Arnautovic v The King (No 3)
[2024] VSC 355
•25 June 2024
| 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: | 17, 18, 19 June 2024 |
DATE OF JUDGMENT: | 25 June 2024 |
CASE MAY BE CITED AS: | Arnautovic v The King (No 3) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 355 |
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CRIMINAL LAW – Application for leave to appeal – Referral of questions pursuant to s 319A of the Criminal Procedure Act 2009 – Answers to questions concerning conduct of applicant’s legal practitioner.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Slades & Parsons Criminal Law |
| For the Respondent | Ms D Piekusis KC and Ms A Martin | Solicitor for Public Prosecutions |
| For the Chief Commissioner of Police | Mr J Bayly | Victorian Government Solicitors Office |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary of prosecution case on applicant’s trial....................................................................... 5
Summary of prosecution evidence on applicant’s trial.............................................................. 6
The defence case on the trial.......................................................................................................... 13
Evidence on hearing of referred questions................................................................................. 14
Gobbo relationship with police and role in acting for applicant.......................................... 15
Question 1.......................................................................................................................................... 17
Question 2.......................................................................................................................................... 18
Question 3.......................................................................................................................................... 27
Reid conflict?................................................................................................................................ 29
Jackson conflict?.......................................................................................................................... 29
Person 2 conflict?......................................................................................................................... 30
Question 4.......................................................................................................................................... 34
Question 5.......................................................................................................................................... 34
Question 6.......................................................................................................................................... 39
Question 7.......................................................................................................................................... 40
Solicitor 1’s role in respect of applicant................................................................................... 40
Solicitor 1’s role in respect of Jackson...................................................................................... 41
Solicitor 1’s role in respect of Person 2..................................................................................... 42
Solicitor 1’s role in respect of Reid............................................................................................ 42
Question 8.......................................................................................................................................... 43
Questions 8 (a) and (b)............................................................................................................... 44
Question 8 (c)............................................................................................................................... 45
Question 8 (d).............................................................................................................................. 45
Question 8 (e)............................................................................................................................... 45
Question 8 (f)............................................................................................................................... 47
Question 8 (g)............................................................................................................................... 47
Question 8 (h).............................................................................................................................. 47
HIS HONOUR:
Introduction
On 18 November 1997, the applicant and Darren Jackson (‘Jackson’) were arrested in the course of a ‘buy/bust’ operation by the Drug Squad of Victoria Police.
The applicant was charged with trafficking in a commercial quantity of heroin between 11 September 1997 and 18 November 1997. It was alleged that the quantity of heroin trafficked by the applicant weighed between 700 grams and 1,000 grams.
Jackson was charged with trafficking in a commercial quantity of heroin between 22 October 1997 and 18 November 1997. It was alleged that the quantity of heroin trafficked by Jackson weighed 252.7 grams.
On about 17 September 1998, Jackson pleaded guilty to that charge. On 8 October 1998, he was sentenced to 4 years and 8 months’ imprisonment with a non-parole period of 2 years and 8 months.
After a contested committal hearing, on 25 June 1998 the applicant was committed for trial in the County Court of Victoria. The trial commenced on 31 August 1999. The applicant was represented by Mr Damian Sheales and Ms Nicola Gobbo (‘Gobbo’) of counsel. On 27 September 1999, the applicant was convicted by the jury empanelled on his trial. On 13 October 1999, he was sentenced to 12 years’ imprisonment with a non-parole period of 9 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. On 19 March 2001, his application for leave to appeal against sentence was dismissed.[1]
[1]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. The proposed grounds of appeal are based on the fact that, at some stages of the proceeding, including his trial, he was represented by Gobbo, who, since his trial, has been identified as a police informer for Victoria Police.
The applicant seeks leave to appeal on three grounds, namely:
(1)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.
(2)Victoria Police’s use of Gobbo as an informer amounted to an abuse of process.
(3)Victoria Police’s failure to disclose its use of Gobbo as an informer denied the applicant a fair trial.
The applicant and Jackson were each arrested as part of the culmination of two operations conducted by Division 2 of the then Drug Squad of Victoria Police, namely, Operation Hamadan and Operation Carron. Operation Hamadan was concerned with the activities of the applicant. Operation Carron was concerned with a number of individuals, including Jackson, a person who was referred to as ‘Person 2’, and Peter Reid (‘Reid’). The operations were effectively combined in November 1997, at or about the time of the applicant’s arrest. They resulted in the arrest of ten persons, who, in addition to the applicant and Jackson, also included Person 2 and Reid.
In the amended written case in support of the application for leave to appeal against conviction, it is contended that Gobbo breached her obligations to the applicant by purporting to act for the applicant while:
(a)acting as an informer to Victoria Police;
(b)representing co-accused Jackson, who conducted his case directly contrary to the applicant’s case;
(c)representing related accused Person 2, whose registration as a police informer she facilitated;
(d)representing related accused Reid, whose professional obligations she breached by asking Victoria Police to investigate his surety and other personal matters;
(e)in her capacity as a solicitor, volunteering information to Victoria Police about her principal (Solicitor 1) — whose office the applicant had instructed;
(f)potentially disclosing privileged information about the applicant’s defence and/or trial strategy to Victoria Police;
(g)failing to disclose any of the above matters to the applicant.
In material filed in support of the application for leave to appeal, it appears that the proposed grounds of appeal are based on three principal propositions. The first basis is that Gobbo acted for the applicant while she was also a police informer. The second basis is that Gobbo, while acting for the applicant, also acted for a co-accused, Jackson, in circumstances that amounted to a conflict of interest. The third basis is that Gobbo, while acting for the applicant, was also acting for Person 2, and, in that capacity, Gobbo facilitated or advised Person 2 in respect of him potentially becoming 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 eight questions to the Trial Division of the Court, constituted by a judge.[2] Those questions are:
[2]Arnautovic v The King [2022] VSCA 280.
(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?
(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?
Summary of prosecution case on applicant’s trial
In order to provide a relevant context in which to consider the questions, it is necessary, first, to summarise the prosecution case, and the evidence that was adduced, on the applicant’s trial.
Most of the prosecution case comprised evidence that was the product of a substantial police investigation into the activities of the applicant and his co-accused, and which included police surveillance, covert photography and videotaping, undercover police officers posing as drug purchasers, and the covert recording of telephone calls.
The 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.
On 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.
On 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.
On 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[3] count of trafficking in a commercial quantity of heroin between 11 September 1997 and 18 November 1997.
[3]R v Giretti (1986) 24 A Crim R 112 (‘Giretti’).
Summary of prosecution evidence on applicant’s trial
In 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.
As 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.
On 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.
On 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.
On 19 September, the applicant returned to the Dohertys Road property. When investigators attended subsequently, they found that the substituted packages had been removed.
On 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.
On 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.
On 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.
On 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.
On 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.
On 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.
On 26 October 1997, the applicant returned to the Dohertys Road property, where he placed an object in the rocky area.
On 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.
On 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’.
On 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’.
On 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’).
On 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.
On 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.
On 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’.
On 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.
On 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.
On 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.
On 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.
On 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.
Jackson 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.
‘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.
On 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.
On 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.
On 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.
At 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.
In 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.
The defence case on the trial
The prosecution evidence was subjected to rigorous cross-examination by Mr Sheales, who, as I have stated, appeared with Gobbo on behalf of the applicant.
The cross-examination was directed to matters such as the accuracy of the observations made by particular witnesses, their independent recollections, and the processes of surveillance adopted by them. In addition, the witnesses were cross-examined concerning the malfunctioning of any equipment that was used in the course of the surveillance of the applicant. A number of witnesses were asked questions about their findings of the canisters that contained heroin. In addition, counsel directed questions to the lack of fingerprint and other evidence, and the question why particular investigative mechanisms, that could have been deployed, were not used by police. On one day, three civilian witnesses were called. One witness gave evidence in cross-examination of observing an injury to the applicant’s arm, which had not been observed, apparently, by police witnesses. Two other civilian witnesses, who were connected with the Merton Street Centre, were cross-examined to provide an explanation of why the applicant would be in that location.
The 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.
The 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.
In 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.
Evidence on hearing of referred questions
For the purpose of determining the questions referred by the Court of Appeal, the parties jointly compiled a table (‘the joint table’) in chronological order, listing facts upon which the parties agree, and which are relevant to the questions. In addition, the applicant called two witnesses, Darren Jackson and Mr Wayne Strawhorn, and a number of exhibits were tendered in evidence.
I have determined the answers to the questions on the basis that the applicant has borne the burden of establishing, on the balance of probabilities, the facts on which he relies. Conversely, the respondent has borne the burden of establishing any facts that it contends is relevant for that purpose.[4]
[4]Compare Karam v The King [2022] VSC 808 [16] (Osborn JA) (‘Karam’).
Gobbo relationship with police and role in acting for applicant
Before turning to the questions referred by the Court of Appeal, it is convenient to set out, by reference to the joint table, the following facts that are relevant to the issue of Gobbo’s relationship with Victoria Police and her role in acting for and on behalf of the applicant:
· 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[5] 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.
[5]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.
Question 1
Question 1 asks when, and in what capacity, did Gobbo act for the applicant. The answer to that question is based substantially on the joint table.
After the applicant was arrested on 18 November 1997, he instructed Solicitor 1’s office. At that time, Gobbo was employed as a solicitor in Solicitor 1’s office, having been admitted to practice as a barrister and solicitor in Victoria on 7 April 1997. Solicitor 1 continued to act for the applicant from that date until 26 August 1998. Gobbo was employed by Solicitor 1 during the whole of that period.
In that capacity, Gobbo appeared for the applicant at three hearings in the Melbourne Magistrates’ Court, namely:
(a)on 19 November 1997, on a remand hearing;
(b)on 3 December 1997, on a status hearing;
(c)on 10 June 1998, at a committal mention hearing.
On 26 August 1998, Messrs Pryles & Defteros, solicitors, filed a notice that a practitioner acts on behalf of the applicant. Gobbo did not act for the applicant between that date and 16 May 1999.
On 11 May 1999, Mr Damian Sheales was briefed to appear for the applicant on his trial. On 16 May 1999, Gobbo and Mr Chris Pearson (the applicant’s solicitor) attended a conference with the applicant at Port Phillip Prison, and the applicant confirmed that he wished to retain Gobbo as his counsel in the trial. Accordingly, on 19 May 1999, Gobbo was briefed to appear as junior to Mr Sheales at the trial.
On 21 May 1999 and 24 May 1999, Gobbo appeared on mentions in the County Court in respect of the upcoming trial. Between 31 May and 3 June 1999, Gobbo appeared for the applicant in respect of the trial, which was not then reached. She was granted an appeal costs certificate for four days’ appearance and two days’ preparation.
The trial commenced on 30 August 1999. Gobbo was briefed as junior counsel to Mr Sheales on behalf of the applicant. Gobbo had a limited role in the trial, and she only attended the court on some of the days of the trial. She did not cross-examine any of the prosecution witnesses. On one occasion, on a date on which Mr Sheales was not in court (15 September 1999), Gobbo had the responsibility for one of the prosecution witnesses. She did not ask any questions in cross-examination of that witness. At the conclusion of that witness’s evidence, Gobbo persuaded the judge to stand the matter down before the next witness was called, as Mr Sheales was otherwise engaged.
Subsequent to the trial, on 20 and 21 October 1999, Gobbo appeared as counsel for the applicant in the Melbourne Magistrates’ Court at hearings that were adjourned. On 26 October 1999, Gobbo appeared for the applicant in the Melbourne Magistrates’ Court at a plea hearing. All three hearings were unrelated to the conviction of the applicant that is subject of the application for leave to appeal.
Question 2
Question 2 concerns the role and conduct of Gobbo in respect of the applicant’s co-accused Jackson. The question itself involves four issues, namely:
(a)When, and in what capacity did Gobbo act for Jackson?
(b)Did Gobbo influence Jackson to plead guilty?
(c)Did Gobbo influence Jackson to agree to the Agreed Statement of Facts for his plea and, if so, how did it so influence Jackson?
(d)If issue (c) is answered in the affirmative, what impact did Gobbo’s influence on Jackson in that respect have on the applicant’s trial?
The answer to the first part of question 2 is based substantially on the agreed facts contained in the joint table.
After Jackson was arrested (with the applicant) on 18 November 1997, he initially retained Paul Vale as his solicitor. Sometime between 19 November and 8 December 1997, he arranged to be represented by Solicitor 1 in the proceeding. Gobbo was nominated as a contact person at the office should Detective Senior Constable John Greene (the informant) require blank tapes to facilitate the provision of telephone intercept and listening device material.
By reference to the joint table, the following chronology is relevant in respect of the representation of Jackson in the ensuing proceedings:
· 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).
In short, the answer to the first part of question 2 is that Jackson instructed Solicitor 1’s office from at least 8 December 1997. Solicitor 1 represented Jackson in appearances at the Melbourne Magistrates’ Court on 29 January 1998 and 16 April 1998. On those dates, Gobbo represented other accused who had been arrested on 18 November 1997. On 10 June 1998 and 17 June 1998, Gobbo represented Jackson in the Melbourne Magistrates’ Court. Gobbo ceased to be employed by Solicitor 1 at the latest by 31 August 1998, and she commenced the Victorian Bar Readers Course on 1 September 1998. She did not act for Jackson after she ceased to be employed by Solicitor 1.
The answer to the second part of question 2, whether Gobbo influenced Jackson to plead guilty, is straightforward. As I shall outline shortly, in his evidence, Jackson said that some eight months after his arrest, Gobbo visited him in gaol and encouraged him to name the applicant as the supplier of the heroin that was involved in his dealings with the undercover police operative, Jack Jones. In his evidence, Jackson said that, from an early stage, he understood that he would plead guilty, and he said that it was always his intention to do so. He specifically said that he was not put under any pressure by Gobbo to plead guilty.
Accordingly, the answer to the second part of question 2 is that Gobbo did not influence Jackson to plead guilty.
The third part of question 2 is whether Gobbo influenced Jackson to agree to the Agreed Statement of Facts that was presented on his plea in the County Court.
Jackson’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.
In 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.
Later 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.
In 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’.
In 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.
In the present case, it was not submitted, on behalf of the respondent, that Jackson was untruthful in the evidence he gave before me. His credit was not put in issue in cross-examination, and my assessment is that Jackson was endeavouring to be an honest witness in the evidence that he gave on the hearing.
In order to determine the effect, if any, of the advice, which Gobbo gave to Jackson on the matters that were put on his behalf in the plea, it is necessary to return to the Agreed Statement of Facts on which the prosecution based its case on Jackson’s plea.
As 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.
The 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.
It 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.
It 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.
The 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.
As 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.
The fourth issue, in respect of question 2, concerns the effect on the applicant’s trial of any influence, exercised by Gobbo, to induce Jackson to agree to the agreed Statement of Facts on his plea.
In respect of that issue, counsel for the applicant noted that, in dismissing the applicant’s application for leave to appeal against sentence, Brooking JA described the account given by the applicant, in his evidence at trial, as ‘a cock and bull story’.[6] Counsel submitted that the effect of Jackson pleading guilty, on the basis that he was acting on behalf of the applicant, precluded Jackson from giving evidence at the applicant’s trial that the applicant’s sole role, in respect of the intended transaction with the undercover police operative ‘Jack Jones’, was as a lookout while the transaction was being undertaken. Counsel submitted that, if Jackson could have been called as a witness on the applicant’s trial, he would have been able to give evidence that the applicant was not the supplier of heroin to him, and that he had sourced his heroin from Person 1.
[6]R v Arnautovic [2001] VSCA 34, [10].
In response, senior counsel for the respondent submitted that the position taken by Jackson on his plea did not preclude him being called to give evidence on behalf of the applicant. It was submitted that, in any event, the evidence, which, the applicant contends, would have been called from Jackson, would have been directly contradicted by the surveillance evidence that was adduced on the applicant’s trial. Further, and in any event, counsel noted that Jackson’s evidence could not account for the quantity of heroin located under the Mitsubishi van driven by the applicant, or in the quantity located shed.
In his statement to the Royal Commission, Jackson, in effect, stated that when he and ‘Jack Jones’ arrived at the Merton Street Centre, he had arranged for ‘a lookout’ person to cover his back due to the large amount of cash and drugs that were involved in the intended transaction. It might be inferred that that ‘lookout person’ was the applicant. Jackson said that that person parked on the side of the shed so that he and Jackson could see each other. If that evidence had been adduced at the applicant’s trial, it would have been consistent with, and would have supported, that part of the evidence given by the applicant at the trial.
The circumstance that Jackson had pleaded guilty in respect of the transaction, on the basis that he was acting on behalf of the applicant, did not necessarily preclude Jackson giving evidence at the applicant’s trial to the effect that was contained in his statement to the Royal Commission. However, if he gave such evidence, it would have been open to be challenged on the basis of the agreed facts put before the court on his plea. That circumstance would necessarily have had the capacity to significantly impugn the credibility of any evidence given by Jackson in support of the applicant.
The applicant did not adduce any evidence as to why Jackson was not called on his behalf at the trial. The absence of such evidence is understandable due to the passage of time. However, it was not suggested, and certainly no evidence was adduced, that a decision was made not to call Jackson as a witness because of the basis upon which Jackson himself pleaded guilty to the offence with which he was charged. The most that can be concluded at this point is that if the applicant had sought to call Jackson to give evidence on his behalf at the trial, 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.
The question, then, is whether the fact that Jackson did not give evidence on the applicant’s trial had an impact on that trial.
As a preliminary matter, two points may be noted.
First, the applicant was charged with trafficking a commercial quantity of heroin between 11 September 1997 and 18 November 1997. The transactions with which Jackson was involved commenced on 22 October 1997. Any evidence adduced from Jackson could not have affected the case made against the applicant during the preceding period (from 11 September 1997).
Secondly, the ‘between dates’ (Giretti) charge against the applicant encompassed not only the quantity of heroin that was involved in the transactions between Jackson and the undercover police operative (252 grams), but it also included three other quantities of heroin. Those quantities comprised, first, the heroin that the applicant had been involved in trafficking between 11 September and 12 November 1997, secondly, the quantity of heroin located on 18 November 1997 under the applicant’s motor vehicle, and, thirdly, the quantity of heroin located in the tin shed at the Merton Road Centre. Those three quantities of heroin totalled approximately 450 to 750 grams. Any evidence which could have been given by Jackson could not have assisted the applicant in respect of those aspects of the charge against him.
The characterisation by Brooking JA of the evidence of the applicant at his trial — as a ‘cock-and- bull story’ — was not based solely on the manner in which the applicant had given that evidence. It was based, substantially, on the fact that the applicant’s evidence was directly contradicted by the surveillance evidence adduced on the trial, and to which I have referred, that described the movements of the applicant and Jackson between 12 November and 18 November 1997. It is not necessary to rehearse at length the totality of that evidence. It is sufficient, for present purposes, to make brief reference to the evidence.
On 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.
On 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.
After 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.
On 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.
In 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.
Question 3
The answer to that question is that there is no evidence that the Office of Public Prosecutions or the Director of Public Prosecutions had any knowledge of Gobbo’s status as an informer to Victoria Police.
Question 8 (h)
Question 8(h) asks: ‘What of the above did Victoria Police or the Crown disclose to the applicant?’.
The answer to that question is that neither Victoria Police nor the Crown disclosed any of the information, that is the subject of Questions 8(a) to 8(g) (inclusive), to the applicant.
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