Arnautovic v The King
[2023] VSCA 284
•24 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0077 |
| DRAGAN ARNAUTOVIC | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McCann JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 October 2023 and 10 November 2023 |
| DATE OF JUDGMENT: | 24 November 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 284 |
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CRIMINAL LAW – Application for production of documents pursuant to s 317 of the Criminal Procedure Act2009 – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether there is legitimate forensic purpose – Objections to production on the basis of public interest immunity – Inspection of documents – Claim of public interest immunity upheld – No utility in ordering production of the category of documents sought.
Criminal Procedure Act 2009 s 317, Evidence Act 2008 s 130.
Arnautovic v The King [2022] VSCA 280; Zirilli v The Queen [2021] VSCA 174; Zirilli v The Queen (2021) 287 A Crim R 407; Polimeni v The Queen [2022] VSCA 20; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Ryan v State of Victoria [2015] VSCA 353; Sankey v Whitlam (1978) 142 CLR 1; Alister v The Queen (1984) 154 CLR 404; Commonwealth v Northern Land Council (1993) 176 CLR 604.
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| Counsel | ||
| Applicant: | Mr J Connolly (10 October 2023) No Appearance (10 November 2023) | |
| Respondent: | No Appearance | |
| Chief Commissioner of Police | Ms S Flynn KC (10 October 2023, 10 November 2023) Ms M Isobel (10 October 2023, 10 November 2023) | |
Solicitors | ||
| Applicant: | Slades & Parsons Criminal Law (10 October 2023) -- (10 November 2023) | |
| Respondent: | No Appearance | |
| Chief Commissioner of Police | Victorian Government Solicitors’ Office | |
MCCANN JR:
Introduction
On 27 September 1999 the applicant, Dragan Arnautovic (‘the applicant’), was found guilty in the County Court of trafficking in a commercial quantity of heroin between 11 September and 18 November 1997. On 13 October 1999, he was sentenced to 12 years’ imprisonment with a non-parole period of nine years.[1]
[1]The applicant was erroneously sentenced as a serious drug offender. This error was corrected by the Court in the sentence appeal – R v Arnautovic (2001) 121 A Crim R 412. There was no other change to the sentence imposed at first instance. A conviction appeal that accompanied the sentence appeal was abandoned by the applicant prior to the hearing.
On 18 June 2021, the applicant filed his current application for leave to appeal this conviction. His application is brought as a second appeal pursuant to Part 6.4 of the Criminal Procedure Act 2009 (‘CPA’). In his written case and accompanying affidavit material he sets out evidence he asserts is fresh and compelling.
His proposed grounds of appeal relate to the conduct to his former legal representative, Nicola Gobbo. They are as follows:
Ground 1:Nicola Gobbo’s conduct amounted to a miscarriage of justice by, inter alia,
(a)depriving the applicant of competent and independent counsel; and
(b)breaching her professional duties to the applicant.
Ground 2:Victoria Police’s use of Nicola Gobbo as an informer amounted to an abuse of process.
Ground 3:Victoria Police’s failure to disclose its use of Nicola Gobbo as an informer denied the applicant a fair trial
Prior to the hearing of the applicant’s appeal, it became apparent to the Court that, in addition to a dispute with the respondent about whether the evidence the applicant relied upon was fresh or compelling, there was a dispute about its accuracy and admissibility.[2]
[2]Arnautovic v The King [2022] VSCA 280, [6].
In consequence, on 13 December 2022 the Court of Appeal ordered that the following eight questions be referred to the trial division for determination pursuant to s 319A of the CPA:
(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 to Victoria Police? If so, what information did she provide to police about the applicant?
(5)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 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?
(8)While Ms Gobbo acted for the applicant in his Carron/Hamadan matter:
(a)Did she facilitate Person 2’s co-operation 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?
The reference determination in respect of these questions remains to be listed for hearing. Ahead of that hearing the applicant sought production of material from the Chief Commissioner of Victoria Police (‘the Chief Commissioner’) by general application to the Court for orders for production pursuant to s 317 of the CPA (‘the s 317 application’). The Chief Commissioner agreed to the production of some of the documents sought (set out in paragraph 9 below). He objected to the remainder.
By the date of the hearing of the contested portion of the s 317 application the scope of the dispute had narrowed considerably. It was ultimately confined to documents relating to the involvement of Ms Gobbo in any assistance provided to Victoria Police (if any) by Person 2. Whilst I concluded that there was legitimate forensic purpose in the production of a category of documents relating to Ms Gobbo and Person 2, an inspection of the subject documents to assess a public interest immunity (‘PII’) claim by the Chief Commissioner revealed that none of the documents contained information within the scope of such a category. As there would be no utility in ordering the production of this category of documents, I have declined to order the production sought by the applicant. These are my reasons.
The s 317 application
On 28 July 2023, the applicant filed a s 317 application for the production of the following documents by the Chief Commissioner:
All internal documents, file notes, police notes (including any notes of interactions or dealings with), LEAP entries, correspondence with external parties, in their unredacted form, in relation to, or part of:
1. Mr Dragan Arnautovic;
2. Operation Carron;
3. Operation Hamadan;
4.In relation to the person referred to in the RCMPI as Person 2: whether he or she was a registered police informant; any documentation relating to the registration process; and the nature of Person 2’s assistance to police as an informer;
5.Dealings with Nicola Gobbo regarding the people criminally charged arising from Operation Carron and Operation Hamadan between 1996 and 2000;
6.The assistance Nicola Gobbo gave to police as a police informant between 1996 and 2000.
And specifically, the following documents, in unredacted form, exhibited by the Royal Commission into the Management of Police Informants:
7.Exhibit RC0008 Statement of Assistant Commissioner Neil Paterson;
8.Exhibit RC0066 Operation Carron final report;
9.Exhibit RC0080 Statement of Wayne Geoffrey Strawhorn.
The Chief Commissioner agreed to produce documents in categories 7, 8 and 9. On 23 August 2023 orders were made by consent.
In his submissions dated 9 October 2023, the applicant abandoned his application for documents in categories 1, 2, 3 and 5.
On 10 October 2023, the parties conferred at the hearing and developed the following single revised category of documents (‘the revised category’):
Police documents (including any notes of interactions, and/or statements or registration documents, if any) relating to whether, while Ms Gobbo acted for the Applicant in his Carron/Hamadan matter:
(a)she facilitated Person 2’s co-operation with the police (if any); and/or
(b)she provided ongoing assistance to the police in relation to Person 2.
Although formulated in consultation, the Chief Commissioner remained opposed to production of documents in the revised category.
Background – the offending, the conviction, and Ms Gobbo
On 18 November 1997, the applicant and Mr Jackson were at a baseball centre in the western suburbs of Melbourne to meet Jack Jones (‘Mr Jones’). Mr Jackson had previously arranged to sell nine ounces of heroin to Mr Jones. However, Mr Jones was a covert police operative.
In R v Arnautovic,[3] Brooking JA records what transpired as follows:
Jackson and the applicant were arrested shortly after the nine-ounce sale, near the baseball centre shed. A search of the shed wall revealed … a further nine ounces of heroin hidden inside the outer wall. A search of the applicant’s van, which he used on these occasions, revealed a secret compartment under it containing another three ounces of heroin.[4]
[3](2001) 121 A Crim R 412; [2001] VSCA 34.
[4]R v Arnautovic (2001) 121 A Crim R 412, 416 [10]; [2001] VSCA 34.
When interviewed, the applicant denied he was involved in trafficking. He said he was an occasional user of heroin and his supplier was Mr Jackson.
On the same day that the applicant and Mr Jackson were arrested, nine other people were arrested as part of two police operations, ‘Carron’ and ‘Hamadan’. [Redacted]
The applicant’s arrest was the culmination of ‘Operation Hamadan’. This operation had commenced in April 1997.
Mr Jackson and his activities had been the subject of ‘Operation Carron’. The two operations converged in approximately November 1997.[5]
[5]Applicant, ‘Amended Written Case’, 8 November 2021, [2.9].
In November 1997, the applicant instructed Ms Gobbo to act on his behalf. She was an employee solicitor at the time. Ms Gobbo appeared for the applicant in the Magistrates’ Court on 19 November 1997 and 3 December 1997. She ceased acting as his solicitor in August 1998.
Ms Gobbo appeared for Person 2 in the [redacted] Magistrates’ Court on [redacted] 1998 and on [redacted] 1999.[6]
[6][Redacted].
During the period Ms Gobbo acted for the applicant, she also appeared for Mr Jackson, including appearing on his behalf on 10 June 1998 in the Magistrates’ Court.[7]
[7]Applicant, ‘Amended Written Case’, 8 November 2021, [2.6].
On 13 October 1998, Mr Jackson pleaded guilty to one count of trafficking in a commercial quantity of heroin. He did so on an agreed statement of facts which cast the applicant[8] as Mr Jackson’s supplier.
[8]The applicant was not named.
The applicant pleaded not guilty. On 17 May 1999, Ms Gobbo was briefed as junior counsel in the applicant’s trial. The trial commenced on 30 August 1999. Ms Gobbo was led by Mr Damian Sheales of counsel. The applicant gave evidence in his trial. He stated that he was a user and Mr Jackson was his supplier.
On 4 September 2019, Mr Jackson provided a statement to the Royal Commission into the Management of Police Informants (the ‘RCMPI’).[9] He said that in 1997 his supplier was Person 1 and that he assumed that Person 1 was supplied by Person 2. [Redacted].
[9]This statement was exhibited at the RCMPI but not published on the RCMPI website. The statement was disclosed to the applicant on 20 September 2021.
Mr Jackson also told the RCMPI that he arranged for a person to be lookout for him at the baseball centre. He did not name this person in his evidence but stated that the lookout was arrested along with him on 18 November 1997. The applicant would have the Court infer that the lookout referred to by Mr Jackson was him. Mr Jackson further stated that he was told by Ms Gobbo to name the applicant as his supplier. Mr Jackson has stated that he continued to name Person 1 as his supplier. This would appear to be at odds with the agreed facts on Mr Jackson’s plea.
The applicant’s written case
The applicant argues that acting concurrently for the applicant and Mr Jackson is an instance of Ms Gobbo’s failure to provide the applicant with competent and independent counsel and also represents a breach of her professional duties. The applicant asserts that Ms Gobbo discouraged Mr Jackson from a version events that would exculpate the applicant, that Mr Jackson pleaded guilty on this basis and that this had the effect of stopping further police enquiry into the identity of the real supplier. Person 1 and Person 2 are, on this version of events, individuals who have escaped proper investigation. These assertions are contested by the respondent and are the subject of referral questions 3 and 8.
Submissions of the Applicant and the Chief Commissioner
Prior to the hearing of the matter on 10 October 2023, the Court had received the following documents from the applicant:
(a)General s 317 application (CCP); and
(b)Applicant’s Submissions dated 9 October 2023.
Of relevance to the application for production are the following documents filed by the applicant in his appeal:
(a)Notice of application for leave to appeal against conviction pursuant to s 326A of the Criminal Procedure Act 2009;
(b)Amended written case;
(c)Amended list of authorities and materials;
(d)Affidavit of Yvonne Kushnir dated 10 November 2021;
(e)Further affidavit of Yvonne Kushnir dated 20 January 2022 (with exhibits);
The Chief Commissioner filed the following documents ahead of the hearing on 10 October 2023:
(a)Open Submissions dated 22 September 2023;
(b)Open Affidavit of Detective Inspector Scott Wallace dated 21 September 2023;
(c)Confidential Submissions dated 22 September 2023; and
(d)Confidential Affidavit of Detective Inspector Scott Wallace dated 21 September 2023.
Neither the Chief Commissioner nor the applicant took issue with applicable principle in a contested application for production. The issue between them is the application of that principle to the facts and issues in this case.
Chief Commissioner’s submissions
The Chief Commissioner objects to production and argues that the application is ‘nothing more than a fishing expedition’ seeking ‘materials that the Applicant appears to hope might suggest to him some ground of appeal that he has not yet formulated’.[10]
[10]Chief Commissioner of Victoria Police, ‘Submissions of the Chief Commissioner of Police on the Applicant’s Section 317 Application’, 22 September 2023, [32].
The Chief Commissioner states that all the information provided by Ms Gobbo to Victoria Police about the applicant has already been disclosed to the applicant as part of a ‘General Disclosure’ package. This included two transcripts of recordings of meetings between Ms Gobbo and her police handlers where the applicant is mentioned. This, says the Chief Commissioner, constitutes ‘everything Ms Gobbo said about the Applicant to Victoria Police whilst she was a [registered human source]’.[11]
[11]Chief Commissioner of Victoria Police, ‘Submissions of the Chief Commissioner of Police on the Applicant’s Section 317 Application’, 22 September 2023, [38].
Of the revised category, I understood the Chief Commissioner to say that the status of Person 2 appeared to be irrelevant to the applicant, and that it was difficult to see how the material sought might assist the applicant in his grounds of appeal in any way.
Further, the only material that would be captured by the category would relate to Victoria Police’s engagement with Ms Gobbo in her capacity as a solicitor, acting for her clients in Operations Carron or Hamadan.
Applicant’s submissions
The applicant has, of course, not seen the documents or information he seeks. Nor has he been provided with the confidential submissions and affidavit filed by the Chief Commissioner. His submissions, written and oral, were necessarily confined. In them, he connects the revised category of documents he seeks to the role he suspects Person 2 may have had in the criminal activity leading to his convictions and the part he suspects Ms Gobbo may have played in facilitating Person 2’s assistance to police in relation to those convictions. The Court of Appeal has referred two questions relating to Person 2 and Ms Gobbo to the trial division for determination.
Applicable principle – s 317 and Legitimate Forensic Purpose
In Zirilli v The Queen,[12] Irving JR took the view that the principles relevant to a subpoena for production can be applied practically to the task of the Court in the determination of a s 317 application.[13]
[12]Zirilli v The Queen [2021] VSCA 174.
[13]Ibid, [57].
In an earlier decision of Zirilli v The Queen,[14] McLeish, Emerton and Weinberg JJA adopted guidance from the subpoena decisions of Holloway[15] and Lane[16] in a contested s 317 application. In particular, the Court accepted Cavanough J’s conclusion in Holloway that ‘the notion of “on the cards” … [is] a metaphor, and not a descriptor to be given a literal, and arithmetic, meaning, but to be approached as Kyrou J said [in Lane] “with flexibility and common sense”’.[17]
[14](2021) 287 A Crim R 407.
[15]Holloway v State of Victoria (Department of Justice) (2015) 73 MVR 145; [2015] VSC 526.
[16]State of Victoria (Department of Justice) v Lane [2012] VSC 328.
[17]Zirilli v The Queen (2021) 287 A Crim R 407, 425 [97]; [2021] VSCA 2.
Consistent with common sense and flexibility, the compulsory production process, whether it be by subpoena or an application for production, ‘cannot be dependent upon the party’s ability to prove the existence and content of a document when the party has reasonable grounds to believe that a document exists and seeks to obtain it by subpoena’.[18]
[18]Alister v The Queen (1984) 154 CLR 404, 451.
In Ragg v Magistrates’ Court of Victoria, Bell J observed that ‘a reasonable possibility’ test expressed ‘in more certain language … the “on the cards metaphor” in Alister v R’. He then went on the say:
In summary, an accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
The “reasonably possibility” test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider “the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue” and, more generally, “the circumstances as a whole”. In doing so, it is necessary to give a “broad interpretation” to the issues in the case or, to put it another way, the “parties’ respective cases should not be restrictively analysed.” It is also important to pay due regard to the fact that “[d]efence lawyers are in a better position than a judge to make an appraisal of the value of information contained.” Lastly, as Pincus JA said in R v Spizzirri: “courts should be careful not to deprive the defence of documents which could be of assistance to the accused”.[19]
[19]Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 323-4, [96]-[97]; [2008] VSC 1.
Decision on Legitimate Forensic Purpose
[Redacted].
Counsel for the Chief Commissioner points out that Ms Gobbo was not acting for the applicant on all of these dates. Further, she was not acting for the applicant, Mr Jackson or Person 2 at the time of the committal in September 1998 when Wayne Strawhorn first had contact with Person 2 because she was undertaking the bar reader’s course at that time.
Nonetheless, it appears from the material submitted to the Court by the applicant that, on [redacted], [redacted] and [redacted], Ms Gobbo was acting for the applicant and was involved in facilitating Person 2’s communication with police. Limited to the dates when the applicant was represented by Ms Gobbo in respect of his Hamadan/Carron matter, the category has legitimate forensic purpose. There is a reasonable possibility that information held by the Chief Commissioner would be of material assistance to the applicant in his appeal and the hearing of the questions referred by the Court of Appeal to the trial division for determination.
Public interest immunity
The Chief Commissioner claims PII in respect of any material that would be produced pursuant to the revised category. In written and oral submissions the Chief Commissioner recited the relevant statutory provisions and common law principle applicable to a determination of such a claim. There was no issue taken by the applicant with the law to be applied to the determination of the Chief Commissioner’s claim.
In his confidential submissions and in camera the Chief Commissioner argued the application of that principle to the revised category. [Redacted].
There is a question anterior to the determination of the Chief Commissioner’s claim; that is, whether the documents the subject of a PII claim should be inspected by the Court. According to authorities, inspection by the Court will not always be necessary.[20] Factors to consider will be:
The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents.[21]
[20]See, for example, Sankey v Whitlam (1978) 142 CLR 1 at 46; [1978] HCA 43; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 620; [1993] HCA 24; See also s 133 of the Evidence Act which provides that the Court may order that the document be produced to it and may inspect the document for the purpose of determining the question in respect of privileges under the Act.
[21]Alister v The Queen (1984) 154 CLR 404, 456-7; [1984] HCA 85.
These factors will generally be more acute in a criminal case in contrast with a civil dispute.[22]
[22]Sankey v Whitlam (1978) 142 CLR 1 at 42, 61-2; [1978] HCA 43; Alister v The Queen (1984) 154 CLR 404, 414; [1984] HCA 85; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 618; [1993] HCA 24.
Although the documents in this matter were described in the confidential affidavit of Detective Inspector Scott Wallace, I formed the view that the documents ought to be inspected by the Court. Following a request, 28 pages were delivered to the Court for inspection in the consideration of the Chief Commissioner’s PII claim.
Section 130 of the Evidence Act 2008
By reason of s 131A of the Evidence Act 2008, the Chief Commissioner’s PII objection to the production of documents is to be determined in accordance with s 130 of that Act.
Section 130(1) provides:
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
The documents inspected contain information that relate to matters of state.[23]
[23]See Evidence Act 2008 s 130(4).
In Ryan v State of Victoria,[24] Tate JA recognised that there ‘is considerable support in the authorities for the view that the principles governing PII under s 130 of the Act reflect those applicable at common law; what differences exist are of no practical significance’.[25]
[24]Ryan v State of Victoria [2015] VSCA 353.
[25]Ibid [58].
Both common law and s 130(1) require that a balance be conducted between the potential significance of the masked information to the applicant’s criminal case as argued in his written case against the public interest in maintaining confidentiality of information relating to a matter of state.
Consideration
[Redacted]. None of the documents inspected contained any information about Ms Gobbo in relation to Person 2. There was no information that could have any bearing on the applicant’s appeal, and there was therefore no value (potential or otherwise) to balance against the public interest claim of the Chief Commissioner to maintain confidentiality. None of the documents ought to be provided to the applicant.
Conclusion
The Chief Commissioner is bound to disclose any material that may come to light that is of relevance to the issues being litigated in the applicant’s appeal and reference determination. Counsel appearing for the Chief Commissioner confirmed this during the hearing of the matter.
Although the revised category was one with legitimate forensic purpose in the context of the applicant’s appeal, the documents inspected by the Court contained no information within the scope of that category. An order in the terms sought by the applicant would not result in the production of anything. To make such an order would be futile. As observed by Beach JA in Polimeni, ‘[c]ourts do not engage in acts of futility’.[26] In these circumstances, I decline to make an order for production of the revised category. Orders for production have previously been made by consent in respect of document categories 7, 8 and 9. The s 317 application is otherwise dismissed.
[26]Polimeni v The Queen [2022] VSCA 20, [36].
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