October 1999. Applicant was sentenced.
•20 and 21 October 1999. Gobbo appeared for the applicant in an unrelated proceeding in the Melbourne Magistrates’ Court.
•26 October 1999. Gobbo appeared for the applicant in the unrelated proceeding in the Melbourne Magistrates’ Court.[11]
[11]Reasons, [57] (footnote in original).
As is apparent from this summary, after a series of appearances as a solicitor in administrative hearings in the early stages of the proceeding, Gobbo then ceased to act for the applicant for a period. Gobbo then represented the applicant as junior counsel at his trial at a time when she was a registered police informer assisting Victoria Police with enquiries into alleged financial crimes committed by Solicitor 1, her former employer.
Gobbo was also sequentially involved with the representation of Jackson within the following framework of events.
•11 December 1997. Gobbo spoke to Detective Senior Constable Kruger concerning Jackson.
•29 January 1998. Solicitor 1 appeared for Jackson in the Melbourne Magistrates’ Court; Gobbo appeared for Person 2 and Reid.
•16 April 1998. Solicitor 1 appeared for Jackson and the applicant in the Melbourne Magistrates’ Court; Gobbo appeared for Reid.
•10 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates’ Court. On the same date, she also appeared for Reid in the Melbourne Magistrates’ Court.
•17 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates’ Court.
•1 September 1998. Gobbo commenced the Victorian Bar Readers Course.
•14 September to 17 September 1998. The committal hearing was held in respect of charges arising from Operation Carron involving Jackson, Person 2, Reid and Dan Mosut. Mr Neil Clelland of counsel appeared for Jackson (instructed by Solicitor 1).
•2 October 1998. Jackson’s plea hearing was held before Judge Jones of the County Court. Mr Clelland of counsel appeared for Jackson (instructed by Solicitor 1).
•8 October 1998. Jackson was sentenced by Judge Jones. Mr Clelland appeared on behalf of Jackson (instructed by Solicitor 1).[12]
[12]Reasons, [69].
Kaye JA made the following findings with respect to the factual basis on which Jackson’s plea and sentence proceeded:
74Jackson’s plea and sentence proceeded on the basis of an agreed statement of facts that was filed in the County Court. That statement outlined the meetings between Jackson and the police undercover operative (‘Jack Jones’) in the Fitzroy Gardens on 22 October, 12 November and 13 November 1997, and the meeting on 18 November 1997 in which the drug transaction took place and Jackson and the applicant were arrested. In the agreed statement of facts, the applicant was referred to as the ‘alleged co-offender’. The agreed statement of facts concluded as follows:
Jackson, the prosecution say, was acting on behalf of the alleged co-offender. In that sense he was not the principal. Nonetheless, he was a participant at a mid-level in the trafficking of significant amounts of pure heroin.
75In similar terms, in sentencing Jackson, the judge, in his sentencing reasons, stated:
The prosecution say you were acting on behalf of the alleged co-offender. In that sense, you were not the principal. Nevertheless, the prosecution maintained that you were a participant at a mid-level in the trafficking of significant amounts of pure heroin.
76Later in the sentencing reasons, the judge elaborated on the role of Jackson in the following terms:
Your role in relation to this trafficking needs to be considered. You were not the principal, you were not the supplier of the heroin. You had to go to a source to obtain the heroin. The conversations that you had with the undercover operative demonstrate that; for example, statements such as “I’ll see what I can do”. It is appropriate to describe you as a go between or middle man between the supplier and the purchaser. You were acting on behalf of the supplier. However, this is still an important role.
77In his evidence in the present proceeding, Jackson affirmed the contents of a statement that he made to the Royal Commission into the Management of Police Informants dated 4 September 2019. In that statement, Jackson said that although Solicitor 1 occasionally visited him in prison, he mostly dealt with Gobbo, who visited him at least six or seven times. He said that Gobbo told him in the early stages that if he named his supplier, he would ‘do a lot less time’.
78In his evidence, Jackson specifically stated that, eight months after his arrest, Gobbo visited him and told him that if he named his supplier as the applicant, he could ‘go home on time served’. Jackson told Gobbo that Person 1, and not the applicant, was his supplier, and he wanted to name Person 1 as his supplier in the ‘statement of facts’, but Gobbo refused to permit him to do so. According to Jackson, Gobbo told him that, as a result of a legal technicality issue, he could only say that he was introduced to Person 1 and that he owed Person 1 money. Accordingly, Jackson pleaded guilty to the charges, although he did not agree with the contents of the agreed Statement of Facts that were put to the judge.
…
81As noted, the Statement of Facts asserted that Jackson was acting on behalf of the ‘alleged co-offender’ (the applicant), and that he was not the principal, in the transactions which Jackson undertook with the police undercover officer, Jack Jones. The Statement concluded with a page entitled, ‘Facts conceded by the prosecution’, which were as follows:
1.Jackson was a user of Heroin at the relevant time.
2.As a result of that drug use he came into contact with a person named [Person 1].
3.As a result of Jackson’s drug use, he ended up owing money.
4.Jackson was subjected to threats to repay that money.
5.Jackson was introduced by [Person 1] to the police undercover operative. The undercover operative was introduced as a person wishing to purchase drugs. Jackson agreed to arrange for the supply of drugs.
6.Jackson did not receive the bulk of the moneys paid by the police undercover operative for the heroin.
Jackson alleges and the prosecution does not dispute that what he was receiving was a small quantity of cash and some Heroin for personal use and reduction of a debt.
82The transcript of the plea that was presented on behalf of Jackson has not been located. However, it is evident from the judge’s sentencing reasons that, consistent with the document entitled ‘Facts conceded by the prosecution’, it was submitted on behalf of Jackson that Person 1 was the supplier of the heroin, which Jackson sought then to traffick to the police undercover operative. In a passage that followed the part of the sentencing reasons which I have quoted earlier, the judge noted:
You have contended through your counsel, and there is reference to this in reports tendered, that Person 1 … was the supplier. I am not able to make a finding that that was the position.
83It follows from the foregoing that although Gobbo, in strong terms, advised Jackson to nominate the applicant as the supplier of the heroin that he then sought to sell to the police undercover operative, nevertheless, his plea was conducted on the basis that Person 1 (and not the applicant) was the supplier of the heroin to him.
84It is clear, on the other hand, that Jackson’s plea was conducted, and he was sentenced, on the basis that, in conducting the transaction, he was acting ‘on behalf of’ the applicant. The precise position and role of the applicant, in the chain of command of trafficking of the heroin, was not specified on Jackson’s plea, other than that Jackson was acting on his behalf in the transaction that he undertook with the police undercover operative.[13]
[13]Reasons, [74]–[78], [81]–[84].
We interpolate that whilst this conclusion is clearly correct, Jackson’s plea was conducted on a basis which to some extent qualified the concessions which he made. More particularly, as the sentencing judge noted, Jackson’s counsel submitted that the terms on which he pleaded guilty were an indication of a desire by him to have the matter cleared up ‘rather than raise arguments as to the extent of [his] trafficking involvement.’
Kaye JA went on to make findings as to Gobbo’s contribution to the terms on which Jackson presented his plea:
85The question, then, is whether Gobbo influenced Jackson to have the plea presented to the judge in the manner in which it was, namely, that he acted on behalf of the applicant, albeit that the supplier of the heroin was Person 1.
86As is apparent, that basis was different to the basis that Gobbo sought to persuade Jackson to adopt in pleading guilty. It did, however, have one element that was common to the advice given to Jackson by Gobbo, namely, that he should implicate the applicant in the offending with which he was charged, albeit that he did so in a manner different to that suggested by Gobbo. To that limited extent, and as properly conceded by senior counsel for the respondent, I conclude that the advice that Gobbo gave to Jackson did contribute to Jackson’s plea being put on the basis that the applicant was implicated in the offending with which Jackson was charged, in that Jackson was acting on his behalf in committing that offending.[14]
[14]Reasons, [85]–[86].
The applicant did not adduce evidence before Kaye JA as to why Jackson was not called to give evidence at trial. Kaye JA found that nonetheless if the applicant had sought to call Jackson to give evidence on his behalf at the trial (as to events on 13 and 18 November 1997), Jackson’s evidence would have been vulnerable to attack on the basis that that evidence was inconsistent with the agreed basis upon which he had pleaded guilty.
His Honour went on to consider whether the fact that Jackson did not give evidence on the applicant’s trial had an impact on the trial. His Honour noted first that the applicant was charged with trafficking between 11 September 1997 and 18 November 1997. Jackson was involved in transactions which did not commence until 22 October 1997. Next, the trafficking charge against the applicant encompassed three other quantities of heroin beyond those involved in the transactions between Jackson and the undercover police operative. More fundamentally, the evidence against the applicant was overwhelming:
98On 12 November 1997, Jack Jones contacted Jackson and requested to purchase 12 ounces of heroin from him. At 11:50 am, Jackson and the applicant were observed to meet in Deer Park. At the conclusion of the meeting, Jackson contacted Jack Jones and said he could supply 12 ounces of heroin, and that the price would be $7,000 per ounce.
99On the following day, 13 November, Jackson met the applicant in Boundary Road, Derrimut. They then drove together, in the applicant’s vehicle, to a grassed area, where the applicant placed an item at the base of a tree. At 10:20 am, surveillance officers followed Jackson to the Fitzroy Gardens, where Jackson met Jack Jones, who purchased two ounces of heroin from Jackson for $15,000. Jackson and Jack Jones then drove to the tree in Truganina, where Jackson located the three ounces of heroin and sold two ounces to Jack Jones. At the time, the applicant was parked nearby.
100After Jack Jones left the scene, the applicant was observed to collect Jackson and return him to East Melbourne, where Jackson’s car was parked. The applicant was then followed by surveillance officers to the Merton Street Centre, where he placed an item under a rock. Subsequently on the same day, the investigators found two Berocca containers in the wall of the shed at the Merton Street Centre, which contained five packages of white compressed powder.
101On 18 November 1997, at 10:45 am, the applicant was observed to drive to James Street, Laverton North, where he placed an item under a rock. Investigators who subsequently attended found that the item weighed 37.4 grams. Later on the same day, at 4:45 pm, Jackson and Jack Jones attended the Merton Street Centre. The applicant arrived shortly afterwards and had a brief conversation with Jackson. The applicant then travelled to the shed, where he was observed to place a white bag in bushes nearby. Jackson and Jack Jones then attended the Merton Street Centre. Jack Jones remained in the vehicle. Jackson met the applicant, who indicated to him the white bag, which Jackson collected. Jackson then returned to Jack Jones, who purchased the nine ounces of heroin contained in the bag, in exchange for $67,500.
102In those circumstances, and in view of all of the evidence at the trial, it must be concluded that the evidence against the applicant was effectively overwhelming. If Jackson had been able to give evidence on the trial of the applicant in accordance with the statement that he made to the Royal Commission, and unimpeded by the agreed facts that were the basis of the plea of guilty advanced on his behalf, I do not consider that any such evidence by Jackson could have affected the verdict of the jury on the trial.[15]
[15]Reasons, [98]–[102].
This last conclusion was not challenged on the application before us and it is plainly correct. We would only add that because the applicant maintained at trial that Jackson was his supplier, Jackson’s evidence was potentially relevant to the whole of the applicant’s alleged trafficking and not simply relevant to the two sales made to the undercover police operative. We will return to the fact that Jackson’s evidence did not corroborate the applicant’s case more generally below.
The reinstatement application
As the respondent concedes, the Court may allow an earlier notice of abandonment of an application for leave to appeal to be withdrawn if the interests of justice require it and in the exercise of its inherent jurisdiction.
Whilst orders of this kind have historically been made only in limited circumstances,[16] the residual discretion of the Court may potentially be enlivened by evidence of a miscarriage of justice.[17]
[16]See the discussion in R v McNamara (No 2) [1997] 1 VR 257.
[17]Tognolini v The Queen (No 2) [2012] VSCA 311; Grey v The King [2024] VSCA 75.
For present purposes, we are prepared to assume, but do not decide, that the circumstances of this case potentially enliven that discretion.
We are not persuaded however that the interests of justice require the applicant’s earlier appeal to be reinstated.
First, the essence of the application is that the applicant should be permitted to agitate fresh grounds of appeal based on fresh evidence. The Legislature has provided a vehicle which enables those grounds to be agitated before the Court by way of specific provision for second and subsequent appeals. Refusal of the reinstatement application will not deprive the applicant of a vehicle to agitate his complaints.
Secondly, the provisions of the statutory scheme regulating second and subsequent appeals to this Court provide a considered set of checks and balances governing the grant of leave to appeal in circumstances of the kind upon which the applicant relies. It is the intention of the Legislature that this scheme be applied to cases of this kind and this Court should give effect to that intention.
The conflict of interest determination
Question 3 referred to Kaye JA asked whether Gobbo breached any professional duties owed to the applicant, or was in conflict, in her role as the applicant’s legal practitioner and her role as the legal practitioner for Jackson and other co-accused.
Kaye JA stated the relevant legal principles governing his answer to question 3 as follows:[18]
105It is a fundamental principle that, in acting for and on behalf of a client, a lawyer assumes a fiduciary duty to the client, which requires the lawyer to act at all times in the best interests of that client.[19] As such, the lawyer is required to act in the interests of the client to the exclusion of the lawyer’s own personal interests.[20]
106In a case in which a legal practitioner acts for more than one client interested in the particular case, the legal practitioner must be astute not to be placed in a position where there is a conflict of interest between representing each of the clients.[21]
107A further important aspect of the fiduciary duty is that the legal practitioner must maintain the confidentiality of any communication with the client, subject, of course, to the proviso that that duty of confidence does not apply to communications relating to the existence or likelihood of the commission of a crime or serious civil wrong.[22]
108In addition, a lawyer should not act for a client where, due to a past or current relationship between the lawyer and another person, or some other function of the lawyer, the lawyer’s role in acting for the client might undermine confidence [in] the due administration of justice.[23]
[18]Reasons, [105]–[108] (citations in original).
[19]Visser v Director of Public Prosecutions [2020] VSCA 327, [104]–[105] (McLeish, Emerton and Osborn JJA).
[20]AB & EF v CD [2017] VSC 350, [112]–[113] (Ginnane J); Gavanas v The Queen [2022] VSCA 271, [46] (Kyrou, McLeish and Kennedy JJA).
[21]Beach Petroleum NL v Kennedy & Ors (1999) 48 NSWLR 1, 47–48, [196]–[198] (Spigelman CJ, Sheller JA and Stein JA); Mills v The Queen [1995] 1 WLR 511, 523; Clarke & Ors v The Queen (1996) 91 A Crim R 46, 71 (Cox J).
[22]Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434, 445–6 (Gummow J).
[23]R v Szabo (2000) 2 Qd R 214, 215–16 (de Jersey CJ), 217–19 (Davies JA), 227 [57], 234 [80] (Thomas JA) (‘Szabo’); Karam [2020] VSC 808, [464] (Osborn JA); compare Ismail-Zai v The State of Western Australia [2007] WASCA 150 [30]–[32] (Steytler P).
Counsel’s duty to avoid a conflict of interest arising from the different interests of clients extends to avoiding potential conflicts. In accordance with general principle, counsel’s fiduciary duty prevents counsel from acting on behalf of a client ‘in circumstances in which there is a conflict or a real or substantial possibility of a conflict between [their] personal interests and those of the persons whom [they are] bound to protect.’[24]
[24]Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 103 (Mason J).
In Boardman v Phipps, Lord Upjohn explained the notion of possible conflict in the following terms:
The phrase ‘possibly may conflict’ requires consideration. In my view it means that the reasonable man looking at the relevant facts and circumstances of the particular case would think that there was a real sensible possibility of conflict; not that you could imagine some situation arising which might, in some conceivable possibility in events not contemplated as real sensible possibilities by any reasonable person, result in a conflict.[25]
[25][1967] 2 AC 46, 124.
Kaye JA made the following findings with respect to Gobbo’s role in acting for Jackson.
113It is clear that, at the time at which Gobbo advised Jackson that he should plead guilty on the basis that the applicant, and not Person 1, was the supplier of heroin to him, Gobbo was then in a position of conflict of interest in continuing to act for the applicant. At that point, she should have advised the applicant that he should seek separate representation. There is no evidence that such advice was given to the applicant.
114Based on the evidence given by Jackson, it is apparent that the advice given to him by Gobbo took place eight months after his arrest, that is, in July 1998. Solicitor 1 (and thus Gobbo) ceased to act for the applicant on 26 August 1998, when the applicant terminated Solicitor 1's retainer and instructed Messrs Pryles & Defteros to act on his behalf. The applicant has not maintained that at any time between the date on which Gobbo advised Jackson as to how he should plead guilty, and the date on which Solicitor 1 (and thus Gobbo) ceased to act for the applicant, Gobbo performed any professional work on behalf of the applicant, which would have been affected by the conflict of interest that had arisen from the advice that she had given to Jackson.
115At the time at which Gobbo accepted the brief to act on behalf of the applicant in May 1999, and acted for him (as junior counsel to Mr Sheales) up to and including the time of his conviction on 27 September 1999, Jackson's criminal proceeding had been completed. It was not put that, in acting for Jackson, or advising him, Gobbo was in receipt of any confidential information, which might have precluded her acting for the applicant on his trial.
116It may be readily accepted that most members of counsel would have eschewed accepting a brief to act on behalf of the applicant on his trial, in circumstances in which they had given advice such as that which Gobbo gave to Jackson. However, the fact that Gobbo had given that advice to Jackson did not, in any way, constrain her from acting in the best interests of the applicant when she accepted and held the brief to appear on his behalf on his trial. In acting on behalf of the applicant at that trial, Gobbo did not breach any duty, nor was she in conflict of any duty, that she owed to Jackson.
117In essence, then, there was no conflict of interest in Gobbo acting as junior counsel on the trial of the applicant arising from the fact that she had previously acted as legal practitioner for, and given advice to, Jackson.[26]
[26]Reasons, [113]–[117].
The applicant now seeks leave to appeal the finding that in acting as junior counsel on the trial of the applicant, Gobbo was not in conflict as a result of her earlier role as legal practitioner for Jackson.
The applicant submits that if it is accepted that a conflict originally existed when Gobbo was a solicitor acting for Jackson (as Kaye JA found) this conflict had not resolved by the time she accepted the trial brief for the applicant.
The respondent submits that Jackson’s criminal proceedings had concluded before the applicant’s trial. Gobbo no longer acted for Jackson and Jackson did not have an interest adverse to the applicant or any interest in the applicant’s trial. Gobbo’s duty to act in Jackson’s interests had ended when she ceased acting as Jackson’s solicitor.
Analysis of the alleged conflict of interest
There was no direct conflict involved in Gobbo acting for the applicant subsequent to Jackson’s conviction. Nonetheless, in some circumstances, a prior retainer may give rise to a potential conflict of interest in subsequent proceedings. Thus, if a co-accused whom Gobbo had advised were called to give evidence at the trial of another accused, a conflict could arise if the advice Gobbo gave was put in issue by the witness.
Gobbo could not appear for the applicant if to do so raised a ‘real or substantial possibility’ of conflict between her personal interest as previous advisor to the co-accused and the interests of the applicant.
Hypothetically, such a conflict could arise if Jackson gave evidence and sought to explain away aspects of the statement of facts agreed on his plea by reference to the advice given to him by Gobbo. In these circumstances, Gobbo herself would potentially become a relevant witness when acting as counsel for the accused. In turn, Gobbo’s own interest as a witness would potentially conflict with the interest of her client.
The fundamental difficulty facing the applicant in the present case, however, is that at the time Gobbo appeared for the applicant at trial, there was no real or substantial prospect that the terms of her previous advice to Jackson could be relevant to the applicant’s defence. That prospect could only have arisen if Jackson were called as a witness or if the possibility of this occurring were real or substantial.
Neither of these circumstances eventuated. First, although Jackson had pleaded and been convicted and sentenced, he was not called as a witness for the defence.
Secondly, no evidence has been adduced from Mr Sheales or the applicant that there was any prospect that Jackson would be called to give evidence at the trial. Whilst time has elapsed, if there was a realistic forensic benefit to be derived from such evidence, we would expect that benefit to have been identified at the time of trial, and evidence as to why Jackson was not called to have been produced to this Court.
There were, on the other hand, a number of other reasons apart from the content of the facts to which Jackson agreed on his plea, which might hypothetically have affected the choice whether to call him as a witness on the trial. These included matters such as the general experience of the courts that neither accomplices nor heroin addicts are particularly reliable witnesses.[27]
[27]Jackson deposes in his evidence to the mental health difficulties he had whilst in custody on remand prior to his plea.
Thirdly, it is unsurprising that there is no evidence that there was a realistic prospect Jackson would have been called as a witness but for the agreed facts on the basis of which he pleaded. On the one hand, the applicant’s overarching narrative at trial was that Jackson was the applicant’s ongoing supplier of drugs over an extended period of time and that this fact was fundamentally explanatory of the whole course of conduct which was observed and recorded by police. On the other hand, Jackson’s evidence did not cover the full period of the alleged trafficking nor the full quantity of the drugs in issue and did not corroborate the applicant’s case with respect to Jackson’s fundamental role in the course of events upon which the prosecution relied.
The continuing primacy of the role attributed to Jackson by the applicant is exemplified in the following passages from the applicant’s evidence at trial:
Can you recall when the first time you attended Dohertys Road was?---It would’ve been about January because – in January ’97.
Have you ever yourself placed drugs at Dohertys Road?---No, Your Honour, I haven’t.
What were you doing there?---I was getting it from there. You see, when I – I’ve known Darren for many years, and (indistinct) got together, and when I’m needed – I mean, I wasn’t a heavy user like an everyday thing. I just – you know, once a week or once a fortnight or whatever and I knew that – Darren told me where to go and grab it and then once I got it I’d pay him either that day if I caught up with him or during the week.
What’s the largest quantity of drugs that you ever took from Dohertys Road?---Just .5 grams.
This evidence sought to respond to police evidence of the applicant’s activity at Dohertys Road on 11 and 19 September 1997 and 2, 3, 7, 16, 22, 23, 24, 26, 27, 29 and 31 October 1997.[28] All these dates precede the November activity in respect of which Jackson gave evidence on this application.
[28]Summarised at [19] above.
Similarly, at trial, the applicant sought to explain the police evidence as to his activity at the Merton Street Centre on 30 October 1997 and 3, 4, 6, 13 and 18 November 1997[29] by reference to Jackson’s role as his supplier.
[29]Summarised at [19] above.
Did you ever obtain – did you ever attend – we’ve seen on the video you went to the Victorian Baseball Centre on occasions?---Yes.
Did you ever place drugs there?---No, I didn’t.
What were you doing there?---Again I was picking up from there.
Whose drugs did you understand them to be?---Darren and his crew.
What’s the largest amount of drugs that you ever took on one occasion from the baseball centre?---3.5 grams as I understand now, yeah.
Did you – on how many occasions can you recall doing that? ---About four.
Would you use those drugs yourself?---Not all of it.
When you say not all of it, what would happen to the remainder? ---I would share it with Tracey. We sort of went halvies because we’re paying – I was paying $150 for .5 gram of a rock and the price was for 3.5 $1250 getting off Darren for $1000.
…
Now when was the first – how did you first come to know about the baseball centre?---Well, Darren told me. We went for a drive because he – he started feeling paranoid about where he was going to the Dohertys Road one. He just wanted to change it. Like, he always changed his places every now and then.
At trial, the applicant gave similar evidence with respect to his observed attendance at premises in James Street.
Now, who have you attended at James Street with?---Darren.
And why did you attend there?---Darren – Darren used to meet his suppliers there. I remember meeting some guy in a – in a silver Saab there once, then someone else, and they would give me a sample and I would – I would snort it and then, if it was good, he’ll – he’ll – he would have got it off him.
HIS HONOUR: You were sort of a tester?---At that – yeah, at that time, yes.
This evidence sought to respond to police evidence as to the applicant’s hiding of drugs at James Street on 18 November 1997.[30]
[30]Summarised at [19] above.
It follows that although Jackson might have given evidence at the applicant’s trial to the effect that the applicant was present at the time of the two sales to the police undercover operative for ‘protection’, nonetheless Jackson’s evidence would not substantially corroborate the applicant’s case at trial unless Jackson supported the applicant’s explanation for police observations on some 30 other occasions (including occasions both on which the applicant was present and occasions on which drugs were found in hiding places in his absence), and in particular, corroborated the fact that the applicant was only present at Dohertys Road, the Merton Street Centre and James Street because Jackson was his supplier of small quantities of drugs.
Jackson has never given evidence supporting this scenario either before the Royal Commission into the Management of Police Informers (‘the Royal Commission’) or on the present application. It was open to adduce evidence from Jackson in this regard under cover of s 128 of the Evidence Act 2008 upon the hearing of the reference determination. No such evidence was put forward. Such evidence would of course totally subvert Jackson’s case on his plea which was that he was a heroin addict who was only involved in the ultimate part of the events in issue in order to obtain drugs for his own use.
Fourthly, the applicant’s evidence attributing an overriding role to Jackson as his supplier was palpably false. It was inconsistent with the sequence of activities observed and recorded by the police and the circumstantial evidence as a whole including the ongoing finding of drugs hidden by the applicant at various locations and matters such as the discovery of drugs in a secret compartment within the applicant’s van and the discovery of scales and other drug trafficking paraphernalia at the applicant’s mother’s home. The strength of the prosecution case was such that, on his sentence appeal, Brooking JA described the applicant’s account as ‘a cock-and-bull story’.[31] On the reference determination, as we have already noted, Kaye JA found that if Jackson had been able to give evidence explaining the applicant’s presence at the time of the sale of drugs to the undercover police operative, such evidence would not have affected the verdict of the jury on the trial. We agree with both these conclusions.
[31]R v Arnautovic [2001] VSCA 34, [10].
It follows that we do not accept that it has been shown that there was any realistic prospect that Jackson would be called by the defence upon the applicant’s trial in circumstances where:
(a)no evidence has been adduced from Mr Sheales or the applicant that there was any prospect Jackson would be called at trial;
(b)any such evidence might explain the applicant’s actual presence at the time of the sale of drugs to the undercover operative but it could not explain away the prosecution case as a whole and calling Jackson would carry with it the obvious and significant risk that he would not back up the applicant’s evidence as a whole; and
(c)the applicant’s evidence as a whole was palpably false.
It is only if there were a real or substantial prospect that Jackson would be called as a witness and that his potential evidence was impacted by the statement of facts agreed to by Jackson upon his plea, that Gobbo’s position might be said to have involved a conflict because of the advice that she had given to Jackson to attribute blame to the applicant (in a general sense) when she was acting as Jackson’s solicitor. In the absence of such a prospect, Gobbo was not in a position of conflict of interest.
The applicant relies upon the predecessor to r 101(m) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 which provided that a barrister must refuse a brief if ‘the barrister has already discussed in any detail (even on an informal basis) with another party with an adverse interest in the matter the facts out of which the matter arises’.[32] This rule is intended to avoid conflicts of interest of the type in issue in this case but does not resolve the question of whether a conflict of interest in fact arose in the unique circumstances with which we are concerned. At the time of the applicant’s trial, Jackson was not a party to the proceeding. Nor did he have an ‘adverse interest’ in the applicant’s trial.
[32]Rule 98 of the Practice Rules of the Victorian Bar, 2 February 1998.
Accordingly, we would not grant leave to appeal Kaye JA’s finding that there was no conflict of interest in Gobbo acting as junior counsel on the trial of the applicant arising from the fact that she had previously acted as legal practitioner for, and given advice to, Jackson.
The application for leave to bring a second appeal
The applicant seeks leave to bring a second appeal pursuant to s 326A of the Criminal Procedure Act 2009. Under that provision a person convicted of an indictable offence who has exhausted their right of appeal against conviction may bring a second or subsequent appeal to this Court if the Court grants leave to do so.
Section 326C(1) provides that the Court may grant leave to appeal if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
Evidence is ‘fresh’ if it was not adduced at the trial of the offence; and it could not, even with the exercise of reasonable diligence, have been adduced at the trial.[33] Evidence is ‘compelling’ if it is reliable; substantial; and either highly probative in the context of the issues in dispute at the trial of the offence; or it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[34]
[33]Criminal Procedure Act 2009, s 326C(3)(a).
[34]Criminal Procedure Act 2009, s 326C(3)(b).
The applicant’s proposed ground of appeal (which we have set out above) is founded on allegations of misconduct by Gobbo in two respects. The facts which are asserted by particulars in support of the proposed appeal relate first to Gobbo’s status and role as a police informer at the time when she represented the applicant at trial, and secondly, to Gobbo’s role as advisor to the applicant’s co-accused Jackson.
The evidence relating to Gobbo’s role and status as an informer is fresh. None of the facts relating to Gobbo’s role as found by Kaye JA were known to the applicant at the time of his trial. The evidence was not adduced at the trial and it could not, even with the exercise of reasonable diligence, have been adduced at the trial.
The situation is not however so clear with respect to Gobbo’s actions as advisor to Jackson. Solicitor 1’s firm was jointly retained by the applicant and Jackson in the preliminary stage of the proceedings. In his evidence on the reference determination, Jackson deposed that he was aware Solicitor 1’s office also acted for the applicant and it may be inferred that the applicant was aware Solicitor 1’s firm acted for Jackson.
The argument that the evidence of Gobbo’s actions as advisor to Jackson is ‘fresh’ rests on an assumption that the applicant was not aware of those actions and could not by the exercise of reasonable diligence have adduced evidence of them at trial. There is no positive evidence to that effect. In particular, there is no evidence that the applicant was unaware Gobbo had given Jackson preliminary advice relating to his options with respect to pleading guilty. Nor is there evidence that the applicant was unaware of the general tenor of that advice.
Despite the fact that the advice was confidential, we doubt that it can be assumed Jackson did not discuss with the applicant the terms of Gobbo’s advice to him. After all, Jackson rejected that advice, and in particular, rejected the suggestion that he should name the applicant as his supplier. Further, Jackson’s evidence is that the applicant was his friend. The only evidence as to the nature and extent of contact between the two when both were on remand is contained in Jackson’s statement to the Royal Commission.
When I had recovered, I was placed back to mainstream and I told my friend that I had never rolled on him or anyone else, that I never had any meetings with anybody. My friend stated that he will see at the end because everything will come out. From that day on, I thought I was going to get a knife in the back.
Nonetheless, in its written case the respondent concedes that Jackson’s evidence of Gobbo’s actions as his advisor is fresh evidence and we shall proceed on that basis.
In these circumstances, the critical question is whether the evidence is ‘compelling’ which relates to:
(a)Gobbo’s status and role as a police informer; and
(b)Gobbo’s advice to Jackson.
Section 326C(3)(b) defines ‘compelling’ in the following terms:
(3)In this section, evidence relating to an offence of which a person is convicted is—
…
(b)‘compelling’ if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
In Roberts v The Queen,[35] the Court referred to the decision of the High Court in Van Beelen v The Queen[36] and held:
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.[37]
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
[35](2020) 60 VR 431, 441 [46]–[47] (Osborn and T Forrest JJA and Taylor AJA) (‘Roberts’). See also Bromley v The King [2023] HCA 42, [8] (Gageler CJ, Gleeson and Jagot JJ), [218] (Edelman and Steward JJ).
[36](2017) 262 CLR 565.
[37](2017) 262 CLR 565, 577 [28] (citations omitted); see also R v Keogh (No 2) (2014) 121 SASR 307,
338–9 [112].
In the present case, the evidence as to Gobbo’s role as informer, and alternatively, as advisor to Jackson, is conceded to be reliable and substantial. The issue is whether it is compelling in the sense required by s 326C(3)(b)(iii). In particular, is the evidence highly probative in the context of the issues in dispute at the trial: s 326C(3)(b)(iii)(A)?
The applicant submits that the evidence of Gobbo’s misconduct first as an informer and secondly as counsel with a conflict of interest deriving from her prior advice to Jackson, is evidence that is ‘highly probative [of] the issues in dispute’ because it shows that the applicant did not receive a fair trial.
The applicant relies on the decision of this Court in Roberts that ‘the concept of the issues in dispute at the trial extends to the underlying question of whether the applicant received a fair trial according to law.’[38]
[38]Roberts (2020) 60 VR 431, 453 [91] (Osborn and T Forrest JJA and Taylor AJA); Karam v The King [2023] VSCA 318, [169] (Beach, McLeish and Kennedy JJA) (‘Karam’).
In Karam v The King, the Court observed:
We accept that this interpretation gives a broad meaning to the expression ‘issues in dispute at the trial’. However, it would be surprising if the provision for second and subsequent appeals did not allow for an appeal where highly probative fresh evidence brings the fairness of a trial into question, unless it can be shown that, had the evidence been presented at trial, it would have eliminated or substantially weakened the prosecution case. That construction would have the anomalous result that the availability of an appeal seeking to establish serious departures from proper trial processes, which by definition amount to a substantial miscarriage of justice in and of themselves, would depend on demonstrating a further matter, namely a substantial effect of those departures on the strength of the prosecution case.[39]
[39]Karam [2023] VSCA 318, [170].
The right to independent counsel is a fundamental element of the adversary system under our system of criminal law. The importance of this right is reflected in the observations of the High Court upon revoking special leave to appeal with respect to this Court’s decision requiring notification to convicted persons of Gobbo’s role as an informer.[40] The confidence of the courts and of the public in the proper discharge of counsel’s duty to the client and to the court depends upon the independence of counsel.
[40]AB v CD [2018] HCA 58 [10].
In R v Szabo, de Jersey CJ said:
Litigants see members of the bar conducting themselves as officers of the Court, owing a special duty to the Court. Just as the Court expects fearlessly independent presentation by counsel, so the client expects that subject to counsel’s supervening duty to the Court, counsel will with fearless independence promote the client’s cause.[41]
[41][2001] 2 Qd R 214, 215.
The maintenance of the independence of counsel involves significant considerations of the public interest. In Moti v The Queen, French CJ, Gummow, Hayne, Crennan and Kiefel JJ said:
as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, ‘the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike’. Secondly, ‘unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice’. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.[42]
[42](2011) 245 CLR 456, 478 [57] (citations omitted).
It follows that the absence of independent counsel may result in an unfair trial. If there is a ‘failure to observe the requirements of the criminal process in a fundamental respect,’ it will be no answer to the defective nature of the process that a particular verdict was inevitable on the evidence.[43]
[43]Baini v The Queen (2012) 246 CLR 469, 479 [26], 481–2 [33] (French, Hayne, Crennan, Kiefel and Bell JJ).
The applicant also submits that the failure to disclose the evidence of Gobbo’s misconduct denied the applicant the opportunity to pursue lines of defence at trial.
The respondent submits that Gobbo’s role in the applicant’s trial was minimal and essentially irrelevant. More particularly, Gobbo appeared on only seven days of the trial and took no active part in the cross-examination of prosecution witnesses or in leading evidence from the applicant. We do not accept this submission. The fact is that Gobbo fulfilled the role of junior counsel and made a substantial appearance at the trial. It is enough that she may have influenced the course of proceedings in discussion with her leader and the applicant.
The real issue in this case is whether, as the applicant submits, there is evidence that Gobbo was guilty of misconduct which robbed her of her capacity to act as independent counsel at the time of the applicant’s trial. We will address that question by reference to the particulars in the proposed ground of appeal,[44] according to the two subject areas in respect of which the question arises.
[44]See [12] above.
Gobbo’s status and role as an informer
The particulars of the proposed ground relating to Gobbo’s status and role as an informer are as follows:
(i)Gobbo was junior counsel in the applicant’s trial;
(iv) at material times Gobbo was a police informer;
(v)the fact that Gobbo was a police informer was not disclosed by Victoria Police;
(vi)Gobbo breached her ethical obligations as a barrister.
There is however no suggestion that Gobbo either supplied evidence to Victoria Police which bore on the applicant’s case or provided information to Victoria Police relating to the substance or conduct of the applicant’s defence. Indeed, there is no evidence that Gobbo had informed on any of her clients at the time of the applicant’s trial.
This aspect of the applicant’s case ultimately turns upon the bare fact of Gobbo’s status as an active registered informer at the time of the applicant’s trial.
The applicant’s written case contends
A fair-minded, informed observer would be aware that:
i.The applicant selected Gobbo, with whom he had a previous solicitor–client relationship of trust, as trial counsel.
ii.Prior to Gobbo accepting the brief, she was offering information to police in relation to her previous employer.
iii.Her previous employer had previously acted for the applicant in the same matter.
iv.Contemporaneously with Gobbo’s acceptance of the brief, Victoria Police registered her as an informer.
v. None of (ii) and (iv) above was disclosed to the applicant;
vi.Gobbo appeared as junior counsel for the applicant at his trial; notwithstanding she played a limited active role.[45]
[45]Citing Reasons, [64].
The evidence is that insofar as Gobbo offered to inform and did in fact provide information to Victoria Police, with respect to Solicitor 1, that informing was restricted to matters relating to allegations of money laundering.
The evidence does not establish any connection whatsoever between that informing and the applicant’s case. The coincidence of the informing and the applicant’s retainer is not sufficient to create an appearance of conflict once this fundamental disconnection is appreciated. The fact that Solicitor 1 had acted for the applicant does not create any relevant nexus between the informing and the applicant’s case.
The applicant invited this Court to speculate as to the possibility of incidental communication relating to the applicant in the course of informing with respect to Solicitor 1. We accept that the evidence in other cases has demonstrated by reference to informer contact reports that the relationship between informer and handler may involve a broad ranging provision of information.[46] In the present case however, there is no evidence that this happened.
[46]See eg Karam v The King [2022] VSC 808 (Osborn JA).
In answer to question 4 of the matters referred to Kaye JA, his Honour found:
Question 4 asks whether Gobbo informed on the applicant to Victoria Police. The short answer to that question is that the applicant does not put, and there is no evidence, that Gobbo informed on the applicant to Victoria Police.[47]
[47]Reasons, [141].
No appeal has been directed to this finding. It squarely reflects the evidence in this case and the applicant is bound by it. This is not a case where Gobbo’s conduct as an informer gave rise to a line of defence or affected the conduct of the defence.
The bare fact of Gobbo’s registration as a police informer and activity with respect to a person other than the applicant does not raise the possibility that an ordinary fair-minded citizen in the position of the applicant would entertain a reasonable suspicion that justice might have miscarried because of misconduct by Gobbo.
First, the hypothetical ordinary fair-minded citizen is taken to have knowledge of all relevant circumstances, and in particular, the limitation of the extent of the informing and the fact that Gobbo did not inform on the applicant.
Secondly, the ordinary fair-minded citizen would understand that there is a substantial public interest in encouraging and protecting the identity of police informers.[48] That interest recognises that the use of informers is a necessary part of effective policing and that the protection of the anonymity of informers is necessary both to protect the safety of the informer and to encourage others to inform.
[48]See the cases cited in AB v CD [2017] VSCA 338, [45]–[51] (Ferguson CJ, Osborn and McLeish JJA).
It follows that the fact of informing is not of itself to be regarded as improper or contrary to the public interest.
Thirdly, if this view were not accepted then no lawyer could ever become registered for the purpose of anonymous informing with respect to serious offending, without creating a situation in which they could not act against the Crown thereafter (or at least for the foreseeable future) without disclosing to the criminal world their history and status as a registered informer. This would be so despite the fact that the serious offending in issue, eg child pornography, drug trafficking, terrorism, may have no connection whatsoever with the lawyer’s subsequent retainer. Such an outcome would be anomalous and contrary to the public interest. These considerations further favour the conclusion that the hypothetical ordinary fair-minded citizen would have regard to the particular circumstances of the case in determining whether there is a reasonable suspicion that justice might have miscarried and would not reach a conclusion by reference to the label ‘registered informer’ or any other shorthand method of reasoning.
Accordingly, we are not persuaded that the evidence in the present case concerning Gobbo’s status and role as a registered informer might cause an ordinary fair-minded citizen in the position of the applicant to entertain a reasonable suspicion that justice might have miscarried on account of that evidence.[49] In our view, the evidence as to the role and status of Gobbo as a registered informer was not highly probative of the question whether the applicant’s trial was fairly conducted in law. The evidence therefore could not be regarded as ‘compelling’.
[49]Karam v The King [2023] VSCA 318, [347]; R v Szabo [2001] 2 Qd R 214, 215, 228 [60].
Gobbo’s involvement with Darren Jackson
Particulars (i), (ii), (iii) and (vi) relate to Gobbo’s involvement with the co-accused Jackson.
(i)Gobbo was junior counsel in the applicant’s trial;
(ii)at relevant times, Gobbo represented co-accused Darren Jackson.
(iii)Gobbo influenced Darren Jackson to falsely name the applicant as the supplier of heroin that was involved in his dealings with an undercover police operative.
(vi) Gobbo breached her ethical obligations as a barrister.
The matter was argued more broadly, however, rather than by reference to the particulars. The applicant’s contention was simply that Gobbo’s advice to Jackson contributed to the implication of the applicant in the offending described in the statement of agreed facts upon which Jackson pleaded and that this advice gave rise to a conflict of interest that precluded her from acting for the applicant in his trial.
For the reasons which we have given with respect to the application for leave to appeal with respect to the reference determination, we do not accept that the evidence relied on establishes that Gobbo was in a position of conflict of interest. Accordingly, we are not satisfied Gobbo breached her ethical obligations as a barrister towards the applicant. Nor are we satisfied that the evidence relating to her involvement with Jackson rendered the applicant’s trial unfair. It follows that the evidence as to Gobbo’s advice to Jackson is not highly probative of facts in issue at the trial and is therefore not ‘compelling’ within the meaning of s 326C(3)(b) of the Criminal Procedure Act.
Finally, we note that the evidence does not support proposed particular (iii) in any event. On his plea, Jackson did not name the applicant as the supplier of the heroin that was involved in his dealings with an undercover police operative. Conversely, to have done so would not have been ‘false’. The evidence as a whole makes clear that the applicant was the supplier of the heroin in issue. As we have already noted, the applicant’s account at trial of his role was palpably false.
Conclusion
The application for leave to appeal the reference determination should be refused. The application for leave to withdraw the notice of abandonment of application for leave to appeal against conviction and reinstatement of such application should be refused. Leave to bring a second appeal should also be refused.
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