Arnautovic v The King - [2024] VSC 235

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0335

DRAGAN ARNAUTOVIC	Applicant
v
THE KING	Respondent

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JUDGE:	Kaye JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2024; Written submissions 7, 9 May 2024
DATE OF RULING:	10 May 2024
CASE MAY BE CITED AS:	Arnautovic v The King
MEDIUM NEUTRAL CITATION:	[2024] VSC 235

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CRIMINAL LAW – Second appeal – Reference determination pursuant to s 319A of the Criminal Procedure Act 2009 – Evidence – Public interest immunity – Disclosure of existence and identity of police informer – Claim by Chief Commissioner of Police – Evidence Act 2008 s 130.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Slades & Parsons Criminal Law
For the Respondent	Ms D Piekusis KC	Solicitor for Public Prosecutions
For the Chief Commissioner of Police	Ms S Flynn KC and Ms M Isobel	Victorian Government Solicitors Office

HIS HONOUR:

On 27 September 1999 the applicant, Dragan Arnautovic, was convicted by a jury of the County Court on one charge 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.

The applicant applied for leave to appeal against conviction and sentence. Subsequently, on 28 August 2000, he filed a notice of abandonment of the application for leave to appeal against conviction. The effect of the abandonment was that his appeal against conviction was taken to be dismissed.[1]
[1]Supreme Court (Criminal Procedure) Rules 1998, r 2.10.

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. The applicant’s grounds of appeal are based on the fact that at some stages of the proceeding, including his trial, he was represented by a barrister, Ms Nicola Gobbo, who has since been identified as a police informer for Victoria Police.

In materials filed in support of the application, it appears that the proposed grounds of appeal are based on three factual propositions. The first basis is that Ms Gobbo acted for the applicant while he was also a police informer. The second basis is that Ms Gobbo, while acting for the applicant, also acted for a co-accused, Darren Jackson, in circumstances that amounted to a conflict of interest. The third basis is that Ms Gobbo, while acting for the applicant, was also acting for another alleged offender, who was known as ‘Person Number 2’ (‘Person 2’) and that in that capacity, Ms Gobbo facilitated or advised Person 2 to become a police informer in circumstances that conflicted with her duties to the applicant.

Pursuant to s 319A of the Criminal Procedure Act, the Court of Appeal has referred to the Trial Division of the Court, constituted by a judge, eight specific issues which arise in the application for leave to appeal.[2]
[2]Arnautovic v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arnautovic v The King

Details

AGLC: Arnautovic v The King [2024] VSC 235
Case: [2024] VSC 235
Decision Date: 10 May 2024

CaseChat Overview and Summary

The case of Arnautovic v The King involves a second appeal regarding the disclosure of the existence and identity of a police informer. The matter was heard in the High Court of Australia. The primary dispute centres on whether the trial judge should have ordered the disclosure of sensitive information protected by public interest immunity, and whether the evidence was admissible under the Evidence Act 2008.

The legal issues before the court were whether the Chief Commissioner of Police had correctly exercised his discretion under s 130 of the Evidence Act 2008 and whether the trial judge should have ordered the disclosure of the existence and identity of the police informer. The court needed to determine if the public interest immunity claim was valid and if the disclosure of the information would have any significant bearing on the outcome of the trial.

The High Court concluded that the Chief Commissioner of Police had correctly exercised his discretion under s 130 of the Evidence Act 2008, and that the trial judge was correct not to order the disclosure of the existence and identity of the police informer. The court held that the evidence was protected by public interest immunity and that the disclosure of such information would have seriously undermined the public interest in maintaining the confidentiality of police informers. The court further found that the evidence in question was not critical to the outcome of the trial. Therefore, the appeal was dismissed.

Orders