Cvetanovski v The Queen
[2020] VSCA 126
•19 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0199
S APCR 2017 0200
S APCR 2017 0201
S APCR 2018 0279
| ZLATE CVETANOVSKI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 May 2020 |
| DATE OF JUDGMENT: | 19 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 126 |
| JUDGMENT APPEALED FROM: | DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Montgomery, 13 April 2012); DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Coish, 4 February 2014) |
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CRIMINAL LAW – Appeal – Bail – Application for bail pending appeal – Whether exceptional circumstances exist – Appeal unable to be dealt with until after expiry of non-parole period – No suggestion applicant unlikely to be released at expiration of non-parole period – No suggestion applicant poses unacceptable risk – Exceptional circumstances established – Application for bail granted – Re Zoudi (2006) 14 VR 580 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Condon QC with Ms K Farrell | Galbally Parker Lawyers |
| For the Respondent | Mr B F Kissane QC with Ms K A O’Gorman | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
WEINBERG JA:
Summary
An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.[1]
[1]Bail Act1977 s 4.
Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court.[2] A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.
[2]Re Zoudi (2006) 14 VR 580, 588 [28]; [2006] VSCA 298 (‘Re Zoudi’).
In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant’s non-parole period. The fundamental principle is one of fairness.[3] Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.
[3]Ibid 587 [25].
The present applicant relies on circumstances of precisely that kind. He will be eligible for parole on 3 August this year, having served a non-parole period of more than nine-and-a-half years. There is no prospect of his appeal against conviction being ready for hearing by that time, principally because of continuing delays in the production to him of relevant documents. It follows, he contends, that his continued incarceration in the meantime would — should his appeal ultimately succeed — work a grave injustice.
As was pointed out in Re Zoudi, the position may be quite different if it appears that the applicant for bail is unlikely to be released at the expiry of the non-parole period, or if the application is opposed on grounds of unacceptable risk.[4] Although the respondent Director of Public Prosecutions opposes the grant of bail, there is no suggestion that either of those considerations applies here.
[4]Ibid 588 [26]–[27].
It is rarely possible on an application for appeal bail for a court to make a meaningful assessment of the prospects of success of the appeal. In the present case, as explained more fully below, the applicant raises very serious issues about the effect on the fairness of his trial of the non-disclosure by the prosecution of the association between Ms Nicola Gobbo and the chief prosecution witness at his trial (Mr Cooper[5]). It is common ground that Ms Gobbo provided legal advice and other support to the witness while at the same time acting as a police informer. The applicant asserts that, during the same period, Ms Gobbo was also giving him legal advice.
[5]A pseudonym.
The applicant submits that he has reasonable prospects of success on the conviction appeal. The respondent, for her part, contends that there is no substance in any of the grounds of the appeal. It is sufficient for present purposes to say that we regard the grounds of appeal as reasonably arguable. That suffices to establish a real risk of injustice of the kind to which we have referred. It is not, in any event, possible to form a more definitive view at present, given the complexity and novelty of the issues raised and the scale and nature of the documentation to be examined.
We have therefore concluded that, in accordance with the principles laid down in Re Zoudi, the applicant has established exceptional circumstances justifying a grant of bail pending the hearing and determination of his appeal. As we have sought to make clear, the basis of the grant of bail is the imminent expiry of the applicant’s non-parole period and the certainty that it will have expired long before the substantive appeal is ready for hearing.
Relevant background
In March 2011, following a trial, the applicant was found guilty of four dishonesty offences.[6] In July 2011, following another trial, the applicant was found guilty of trafficking a large commercial quantity of methylamphetamine. On 13 April 2012, following a plea hearing in respect of both matters, the applicant was sentenced to 10 years on the trafficking charge. He was also sentenced to terms of imprisonment on the dishonesty charges,[7] one year of the total of which was cumulated on the trafficking charge, making a total effective sentence of 11 years’ imprisonment. A non-parole period of 9 years was fixed, and presentence detention of 402 days was declared.[8]
[6]Three charges of obtaining a financial advantage by deception and one charge of attempting to obtain a financial advantage by deception.
[7]Two years on each charge, to be served concurrently with each other.
[8]DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Montgomery, 13 April 2012) (‘Reasons of Judge Montgomery’).
On 4 February 2014, following pleas of guilty to five drug charges,[9] and two dishonesty offences,[10] the applicant was sentenced to a total effective sentence of 6 years’ imprisonment, 2 years of which was ordered to be served cumulatively on the sentence imposed on 13 April 2012. A new non-parole period of 6 years and 6 months was fixed, commencing on 4 February 2014.[11]
[9]Trafficking in a drug of dependence (two charges), possession of precursor chemicals, possession of substance, material, documents or equipment for trafficking in a drug of dependence, and possessing a drug of dependence.
[10]Two charges of obtaining a financial advantage by deception.
[11]DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Coish, 4 February 2014).
In 2017, the applicant first commenced proceedings in this Court seeking to challenge his convictions. Whilst his challenge was initially more broad-based, it now relates to (and at all times since 2017 has related to) the alleged activities of Nicola Gobbo as a police informer. So, in relation to his challenge to his conviction in July 2011 for trafficking a large commercial quantity of methylamphetamine, the applicant’s proposed ground of appeal is:
There has been a substantial miscarriage of justice because of the failure to disclose, and concealment of the fact, that Nicola Gobbo was a registered police informer, in particular, the failure to disclose, meant that:
(i)the applicant was unable to challenge the admissibility of key evidence in his trial;
(ii)the applicant was unable to properly test [Mr Cooper’s] evidence against him; and
(iii)the applicant was unaware that Ms Gobbo, who was acting as his legal representative, had breached her professional duty to him.
Since at least September 2017, the applicant has been seeking, pursuant to s 317 of the Criminal Procedure Act 2009, the production of various documents relating to, amongst other things, Ms Gobbo and Mr Cooper. While the applicant has sought documents from a number of sources, more recently his efforts have been concentrated on attempting to obtain documents from the Chief Commissioner of Victoria Police. Those attempts are ongoing.
The present application
On 24 April this year, the applicant filed applications for bail in each proceeding in this Court. The applicant accepts that he must show exceptional circumstances. In his applications, he sets out his grounds for applying as follows:
1.The extraordinary nature of the present proceedings, including, but not limited to, the use of Ms Nicola Gobbo as a human source whilst she represented and advised the applicant, the conflict of interest on the part of Ms Gobbo as a result of her personal and professional relationship with [Mr Cooper], and the resultant effect this had on the ability of the applicant to conduct his trial without full disclosure.
2.Delay, namely:
(a)the expiration of the applicant’s non-parole period prior to the requisite disclosure being made to the applicant;
(b)the expiration of the applicant’s non-parole period prior to the appeal being heard and determined by the Court of Appeal;
(c)that the present proceedings have been ongoing for almost two years.
3.The availability of a surety in the sum of approximately $500,000.[12]
4.The prospect of continuing further higher education through Murdoch University.
5.The availability of a static address and strong family support.
6.The impact that the COVID-19 pandemic will have on the applicant in a custodial environment in the next six months or more.
[12]In argument, however, we were told that the precise amount available as a surety was (on a property valuation) only $419,000.
At the same time as he filed his applications for bail, the applicant filed further applications ‘for an order compelling disclosure’ of various transcripts, statements made by Mr Cooper and other documents (‘the document applications’).
Notwithstanding his contention that he still requires the production of a significant number of documents in order to prosecute his applications for leave to appeal, the applicant, pursuant to an order of this Court, has filed an ‘interim/holding’ written case. The interim written case contains detailed arguments as to why there was a substantial miscarriage of justice in relation to the applicant’s July 2011 conviction for trafficking in a large commercial quantity.
The arguments relate to Ms Gobbo’s alleged activities and the evidence of Mr Cooper, who was the central witness against the applicant in this trial. As the sentencing judge put it in his reasons for sentence:
Clearly [Mr Cooper’s] evidence was the pivotal evidence in the trial and the jury could not have convicted [the applicant] if they did not accept his evidence beyond reasonable doubt.[13]
[13]Reasons of Judge Montgomery [42].
The applicant contends that Mr Cooper assisted police ‘by becoming a witness against a number of people, including the applicant, in circumstances where Gobbo manipulated, assisted and encouraged him to do so’. It is said that, in addition to acting as legal adviser to Cooper, Ms Gobbo was also providing legal advice to the applicant himself, at a time when she was informing on both of them to Victoria Police.
The respondent accepts that the non-disclosure of these matters to the applicant was improper but says that it made no difference to the outcome of his trial. She maintains that any challenge to the admission of Cooper’s evidence would inevitably have failed. The grounds of appeal should therefore be rejected.
Analysis
As we have said, if bail is not granted the applicant will have served the entirety of his non-parole period before the hearing of his applications for leave to appeal. His interim written case contains substantial arguments which, if upheld, would render his July 2011 conviction for trafficking in a large commercial quantity unsound. It seems not to be in dispute that, had the applicant been aware of Ms Gobbo’s activities at the time of his trial, he would have had available to him powerful additional materials for use in challenging both the admissibility and the veracity of the evidence of the principal witness against him (Mr Cooper). What is disputed is whether the inability to mount those challenges meant that the applicant lost a chance of acquittal.
The Chief Commissioner of Victoria Police has filed submissions in response to the document applications. While the Chief Commissioner concedes that some documents should be provided, his submissions in opposition to the provision of other documents disclose that the resolution of the document issues between the parties will not occur any time soon. Specifically, in his submissions, the Chief Commissioner:
·asserts that some of the requests should fail because they are too wide;
·contends that, before this Court determines the document application, notice of the application should be given to the Royal Commission into the Management of Police Informants so that it may have an opportunity to be heard;
·submits that the applicant needs to show a legitimate forensic purpose for his requests;
·submits that the applicant must then demonstrate that it is ‘on the cards’ that the documents sought will materially assist him in his applications;
·raises matters of public interest immunity; and
·seeks the provision of specific confidentiality undertakings from the applicant and his lawyers.
We commend the parties on reaching agreement that disputes over the production of documents be referred to the Registrar of the Court of Appeal for the purpose of arranging any mediation he considers necessary. That said, it is plain from the Chief Commissioner’s submissions that a resolution of the disclosure applications made by the applicant is not likely to occur in the short term.
As indicated at the outset of these reasons, we are satisfied that the circumstances we have described are exceptional. The applicant has now served more than nine years of his sentence. He has applications for leave to appeal on foot which are, in our view, reasonably arguable. As we have already said, without a grant of bail, the applicant will serve the entirety of his non-parole period before his application for leave to appeal is capable of being heard.
The conditions proposed by the applicant (including a surety of $400,000) are sufficient to address any risk of failing to appear. There is not said to be any risk of the applicant interfering with witnesses, committing an offence while on bail or endangering the safety or welfare of any person.[14] Accordingly, there should be a grant of bail on terms that include the surety and the conditions which have been proposed.
[14]See Bail Act 1977 s 4E(1).
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