Director of Public Prosecutions v Potter

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2024 0142

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
GRAHAM POTTER	Accused

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATES OF HEARING:	23, 24 June 2025
DATE OF JUDGMENT:	22 September 2025
CASE MAY BE CITED AS:	Director of Public Prosecutions v Potter
MEDIUM NEUTRAL CITATION:	[2025] VSC 600

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PRACTICE AND PROCEDURE – Subpoenas issued by accused to non-parties – Applications to set aside – Whether legitimate forensic purpose – Whether reasonable possibility of documents materially assisting accused’s case – Some subpoenaed documents already produced or disclosed – Failure to identify legitimate forensic purpose – No reasonable possibility of assisting accused’s case – Subpoenas set aside.

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APPEARANCES:	Counsel	Solicitors
Forthe Prosecution	C Foot	Office of Public Prosecutions Victoria
Forthe Accused	J Desmond	Emma Turnbull Lawyers
For the Commissioner of the Australian Federal Police	J Forsaith and C O’Neil	Australian Government Solicitor
For the Chief Commissioner of Victoria Police	K Argiropoulos SC	Victorian Government Solicitor’s Office
For the Commonwealth Director of Public Prosecutions	M Pekevska	Commonwealth Director of Public Prosecutions

HIS HONOUR:

A. Subpoenas served

The accused, Graham Potter (“Potter”) is charged with conspiracy to murder contrary to section 321 of the Crimes Act 1958 (Vic). The prosecution alleges Potter conspired with Pasquale Barbaro (“Barbaro”) and others between 1 January 2008 and 8 August 2008 to pursue a course of conduct which would involve the murder of Fedele D’Amico (“D’Amico”).
Potter has served 4 subpoenas seeking documents be produced. They are subpoenas filed:
(1)14 April 2025, directed to the proper officer of the Commonwealth Director of Public Prosecutions, concerned with documents identified in the judgment of Osborn JA in Karam v The King [2022] VSC 808, and related materials (“the Karam Subpoena”).
(2)14 April 2025, directed to the proper officer of the Chief Commissioner of Victoria Police (“the Chief Commissioner”), relating to documents held by Victoria Police about a particular former police officer (“the Victoria Police Subpoena”).
(3)23 April 2025, directed to the proper officer, Subpoena Team, Australian Federal Police Legal, relating to telecommunications interception warrants and surveillance devices warrants issued between 8 June 2007 and 28 August 2008, including 45 affidavits relied upon in seeking these warrants be issued (“the 45 Warrant Affidavits”) and supporting material filed with the 45 Warrant Affidavits as listed in the schedule to the subpoena (“the Federal Police Subpoena”).[1]
(4)23 April 2025, directed to the proper officer of the Commonwealth Director of Public Prosecutions concerning the same documents sought in the Federal Police Subpoena (“the Overlapping Subpoena”).
[1]For completeness, one of the 45 Warrant Affidavits supported an application for the issue of a tracking device authorisation rather than a warrant, but nothing turns on this.
Applications have been made to set aside each of the Victoria Police, the Federal Police and the Overlapping Subpoenas.
Some documents the subject of the subpoenas have been produced or previously disclosed. Some further documents are to be produced, and (subject to further steps being taken) will likely be produced in due course.
However, for the reasons that follow, in relation to the remaining matters for determination, the Victoria Police Subpoena, the Federal Police Subpoena and the Overlapping Subpoena will be set aside.

B. Key facts regarding conspiracy to murder charge

The prelude to the alleged conspiracy involved a number of meetings the prosecution alleges were held in and after June 2007 concerning the importation of a shipping container from Naples which arrived in Melbourne on 28 June 2007 containing 4,423 kilograms of MDMA.[2] It is alleged that approximately 15,193,000 tablets of MDMA were secreted in tomato tins by a criminal syndicate headed by Barbaro (“the Tomato Tins Importation”). The Australian Federal Police seized the container and substituted the MDMA with another substance, but no one attempted to take possession of the container.
[2]Methylenedioxymethamphetamine, also referred to as ecstasy.
It is alleged that in July 2007 further meetings were held, during which reference was made to the failed attempt to import the MDMA and the role of D’Amico. It is alleged Barbaro held D’Amico responsible for the failed attempt to import the MDMA, and Barbaro’s overseas criminal connections put pressure on Barbaro to kill D’Amico as retribution.
It is further alleged that on 5 September 2007 Potter and others met at Pacific International Apartments in Melbourne shortly after D’Amico had been seen meeting at the same location. There was also a series of further meetings and communications alleged to have taken place throughout the remainder of 2007 concerning the Tomato Tins Importation and the role of D’Amico.
The prosecution alleges that Potter was involved in various discussions and activities in 2008 which concerned locating and killing D’Amico. It is unnecessary to descend into the detail. Potter was arrested in connection with the Tomato Tins Importation on 8 August 2008. He was granted bail on 5 September 2008.
On 28 May 2009, while still on bail, Potter was arrested again. He was charged with conspiracy to murder, being the charge which became the subject of the indictment filed in this proceeding. On the same day, Potter was granted bail. He was ordered to appear in the Magistrates’ Court of Victoria at Melbourne on 1 February 2010, but failed to do so. A warrant was issued for his arrest.
It was not until 21 February 2022 that Potter was located in Queensland and arrested. He was extradited to Victoria, where he appeared before the Melbourne Magistrates’ Court on 23 February 2022. He has been remanded in custody ever since.

C. Defence response

Potter states that he was not part of any conspiracy, agreement or understanding with Barbaro or anyone else to kill anyone. He further states that any acts done by him were done under duress or out of necessity, or both.
Amongst other things, the defence has foreshadowed seeking a permanent stay of this proceeding on the basis that a large body of material sought to be relied upon is inadmissible. To understand how the defence contends the subpoenas have been issued for a legitimate forensic purpose, it is necessary to summarise some background facts relied upon by the defence for this purpose.

D. The Tomato Tins Importation and related matters

D.1 Some general background

The “narrative” the defence relies upon involves police investigations concerning, amongst other things, the Tomato Tins Importation. The defence submits the involvement of a former barrister, Nicola Gobbo (“Gobbo”), in investigations and a number of police operations meant that the product of those measures was effectively infected by improper and illegal conduct. Further, the defence contends these matters are relevant to issues in this proceeding, including with respect to credibility and reliability of witnesses to be called by the prosecution.
The details of these police operations are discussed extensively elsewhere.[3] For present purposes, a brief chronology of the operations and related matters will suffice.
[3]See, for example, fn 24 below.
Before doing so, reference should be made to the difference between police investigations conducted only by the Federal Police, and those that are joint investigations conducted with one or more other agencies.
In relation to the former, it is common for the Federal Police to consult (regularly or intermittently) with other agencies for the purposes of obtaining information and intelligence or coordinating activities relating to entities of mutual interest. This does not mean these investigations are considered joint investigations.
With respect to the latter, ordinarily a joint agency agreement is entered into. This formal agreement usually sets out agreed objectives, phases and command arrangements, and defines obligations for each participating agency in terms of responsibilities and resources. In conducting joint investigations, participating members generally work as part of a single combined group (such as a task force) from a common physical location.

D.2 Relevant police operations and related matters

Operation Bootham was commenced on 6 March 2007 by the Federal Police. It was concerned with suspected narcotic importation into Australia, with Barbaro and others identified as suspects in the course of the investigation. Victoria Police were not involved.
On 5 June 2007, Gobbo provided documents to Victoria Police relating to shipping containers being imported by her client or persons associated with her client, Rob Karam (“Karam”). These included a bill of lading (in Italian) referring to tins of tomatoes. Gobbo further assisted by providing a translation of this document. On 8 June 2007, upon application by Victoria Police, the first surveillance warrant was issued with respect to Barbaro. The affidavit relied upon did not refer to details of the Tomato Tins Importation.
On 20 June 2007, Victoria Police met with the Australian Customs Service (“Customs”). Details were provided to Customs that were relevant to the Tomato Tins Importation, including information recently disclosed by Gobbo.
On 21 June 2007, a meeting was held between Victoria Police, the Federal Police, Customs and the Australian Crime Commission (“the Crime Commission”). Information concerning the Tomato Tins Importation was provided to the Federal Police, but this did not include who was the source of the information. As a result of this meeting, it was agreed that the Federal Police would be the lead agency in the controlled delivery of the container used in the Tomato Tins Importation.
It was part of Victoria Police’s plan that information would be presented in such a way to ensure the Federal Police believed it was Customs’ good work that resulted in the Tomato Tins Importation becoming known to the authorities. Indeed, as a result of this deliberate strategy, at no time during the investigations did the Federal Police know that Gobbo was being used by Victoria Police as a human source.[4]
[4]Karam v The Queen [2022] VSC 808, [127]-[128] (Osborn JA).
On 28 June 2007, being the day that the Tomato Tins Importation landed, Operation Moko was established. This was a joint operation between the Federal Police and Victoria Police.
Also on 28 June 2007, Gobbo informed Victoria Police of a proposed meeting at the Pacific International Apartments. The Federal Police already had this building under surveillance before this information was provided and were aware that it was a location attended by Barbaro and Saverio Zirilli (“Zirilli”).[5]
[5]Zirilli was observed as early as 15 June 2007 at this location and both Barbaro and Zirilli were likewise observed by Federal Police surveillance operatives on 26 and 27 June 2007.
On 29 June 2007, a joint agency agreement was entered into between Victoria Police, the Federal Police, Customs and the Crime Commission for the simulated delivery of the tomato tins.
On 6 July 2007, Operations Bootham and Moko were combined. The joint police operation, Operation Bootham-Moko, was established and led by the Federal Police. This controlled operation only continued until 17 July 2007 because no one had attempted to gain access to the tomato tins. Thereafter, Operation Bootham-Moko continued as a Federal Police retrospective investigation staffed exclusively by members of the Federal Police.
On 30 July 2007, as a result of information received from Operation Bootham-Moko, Operation Inca was established by the Federal Police, supported by Victoria Police and others.[6] This too was concerned with the Tomato Tins Importation. Under Operation Inca, Potter, Barbaro and others were the subject of electronic and physical surveillance.
[6]No joint agency agreement was ever entered into.
On 4 October 2007, Operation Inca became solely a Federal Police operation. At the time, Barbaro and Zirilli were the Federal Police’s key targets; whereas Victoria Police focussed on Karam, John Higgs (“Higgs”) and Carmelo Falanga (“Falanga”).[7]
[7]But see further fn 10 below.
It was not until a considerable time after October 2007 that Potter became a target of Operation Inca. To elaborate, Potter had first come to the Federal Police’s attention in mid-2007 because of his association with Barbaro. Potter lived in Piper’s River in Tasmania, but regularly travelled to Melbourne and stayed at a location in Carlton alleged to be used by Barbaro as a “safe house”. Potter’s alleged conduct became more significant from early 2008, being a time when Victoria Police were no longer participating in Operation Inca.
On 19 June 2008, Operation Kennels was established by Victoria Police to investigate the alleged conspiracy to murder D’Amico. The Federal Police provided information which instigated this operation. The Federal Police continued to share information with Victoria Police during and following Operation Inca.
Operation Inca concluded on 8 August 2008 with the arrests of Potter and others (including Barbaro, Zirilli and Karam) for serious drug-related offences.
Upon Potter’s arrest, he was charged with a single trafficking offence resulting from Operation Inca. This was connected with the alleged trafficking of a total of 1.2 million MDMA pills between February and August 2008.[8] Barbaro and Zirilli allegedly organised the movement of these pills from Sydney to Melbourne in 2 lots. The Federal Police charged a total of 21 people in connection with this.
[8]Specific to Potter, he was alleged to have trafficked at least 45,000 ecstasy tablets between January and August 2008, contrary to s 302.2(1) of the Criminal Code.
Potter was not charged in relation to other aspects of Operation Inca.[9] Nor was he charged with anything to do with the Tomato Tins Importation, Operation Bootham-Moko or Operation Cardinia.[10]
[9]In relation to other persons charged in connection with Operation Inca and the Tomato Tins Importation, numerous guilty pleas and convictions resulted. Some of the convictions have been unsuccessfully challenged as a result of allegations raised during the Royal Commission: see par 36 below.
[10]Operation Cardinia was a Federal Police operation related to Operation Inca concerned with investigating MDMA trafficking, the main target of which was Karam.
On 16 April 2009, Barbaro was charged with conspiracy to murder D’Amico.[11] As already stated, Potter was charged with the same offence in the following month.[12]
[11]Barbaro was also charged with conspiracy to murder another person.
[12]See par 10 above.

D.3 Some consequences of exposure of Gobbo’s role as a human source for Victoria Police

On 13 December 2018, a Royal Commission was established by the Victorian Government concerning the management of police informants.
This occurred shortly after the High Court revoked special leave to appeal a decision of the Victorian Court of Appeal which had dismissed an appeal of a refusal by a judge to uphold claims for public interest immunity by Victoria Police and Gobbo.[13] In so doing, the High Court stated that Gobbo[14] had engaged in “fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court”.[15] The High Court also recorded that “Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will”.[16]
[13]AB v CD and EF [2017] VSCA 338 (Ferguson CJ, Osborn and McLeish JJA).
[14]A pseudonym was used by the High Court. Gobbo was not publicly identified as the person who was known as “Lawyer X” until early 2019.
[15]AB v CD (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[16]Ibid.
As a result, the High Court determined that the prosecution of each of the “Convicted Persons” was corrupted.[17] The manner in which each prosecution was compromised was held to have debased the fundamental premises of the criminal justice system.[18] Thus, it was held that the maintenance of the integrity of the criminal justice system demanded that information connected with the corruption be disclosed to each Convicted Person so that each conviction could be re-examined in light of the further information.
[17]“Convicted Persons” was a reference to Antonius Mokbel and 6 of his criminal associates, none of whom was Potter.
[18]AB v CD (2018) 262 ALR 1, 4 [10].
Further, it was held that the public interest in preserving Gobbo’s anonymity must be subordinated to the integrity of the criminal justice system.[19] This conclusion was reached despite the “clear public interest in maintaining the anonymity of a police informer”,[20] which is ordinarily protected by public interest immunity,[21] and the grave risk of harm that Gobbo and her children faced.[22]
[19]Ibid, 5 [10].
[20]Ibid, 4 [9].
[21]Ibid, 5 [12]. See also Chief Commissioner of Police v Crupi (2024) 419 ALR 271, 277 [20] (Gageler CJ, Edelman and Beech-Jones JJ).
[22]Ibid, 5 [11].
In January 2019, Operation Chakram was established to manage the Federal Police’s involvement in the Royal Commission and various proceedings related to the ramifications of Gobbo’s role as a human source of Victoria Police.[23]
[23]See further pars 45-46 below.
In November 2020, the final report with respect to the Royal Commission was delivered (“the Final Report”).[24]
[24]M McMurdo AC, Royal Commission into the Management of Police Informants Final Report, 30 November 2020.
The defence relied upon findings recorded in the Final Report in the section entitled “Case study: Ms Gobbo’s involvement in the ’Tomato Tins’ drug-trafficking syndicate cases”.[25] In particular, by way of summary, the following was referred to:
(1)Gobbo provided information to Victoria Police from and about people targeted by various police operations despite being morally, ethically and legally conflicted.
(2)Gobbo’s long association with Karam since 2005 and, in addition to acting for him in numerous cases, having a social personal relationship such that he had grown used to Gobbo being around and he would talk to her about other things.
(3)Gobbo provided information about Karam earlier in the context of Operation Posse,[26] given his association with “Mr Cooper”[27] and the Mokbels, including documents (such as the bill of lading) and details relating to the Tomato Tins Importation.
(4)Victoria Police devised a plan to disclose the information received from Gobbo about the Tomato Tins Importation to other law enforcement agencies (such as the Federal Police) without revealing their source.
(5)Victoria Police assigning various tasks to Gobbo, which she was pleased to accept (including misleading Karam and his alleged co-conspirator Higgs), so that in July 2007 police could record them discussing the shipment.
(6)Victoria Police continuing to give tasks to Gobbo after they had stated that they would not do so and that they wanted her to take a passive role.
[25]Ibid, Vol II, 48, 51-53. A copy of this section of the Final Report is annexed to these reasons marked “Annexure A”.
[26]Operation Posse was established by Victoria Police in 2004 and was conducted by the Purana Taskforce. It investigated the manufacture of methamphetamine by the Mokbel family and associates in 3 clandestine laboratories.
[27]A pseudonym.

Various other parts of the Final Report were referred to in emphasising the impropriety of Gobbo’s conduct, including acting for at least 10 people who may have been charged as a result of information provided by her. It also included the substantial miscarriages of justice caused by the conduct of both Gobbo and Victoria Police, coupled with the unsatisfactory manner in which certain convictions were obtained.
Pausing here, the extent to which the Final Report and other matters raised may be relevant must be seen in light of the fact that Gobbo has never acted for Potter. Further, the Royal Commission did not examine the case against Potter. It was noted in the Final Report that Potter had absconded.[28] That said, the Final Report specifically stated that there were 38 people for whom Gobbo did not act but whose cases may have been affected by her use as a human source.[29] This was because Gobbo informing as a lawyer may have resulted in the improperly or illegally obtained evidence tainting cases in which she was not involved, including Potter’s case. Potter submitted the fact that he was not represented by Gobbo was not to the point because it was the improperly and illegally obtained product of the investigations that was at the heart of the Potter prosecution.
[28]See Vol II, 51-53, Figure 7.4: “Involvement of Gobbo with people charged in the ‘Tomato Tins’ drug-trafficking syndicate, June 2007 to August 2008”.
[29]Volume II, 11-12, Figure 7.1, 57, Box 7.1.
Gobbo’s role as a human source for Victoria Police was also considered in Karam v The King.[30] A number of extracts from the judgment Potter referred to are set out in annexure B to these reasons.[31] Essentially, Potter relied on a series of findings of Osborn JA in that case. These concerned Gobbo’s interactions with Karam, Victoria Police and others in her clandestine role as a human source while also acting as a barrister for Karam and others, including providing information regarding the Tomato Tins Importation. Importantly, Potter does not gainsay his Honour’s finding that there was no evidence of the Federal Police ever being informed at any relevant time that Gobbo was providing information to Victoria Police.[32]
[30][2022] VSC 808 (Osborn JA). This judgment was delivered pursuant to a reference under s 319A of the Criminal Procedure Act 2009 (Vic).
[31]Potter also referred to [24]-[37] of this judgment in his submissions relating to the Karam Subpoena. As this subpoena is not the subject of any ruling these paragraphs of the judgment have not been included in annexure B. For completeness, annexure B also contains paragraphs of the judgment referred to in the Federal Police’s submissions.
[32]See par 23 above.
Potter also referred to Mokbel v The King.[33] In particular, reliance was placed upon the “devastating impact” the conduct of Gobbo and Victoria Police had in using her as a police source. The following findings were relied upon to illustrate the point:[34]
To take the further step and find as a fact that the attitude of Victoria Police to its disclosure obligations in relation to the use of Ms Gobbo as an informer was part of a broader pattern of “high-level, deliberate and systemic improper practices” is irresistible. The fact that there was evidence in the proceeding from a number of senior members of Victoria Police that they unilaterally redacted a large range of documents that would have been susceptible to disclosure in curial proceedings in order to conceal Ms Gobbo’s involvement in numerous investigations that resulted in charges being laid against a number of people, is clear evidence of those practices.
(Emphasis added.)
[33][2024] VSC 725 (Fullerton J).
[34]Ibid, [1420].

D.4 Reliance on findings of Gobbo’s and Victoria Police’s misconduct

Before turning to the specific issues raised with respect to the subpoenas, the general relevance of findings of misconduct to Potter’s prosecution in this proceeding was identified as follows:
(1)The improper and illegal conduct of Gobbo or police, or both, led to the obtaining of the warrants which the defence contend in turn led to the surveillance and listening product being relied upon in this proceeding and improperly obtained evidence being passed on between law enforcement agencies.
(2)Comments and findings made by judges in the abovementioned cases and in the Final Report identify improper and illegal conduct relevant to this proceeding.
(3)The materials in question go to both the credibility and reliability of witnesses, the motive of Barbaro (not Potter) to have D’Amico killed (which, in turn, is relevant to Potter’s defence that he was “exposed to threat of life and limb” in relation to the events giving rise to the charge), and the admissibility of evidence (including evidence connected with the Tomato Tins Importation).
(4)The relevant materials will be relevant to “facts in issue” for the purposes of s 55 of the Evidence Act 2008 (Vic).
As to the last of these matters, the defence relied upon s 57 of the Evidence Act. Potter invited the Court to make findings of provisional relevance when determining whether the materials in question would be relevant to “facts in issue”.
In seeking to further link the facts of this proceeding with the Tomato Tins Importation and the improper conduct of Gobbo and Victoria Police, Potter referred to various parts of the prosecution opening for trial.[35] The opening expressly referred to Operation Inca, Operation Bootham-Moko and Operation Kennels. It also identified evidence captured by surveillance devices. The opening listed 14 persons likely to be referred to during the trial, who included Karam, Zirilli, Higgs, Falanga and Francesco Madafferi. In short, Potter’s forensic purpose included establishing the extent to which the prosecution case to be made against him was founded on police investigations informed by improperly obtained information.
[35]More specifically, [3]-[19] of the prosecution opening were referred to. It is unnecessary to set out all the detail of the various meetings and events that it is alleged took place in 2007 and 2008.
It was submitted that to deny the materials sought would appear to any reasonable observer to amount to (at the very least a perception of, if not a reality of) a “wall of nondisclosure” as evidenced in previous cases concerning Gobbo and Victoria Police in this context. Furthermore, it was submitted that if the materials were not disclosed, Potter would be denied natural justice, procedural fairness and a fair trial.

E. Legal principles

E.1 Legitimate forensic purpose and “on the cards”

Before access is granted to documents produced in answer to a subpoena, the applicant must “(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist [the applicant’s] case”.[36]
[36]R v Saleam [1999] NSWCCA 86, [11] (Simpson J, with whom Spigelman CJ and Studdert J agreed). See also Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, 555 [80] (Beazley JA, with whom James and Kirby JJ agreed).
These 2 elements require the court to consider a number of factors,[37] including, relevantly: (1) whether the party resisting the subpoena being set aside identifies expressly, and with precision, the legitimate forensic purpose for which access to the documents was sought;[38] (2) whether the subpoena is plainly too broad or amounts to a fishing expedition (in which case it should not be permitted);[39] (3) the “more liberal view” to be taken by the court in applying the test in criminal proceedings;[40] and (4) whether the party seeking production can demonstrate there is a “reasonable possibility” the documents will materially assist their case.[41]
[37]1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18]-[19] (Derham AsJ), and the cases there cited; Webb v Wheatley [2015] VSC 153, [55]-[56] (Derham AsJ), and the cases there cited; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61, [6] (Collier J).
[38]Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(a)] (J Forrest J) and the cases there cited; R v Saleam (1989) 16 NSWLR 14, 18C (Hunt J, with whom Carruthers and Grove JJ agreed).
[39]Rinehart v Rinehart [2018] NSWSC 1102, [48] (Ward CJ in Eq); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [20] (Derham AsJ); Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(d)].
[40]Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(g)] and the cases there cited.
[41]Rinehart v Rinehart [2018] NSWSC 1102, [47] (Ward CJ in Eq); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(c)]; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(c)]; Director of Public Prosecutions v Selway (No 2) (2007) 16 VR 508, 512-514 [8]-[10] (Cummins J); Alister v The Queen (1984) 154 CLR 404, 414.5 (Gibbs CJ).
To elaborate on the first 3 factors, a legitimate forensic purpose will not be established if the party seeking production seeks those documents purely to determine their relevance in the proceeding,[42] or if the party is merely asserting bad faith by an applicant or speculating that something might be found demonstrating bad faith.[43] Similarly, relevance to an issue in the proceeding is not, without more, enough to establish legitimate forensic purpose[44] including with respect to criminal proceedings.[45]
[42]Webb v Wheatley [2015] VSC 153, [55(e)] (Derham AsJ) and the cases there cited; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(a)] and the cases there cited.
[43]1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(f)]; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(f)] and the cases there cited.
[44]State ofVictoria v Lane [2012] VSC 328, [20] (Kyrou J); Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(e)] and the cases there cited; Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26] (Redlich and Mandie JJA).
[45]Holloway v State of Victoria (2015) 73 MVR 145, 160 [47] (Cavanough J), citing Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536, 550-551 [59]-[63] (Beazley JA, with whom James and Kirby JJ agreed).
That being said, in criminal proceedings, documents responsive to a subpoena (or information derived from these documents) may assist an accused person, and special weight must be given to this fact. In some cases, the accused’s counsel may be in the best position to make an assessment of the likelihood of assistance.[46]
[46]This principle was applied in R v Mokbel (Ruling No 1) [2005] VSC 410, [45]-[46], [71]-[76] (Gillard J) and the cases there cited, where legitimate forensic purpose was demonstrated by the accused in respect of documents that could provide information relevant to the credibility of the police officers that were central to the Crown case. See also Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(g)] (J Forrest J) and the cases there cited.
It is not enough that the documents sought may assist the case.[47] A legitimate forensic purpose will only exist where, based on the circumstances of the case, the documentation sought to be produced is not only relevant to the proceeding, but also the court is satisfied there is “something in the material then before the court that makes it appear likely that the documents will materially assist the applicant” (emphasis added).[48] This is consistent with the phrase “on the cards” used by the New South Wales Court of Criminal Appeal in R v Saleam,[49] which is interchangeable with the “reasonable possibility” terminology that is widely accepted.[50]
[47]Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26] (Redlich and Mandie JJA).
[48]Ibid.
[49]See fn 36 above.
[50]Director of Public Prosecutions v Debono (2012) 268 FLR 261, 306 [212] (Kyrou J); Victoria v Lane [2012] VSC 328, [18] (Kyrou J).
These considerations do not always have the same value, and attention must be given to the circumstances as a whole.[51]
[51]Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 324 [97] (Bell J).
Where a party fails to demonstrate a legitimate forensic purpose for the subpoena it is calling on, the Court should set aside the subpoena and refuse access to the documents produced.[52]
[52]Commissioner of Australian Federal Police v Song (Subpoena Objection) [2023] VSC 273, [17] (Forbes J); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(g)] (Derham AsJ); Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3, [28(f)] and the cases there cited. This should not to be understood as an encouragement for subpoenaed parties to take blanket objections to every document of which production is sought on the basis that no legitimate forensic purpose is served by its production: see R v Saleam (1989) 16 NSWLR 14, 19B (Hunt J, with whom Carruthers and Grove JJ agreed).

E.2 Collateral attacks on warrants and related evidence

An accused may seek to have evidence excluded on the basis that it has been improperly or illegally obtained.[53] Impropriety in this context may cover conduct beyond actual fraud, including conduct that is not wilful or committed in bad faith.[54] Thus, in some cases, an accused may have a legitimate forensic purpose to collaterally attack a warrant (that has been previously issued and executed and that was used to obtain evidence to be relied upon against the accused) by calling on a subpoena requiring documents to be produced that are relevant to the propriety or otherwise of the seeking and issuing of the warrant.[55]
[53]Evidence Act, s 138. Such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence: subs (1).
[54]Chief Commissioner of Police v Zammit [2023] VSC 635, [65] (Richards J), citing R v Cornwell (2003) 57 NSWLR 82, 87 [20] (Howie J).
[55]Ibid, [63]-[64], quoting Gould v Director of Public Prosecutions (Cth) (2018) 359 ALR 142, 154-155 [53]-[54] (Basten JA, with whom Johnson and Adamson JJ agreed). See also Ousley v The Queen (1997) 192 CLR 69, 100.8 (McHugh J), citing cases including Coco v The Queen (1994) 179 CLR 427, 443.7 (Mason CJ, Brennan, Gaudron and McHugh JJ); Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, 204D (Beaumont, Ryan and Lindgren JJ).
However, the ability to challenge a warrant is limited. There is no ability to go behind a warrant that is valid on its face to challenge the sufficiency of the material that supported the application for it to be issued,[56] unless there is some indication of fraud or bad faith.[57] As already noted,[58] a mere assertion of bad faith is not enough.
[56]Ousley v The Queen (1997) 192 CLR 69, 79.8-80.7, 85.2 (Toohey J), 87.5 (Gaudron J) 100.6 (McHugh J), 125.8-126.8, 127.5, 131 (Gummow J).
[57]Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, 216E-217G; Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, 555D, 560C-564B (Beaumont and Whitlam JJ), 569E, 570F (Hill J).
[58]See par 53 above.
Accordingly, no legitimate purpose will be established by seeking the affidavit and any other materials relied upon in having a warrant issued merely on the basis that they may assist the defence in finding some basis to argue that the warrants were improperly or illegally issued.

E.3 Attacks on credibility

There is a public interest in an accused being able to elicit evidence, including matters going to credit, that may assist the defence in achieving a favourable outcome.[59] Thus, an accused may have a legitimate purpose in seeking to attack the credibility[60] of a witness intended to be called by the prosecution.[61] However, a mere general assertion that the credit of a witness is in issue will not suffice to create a legitimate forensic purpose; nor will adopting a position that the correctness of the evidence of a witness is not conceded.[62] Equally, the contention that the documents sought might disclose material that could have a significant bearing on the credit of a prosecution witness may not suffice.[63]
[59]Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, 88.8 (Brooking J, with whom Southwell and Teague JJ agreed).
[60]On a broad meaning of credibility, the term also encompasses reliability: ibid, 93.3.
[61]See, for example, fn 46 above; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 315 [64] (Bell J), citing Mallard v The Queen (2005) 224 CLR 125, 155 [81] (Kirby J). See also Jovanovski v The Queen (2008) 181 A Crim R 372, 377 [22]-[23] (Hodgson JA, with whom Kirby and Buddin JJ agreed).
[62]Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, 91.4 (Brooking J, with whom Southwell and Teague JJ agreed).
[63]Alister v The Queen (1984) 154 CLR 404, 438.7 (Wilson and Dawson JJ, dissenting), 455.3 (Brennan J). Brooking J in Jarvie v Magistrates’ Court of Victoria [1995] 1 VR 84, 91.2 refers to a “strong enough case”, but noting that phrase was used in a case concerned with non-disclosure of the identity of undercover police operatives who were to give evidence.
Naturally, if a legitimate forensic purpose exists on this basis, the further requirement that there is a reasonable possibility that the documents will materially assist the case must also be satisfied.

F. Disclosure made to Potter

In addition to facing a charge in this court, Potter is committed to stand trial in the County Court of Victoria for one count of trafficking a commercial quantity of MDMA contrary to s 302.2(1) of the Schedule to the Criminal Code Act 1995 (Cth). There is an overlap between the evidence and the disclosure material in the County Court proceeding and this proceeding because evidence relevant to the alleged conspiracy to murder was gathered by the Federal Police in the course of investigating the importation and trafficking of illicit substances as part of Operation Inca. It is expected that the County Court proceeding will not go to trial until after the completion of the trial of this proceeding.
In the County Court proceeding, disclosure was affected by the fact that Potter was one of many persons charged with offences arising out of Operations Inca, Bootham-Moko and Cardinia. In 2010, a single “omnibus” disclosure package was given to all persons charged in connection with those operations (“the Omnibus Disclosure Package”). As a consequence of various appeals arising out of Gobbo’s role as a source for Victoria Police, further disclosure packages were compiled (“the Tomato Tins Disclosure Packages”).
Since 2022, the materials Potter has been served with include the following:
(1)a reconstructed version of the original brief of evidence relating to all Operation Inca defendants.
(2)A Commonwealth brief specific to Potter’s current proceedings.
(3)A copy of the Omnibus Disclosure Package.
(4)The Tomato Tins Disclosure Packages.
(5)A further disclosure package specific to Potter.
(6)Multiple tranches of disclosures in response to a form 32 request by Potter dated 16 May 2023[64] (as at 21 November 2023 comprising approximately 58,947 pages of material, some of which has been redacted based upon relevance, public interest and statutory immunity, and legal privilege).[65]
[64]A “Form 32” is a case direction notice, being the form prescribed by r 59 of the Magistrates' Court Criminal Procedure Rules 2019 (Vic) for the purposes of s 119(a) of the Criminal Procedure Act.
[65]See also par 93 below.

Importantly for present purposes, warrants the subject of 12 of the 45 Warrant Affidavits have already been provided to Potter in the brief of evidence as part of the prosecution’s disclosure to date, together with the product of those executed warrants.[66] Equally as important, these 12 warrants and the 12 related warrant affidavits (“the Relevant Warrant Materials”) were the only warrants and affidavits that yielded material now forming part of the case against Potter.
[66]These are the product of warrant affidavits listed in rows 3, 10, 16, 25, 26, 28, 29, 31, 36, 38, 39 and 43 of the table to the Federal Police Subpoena. See further par 79 below.

G. The Karam Subpoena

There is nothing for the court to presently determine in relation to this subpoena. The parties have resolved the issue of production, subject to obtaining leave from the Court of Appeal to have the Director of Public Prosecutions released from a Home Office v Harman undertaking.[67] This undertaking presently requires the use of the documents to be confined to the other proceeding.

H. The Victoria Police Subpoena

[67]Home Office v Harman [1983] AC 280.

H.1 Documents sought

This subpoena requires the Chief Commissioner to produce documents concerning a police officer, who resigned from the police force some time ago[68] (“the Former Officer”),[69] in accordance with the following:
[68]It is unnecessary to address Potter’s submissions erroneously premised on the supposition that the Former Officer had been dismissed as there was no evidence to support this.
[69]The Court was informed that the Former Officer will be available to attend and give evidence if required to do so under s 198B of the Criminal Procedure Act. The defence initially relied upon what was believed to be the Former Officer’s unavailability as a factor which exacerbated the prejudice claimed in being unable to attack the Former Officer’s character, credibility and reliability.
1.All documents held by Victoria Police (whether authored by Victoria Police or other government agencies) about [the Former Officer] (retired) including, but not limited to, documents regarding:
(a)failing to comply with Victoria Police regulations; and
(b)failing to comply with Victoria Police manuals; and
(c)failing to comply with Victoria Police policies; and
(d)failing to comply with any directions of the Chief Commissioner of Victoria Police; and
(e)committing any criminal or regulatory offences (including offences resulting in diversion, warnings or acknowledgment of responsibility); and
(f)any other material in the possession of Victoria Police that could affect the assessment of the character, credibility or reliability of [the Former Officer] (retired).
2.A complete copy of all entries made in the Victoria Police records of complaints, serious incidents and discipline (ROCSID) database concerning [the Former Officer].
3.If not produced under any other, a copy of any document, detailing any reprimand or admonishment concerning and matters arising out of any independent broad-based anti-corruption commission (IBAC) investigation into [the Former Officer].
4.Any other document or material relating to [the Former Officer] misusing, mishandling or breaching the confidentiality of any evidence or investigative material or police documents or improperly obtained documents, material or information.
The forensic purpose identified by Potter for obtaining the documents the subject of the Victoria Police Subpoena concerned the exclusion of evidence, information relevant to cross-examination, and assistance in the admissibility and weight of prosecution evidence. The documents sought were also submitted to be directed towards the fairness of the trial.

H.2 Documents produced

The Chief Commissioner accepted “wholeheartedly” that any documents that may cast a significant light upon the credibility or reliability of a witness intending to be called by the prosecution must be disclosed.[70] Further, the Chief Commissioner did not dispute Potter’s contention that the Former Officer was a key figure in the investigation and prosecution of Potter for the charge of conspiracy to murder;[71] or that the Former Officer’s character, credibility and reliability will be an issue at trial.
[70]See fn 61 above.
[71]The defence intends to refer to a number of draft statements allegedly generated from information provided by Potter with the involvement of the Former Officer, as well as alleging that the Former Officer was engaged in oppressive, intimidatory and overbearing conduct when dealing with Potter.
The Chief Commissioner has produced 2 documents pursuant to this subpoena.
The first of these is dated 25 July 2023 and entitled “Final Investigation Report”. This involved confidential police documents being located that were said to have formerly been in the personal possession of the Former Officer when they should not have been.
The second document is a brief of evidence concerning the Former Officer. This related to charges of unlawful assault and contravention of an interim intervention order.

H.3 Rulings on further production

H.3.1 Statutory prohibition applies to some documents

The Chief Commissioner opposed production of 2 files pursuant to an Act of Parliament prohibiting disclosure of certain information. The Chief Commissioner filed confidential submissions and evidence in this regard. It suffices to say that, having reviewed the materials, including in court during the hearing before all parties (without the detail being disclosed to the defence), I am satisfied that there is a statutory prohibition on the production of those 2 files.[72]
[72]See confidential annexure C to these reasons.

H.3.2 No legitimate forensic purpose in remaining documents

There remained 4 files that were responsive to the Victoria Police Subpoena These files were produced to the court for inspection and were, by consent, inspected by me personally.
Suffice to say that the contents of those files could serve no legitimate forensic purpose and could not in any meaningful way be understood as providing a reasonable possibility of materially assisting the defence in this proceeding. Broadly speaking, the files contain nothing more than unsubstantiated allegations against the Former Officer. On their face, some of the allegations are based on nothing more than rank hearsay or inuendo. Indeed, some of the bare assertions were plainly baseless, when considered in light of the available objective evidence also contained in the files which demonstrated their lack of substance. In short, the information contained in the files was not remotely relevant to the issues in this proceeding, nor could they provide a potential basis to attack the character, credit or reliability of the Former Officer.
It follows that the Victoria Police Subpoena must be set aside.

H.3.3 Further issue

For completeness, paragraph 1 of the subpoena as set out above is plainly too wide. The defence’s submission that the Victoria Police Subpoena was appropriately confined must be rejected. The chapeau to paragraph 1 includes all documents “about” the Former Officer without any limitation. In light of the above reasons, it is not necessary to elaborate.

The Federal Police Subpoena

I.1 Documents sought

This subpoena requires the Federal Police to produce the 45 Warrant Affidavits itemised in a table forming part of the schedule of the subpoena in 45 rows under a heading “Affidavit”, together with each warrant obtained pursuant to the 45 Warrant Affidavits.[73] As already noted,[74] some of the documents sought have already been produced. Further, while not determinative, it is not insignificant that Potter was the subject of only 4 of the 45 Warrant Affidavits.[75]
[73]The Federal Police Subpoena sought each warrant and any affidavit “and supporting material, including exhibits, annexures to any affidavit or the like filed by Australian Federal Police (or other law enforcement agency)” with respect to the 45 Warrant Affidavits.
[74]See pars 65-66 above.
[75]The warrant affidavits listed in rows 19, 30, 34 and 39 of the Federal Police Subpoena.
Specifically with respect to the Federal Police Subpoena, the defence submitted the materials sought would reasonably be seen to materially assist the defence with respect to the following:
(1)Jurisdictional error with respect to whether the person who issued the relevant warrant had legal authority to do so.
(2)Whether each warrant was defective on its face. In particular, whether the warrant contained errors concerning “wrong address, no offence or required offence state (sic) or listed” or was too vague.
(3)Lack of reasonable grounds. Was there insufficient evidence to justify issuing the warrant?[76]
(4)Was the relevant warrant authorised or procured based on improperly or illegally obtained evidence?
(5)Whether the affidavit relied upon to obtain the relevant warrant disclosed all material facts to the judicial officer.
(6)Whether there were any material omissions or misrepresentations made in obtaining the relevant warrant. In this regard, Potter referred to Victoria Police not disclosing its source of information and also the Federal Police not making any attempt to obtain its own supporting evidence that would justify the Federal Police acting on the evidence they did to apply for and have a warrant issued.
(7)Whether the warrant was issued in accordance with statutory requirements.
[76]Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 174.4, 177.7-180.3 (Kirby ACJ, dissenting obiter dictum) and Peters v Attorney-General (NSW) (1988) 84 ALR 319, 335.1 (McHugh JA, with whom Kirby P and Mahoney JA agreed) were relied upon for the proposition that courts have the capacity to review warrants in appropriate cases.
The defence submitted that, when the material is considered as a whole, the information sought was “on the cards” to be material if not highly relevant to the question of the legitimacy of the warrants obtained and the surveillance product that resulted. It was submitted all of the 45 Warrant Affidavits were relevant to the conduct on the Federal Police members involved. This was put on the basis that, even “if they were innocent dupes”, it was still relevant for the defence to see whether there was consistency in the representations that were made in seeking each of the warrants related to the Tomato Tins Importation as part of Operations Bootham, Moko, Bootham-Moko and Inca.
Before addressing the matters raised by Potter, it is important to review the steps that have already been taken by the Federal Police. As is apparent from what is set out below, there is direct and uncontested evidence as to the possible relevance of the documents the subject of the Federal Police Subpoena to the defence in this case.

I.2 Federal Police procedures in applying for the issuing of warrants

It is instructive to explain the process undertaken by the Federal Police in applying for and obtaining warrants during this period.
Warrants were routinely applied for in the course of police operations. As part of this process, a member of the Federal Police would prepare an affidavit for the purpose of making an application to the court or tribunal with the power to issue the warrant. A particular affidavit may be used to apply for multiple warrants, including different types of warrants. After a warrant was obtained, it was a matter for the Federal Police as to whether or not it was executed. Thus, not all warrants obtained were necessarily executed.
All the warrants in question were issued by an administrative decision maker either under the Telecommunications (Interception and Access) Act 1979 (Cth) or the Surveillance Devices Act 2004 (Cth). There was no substantive submission by Potter identifying any basis upon which it might have been contended that the formal statutory requirements were not met in relation to any of the warrants sought.

I.3 Reviews undertaken by Federal Police

In seeking to have the Federal Police Subpoena set aside, reliance was placed upon an affidavit of detective leading senior constable Sarah Brener (“Brener”).[77] Brener is presently attached to Operation Chakram.
[77]Except with respect to a minor error in a date in her affidavit (which was corrected by Brener giving oral evidence at the hearing), Brener was not the subject of cross-examination with respect to the contents of her affidavit.
Brener assisted with the preparation of material for the Royal Commission and associated proceedings, with particular attention to Operations Bootham-Moko and Inca. As part of her role, Brener reviewed material produced by Victoria Police, together with the evidence given by Victoria Police members before the Royal Commission. She has also carried out extensive searches and enquiries in relation to cases involving the Federal Police that may have been affected by use of Gobbo as a registered informer of Victoria Police. This has included supporting the Federal Police’s involvement in a large number of appeals in the Victorian Court of Appeal which were instigated as a result of Gobbo’s connection with Operations Bootham-Moko and Inca.
In the course of her role, Brener has:
(1)Searched for, collated, reviewed and assessed relevant documents in the Federal Police’s possession, including emails, diary entries and PROMIS[78] case note entries relating to the Tomato Tins Importation.
(2)Reviewed and assessed the “Major Incident Room” log for the controlled operation involving the Tomato Tins Importation.
(3)Made enquiries with Federal Police members who had interactions with customs, the Crime Commission and Victoria Police in relation to the Tomato Tins Importation.
(4)Reviewed the documents produced by Victoria Police in the Court of Appeal proceedings linked to Operations Bootham-Moko and Inca, including informer contact reports, information reports, the diaries of Gobbo’s handlers, the diaries of relevant investigators and relevant emails.
(5)Reviewed and assessed relevant material from the combined brief of evidence for Operations Bootham-Moko and Inca.
(6)Reviewed the Final Report, counsel assisting’s submissions and multiple disclosure packages produced by Victoria Police in response to the Royal Commission.
[78]That is, Police Realtime Online Management Information System, being an information system used by the Federal Police.
Brener has deposed that a major purpose of her reviews, assessments and inquiries was to identify any information in the possession of the Federal Police which was either provided by Gobbo to Victoria Police, or derived from such information.
Brener has further deposed that the reviews she conducted included reviewing all the warrants and the 45 Warrant Affidavits as part of her review in 2020 of all warrant applications made in Operations Bootham-Moko, Inca and Cardinia. Brener’s initial review focussed on identifying if any of the applications contained information that appeared to originate from a Victoria Police human source. After submissions of counsel assisting the Royal Commission were published, a further review was conducted which identified information allegedly provided by Gobbo. This further review was extended to include identification of any Crime Commission telecommunications information that may have been referenced in the warrant applications.
Also as part of the review, Brener sought and obtained advice from both the Crime Commission and Victoria Police. As a result of the advice received, Brener went beyond the warrant applications to other materials to determine the extent to which information intercepted from certain services was used in Operations Bootham-Moko, Inca and Cardinia, and in the prosecution of individuals charged as a result of those investigations.
In January 2021, Brener prepared a report recording the results of her review, which was forwarded by letter to the Commonwealth Director of Public Prosecutions. In February 2024, Brener again wrote to the Commonwealth Director stating that the Federal Police considered Brener’s January 2021 report was disclosable to Potter. That letter stated that, in January 2021, information had been provided on the basis that the Federal Police considered the information was disclosable to persons convicted in connection with Operation Bootham-Moko.[79] This disclosure duly occurred. The letter then set out the reasons why the Federal Police considered the information was also disclosable to Potter.
[79]These persons included Barbaro, Falanga, Higgs, Karam and Zirilli.
Both the January 2021 letter and the February 2024 letter have been disclosed to Potter. In combination, this correspondence sets out precisely what Brener concluded with respect to any connection between information provided by Gobbo to Victoria Police and the information relied upon by the Federal Police in obtaining 115 warrants in 2007 and 2008 for the purposes of Operations Bootham-Moko, Inca and Cardinia.
After Potter’s committal proceeding, Brener conducted an audit in respect of all Federal Police surveillance device and telecommunications intercepted material in the brief of evidence relating to the charge against Potter arising from Operation Inca. This was done to confirm how the Federal Police became informed about each of the premises the subject of the warrants. Brener also interrogated Federal Police systems to determine when the Federal Police first located information that linked either the telecommunications service or the premises “to the investigation and or the person under which the warrant product was captured”.
The audit confirmed that each relevant premises and telecommunications service the subject of a specific warrant had been identified through the Federal Police’s own enquiries rather than based on any information provided by Victoria Police (and thus possibly, in turn, by Gobbo). The results of this audit have been provided to Potter.
A further audit was conducted by Brener with respect to material in the brief of evidence for this proceeding. Again, Brener concluded each premises the subject of a surveillance device warrant, each telecommunications service with respect to a named person, and each telecommunications service in respect of which stored communications were obtained, had been identified through the Federal Police’s own enquiries.
Yet again, this time in response to the Federal Police Subpoena, Brener reviewed the 45 Warrant Affidavits. Having regard to disclosures now known to be made by Gobbo to Victoria Police, Brener did so “to identify any information within them that could conceivably be connected to Ms Gobbo”. With the exceptions she itemised and disclosed in her affidavit,[80] no information that she has reviewed suggested to her that information provided by Gobbo was used in the 45 Warrant Affidavits.

I.4 Extent relevant information provided to Federal Police contained in the 45 Warrant Affidavits

[80]See pars 98-100 below.

Dealing with the information provided by Gobbo on 28 June 2007 concerning Pacific International Apartments,[81] there was nothing in the 45 Warrant Affidavits, or any other information Brener reviewed, to suggest that Gobbo’s advice to Victoria Police in this regard was ever conveyed to or used by the Federal Police.[82] This absence of any connection between this information from Gobbo and the 45 Warrant Affidavits is fortified by the fact that the Federal Police already knew about this location being a meeting place for Barbaro and Zirilli.[83]
[81]See par 25 above.
[82]Of the 45 Warrant Affidavits, only 3 of the affidavits (that provided warrant product to be relied upon in this proceeding) made reference to the Pacific International Apartments, being those listed in rows 3, 10 and 16 of the table to the Federal Police Subpoena.
[83]See par 25 above.

In contrast with the information relating to the Pacific International Apartments, the Federal Police did not know about information relating to the Tomato Tins Importation before it was provided by Customs.[84] Forty of the 45 Warrant Affidavits contained information derived from knowledge of the tomato tins shipped in the container that was landed on Australian shores on 28 June 2007. It is unnecessary to refer to each of these affidavits individually. There were 4 formulations created to record this information in the relevant warrant affidavits, the details of which have been provided to Potter.[85] As an example, the following (and most detailed example) was contained in an affidavit sworn on 30 June 2007:
On Thursday 28 June 2007, the [Federal Police] commenced Operation MOKO following [Customs] Sea Cargo identification of shipping container MEDU 1250218, being a 20 foot sea cargo container, consigned to … Logistics. This container was said to contain 2.5 litre cans said to contain tomatoes shrink wrapped with plastic, and carboard (sic) boxes each containing six (6) 2.5 litre cans said to contain tomatoes.
On examining the above shipping container (Shipping Container MEDU 1250218), Customs ascertained that it contained a quantity of 2.5 litre cans said to contain tomatoes that had been shrink wrapped in plastic. A further examination of the container located a number of carboard (sic) boxes, each containing 2.5 litre cans, also said to contain tomatoes. X-ray examination of the cans with the carboard (sic) boxes revealed a number of tablets which tested positive to the presence of MDMA. Customs then notified the [Federal Police], who took possession of the container and its contents.
…
After referring to the legitimacy of the logistics company to which the container had been forwarded, the affidavit continued:
It is suspected that someone else may have used this company’s name and reputation to import the container and the MDMA.
[84]See par 22 above.
[85]In addition, Brener’s affidavit provided details of the formulation of this information in the remaining warrant affidavits.
Accordingly, the extent to which the information was relied upon in affidavits by the Federal Police at the time each of the warrants was sought has been fully disclosed. Further, there is no suggestion that that information was inaccurate or in any way misleading. Furthermore, consistent with the Federal Police’s lack of knowledge, there is nothing in any of the formulations that intimated or provided any basis for an inference of any awareness of Gobbo’s involvement.
Brener is familiar with the briefs of evidence in both this proceeding and the County Court proceeding. As referred to above,[86] there has already been disclosure in relation to the warrants forming part of the Relevant Warrant Materials. Brener’s unchallenged evidence was that with respect to the warrant affidavits not referable to the Relevant Warrant Materials, they did not lead to any warrant product which is in the brief of evidence in this proceeding.
[86]See par 66 above.

I.5 Analysis

Some general observations may be made at this point.
The evidence on this application provides no proper basis to conclude or even suspect that the evidence adduced by the Federal Police at the time the 45 Warrant Affidavits were relied upon to obtain the warrants was inaccurate or misleading in any way. Further, to the extent the 45 Warrant Affidavits contained information that had been supplied by Victoria Police, that information has already been fully disclosed. Furthermore, the evidence does not give rise to any basis to draw an inference that the Federal Police were on notice that any improper source had been used in obtaining the information that they did. The well-established and legitimate practice of police keeping the sources of their information confidential[87] meant that there was no reason for the Federal Police to consider making enquiries of Victoria Police as to the source of the information concerning the Tomato Tins Importation before acting upon it.
[87]See par 39 above.
In short, the extensive investigations, cases and inquiries that have been held in relation to the conduct of Gobbo and her dealings with Victoria Police have all indicated that the Federal Police were not engaged in any impropriety[88] in taking the steps that they did in connection with the Tomato Tins Importation; quite the opposite.[89]
[88]See par 58 above.
[89]See pars 23 and 45 above.
Nothing submitted on behalf of Potter shed any doubt about this.
Potter relied on a number of authorities and contended that the documents sought should still be produced as Victoria Police were acting improperly and, by concealing their source from the Federal Police, they were effectively getting the Federal Police to take steps that would have been tainted with impropriety if Victoria Police had taken them.[90] Proceeding on the basis that the authorities relied upon would give some basis for the documents to be produced, the uncontroverted facts demonstrate that all the relevant information has already been disclosed.
[90]See fnn 53, 73 above. Amongst other cases, Potter also referred to Karam v The King [2022] VSC 808 (Osborn J); Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327 (McLeish, Emerton and Osborn JJA), which Potter distinguished on the basis that the balancing exercise under s 138 of the Evidence Act would be very different because Potter was not involved in the Tomato Tins Importation (T101.01); R v Petroulias (No 8) (2007) 175 A Crim R 417, 437-438 [82] (Johnson J), though this paragraph refers to submissions of counsel rather than any finding; R v Turner (No 14) [2001] TASSC 124, [96]-[97] (Blow J), but see also at [98]-[100].
The 33 warrant affidavits utilised in obtaining warrants that uncovered no evidence that is relied upon in the case against Potter in either this proceeding or the County Court proceeding are not relevant; nor are the related warrants. There was nothing to suggest that it was on the cards that further evidence being admitted at a later stage could alter this lack of relevance.[91] To the extent that the prosecution opening refers to the Tomato Tins Importation, the relevant warrants and the related warrant product have already been produced.
[91]Thus, s 57 of the Evidence Act did not provide any basis for finding the evidence relevant.
On the evidence before the court on this application, there would be no apparent reason why officers involved in the other 33 warrants would be witnesses in this proceeding.[92] Even assuming there would be some reason to call a police officer who was involved in obtaining such warrants to give evidence in the case against Potter,[93] it is not on the cards that any cross-examination of that police officer (who knew nothing about Gobbo providing information to Victoria Police) about those other warrants or the affidavits relied upon would provide any basis to challenge the evidence obtained as a result of the execution of the 12 warrants forming part of the Relevant Warrant Materials.
[92]The court was informed that “many” of the deponents in relation to the 45 Warrant Affidavits are not witnesses in this proceeding. In response to this, the defence stated that Potter would be requiring all officers who secured warrants relevant to the Tomato Tins Importation to be called. It was also stated that if the prosecution did not agree with position, then an application would be made to the court to invite the prosecution to reconsider its position. On the present application, the court was not invited to express a view on this issue, and as these reasons demonstrate, it is not necessary to do so on this occasion.
[93]Including because the same police officer was involved in obtaining the relevant warrants.
The statement by Potter’s counsel that the credibility of all Federal Police officers involved will be in issue “individually and as a class” did not establish a legitimate forensic purpose.[94] Potter itemised various matters that it was contended the cross-examination of these officers would include, but it is unnecessary to deal with them individually. Many of them demonstrated Potter is (or would be) merely fishing for a case. Moreover, matters related to the secretive nature of the operations and the absence of any enquiries by the Federal Police about the source of Victoria Police’s information were of no substance.[95]
[94]See par 61 above.
[95]See par 103 above.
It is convenient to address separately Potter’s submissions on what was said to be “The Missing 2006 Intelligence Picture”. Potter referred to Gobbo providing information to Victoria Police as early as March 2006 and that the Federal Police had information in 2006 concerning Karam and the possible importation of MDMA and cigarettes. Potter also referred to communications between the Federal Police and Victoria Police in this time period and findings made by Osborn J as to Gobbo being the likely source.[96] Potter submitted that the Federal Police’s submissions had failed to mention this and other crucial facts pertaining to Gobbo’s activities in 2006.
[96]See annexure B, Karam v The King [2022] VSC 808, [76]-[77], [79]-[83] (Osborn J).
The simple response to this is that Brener has given the details of the extensive investigations and audits she has conducted of all information that could possibly have come from Gobbo and been relied upon by the Federal Police in obtaining any of the warrants that they did in ensuring that Potter has been provided with all relevant information. The submissions by Potter’s counsel were to the effect that there must be more. There was nothing referred to that would suggest that any of Brener’s unchallenged evidence was inaccurate or incomplete.[97] The fact that Brener did not go into the detail as to the basis or bases upon which it was justified for the Federal Police to seek any warrants that were sought does not provide any basis to draw an inference that relevant information responsive to the Federal Police Subpoena has not been produced.[98] On the contrary, the obvious inference (if any be necessary in light of the direct evidence given by Brener)[99] is that none of the information obtained in 2006 found its way into any of the 45 Warrant Affidavits.
[97]For completeness, in addition to the information concerning the Pacific International Apartments, the evidence demonstrated that some other pieces of information provided by Gobbo to Victoria Police that were passed on to the Federal Police were already known by the Federal Police: see, for example, annexure B, Karam v The King [2022] VSC 808, [77].
[98]The time range for the documents sought commenced on 8 June 2007.
[99]Potter submitted the court should not accept Brener’s evidence because of the alleged failure to address information provided by Gobbo in 2006.
In any event, even if (contrary to the fact) the Federal Police had known about Gobbo being the source of information being relied upon at the time any of the warrants were sought and if that knowledge had been disclosed in the warrant affidavits, that evidence would have given no grounds for the tribunal to refuse to issue the warrants that were issued.[100] More importantly, given that Gobbo was not bound to maintain confidentiality in relation to the information she had obtained about the Tomato Tins Importation or other nefarious activities of Karam and his associates, any evidence secured by the Federal Police using that information (regardless of whether or not they knew about Gobbo’s involvement) would not be improperly obtained.[101]
[100]Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327, [134] (McLeish, Emerton and Osborn JJA); Wu v The Queen [2020] VSCA 94, [106] (T Forrest, Emerton JJA and Croucher AJA).
[101]Karam v The King [2023] VSCA 318, [274] (Beach, McLeish and Kennedy JJA); cf Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327, [135].
Turning to the individual matters raised by Potter,[102] there was no jurisdictional error identified by him. In circumstances where Potter has been provided with the 12 relevant warrants and the related warrant product, and has not identified any basis for establishing a jurisdictional error, nothing further need be said on this point.
[102]See par 80 above.
Equally, there was no substance to the submission that the warrants were defective on their face. This argument was also not developed. Indeed, in relation to the 12 warrants the subject of the Relevant Warrant Materials that have been provided to Potter, the court was not taken to any of them to show why it was submitted that they were defective on their face. Ultimately, the court was told this issue was not pressed in relation to the 12 relevant warrants. As for the remainder of the warrants, the defence were inviting the court to allow Potter access so he could seek to ascertain whether any defects existed; and this was no more than a fishing expedition.
The submission that there may have been a lack of reasonable grounds for the warrants to have been issued or that there was insufficient evidence was also not meaningfully elaborated upon. On its face, the submission is also a fishing expedition. In any event, the issuing of a subpoena does not provide an appropriate occasion to seek to challenge a warrant that is valid on its face.[103] To repeat, the court was not taken to any warrant that has already been produced to show why there was any invalidity on the face of the document or to demonstrate why the statutory requirements had not been met.
[103]See par 59 above.
Next, on the question of improperly or illegally obtained evidence, the absence of any basis to contend that production of the documents sought would be on the cards to disclose any impropriety has already been addressed.[104]
[104]See pars 103-105 above.
The submission that there may be a basis for challenging the evidence obtained because a warrant affidavit may not have disclosed “all material facts” was misconceived. Put simply, there is no obligation of full disclosure when a warrant is being sought. The relevant question is whether the statutory requirements of the particular legislation have been met.[105] Naturally, the absence of such an obligation is quite a distinct issue to whether misleading evidence was relied upon to obtain a warrant.[106] Notably, Potter did not identify any basis for suggesting the evidence relied upon by the Federal Police in obtaining any of the warrants was or was likely to be misleading, or that there was any real possibility of this.
[105]See, for example, Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542, 555B (Beaumont and Whitlam JJ).
[106]See also ibid, 566D-569F (Hill J).
As to the issue of any material omissions or misrepresentations in any of the 45 Warrant Affidavits, it bears repeating that Potter did not point to any matter as providing a basis for considering it was on the cards that any existed.[107] The issue was raised in these terms: “… if the warrant was obtained by deceiving the issuing Judge or officer, the evidence is likely to be inadmissible” (emphasis added). The basis for seeking the documents amounted to no more than a fishing expedition.
[107]Unintentional or otherwise: cf Seven West MediaLtd v Commissioner, Australian Federal Police (2014) 223 FCR 234, 257-258 [105]-[110] (Jagot J).

J. Conclusion

For the reasons stated, the Victoria Police Subpoena and the Federal Police Subpoena must be set aside. As the Overlapping Subpoena is identical to the Federal Police Subpoena, it must also be set aside.
For the sake of clarity, it is noted that the defence submits that although Gobbo’s conduct in providing information to Victoria Police concerning the Tomato Tins Importation and other illegal or related activities may not have been illegal, it was improper and in breach of her duties as a barrister. In contending this, Potter also submits the Victoria Police engaged in a deliberate, calculated course to procure information from Gobbo and act on it in a covert way, including by establishing a ruse in their dealings with the Federal Police. There is a substantial body of information readily available to Potter from the disclosed documents in this proceeding and publicly available information to enable him to raise these matters. Much of it in entirely uncontroversial.
Nothing in this ruling setting aside the subpoenas curtails Potter from raising these matters, if advised to do so, for any issues either before or during the trial. However, for the reasons set out, the fact that this, amongst other things, is intended to be put does not provide a proper basis to seek production of the documents the subject of the subpoenas beyond the documents and information that has already been disclosed.

Annexure A

Extract from the Royal Commission into the Management of Police Informants
Final Report, 30 November 2020

Case study: Ms Gobbo’s involvement in the ‘Tomato Tins’ drug-trafficking syndicate cases[108]
[108]Vol II, 48, 51-53.
Ms Gobbo’s involvement with the so-called ‘Tomato Tins’ drug-trafficking syndicate serves as a further example of the wide-ranging consequences of her improper conduct towards the latter period of her work as a human source.
Between February 2008 and August 2012, 33 people were arrested and charged with drug-related offences as part of three connected police operations:
•Operation Bootham Moko—AFP operation that targeted a conspiracy to import a very large quantity of MDMA hidden in tomato tins shipped from Italy to Australia.
•Operation Inca—joint operation between Victoria Police, the AFP, the then Australian Crime Commission, Australian Customs and the Australian Taxation Office targeting drug and money-laundering offences.
•Operation Cardinia—AFP investigation into MDMA trafficking.

On 28 June 2007, a large quantity of MDMA was intercepted by Australian authorities. It was at the time the largest shipment of MDMA ever seized worldwide. Numerous people were arrested, charged and convicted through Operation Bootham Moko, including Mr Pasquale Barbaro, who was found to be at the ‘apex’ and ‘centre’ of the attempted importation; Mr Karam, who was said to lead a group that attempted to take possession of the ecstasy tablets supplied and Mr Barbaro’s ‘major wholesale customer’; and six other associates of Mr Barbaro and Mr Karam.
Operations Bootham Moko, Inca and Cardinia, and the offending they targeted, had various causal and evidentiary connections. It is important to note that the offending targeted by Operations Inca and Cardinia occurred after the failure of the Tomato Tins conspiracy and the seizure of the MDMA; that at least some of it was seemingly prompted by a desire—particularly on Mr Barbaro’s part—to recoup losses and repay debts incurred through the failure of the importation; and that this offending was detected and prosecuted partly through the inroads made during Operation Bootham Moko.
Figure 7.4 provides an overview of the people charged in the Tomato Tins proceedings, and specifically which operation they were charged under.
Ms Gobbo provided information to Victoria Police from and about people targeted by these operations. This was because she was acting for several of them. She also acted for people charged on the basis of evidence that she helped police obtain, despite acknowledging that doing so would leave her ‘morally, ethically and legally conflicted’. The cases of at least 32 people arising out of these operations may have been affected by her improper conduct.
[Figure 7.4 omitted]

Annexure B

Extracts from Karam v The Queen [2022] VSC 808

…
ICRs[109] and transcribed discussions between Ms Gobbo and her handlers record that in March and June 2006, Ms Gobbo provided Victoria Police with further information about Karam, which included:
[109]That is, Informer Contact Reports.
·Karam’s movements including interstate travel (provided 7 March 2006);109F
·discussion on 9 March 2006 about potential conflict of interest during which one of Ms Gobbo’s handlers suggested that she would have a conflict of interest in acting for a person after their arrest. Ms Gobbo replied ‘What conflict? He’ll be pleading guilty. What difference does it make?’ The handler asked ‘Well, what if it was Rob, then? ‘Cause he probably wouldn’t plead guilty.’ Ms Gobbo replied: ‘That’s a different story.’ Ms Gobbo’s handler asked if Karam would ring her if he was arrested and Ms Gobbo responded ‘Yep. All of them will, they won’t… ring anyone else.’ The handler observed that the situation was unprecedented and Ms Gobbo responded ‘Probably is. I’m sitting now creating half – created half the or provided half the material and half the reason why they got arrested or maybe more than half.‘;10
·Karam thought there was a tracking device in his car and believed he was under surveillance (provided on 28 March 2006);111F
·Karam wanted to vary his bail conditions so that he could go to Queensland for a holiday with his children (provided on 8 June 2006);
·one of Karam’s mobile phone numbers which was already known to police (provided on 28 June 2006).[110]
[110]Karam v The Queen [2022] VSC 808, [76] (Osborn JA).

On 29 June 2006, an AFP[111] case note recorded that Victoria Police officer Jason Kelly provided Karam’s mobile phone number to the AFP and that it came from an unnamed human source.114F The AFP case note also records that AFP investigators had been aware of Karam’s use of this telephone for some months and had previously advised Purana Taskforce investigators of this number.115F In evidence, Supt Kelly could not recall whether that human source was Ms Gobbo116F but I accept that it is likely that it was.[112]
[111]That is, the Federal Police.
[112]Karam v The Queen [2022] VSC 808, [77].
…
On 20 September 2006, an AFP information report recorded that the AFP received information about Karam and an alleged importation of cigarettes. It is likely that Ms Gobbo was the source of this information.[113]
[113]Ibid, [79].
On 21 September 2006, an AFP case note recorded that the AFP received information from Victoria Police about an MDMA importation of 5 million tablets. The case note recorded that Karam is alleged to be involved in the importation. 2 It is likely Ms Gobbo was the source of this information.[114]
[114]Ibid, [80].
On 28 September 2006, Victoria Police officers Jason Kelly and Jim O’Brien met with the AFP to discuss the contents of two information reports received concerning the activities of Brian Armatruda and Fedele D’Amico. During that meeting, Jason Kelly and O’Brien were shown information reports. An AFP case note recorded that “[w]hen shown the second information report stating that [Armatruda and D’Amico] were undertaking an importation of narcotics, both KELLY and O’BRIEN stated that they were aware of that information as it had originated from a human source currently assisting the Purana Taskforce. Both stated that they believe the information to be quite credible”.[115]
[115]Ibid, [81].
In January and February 2007, Ms Gobbo provided regular information to her handlers about Karam’s activities.[116]
[116]Ibid, [82].
This included information that Karam had said he was waiting for a phone call from his man in Customs to discover the reasons for three containers going missing. Karam was considering he may be being ripped off by somebody on his side. Karam had told Ms Gobbo that a fourth container was on its way (provided on 26 February 2007).[117]
[117]Ibid, [83].
…
The respondent accepts that the investigation into the Tomato Tins importation commenced on 5 June 2007, although the AFP did not become involved until 28 June 2007.[118]
[118]Ibid, [94].
…
As with the bill of lading however, whether such information concerning the Pacific International Apartments was truthful or not, it was nonetheless relevant on its face to the Tomato Tins offending with which Karam was subsequently charged and was adverse to Karam. The information provided by Ms Gobbo directly associated Karam with the conspirators. The provision of information concerning a proposed meeting at the Pacific International Apartments may thus be seen to have potentially created a conflict between Ms Gobbo’s role as an informer and subsequent activity as the legal representative or advisor of Karam.[119]
[119]Ibid, [114].
For completeness, I note that there is no record that this information was passed to the AFP. Moreover, Federal Agent Brener gave evidence that:
… in relation to material the AFP receives during investigation, it would be unusual for the information not to appear in a document, in an MIR running log if there is a major incident room running, and an email, a diary record, anything that’s in written form of some description, a PROMIS[120] entry. You would expect that a piece of information that is as significant as is alleged here in this material, that would appear in document form in some way.[121]
[120]Understood to be an acronym to Police Real-time Online Management Information System, the information management system used by the Australian Federal Police.
[121]Karam v The Queen [2022] VSC 808, [115].

…
An ICR on 15 June 2007 indicated that Victoria Police officers told Ms Gobbo that they had worked out how to deal with the container without compromising Ms Gobbo. Victoria Police used Customs as a conduit for Victoria Police to notify the AFP of the suspected importation. Victoria Police met with Customs.[122]
[122]Ibid, [124].
Records relating to these meetings show that Ms Gobbo’s handlers were aware that her actions as an informer may place her in danger. A diary entry made by Officer Sandy White on 19 June 2007 recorded that a representative of Customs was advised ‘VicPol has source + may be able to get cont. no. but not sure if worth risk to HS.’[123]
[123]Ibid, [125]. “HS” is understood to be an acronym for “human source”.
…
The information was then supplied to the AFP. It is not in dispute that on 21 June 2007, the ACC[124] told the AFP that it understood the source to be a human source controlled by Victoria Police. There is no evidence the AFP knew who the human source was or how the human source had obtained the relevant information.[125]
[124]That is, the Crime Commission.
[125]Karam v The Queen [2022] VSC 808, [130].
…
Ms Gobbo informed on Karam to Victoria Police with respect to material matters:
·prior to and during the course of the Tomato Tins and Inca offending; and
·during the preliminary stages of the Tomato Tins proceeding.[126]
[126]Ibid, [394].

The information supplied prior to Karam’s arrest was significant in the respects I have summarised at [157] above.[127]
[127]Ibid, [395].
Ms Gobbo further informed after Karam’s arrest with respect to the matters I have summarised at [161] above.[128]
[128]Ibid, [396].
For the reasons I have expressed, I am satisfied Ms Gobbo also gave Karam advice with respect to [redacted] Operation Kennels, the investigation into alleged conspiracy to murder arising out of the conduct of the offenders involved in the Tomato Tins and Inca offending. Ms Gobbo also assisted Karam in the preparation of a draft police statement. This advice and assistance had the effect of assisting Victoria Police in respect of that investigation but I am not satisfied that the advice and statement preparation were provided primarily for that purpose.666F Rather, having regard to the evidence as a whole, the probability is the advice and statement preparation were given in pursuance of the pretext conspiracy defence which reflected Karam’s instructions.[129]
[129]Ibid, [397].
Ms Gobbo also assisted Victoria Police by providing them with a copy of the GEMS brief prepared by the AFP for the purpose of the Tomato Tins, Inca and Hong Kong proceedings. Once again, I take the view that the probability is that this was done in order to advance the pretext conspiracy defence.[130]
[130]Ibid, [398].
The respondent submits that the ICRs on which Karam relies include information as to Ms Gobbo’s activities which do not fall within the description of informing on the applicant.667F Whilst as a matter of strict language this may be correct, they involved informing with respect to matters relevant to the applicant and, in this sense, potentially assisted police. Information that Ms Gobbo was working on Karam’s brief or taking other action on his behalf falls within this category. As the respondent accepts, such information is relevant contextually,668F it may also directly evidence conduct which was undertaken when Ms Gobbo was subject to conflict of interest.[131]
[131]Ibid, [399].
Similarly, the respondent submits that advice to Jason Kelly that Karam wanted to sign a statement was not strictly informing. It constituted an action taken on instructions.669F Nonetheless, it is relevant to an understanding of the course of events and as evidence of an action taken on behalf of Karam at a time when there is controversy whether or to what extent Karam received and acted on advice from Ms Gobbo.[132]
[132]Ibid, [400].
Insofar as the question raises the issue of the extent of assistance derived from Ms Gobbo’s informing, the respondent contends that there is no direct evidence from Victoria Police that they were relevantly assisted by any of the information Ms Gobbo produced. Thus, the fact of assistance is a matter of inference.670F I accept this submission, but it may be inferred that:
·the bill of lading was foundational to the Tomato Tins investigation;
·the telephone numbers supplied to Victoria Police assisted in the Tomato Tins investigation (although it cannot be determined to what extent that assistance was material);
·information as to Karam’s alleged statements concerning drug importations helped make him a person of interest to police; and
·information as to Karam’s activities generally potentially assisted police in ongoing surveillance.[133]
[133]Ibid, [401].

…
Ultimately, the evidence demonstrates Ms Gobbo provided the following information which was passed on by her handlers to the AFP and other agencies.
(a)On 29 June 2006, Jason Kelly told the AFP that Victoria Police had received information from a human source that Karam was using a particular phone number. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.
(b)On 20 September 2006, information in relation to a large importation of cigarettes that the applicant was alleged to have been involved in, was provided to the AFP. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.
(c)On 21 September 2006, an AFP case note recorded information received about an anticipated MDMA importation with which Karam was allegedly involved. I accept that the source of this information was probably Ms Gobbo. There is no satisfactory evidence as to the use (if any) that the AFP made of the information.
(d)In June 2007, Ms Gobbo provided the bill of lading and passed on information as to its source. The bill of lading was the fount and origin of the subsequent Tomato Tins investigation. Information was passed on by Victoria Police first to Customs on or about 19 June 2007 and then to the ACC and AFP on about 20 June 2007.
(e)Early on 29 June 2007, Ms Gobbo provided Higgs’ mobile telephone number to her handlers and this number was supplied to the ACC. Later on 29 June 2007, the ACC applied for and obtained authority to conduct a telephone intercept on Higgs’ phone. The respondent submits that the extent to which this phone number was used in the subsequent investigation was limited. This may be so, but the telephone intercept evidence as a whole was critical to the prosecution case in the Tomato Tins proceeding and any contribution to that evidence must be regarded to have had some significance.
(f)The AFP records indicate that on an unidentified date, Victoria Police advised the AFP that Karam’s nickname was ‘Rockstar’. The informant, Mr Herman, gave evidence that this nickname was not used in the Bootham-Moko investigation. There is no evidence that it was of forensic significance.
(g)On 8 January 2008, one of Ms Gobbo’s handlers met with officers of the ACC and advised that Higgs was alleged to be paying a large sum of money to Karam. There is no record of dissemination of this information and the respondent submits that Victoria Police and the ACC were no longer involved in Operation Inca at this time. The respondent further submits that it is unlikely in these circumstances that the information was informally disseminated. I am unable to conclude one way or another whether the information was passed on to the AFP.
(h)On 17 March 2008, Ms Gobbo provided Victoria Police with Karam’s phone number. This was provided to the ACC on the same day. For reasons I have previously stated, I accept that the updating of this number was relevant information. Nonetheless, there is no evidence that the updating of the number was passed on to the AFP.
(i)On or about 19 June 2008, the Source Development Unit of Victoria Police provided information to Jason Kelly that the applicant was involved in money laundering with Jim Mavridis, Jim Valos and Fedele D’Amico. An ICR supports the conclusion that this information came from Ms Gobbo. Karam submits that the Court should conclude that this information was further discussed by Jason Kelly with FA Corey Wiggett on the same day. As the respondent submits, Jason Kelly’s diary record does not support this conclusion. I am not satisfied that the speculation made on behalf of Karam is justified. The evidence is that the discussion involved the AFP updating Jason Kelly as to the state of proceedings against Karam.
(j)On 29 February 2012, during the course of the Tomato Tins trial, the AFP uploaded into ‘PROMIS’, an intelligence report from Victoria Police (Victoria Police Information Report INT12IR479433) which included the following:
Subject: DRUG IMPORT – Frank D’AMICO involved in a pending drug importation
Information: Frank D’AMICO is involved in a pending large drug importation
Frank D’AMICO has a brother Fred D’AMICO whos [sic] is also involved in the importation
John HIGGS and Shane BUDGEJA [sic] are also involved in the importation
The drug importation is believed to be worth $15 million dollars
Comments: Information identifies a further two players, Frank D’AMICO and HIGGS, to information INT12IR478646 (23/02/2012) where KARAM, BUGEJA and Fred D’AMICO are believed to be involved in a drug importation for $15m arriving early to mid March 2012. (IR associated) … Further investigation and enquires [sic] being made to identify current associations to Frank D’AMICO.

It is probable that this information derived from Ms Gobbo. The evidence of the informant, Mr Herman, is that this information related to a separate operation known as Operation Trudere and did not relate to Operation Bootham-Moko or Inca.[134]
[134]Ibid, [414].
…
A deliberate strategy was adopted by Victoria Police to conceal the identity of Ms Gobbo as an informer.[135]
[135]Ibid, [416].
…
Lastly, in final address with respect to this question, counsel for Karam submitted that the combination of Ms Gobbo’s conduct and the failure to disclose that conduct at trial had deprived Karam of the opportunity:
·to seek the exclusion of evidence on the basis that it was improperly obtained; and/or
·to obtain a stay of the proceeding if public interest immunity had successfully been claimed with respect to evidence of Ms Gobbo’s conduct.[136]
[136]Ibid, [491].

Karam submitted such a stay might be granted because disclosure of Ms Gobbo’s identity was necessary to ventilate challenges under s 138 of the Evidence Act to the admissibility of evidence and more generally on the basis that the use of Ms Gobbo in the investigation constituted an abuse of process by Victoria Police.[137]
[137]Ibid, [492].
These possibilities are essentially speculative and have not been shown to have a realistic evidentiary basis.[138]
[138]Ibid, [493].
First, the grounds of appeal do not raise a direct challenge to the admissibility of the evidence adduced at trial. In consequence, the evidence adduced by the parties has not facilitated the evaluation of such a challenge. Most obviously, the evidence at trial has not been tendered before me (save for limited parts of the transcript). Further, no specific items of evidence have been identified by Karam as the putative subject of exclusionary challenge.[139]
[139]Ibid, [494].
Secondly, Karam denies that he:
·supplied the bill of lading to Ms Gobbo;
·advised Ms Gobbo of a meeting at the Pacific International Apartments; and
·advised Ms Gobbo of knowledge of the ongoing status of the Tomato Tins importation.[140]
[140]Ibid, [495].

It follows that a substantial body of material contained in the ICRs is contested by Karam himself as to its truth. It is difficult in these circumstances to see how, for example, a challenge could be brought by Karam on the basis that he supplied the bill of lading to Ms Gobbo.[141]
[141]Ibid, [496].
Thirdly, it is apparent that the bulk of the information which Ms Gobbo passed on to her handlers was obtained on social occasions and was not provided to her either for the purpose of obtaining professional legal advice or for the purposes of litigation. Thus Mr Higgs’ telephone number was obtained when Ms Gobbo overheard it at the dinner table and the meetings between Karam and other alleged conspirators which Ms Gobbo described to her handlers were on the face of it social in nature. No piece of information was specifically identified as having a character which cloaked it with legal professional privilege.[142]
[142]Ibid, [497].
Fourthly, the informing potentially bearing on evidence adduced against Karam related to continuing offending. The informing occurred during the actual course of the offences subsequently charged. As such, disclosure of its subject matter was on the face of it not protected by duties of confidence and loyalty owed by a legal adviser.[143]
[143]Ibid, [498].
Fifthly, the information Ms Gobbo supplied was essentially preliminary in nature. The evidence which was adduced at the trials was objective evidence obtained subsequent to the informing. The reliability and probative force of the evidence was in no way diminished by the fact that it flowed from antecedent informing. Thus, as I understand it, the copy of the bill of lading provided by Ms Gobbo to her handlers was not itself in evidence but the fact of the importation and contents of the Tomato Tins container were. The surveillance, telephone intercept and covert recording evidence spoke for itself. Its force did not turn upon the nature of any antecedent tip-offs. It is, in my view, unrealistic to suggest that evidence of this nature would readily be excluded pursuant to s 138 of the Evidence Act.[144]
[144]Ibid, [499].
Sixthly, the offending was very serious and it is improbable if the above problems could be overcome that the direct evidence of such offending would be excluded in the balancing exercise required by s 138.[145]

[145]Ibid, [500].
Insofar as the possibility of a stay is concerned, the real relevance of Ms Gobbo’s identity as the source of the bill of lading or other background information relating to the evidence is equally problematic. The evidence before me does not provide a satisfactory basis for concluding that there is a realistic possibility that the prosecutions of Karam would have been stayed if a public interest immunity claim had been made with respect to Ms Gobbo’s identity prior to trial.[146]
[146]Ibid, [501].
…
1(Citations omitted.)

Confidential Annexure C

[Redacted].

[2025] VSC 600

22 September 2025