Arnautovic v The King
[2024] VSC 235
•10 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0335
| DRAGAN ARNAUTOVIC | Applicant |
| v | |
| THE KING | Respondent |
---
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 |
---
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.
---
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 The King [2022] VSC 280.
For the purposes of the reference determination, the applicant has subpoenaed, and intends to call evidence from, Wayne Geoffrey Strawhorn, who was then a Detective Sergeant in the Victoria Police Drug Squad. The Chief Commissioner of Police has objected to some aspects of the evidence, which the applicant will seek to adduce from Mr Strawhorn, on the basis of public interest immunity. It has been necessary to conduct a voir dire hearing in order to identify the aspects of the evidence proposed to be adduced from Mr Strawhorn, which will be the subject of that objection, and to determine the objection by the Chief Commissioner to that evidence.
Background circumstances
In order to determine the objections made on behalf of the Chief Commissioner, it is necessary to set out the background context to the evidence that is sought to be adduced from Mr Strawhorn, and which is relevant to the issues, which have been referred to this Court, pursuant to s 319A of the Criminal Procedure Act.
In 1995, Mr Strawhorn was transferred into Division 2 of the Drug Squad Victoria Police as a Detective Sergeant Team Leader. In late 1997 to early 1998, he was promoted to Detective Senior Sergeant and, in that capacity, he took over as Operations Manager of Division 1. In late 1998 to early 1999, he moved back to Division 2 in that role. During that period, the Drug Squad conducted two operations, namely, ‘Operation Hamadan’ and ‘Operation Carron’, which were interrelated, and ultimately were combined.
On 18 November 1997, as a result of investigations conducted in respect of those two operations, Victoria Police arrested ten persons, including the applicant, Peter Reid, and Darren Jackson. The applicant contends that those arrested included a person who is known by the pseudonym ‘Person 2’. When interviewed, the applicant denied that he was involved in trafficking. He said that he was an occasional user of heroin, which was supplied to him by Jackson.
In 1997 to 1998, Ms Gobbo was employed in the practice of a solicitor who is referred to as Solicitor 1. That solicitor acted on behalf of the applicant, and also other persons, who had been arrested as part of the two operations, including Jackson and Person 2. In that capacity, Ms Gobbo, on a few occasions, appeared on behalf of the applicant at mention hearings in the Magistrates’ Court. She also acted for Jackson in some of those hearings.
In June 1998, the applicant was committed for trial on one charge of trafficking in a commercial quantity of heroin between 11 September and 18 November 1997. He was represented by Mr Wayne Toohey of counsel at the committal hearing. In September 1998, Ms Gobbo joined the Victorian Bar. Subsequently, she was briefed to appear on behalf of the applicant at his trial, which was due to commence in May 1999. The trial did not proceed at that time.
On 26 May 1999, Ms Gobbo was registered as a police informer. Subsequently, Ms Gobbo appeared, led by Mr Damien Sheales of counsel, on the trial of the applicant, which took place in September 1999. On 27 September 1999, the jury empanelled on the trial convicted the applicant of the charge. On 13 October 1999, he was sentenced to 12 years’ imprisonment with a non-parole period of 9 years.
In the meantime, Jackson had pleaded guilty in the County Court to trafficking in a commercial quantity of heroin. On 8 October 1998, he was sentenced to a term of imprisonment of 4 years and 8 months. He was sentenced on the basis that he had agreed to supply 12 ounces of heroin to an undercover police officer, which had been supplied to Jackson by the applicant.
On 4 September 2019, Jackson provided a statement to the Royal Commission into the Management of Police Informers (the ‘RCMPI’), in which he said that in 1997, his supplier was Person 1, and that he assumed that Person 1 was supplied by Person 2. Jackson further said that it was Person 1 who introduced him to the police operative to whom he supplied the heroin.
Ms Gobbo met with Mr Strawhorn on some eight occasions between 11 May 1998 and 20 August 1999. In the present referral, the applicant’s case is that those meetings were concerned with a proposal that Person 2 provide assistance to the Drug Squad and, for that purpose, give evidence before the Crime Commission. It is part of the case for the applicant that, in that capacity, Ms Gobbo facilitated the registration of Person 2 as a police informer, and that, by doing so, she acted in a manner that was more consistent with her role as a police operative than her role as acting in the applicant’s interests.
Proposed grounds of appeal
In his application for leave to appeal to the Court of Appeal under s 326A of the Criminal Procedure Act 2009, the applicant seeks to rely on three grounds, namely:
(1)Ms Gobbo’s conduct amounted to a miscarriage of justice by, inter alia:
(a)depriving the applicant of competent and independent counsel; and
(b)breaching of professional duties to the applicant.
(2)Victoria Police’s use of Ms Gobbo as an informer amounted to an abuse of process.
(3)Victoria Police’s failure to disclose its use of Ms Gobbo as an informer denied the applicant a fair trial.
The referred questions
The issues, which had been referred to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act, include the following:
(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 a legal practitioner for Mr Jackson, Mr Reid and/or Person 2?
…
(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?
…
(8)While Ms Gobbo acted for the applicant in his Carron/Hamadan matter:
(a)Did she facilitate Person 2’s cooperation with the police?
(b)What ongoing assistance did she provide to the police in relation to Person 2?
…
(e)What assistance did she provide police?
In respect of those questions, the applicant’s case is that Ms Gobbo influenced Jackson’s decision to plead guilty and to agree to a statement of facts on his plea, which contradicted the defence, which the applicant raised at his own trial. It will be contended that Jackson thus became tied to a version of events, which foreclosed the opportunity for the applicant, at his trial, to have support for the account that he gave in his own evidence. The applicant submits that his interests were inconsistent with the interests of Jackson, and that Ms Gobbo breached her ethical duties to him by reason of that conflict of interest.
The applicant further maintains that the fact that Ms Gobbo cooperated with police informally, and then subsequently formally, as a registered police informer, while acting as the applicant’s legal practitioner, gave rise to an inherent conflict of interest. The applicant also maintains that, in the case of each of Jackson, Reid and Person 2, Ms Gobbo acted in a manner, which was more consistent with her role as a police operative, rather than acting in the applicant’s interests.
In respect of Person 2, it is maintained that Ms Gobbo facilitated Person 2’s cooperation with police through Mr Strawhorn, which was inconsistent with her role as the applicant’s legal practitioner.
In the provisional response filed by the respondent, it is noted that although Ms Gobbo acted for Jackson while she was employed in Solicitor 1’s practice, Jackson was represented by Mr Neil Clelland of counsel at his committal proceeding and at his plea hearing.
The respondent notes that Person 2 instructed Solicitor 1 from the date of his arrest until 26 November 1998. During that time, Ms Gobbo’s role was limited to being a junior solicitor in Solicitor 1’s office, while Solicitor 1 had the carriage of Person 2’s criminal proceedings. Subsequently, Ms Gobbo represented Person 2 at various times between 1 September 1998 and 2005. The respondent accepts that, during that time, Person 2 may have provided assistance to Victoria Police. However, it is contended, Person 2 was charged in relation to a police operation that was linked to Jackson, but which otherwise he had no connection with the applicant. There is no evidence that Person 2 provided information to police about the applicant, and he did not provide a statement, nor was he a witness, in the applicant’s trial.
Voir dire evidence — objections
For the purpose of determining the public interest immunity issues raised on behalf of the Chief Commissioner, Mr Strawhorn gave evidence on the voir dire. Counsel for the applicant directed his questions to a statement dated 18 April 2019, which Mr Strawhorn made to the RCMPI, and, in particular, to parts of it which were redacted. Counsel asked Mr Strawhorn questions, which counsel proposes to put to him in the course of evidence in the s 319A reference. Counsel for the Chief Commissioner objected to a number of those questions on the basis of public interest immunity, and I directed Mr Strawhorn not to answer those questions.
The questioning of Mr Strawhorn on the voir dire was directed to his involvement in the investigations in the course of which he had dealings with Ms Gobbo. In his statement, Mr Strawhorn detailed a number of communications and dealings he had with Ms Gobbo between May 1998 and February 2002, which concerned a particular person becoming a police informer. On the voir dire, counsel for the Chief Commissioner has objected to questions, which were directed to ascertaining whether Person 2 was the person who was referred to, or present, in the meetings, which Ms Gobbo had with Mr Strawhorn concerning that topic. Counsel objected to questions which were directed to the issue whether Ms Gobbo assisted Person 2 to become a registered informer with Victoria Police, and to the steps taken by Ms Gobbo for that purpose.
Public interest immunity — principles
Section 130 of the Evidence Act provides for the circumstances under which a claim for public interest immunity may be made. It provides:
130 Exclusion of evidence of matters of state
(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.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
(6) A reference in this section to a State includes a reference to a Territory.
It is accepted that s 130 reflects, to a substantial degree, the common law principles that have developed governing public interest immunity.[3]
[3]NSW v Public Transport Ticketing [2011] NSWCA 60, [42]–[43] (Allsop P); Eastman v The Queen (1997) 76 FCR 9, 65; Ryan v State of Victoria [2015] VSCA 353 [58] (Tate JA) (‘Ryan’).
A claim for public interest immunity is not, of itself, conclusive. It is a matter for the court to determine whether the claim is of sufficient moment to override the interests of the party, which seeks the information in respect of which the claim is made.[4] A party, who asserts a claim for public interest immunity, is required to identify, with precision, the basis upon which the claim that the information, that is sought to be adduced, is subject to the immunity.[5]
[4]Sankey v Whitlam (1978) 142 CLR 1, 59 (Stephen J) (‘Sankey’); Alister v The Queen (1984) 154 CLR 404, 412–13 (Gibbs CJ) (‘Alister’).
[5]State of Victoria v Brazel (2008) 19 VR 553, 574–5 [68]; Ryan [2015] VSCA 353 [55]; Ahmet v Chief Commissioner of Police [2014] VSCA 265, [22] (‘Ahmet’).
In determining a claim for public interest immunity, the critical question is whether the public interest, that might be harmed by provision of the information, outweighs the public interest that the administration of justice not be frustrated by withholding information which might be relevant to the litigation that is before the court.[6]
[6]Sankey (1978) 142 CLR 1, 38–9 (Gibbs ACJ), 59 (Stephen J); Alister (1978) 154 CLR 412 (Gibbs CJ).
In resolving that question, substantial weight is given to the consideration that information, that is sought to be protected, might be relevant to establishing the innocence of the accused person.[7] In that respect, it is accepted that counsel for the defence is, ordinarily, in a much better position than a judge to assess the relevance and significance of the information that is sought to be protected.[8]
[7]D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 232 (Lord Simon); Sankey (1978) 142 CLR 1, 42 (Gibbs ACJ), 61–62 (Stephen J); Alister (1984) 154 CLR 404, 414 (Gibbs CJ), 431 (Murphy J), 437–8 (Wilson and Dawson JJ), 456 (Brennan J).
[8]R v Spizzirri [2001] 2 Qd R 686, 694 (Pincus JA); R v Mokbel(Ruling No 1) [2005] VSC 410 [71] (Gillard J).
Section 130(4)(e) specifically recognises the interests of the State in protecting the identity of police informers. The underlying rationale for that form of public interest immunity is that, in the absence of that protection, sources of information would dry up, and the capacity of police to prevent and detect crime would thereby become compromised.[9]
[9]D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 218 (Lord Diplock); Jarvie & Anor v Magistrates’ Court of Brunswick [1995] 1 VR 84, 88 (Brooking J); R v Smith (1996) 86 A Crim R 308, 311.
Section 130 of the Evidence Act preserves the distinction between a class claim and a contents claim.[10] The designation of a block of information as falling within a recognised ‘class’ does not, of itself, render the document absolutely immune from production; in such a case the court must still balance the competing interest, in the protection of that class of information, with the public interest in the proper administration of justice.[11]
[10]Ryan [2015] VSCA 353 [67]; Ahmet [2014] VSCA 265, [20] (Nettle JA, Sloss AJA).
[11]The Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604, 616–17; Sankey (1978) 142 CLR 1, 62–63 (Stephen J).
Submissions
Counsel for the Chief Commissioner filed brief open submissions, and more detailed confidential submissions, together with a confidential affidavit, in support of the objections that were taken to the evidence that is to be sought to be adduced from Mr Strawhorn. In particular, counsel submitted that the objection to those questions should be upheld on the basis of public interest immunity for the following two reasons:
(1)The answers to the questions asked of Mr Strawhorn would endanger the safety of Person 2.
(2)The evidence that is sought to be adduced on behalf of the applicant would be contrary to the public interest in preserving the anonymity of police informers and the information provided by them.
In the confidential submissions, and in a confidential affidavit filed in support of the objection based on public interest immunity, the Chief Commissioner expanded upon those two bases upon which the objection has been made.
In response, counsel for the applicant has noted that insofar as the Chief Commissioner’s claim for public interest immunity relies on issues relating to the safety of Person 2, the evidence sought to elicited from Mr Strawhorn has been and remains publicly available on the RCMPI website, some five years after Mr Strawhorn gave that evidence. Counsel further noted that the applicant in the current proceeding does not seek to identify Person 2, but only seeks that Mr Strawhorn adopt the evidence which he gave before the RCMPI. That process is necessary because the respondent has indicated that it intends to object to the adducing of that hearsay evidence in respect of Mr Strawhorn’s previous testimony.
Analysis and conclusion
The first basis upon which the Chief Commissioner contends that the questions, sought to be asked of Mr Strawhorn, are subject to public interest immunity, is that the answers to those questions might or would endanger the safety of Person 2.
As noted by counsel for the applicant, some of the matters, which counsel now seeks to explore with Mr Strawhorn, were the subject of questions asked of Mr Strawhorn in the course of the evidence that he gave to the RCMPI, and in answer to which Mr Strawhorn specifically referred to Person 2. Those aspects of the transcript of the evidence given by Mr Strawhorn are available on the RCMPI site on the internet.
Those parts of the transcript record, for example, that at the committal proceeding, Person 2 came and sat down beside Mr Strawhorn outside court and spoke to him, and that, subsequently, Mr Strawhorn was contacted by Ms Gobbo on behalf of Person 2 in order to have a meeting to discuss the parameters of him becoming an informer. The purpose of the meeting was to advise Ms Gobbo what the requirements would be in respect of Person 2 becoming a police informer. In his evidence before the RCMPI, Mr Strawhorn also stated that he considered, at the time, that the suppliers of the heroin to Person 2 were based in Sydney, and that Person 2 would get the ‘best discount’ on his sentence if he did ‘some work on those suppliers in Sydney’. In that context, Mr Strawhorn noted that arrangements were made with a view to Person 2 attending the Crime Commission in Sydney.
The evidence, which Mr Strawhorn thus gave at the RCMPI, necessarily reduces the force of the first basis of public interest immunity relied on by the Chief Commissioner. With that qualification, it is appropriate to accept, without specific evidence, that the identification of Person 2 as either an actual or potential police informer, may result in some increased risk to the safety of Person 2.
The second basis, upon which the Chief Commissioner contends that the questions sought to be asked of Mr Strawhorn are the subject of public interest immunity, is that the answer to those questions might reveal the identity of an actual or potential police informer.
As I have noted, s 130(4)(e) of the Evidence Act in effect replicates the common law in providing that there is a public interest that precludes the disclosure of the existence or identity of a confidential source of information, including that of a police informer. As the authorities in respect of that aspect make clear, there is an important public interest in police being able to access and obtain information which enables the protection and detection of serious criminal offences. The question is whether that public interest is outweighed by the countervailing public interest in the administration of justice, and, in particular, in the capacity of the applicant to adduce evidence, which might support or be of relevance to the proposed grounds of appeal on which he relies.
That issue itself needs to be considered at two levels. It is not my role, in the present reference, to determine the proposed grounds of appeal. Rather, my role is to determine the answers to the eight questions, which the Court of Appeal has accepted may be relevant to the grounds of appeal.
On that level, quite plainly, the questions, which were asked by counsel of Mr Strawhorn, and to which the Chief Commissioner took exception, are directly relevant to the referred questions, which I have set out earlier in these reasons. In particular, the evidence of Mr Strawhorn, to which the Chief Commissioner objects, would be centrally relevant in determining the answers to question 8(a) and (b). In turn, the answers to those questions would, themselves, be relevant to questions 3 and 5. If the issue were confined to the first such level of inquiry, it is clear that there is a strong public interest in the applicant being entitled to elicit evidence relevant to the questions, which the Court of Appeal has referred for determination. Those questions are directed to the ultimate determination by the Court of Appeal whether the applicant was lawfully convicted of the charge against him.
The Chief Commissioner submitted that the question of public interest immunity must also be determined at a second, and different, level, which requires an assessment of the extent to which the evidence, that is sought to be adduced, might be relevant to advance the grounds of appeal sought to be relied upon by the applicant.
In considering that submission, it is necessary to keep in mind that the questions, which have been referred to the Trial Division, are questions which the Court of Appeal has considered to be relevant for the determination of the proposed grounds of appeal. In particular, as I have set out, one of the principal bases, upon which the applicant seeks leave to appeal, is that Ms Gobbo, while acting for him in his criminal trial, facilitated Person 2’s cooperation with police and provided assistance to police with the view to Person 2 providing cooperation to them. In those circumstances, it is necessary to proceed on the basis that the evidence, that the applicant seeks to adduce from Mr Strawhorn, may be relevant to the grounds of appeal that are relied upon by the applicant.
In considering the objections raised by the Chief Commissioner to the questions addressed to Mr Strawhorn, it is important to bear in mind that the applicant does not seek to have Mr Strawhorn, or the Chief Commissioner, confirm or deny whether Person 2 is or was a registered human source. Nor does the applicant seek to identify Person 2, other than to ascertain whether Person 2 was one of the persons who were arrested as part of the Hamadan and Carron operations.
Taking those matters into account, I turn then to the questions asked of Mr Strawhorn in the voir dire, and to which the Chief Commissioner has taken objection.
The first question, to which objection was taken, was whether Person 2 was one of the persons who was arrested as part of Operation Hamadan or Operation Carron.
That issue is directly relevant to the grounds of appeal. Clearly, if Person 2 was one of the persons arrested in respect of Operation Hamadan, in one of which the applicant was also implicated, or in respect of Operation Carron, which was connected to that Operation, the conduct of Ms Gobbo, in her dealings with Person 2, might potentially have involved issues of a conflict of interest which may have affected her representation of the applicant at his trial. In those circumstances, I consider that the interests of justice outweigh the public interest immunity sought to be relied on, so that the privilege does not apply to that question.
The next set of questions asked in the voir dire, to which objection was taken, was directed to sections of the statement which Mr Strawhorn provided as part of his evidence in the RCMPI.
The document, which was tendered on the voir dire, contained a number of redactions. That section of the statement concerned a number of dealings which Mr Strawhorn had with Ms Gobbo, some of which related to the prospect of a particular person becoming a police informer. Specifically, on the voir dire, the Chief Commissioner objected to questions which counsel asked of Mr Strawhorn as to whether the person referred to in the statement, and whose name was redacted, was Person 2.
As I have discussed, the question whether Ms Gobbo, while acting for the applicant, was involved in discussions with Mr Strawhorn with a view to Person 2 cooperating with police, is a relevant question, both in terms of the issues which have been referred to the Trial Division by the Court of Appeal, and as such in respect of the proposed grounds of appeal. The importance of adducing evidence in relation to that issue, in my view, outweighs any countervailing public interest asserted on behalf of the Chief Commissioner, subject to three important provisos.
First, the questions must not seek to ascertain the identity of Person 2.
Secondly, the questions must not, in any form, whether expressly or implicitly, seek to identify whether Person 2 did, or did not, become a registered human source of police.
Thirdly, while I consider it would be permissible for counsel to ask Mr Strawhorn whether the dealings in question concerned potential cooperation by Person 2 in respect of Operation Carron and Operation Hamadan, if the answer to that question is in the negative, it would not be sufficiently relevant, and would be contrary to the public interest, for Mr Strawhorn to be asked to identify the nature of the information that police sought to obtain from Person 2 (other than whether it related to police investigations) or the person or persons to whom it related.
Subject to those three provisos, I therefore conclude that privilege based on s 130 of the Evidence Act does not apply to the questions which counsel will seek to ask, on behalf of the applicant, of Mr Strawhorn specifically in respect of whether the contacts which he had with Ms Gobbo, as detailed in paras 8 to 11 of his statement before the RCMPI, were related to person 2.
In addition, as I have earlier discussed, the privilege does not preclude questions directed to whether Person 2 was one of the persons who was arrested in respect of Operation Hamadan or Operation Carron.
12
6