D'Aloia v The King
[2022] VSCA 265
•5 December 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0106 |
| BRUNO D’ALOIA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McCANN JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 November 2022 |
| DATE OF JUDGMENT: | 5 December 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 265 |
| JUDGMENT APPEALED FROM: | [2005] VCC 234 (Judge Hogan) |
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CRIMINAL LAW – Application for leave to appeal conviction and second appeal against conviction – Applicant seeks documents from the Chief Commissioner of Police – Whether there is legitimate forensic purpose in production of documents from the date range sought by the Applicant – Sufficient certainty that the documents from the date range sought will likely materially assist the Applicant – Whether production of affidavits in support of warrants obtained ought be limited and include only those where there is evidence of illegality or impropriety – Legitimate forensic purpose in the production of affidavits – In the interests of justice to order production sought by the Applicant – Application granted.
Criminal Procedure Act 2009, s 317.
Polimeni v The Queen [2022] VSCA 20.
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| Counsel | ||
| Applicant: | Mr C Mandy SC with Ms A Wong | |
| Respondent: | Ms R Verdon | |
| Chief Commissioner of Victoria Police: | Ms K Argiropoulos with Ms E A Frawley | |
Solicitors | ||
| Applicant: | Victoria Legal Aid | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
| Chief Commissioner of Victoria Police: | Victorian Government Solicitor’s Office | |
McCANN JR:
Introduction
On 30 March 2005, following pleas of guilty in the County Court, Bruno D’Aloia (‘the applicant’) was convicted of the following offences:
(a)Trafficking in a drug of dependence (Cannabis L) (two counts).
(b)Cultivating a commercial quantity of a narcotic plant (Cannabis L).
(c)Trafficking in a large commercial quantity of a drug of dependence (MDMA).
On 14 October 2005, he was sentenced to a total effective sentence of 13 years with a non-parole period of 9 years.[1]
[1]The applicant has served his term of imprisonment and is now at liberty.
The applicant previously filed an application for leave to appeal against his conviction for the offence of trafficking in a large commercial quantity of MDMA, which he later abandoned before it was heard.[2] On 13 November 2006, the Court of Appeal allowed the applicant’s appeal against sentence and re-sentenced him to the same term of imprisonment.
[2]By way of a notice of abandonment filed on 7 June 2006.
In March 2021, the Office of Public Prosecutions informed the applicant that his case (and the above convictions) may have been affected by the conduct of Nicola Gobbo, prompting further enquiries by the applicant.
The applicant’s present application for leave to appeal against his conviction for trafficking in a large commercial quantity (MDMA) is made pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’) as a second appeal. He has also applied for leave to appeal his remaining convictions pursuant to s 274 of the CPA, which is accompanied by an application for an extension of time.
The applications for leave to appeal contain a single ground asserting a fundamental miscarriage of justice relating to the failure of Ms Gobbo to disclose to the applicant that, at the time she was representing him, she had a relationship with Victoria Police and with the informant who had laid the charges against him.
The particulars of the single ground are as follows:
(a)The applicant’s barrister Ms Gobbo never disclosed to him that she had provided assistance and privileged information to Victoria Police about the applicant and others for whom she acted.
(b)The applicant’s barrister Ms Gobbo never disclosed to him that she had a personal relationship with, and was providing legal assistance to Paul Dale, the informant in the applicant’s charges.
(c)A fair-minded person in the position of either the applicant or a member of the public, with knowledge of either or both of these matters, would entertain a reasonable apprehension that Ms Gobbo had not acted with fearless independence in advising and representing the applicant.
In his written case dated 10 August 2022, the applicant referred to his need to seek production of further material in support of his application. By general application dated 26 August 2022, he sought orders for the production of the following categories of documents from the Chief Commissioner of Victoria Police (‘Chief Commissioner’) pursuant to s 317 of the CPA (‘the s 317 application’):[3]
[3]The documents in Category One have been amended as a consequence of discussions between the parties between the filing of the general application and hearing on 25 November 2022.
‘Category One’ documents
All documents held by the Major Drug Investigation Division relating to information exchanged between Ms Gobbo as a human source and Victoria Police between June 2002 (being approximately one month before Operation Frugal commenced) and 14 November 2005 (being one month after the applicant’s sentence) concerning:
(a)The applicant (sometimes spelled ‘Deloya’).
(b)The investigation and prosecution of the applicant and his co-accused as part of Operation Frugal.
(c)The investigation and prosecution of the applicant and his co-accused as part of Operation Rating.
‘Category Two’ documents
(d)All affidavits in support of warrants obtained in the course of the investigation of the applicant as part of Operation Frugal and Operation Rating.[4]
[4]Operation Frugal and Operation Rating were Victoria Police operational titles for investigations into drug trafficking that ultimately led to the arrests of at least ten people, including the applicant.
The Chief Commissioner objected to production of the material sought by the applicant in the s 317 application. Both the Chief Commissioner and applicant filed detailed written submissions in relation to the objections and the legal principles applicable to the matters in dispute between them. The Chief Commissioner also filed two affidavits:
(a)Confidential affidavit of Timothy James McKinney sworn 20 October 2022;
(b)Open affidavit of Scott Wallace sworn 21 October 2022.
It was evident from the material filed that the dispute in relation to the Category One documents was confined to the date range sought by the applicant and that the dispute in respect of the Category Two documents, being affidavits in support of warrants, might well be resolved by consent.
At the hearing on 25 November 2022, a resolution in relation to Category Two appeared to have been achieved. The Court was notified by the Chief Commissioner following the hearing and after the close of business on the day before this judgment was originally due to be published that this was no longer the case.
The applicant and Chief Commissioner can agree that there should be production in respect of:
(a)Any affidavits in support of warrants which were relied upon in the brief of evidence against the applicant or used to obtain evidence that was served on the applicant to the extent that they contained information obtained from, or possibly obtained from, Nicola Gobbo and/Shaun Browne (a pseudonym).[5]
[5]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the informer Shaun Browne.
The Chief Commissioner submits that where the affidavits contain information that was obtained from or possibly obtained from Shaun Browne it be limited to circumstances involving illegality or impropriety. The Applicant does not agree to this further limitation.
I have considered the written and oral submissions with respect to the date range for Category One and have determined that it is on the cards that the documents included in the majority of the date range sought by the applicant would likely materially assist in his applications for appeal. I would order production for the period July 2002 until November 2005.
I have also considered the written and oral submissions in relation Category Two and see no reason to limit production as it relates to Shaun Browne to circumstances involving illegality or impropriety.
These are my reasons.
Legal principles
The applicant and Chief Commissioner agreed that the legal principles in respect of production, including production pursuant to s 317 of the CPA, are well settled.
Such principles were rendered succinctly by Beach JA in the matter of Polimeni v The Queen:
In looking to see whether it is in the interests of justice to order the production of a document under s 317, the Court primarily looks to see whether an applicant has a legitimate forensic purpose for seeking access to the document. The assessment of whether an applicant has a legitimate forensic purpose for seeking access to a document falls to be considered by reference to the proposed grounds of appeal and the issues in dispute in the proceeding.
While it has been observed that the process in respect of an order under s 317 of the Criminal Procedure Act is treated as being akin to an order for a subpoena for the production of documents, ultimately the question of whether the production of a document should be ordered under s 317 is governed by whether this Court, to use the language of the statute, ‘considers that it is in the interests of justice to do so’. Thus, for example, while a given application may involve a greater than usual degree of uncertainty about whether it was ‘on the cards’ that the production of the document would materially assist an applicant’s case, the importance of the issue in respect of which the document is sought might be such that, weighing all relevant matters, the Court might conclude that it is nevertheless in the interests of justice to order production of the document.[6]
[6][2022] VSCA 20, [34–35].
In written submissions, both the Chief Commissioner and applicant drew the Court’s attention to the decision in Commissioner of Australian Federal Police v Magistrates’ Court of Victoria,[7] which concerned the production of affidavits in support of warrants under subpoena. Justice J Forrest identified the following considerations:
[7][2011] VSC 3.
(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought.
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced.
(c)the applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’.
(d)a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted.
(e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)in criminal proceedings a ‘more liberal’ view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.[8]
[8]Ibid [28] (citations omitted).
Submissions of the Chief Commissioner
In oral argument, counsel for the applicant made clear that the Chief Commissioner’s position in relation to Category Two was relevant to the applicant’s argument in respect of Category One. I will therefore consider them in reverse order.
Category Two
The Chief Commissioner asserted that the applicant had not demonstrated legitimate forensic purpose for seeking all affidavits. He advanced two limitations on the affidavit material to be produced;
(a)affidavits relied upon to obtain warrants which were relied upon to obtain evidence against the applicant to the extent that they contained information obtained or likely obtained from Nicola Gobbo or Shaun Browne; and
(b)affidavits where there is evidence of impropriety or bad faith.
Category One
In written submissions, the Chief Commissioner referred to the onerous nature of the task that will be required should orders be made for the production of documents in the disputed date range in Category One. However, it was not pressed that there was a burden that amounted to oppression.[9] It is apparent that the principal area of contention between the applicant and the Chief Commissioner is the level of certainty as to whether it is on the cards that documents or information dating back to June 2002 will materially assist the applicant.
[9]Commissioner for Railways v Small (1938) SR (NSW) 564.
In summary, the Chief Commissioner’s position is that production should be limited to documents in Category One which were generated during the period of time that the applicant was represented by Ms Gobbo. It was submitted that it is only on the cards that the documents sought from this period, commencing February 2003, will materially assist the applicant.
The Chief Commissioner advances the following points in support of his position:
(a)It is only during this period of time that Ms Gobbo could have acted in breach of professional obligations owed to the applicant.
(b)It is only during this period of time that Ms Gobbo would have had access to information provided by the applicant that she could then have given to Victoria Police.
(c)Ms Gobbo was not a registered informant during the additional period of time sought by the applicant.
Submissions of the applicant
Category Two
The applicant submitted that he does not seek to impugn the validity of the warrants. Confining the production of affidavits to those where there is evident illegality, impropriety or bad faith would therefore be unduly narrow and, from a practical point of view, the parameter is subjective and would be unworkable.
The applicant supported limiting the production of affidavits to those in support of warrants which were relied upon to obtain evidence against the applicant to the extent that they contained information obtained from or possibly obtained from Nicola Gobbo or Shaun Browne. The applicant seeks documents where it is merely possible that the source was Nicola Gobbo or Shaun Browne. The Chief Commissioner submits that the test of probability should be set higher, being likelihood.
Category One
In response to the submissions made by the Chief Commissioner in respect of Category One, the applicant contends the following:
(a)His ground of appeal does not rely for success on a breach of legal professional obligations.
(b)The Royal Commission into the Management of Police Informants (‘RCMPI’) made findings that Ms Gobbo provided information to Victoria Police in relation to many individuals, including people who were not her clients at the time or at any time at all.
(c)The RCMPI also made findings that Ms Gobbo provided Victoria Police with information outside of the periods of formal registration as a police informant and that almost the entirety of the period sought, including the portion agreeable to the Chief Commissioner, is outside of the periods of Ms Gobbo’s formal registration.[10]
[10]This point was conceded by the Chief Commissioner.
The applicant submitted that the majority of the information collected in relation to him and used in support of the charges laid against him was collected during Operation Frugal. This operation commenced on 23 July 2002, that is, before the applicant was charged with any offence and before he sought advice or representation from Ms Gobbo.
Lastly, the applicant referred to the Chief Commissioner’s concession to provide affidavits in support of warrants obtained during the entire Operation Frugal investigation (Category Two). It was submitted that it is inherent in that concession that the Chief Commissioner accepts that there is information from the period commencing July 2002 that will be of material assistance to the applicant.
Consideration
The assessment of legitimate forensic purpose is to be considered in light of the ground of appeal or matter in dispute between the parties. In his appeal the applicant advances a ground based on broad failures to disclose to him critical and relevant information about the relationships between his lawyer and Victoria Police and his lawyer and the police informant in his case. His case is not confined to or by issues of impropriety, although it may touch upon or potentially reveal them. Accordingly I see no reason to confine production of affidavits in support of warrants in Category Two by reference to circumstances involving illegality or impropriety.
There is a combined persuasive force in the applicant’s submissions as they relate to Category One, such that I find that there is sufficient certainty that it is on the cards that information from the investigation period dating back to July 2002 will materially assist the applicant. Accordingly, I am satisfied that it is in the interests of justice to order production of the material in Category One from the period commencing July 2002 until November 2005.
I am not satisfied that the documents to be produced by the Chief Commissioner should extend back to June 2002. In support of this date, the applicant submitted that there was a reasonable possibility that Ms Gobbo, a legal practitioner ‘prepared to breach her duties owed to a client and former client between 2004 and 2007’,[11] might have behaved in a similar manner during June 2002. However, as there was no investigation resulting in charges laid against the applicant in June 2002, and Operation Frugal did not commence until 23 July 2002, I cannot find that it is on the cards that there would be information of material assistance to the applicant’s case generated as early as June 2002.
[11]Page 7, Applicant’s Reply to the Chief Commissioner of Police’s Submissions regarding production of documents pursuant to s 317 of the Criminal Procedure Act 2009.
I will make orders in conformity with these reasons along with any associated timetabling orders for the exchange of material.
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