Gavanas v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0038

STEPHEN GAVANAS	Applicant
v
THE KING	Respondent

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JUDGES:	KYROU, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2022
DATE OF JUDGMENT:	9 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 271
JUDGMENT APPEALED FROM:	[2010] VSC 433 (Whelan J)

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CRIMINAL LAW – Appeal – Second appeal – Trafficking commercial quantity of methylamphetamine – Evidence flowing from discovery that former barrister acted as police informer in respect of clients – Whether evidence fresh and compelling – Evidence fresh but not compelling – Barrister retained to appear for applicant at filing hearing four years before trial – Barrister appeared contrary to police instructions – Barrister did not communicate with applicant immediately before or during hearing – No impropriety in barrister conveying to police evidence of criminal activity obtained outside retainer – Any duty of loyalty to applicant did not require keeping secret evidence obtained after retainer concluded – No impropriety in barrister encouraging witness to cooperate with police – Prosecution contravened duty of disclosure by failing to disclose evidence of payments to witness – Evidence of payments reliable and substantial – Evidence neither highly probative nor capable of substantially weakening prosecution case – Evidence of witness of limited relevance – Credibility and reliability of witness already comprehensively challenged – Abundant alternative evidence – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Possession of substances and equipment with intention to use for purpose of trafficking methylamphetamine – Whether prosecution’s failure to disclose payments to witness caused substantial miscarriage of justice – Crown case overwhelming – Conviction inevitable – Appeal dismissed.

Criminal Procedure Act 2009, s 326A.

Baini v The Queen (2012) 246 CLR 469, Van Beelen v The Queen (2017) 262 CLR 565, Roberts v The Queen (2020) 60 VR 431, Roberts v The Queen [2020] VSCA 277, applied; Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, discussed; Cvetanovski v The Queen [2020] VSCA 272, Szabo v The Queen [2001] Qd R 214, distinguished.

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Counsel
Applicant:		Ms C Boston, with Mr J Murphy
Respondent:		Ms R Sharp SC, with Mr J McWilliams
Solicitors
Applicant:	Stary Norton Halphen
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
MCLEISH JA
KENNEDY JA:

Introduction and summary

The applicant and Mohammed Khodr were jointly tried on three charges in the Supreme Court in 2010. Charge 1 alleged a conspiracy with Horty Mokbel between 1 May and 9 October 2006 to traffic a large commercial quantity of methylamphetamine. It was alleged that the three parties had entered into an agreement to traffic the drug, which was to be manufactured by a method referred to at trial as the ‘P2P method’, in a quantity not less than a large commercial quantity, namely 2.5 kilograms.[1]
[1]Drugs, Poisons and Controlled Substances Act 1981, ss 70 (definition of ‘large commercial quantity’), 71, sch 11 pt 3. The relevant large commercial quantity threshold is now 750 grams.
Charge 2 alleged, in the alternative to charge 1, that the applicant and Khodr possessed substances and equipment with the intention of using them for the purpose of trafficking methylamphetamine. Charge 2 was prosecuted on two alternative grounds. The first alleged a joint common enterprise between the applicant and Khodr. The second alleged that each of them had committed the offence on their own account. In both cases, it was alleged that the intended manufacture was to be undertaken by the P2P method. Both charges 1 and 2 alleged conduct in connection with a location at 12/6-18 Pascoe Street, Pascoe Vale, sometimes referred to as the ‘Pascoe Street garage’.
Charge 3 alleged that the applicant and Khodr had trafficked, by manufacture, methylamphetamine in not less than a commercial quantity.[2] This charge alleged manufacture of methylamphetamine by a different method, which was referred to at trial as the ‘pseudoephedrine method’. It was advanced only as a case of joint criminal enterprise. The manufacture the subject of charge 3 was alleged to have taken place in a location at 74 Melville Road, Pascoe Vale, conveniently referred to as the ‘Melville Road premises’.
[2]At the relevant time, 250 grams. Drugs, Poisons and Controlled Substances Act 1981, ss 70 (definition of ‘commercial quantity’), 71, sch 11 pt 3.
The applicant and Khodr were acquitted of charge 1, and convicted on each of charges 2 and 3. The applicant sought leave to appeal against his conviction on charge 3 alone. Leave to appeal against conviction was refused on 25 July 2013.[3]
[3]Gavanas v The Queen [2013] VSCA 178 (‘Gavanas’).
The applicant now seeks leave to appeal out of time in respect of his conviction on charge 2, and leave to bring a second appeal against his conviction on charge 3, pursuant to s 326A of the Criminal Procedure Act 2009.
The basis for both applications lies in revelations flowing from the discovery that Ms Nicola Gobbo, a former member of counsel, acted as a police informer at times when she was representing persons who were, or may have been, the subject of information which she provided to police. The applicant alleges that, without his knowledge, Ms Gobbo was a police informer despite having acted for him in preliminary proceedings, and that she had provided information to police which was used to obtain evidence against him. This included evidence obtained under warrant and evidence given by a person described as ‘Mr Cooper’[4] which was said to have been obtained as a result of improper or illegal conduct by Ms Gobbo and/or Victoria Police.
[4]A pseudonym.
In addition, the applicant alleges that Victoria Police failed to comply with its obligation of disclosure in relation to these matters, including not disclosing the fact, which has now emerged, that Victoria Police made substantial payments to Mr Cooper before he gave evidence, amounting to about $40,000.[5]
[5]The payments continued after the trial, so it may be taken for the purposes of these reasons that the fresh evidence extended to the fact of an ongoing arrangement to make payments for some unspecified period into the future.
For these reasons, it is alleged that the applicant’s trial was unfair and that the convictions on both charges 2 and 3 amounted to a substantial miscarriage of justice.
For the reasons that follow, the applicant’s submissions should not be accepted.
In our opinion, it has not been established that the material relied on by the applicant is ‘fresh and compelling’ within the meaning of the provisions of the Criminal Procedure Act governing second and subsequent appeals.[6] For that reason, leave to make a second application for leave to appeal in respect of the conviction on charge 3 should be refused.
[6]Criminal Procedure Act 2009, s 326C.
While we would grant leave to appeal, out of time, in respect of the conviction on charge 2, we would dismiss that appeal. That is because the arguments based on Ms Gobbo’s involvement in the applicant’s case do not point to any substantial miscarriage of justice. Further, despite the failure of Victoria Police to comply with its duty of disclosure in respect of the payments to Mr Cooper, the conviction on charge 2 was inevitable and no substantial miscarriage of justice has been demonstrated.
For the same reason, even if we had granted leave to pursue a second appeal in respect of the conviction on charge 3, that appeal would have been dismissed.

Nature of the case against the applicant

It is necessary to say more about the case against the applicant and the course of the trial, especially the evidence given by Mr Cooper. It is convenient to start by setting out the overview of the evidence which is found in the reasons of the Court in respect of the previous application for leave to appeal:
Pascoe St
[The applicant], a Sydney resident who moved to Melbourne, rented Pascoe St on a 12 month lease which commenced on 6 May 2006. The property was part of a row of units. It had a single car garage. It was never fitted out as a place to live. Only a few items of furniture were moved in; and no personal effects.
On various occasions between 30 July and 9 October [the applicant and Khodr] together, or one or other of them, visited the premises. ...
On 27 August 2006, a covert police entry revealed glassware and other equipment of a kind used in the production of methylamphetamine (which it is convenient to describe simply as ‘the drug’) in the garage of the premises.
On 20 September, another covert entry revealed the presence in the garage of chemicals relevant to production of the drug by the so-called P2P method. A sample was taken of a white crystalline substance.
On 23 September, in the course of a third covert entry, a sample was taken of a liquid taken from a drum in the garage.
There was evidence that the two samples were of chemicals susceptible of use in production of the drug by the P2P method.
On 9 October 2006, police again searched the garage. In addition to chemicals and glassware they observed a tub containing three bags. In the bags was a powder which on analysis proved to be a mix of the drug. A bag of the drug mixture was found in [Khodr’s] possession when he was arrested later that day. He had been to Pascoe St in the interim. It is beyond debate that the bag which was in his possession at time of arrest had been taken from Pascoe St.
Police took photographs of the Pascoe St garage after [the applicant and Khodr] had been arrested. They show very clearly the absence of anything in the garage other than the drug-making equipment and chemicals.
Melville Rd
[Khodr] and his wife rented Melville Rd from 1997. They lived there with their children.
The premises had a rear bungalow, in which there was a kitchenette.
The bungalow was searched on 9 and 10 October 2006. Some clothing and personal effects belonging to [the applicant] were found there. In addition, equipment and chemicals were found which supported a conclusion that a quantity of the drug had been produced there by the so-called pseudoephedrine process. A fingerprint of [the applicant] was found on a discarded bottle which had contained creatine. There was expert evidence that creatine could possibly be used as a cutting agent for the drug; but other evidence suggested that creatine had not been used as a cutting agent in this instance.
Development of the Crown case
The Crown case on Counts 1 and 2 was interrelated, but did not wholly overlap.
Respecting Count 1, the Crown case was that [Mokbel, the applicant and Khodr], all of whom were observed associating in 2005 and 2006, entered into an agreement to traffick a large commercial quantity of the drug. Trafficking was to be by manufacture, using the P2P method. Chemicals and equipment were stored at Pascoe St pursuant to that agreement and with that intention. The agreement between the three men was evidenced by what was done.
The judge emphasised, when charging the jury, that [Mokbel’s] participation was central to the conspiracy which was alleged. Absent his participation in the agreement, [the applicant and Khodr] must be acquitted on Count 1.
It is here convenient to note that the presentment was severed. [Mokbel], who was to be presented with [the applicant and Khodr], was not. Later, after [the applicant and Khodr] had been convicted on Counts 2 and 3, [Mokbel] pleaded guilty to a count of possess substance and equipment for purpose of manufacture ...
Evidence supporting the Crown case on Count 1 was particularly adduced from witnesses [Mr Cooper], GH and RS. As well, there was evidence of attendances and activities at Pascoe St and Melville Rd, including evidence as to chemicals and equipment stored at Pascoe St.
[Mr Cooper] gave evidence that he taught [the applicant] how to produce the drug by the P2P method. [Mr Cooper] was a long-time manufacturer of the drug on a large scale, and an associate of [Mokbel]. According to [Mr Cooper], [the applicant] told him that he knew about the pseudoephedrine manner of producing the drug. [Mr Cooper] was arrested in April 2006.
GH gave evidence of sourcing chemicals and equipment relevant to manufacture of the drug from RS between 2003 and his arrest in April 2007. He supplied chemicals to [Mr Cooper] for eight months leading up to the latter’s arrest. [Mr Cooper] then told him to look to [the applicant] for payment of moneys owed by [Mr Cooper] to GH. But [Mokbel] told him to leave [the applicant] alone. [Mokbel] also provided GH with a shopping list of drug-making chemicals. GH provided [Mokbel] with chemicals, which he sourced from RS. [Mokbel] paid GH in cash. On one occasion, [Mokbel] told [the applicant] to take possession of a consignment of chemicals which GH had brought for collection by [Mokbel], and [the applicant] did so. On another occasion, [the applicant] received from GH possession of chemicals ordered by [Mokbel].
RS gave evidence that, in addition to running a legitimate company dealing in chemicals, he supplied GH with large quantities of drugs used in the manufacture of the drug by the P2P method. This was in the period which commenced in late 2005 or early 2006 and ended when he, RS, was arrested in April 2007. He identified tax invoices for bags of a chemical known as sodium acetate anhydrous.
These bags of chemicals were some of those seized at the search of the Pascoe St garage on 9 October 2006.
Each of [Mr Cooper], GH and RS was, by his admission, criminally involved in relevant events. Each received a sentencing benefit as a result of his co-operation with the police and the Crown. The credibility and reliability of the evidence of each of them was very vigorously attacked in cross-examination.
[Mr Cooper], by his own admission and by convictions, was a long-time manufacturer of the drug. He was shown to have lied about many things over a period of years. This is not to say, however, that parts of his evidence should not have been accepted when considered in conjunction with other evidence. The submission by [the applicant’s] counsel that the acquittal of his client and [Khodr] on Count 1 meant that the jury must have concluded that none of [Mr Cooper’s] evidence was reliable went much too far.
GH and RS also admitted lying at times; and defence counsel made much of inconsistencies in their evidence about matters relating to their dealings with [Mokbel] and [the applicant]. But some of their evidence was incontrovertible. For instance, as we have already noted, chemicals sourced from RS were found in the Pascoe Street garage.
The Crown accepted that aspects of the evidence of [Mr Cooper] and GH were essential to its case on Count 1. The judge directed the jury that it must be satisfied of those parts of the evidence to the criminal standard.
...
Respecting both Counts 2 and 3, the Crown relied upon there being a joint criminal enterprise between [the applicant and Khodr]. The circumstances to which the Crown pointed to establish that [the applicant and Khodr] were guilty on Count 2 were essentially the circumstances relied upon to establish Count 1. But the significance of those circumstances was relied upon in a different way.
The Crown contended that, at Pascoe Street, [the applicant and Khodr] essentially managed a storage facility for chemicals and equipment to be used in manufacture of the drug by the P2P method. Although the premises were rented by [the applicant], there was evidence that both he and [Khodr] attended the premises on occasions in the months preceding 9 October 2006, sometimes together, sometimes alone; and that [Khodr] attended on several occasions with a third man. On some of those occasions there was loading or unloading of chemicals or equipment. This was at times directly observed; on other occasions, it was a matter of inference. Each of [the applicant and Khodr] evidently had a key to the premises, which were kept locked when neither of them was present. It was to be inferred from the concatenation of circumstances that there was an agreement between the men to possess those chemicals and equipment, and an intention to produce the drug by the P2P method. The fact that the chemicals were, for the most part, unlabelled did not preclude the conclusion that both men knew that the chemicals were usable for, and intended them to be used for, the manufacture of the drug by that method.[7]
The Crown put an alternative case respecting Count 2. It was that, absent a joint criminal enterprise, [the applicant and Khodr] were individually guilty of the offence alleged by that Count. The judge rightly directed the jury that, in order to find [the applicant and Khodr] guilty on Count 2, the jurors must be unanimous whether guilt was established by the joint criminal enterprise or individual liability route.
Respecting Count 3, the Crown advanced its case only on the footing of joint criminal enterprise. It alleged that [the applicant and Khodr] together committed the trafficking offence, by manufacturing the drug by the pseudoephedrine method in not less than a commercial quantity. The three bags of mix containing the drug observed at Pascoe St on 9 October were alleged by the Crown to have been manufactured in the Melville Rd bungalow, it having been set up as a clandestine laboratory, in the period 6–9 October. It was manufactured, so the Crown said, using equipment transported by [the applicant and Khodr] from Pascoe St to Melville Rd in the early evening of 6 October, and later returned to Pascoe St by [Khodr]. The ‘cook’ inferentially, began on the evening of 6 October, when [Khodr] was observed to leave Melville Rd, buy a large quantity of ice — which is used to cool equipment during the manufacturing process — and then return to Melville Rd. The person who undertook the ‘cook’ was, by inference, [the applicant]. He had admitted to [Mr Cooper] that he was an experienced cook of the drug by the pseudoephedrine method.
[Khodr] lived at the premises. Surveillance revealed that [the applicant] attended the premises from time to time. He admitted to a police officer that he sometimes stayed there. A few of his personal effects were found in the bungalow. He went to the premises in the early evening of 6 October, he and [Khodr] bringing with them from Pascoe St, equipment relevant to the manufacture of the drug.
There was expert evidence that the quantity of the drug, pure, contained in the three bags of powder to which we have earlier referred was some 427 grams. A commercial quantity of the drug, in pure form, was not less than 250 grams at the relevant time.[8]
[7] In the case of [the applicant], we add, there was evidence that he had brought a container of chemicals to Pascoe St. So the inference was irresistible, in context, that he knew of its utility in production of the drug by the P2P method.
[8]Gavanas [2013] VSCA 178, [13]–[43] (Ashley, Redlich and Coghlan JJA) (some citations omitted).
In his charge, the judge gave a number of directions to the jury which are pertinent to the present applications. In respect of charge 1, he told the jury that the prosecution contended that the existence of the agreement the subject of that charge was to be inferred, relying on a collection of circumstances. He also told them that the evidence upon which the prosecution relied in relation to the agreement alleged as part of the joint criminal enterprise in count 2 was essentially the same, and that the prosecution’s arguments were essentially the same as those in respect of the agreement alleged to be the foundation of the conspiracy charge.
Later in his charge, the judge told the jury that there were aspects of the evidence of Mr Cooper which were essential to the prosecution case on count 1. Those aspects were Mr Cooper’s evidence that he reached an agreement with Horty Mokbel and the applicant to train the applicant in the P2P method, and Mr Cooper’s evidence that he did train the applicant in that method. The jury was told that, because the prosecution had put to it that those aspects of the evidence were essential, they must be satisfied of each of those matters beyond reasonable doubt, otherwise they should acquit the applicant and Khodr on charge 1.

In respect of charge 3, the judge told the jury that the prosecution relied upon the admission which they said the applicant had made to Mr Cooper to the effect that he was an experienced pseudoephedrine cook. The prosecution also relied on the fact that Mr Cooper gave evidence about the capacity which the applicant displayed in the course of his training in the P2P method. The judge told the jury that the evidence of Mr Cooper was otherwise not admissible or relevant to charge 3.
The judge pointed out that the prosecution relied on other evidence in respect of charge 3, including evidence of equipment found at the Pascoe Street garage, surveillance evidence and related expert evidence.

Evidence of Mr Cooper

We now turn in more detail to the evidence of Mr Cooper. In his evidence-in-chief, Mr Cooper stated that he was currently in prison and described his experience with the manufacture of methylamphetamine, including his knowledge about the P2P and pseudoephedrine methods of manufacture. He gave evidence about the materials and equipment needed to manufacture methylamphetamine using both methods.
Mr Cooper said that in early 2005 he met the applicant through Horty Mokbel. He said that Horty Mokbel described the applicant to him as ‘a pseudoephedrine cook from Sydney’, meaning a methylamphetamine cook from Sydney using the pseudoephedrine method.
Mr Cooper said that, a couple of weeks later, he had a further conversation with Mokbel and the applicant. Mokbel said that he wanted Mr Cooper to teach the applicant how to make methylamphetamine using the P2P method. The applicant told Mr Cooper that he had never done that before but ‘described that he knew everything there was to know about the pseudoephedrine’ method.
Mr Cooper said that the applicant told him that he had made methylamphetamine using the pseudoephedrine method in Sydney in ‘vast amounts’ and that he was on bail for manufacturing of some description. Mr Cooper said that he agreed to teach the applicant as requested, in return for a retainer of $30,000–$40,000 per month while he was in prison, which Mokbel was to pay. He further gave evidence that the training took place in early March 2005 at 560 High Street, Preston. When asked to what extent, during the training, the applicant demonstrated a knowledge of methylamphetamine production, he said that ‘he knew exactly’ and that the questions he asked showed that he was capable in that respect. He said that the applicant ‘had a very good idea of what was going on’.
In cross-examination, Mr Cooper admitted that he was arrested in 2002 after a manufacturing laboratory caught fire in Pascoe Vale. He accepted that he had falsely professed his innocence at the time and that, on his own admissions he was a person who lies if he perceives an advantage for himself, and that he was ‘a criminal’. After being released on bail he immediately reoffended and was ultimately arrested at a laboratory at Strathmore in 2006, and was now facing three sets of very serious allegations in relation to the manufacture of amphetamines.
Mr Cooper agreed to assist police after that time and had given evidence in a number of trials, partly because this was done ‘in exchange for a vastly reduced sentence’. He accepted that, at the time, he was a ‘terribly dishonest man’. It was put to him that what he did was to weave stories for the police about different people; he denied this and said that he tried to exonerate people, but went on to say that what he was doing was ‘weaving an ugly web of deceit and lies which all gets found out eventually’.
Mr Cooper also accepted that he had made statements to a psychologist that were untruthful, knowing that the psychologist would produce a report to be relied on by a judge when sentencing him. The lies included statements that he had received a testosterone implant, that he had an unresolved bowel tumour, and that he had difficulty with reading and writing, comprehension and spelling. He allowed these statements to be put before the judge for the purpose of getting a reduced sentence.
Mr Cooper accepted that in a long statement he had made to police directed to activities at 560 High Street, Preston, he had made no reference to the applicant. He had not made a statement about the applicant until 2007. He admitted that he had lied to his family, friends and the police, both when he was denying involvement in offences and when he was purportedly pretending to be cooperating. All of those lies were told for what he perceived to be an advantage to himself. He had also told ‘bare-faced lies’ to his sister about not involving her boyfriend at the time in amphetamine manufacture. Mr Cooper also told the psychologist that he suffered from delusions and that he was addicted to amphetamine. Both of these statements were false, made in order to try to get a reduced sentence. He had previously positively asserted to police that Horty Mokbel was not involved in the manufacture of amphetamines.
Mr Cooper agreed that he had initially told police that no cooking had ever taken place at 560 High Street, and that he had maintained that position for a considerable period of time. He also agreed that he had previously given evidence under cross-examination that the amount that Horty Mokbel had agreed to pay him in connection with teaching the applicant how to cook was not spoken about in dollar terms but was on ‘a percentage basis’.

Proposed ground of appeal

Each application seeks to appeal on the following single ground:
A substantial miscarriage of justice has been occasioned by reason of the applicant being denied a fair trial, in circumstances where, unbeknownst to the applicant:
(a)his barrister Nicola Gobbo, who had acted for the applicant in preliminary proceedings, was a police informer; and/or;
(b)Gobbo had provided information to Victoria Police which was used to obtain ostensibly inculpatory evidence against the applicant; and/or
(c)the evidence of [Mr Cooper] … had been obtained as a result of improper or illegal conduct by Gobbo and/or Victoria Police; and/or[9]
(d)Victoria Police had failed to comply with its obligation of disclosure in relation to the above matters.
[9]The applicant named the witnesses GH and RS in this paragraph but no argument was pursued in that regard.

The two applications

As noted earlier, there are two applications before the Court. The first seeks an extension of time in which to seek leave to appeal in respect of the conviction on charge 2. The parties accepted that the merits of the proposed appeal would determine the application for an extension of time. It is not necessary to say more about that application at this point.
The second application is made under s 326A of the Criminal Procedure Act. By that section, a person convicted of an indictable offence who has exhausted their right of appeal against conviction may appeal to this Court against that conviction if this Court gives leave to appeal. Under s 326C(1), this Court may grant leave to appeal under s 326A if it is satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’. The terms ‘fresh’ and ‘compelling’ are defined in s 326C(3), in the following terms:
(3)In this section, evidence relating to an offence of which a person is convicted is—
(a)      fresh if—
(i)       it was not adduced at the trial of the offence; and
(ii)it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)      compelling if—
(i)       it is reliable; and
(ii)      it is substantial; and
(iii)     either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
Section 326D provides that, on an appeal under s 326A, the Court must allow the appeal against conviction if it is satisfied that there has been substantial miscarriage of justice, but must otherwise dismiss the appeal.
There was no dispute before us that the evidence sought to be relied on by the applicant was ‘fresh’ in the above sense. The respondent properly conceded that this was so. In other words, the evidence could not, even with the exercise of reasonable diligence, have been adduced at the trial. We proceed on that basis.
In respect of the requirement that the evidence also be ‘compelling’, the approach to the definition of that term was articulated by this Court in Roberts v The Queen:[10]
Seventh, the words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen, the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.
Eighth, when compared with the South Australian statute, the Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[11]
[10](2020) 60 VR 431 (‘Roberts I’).
[11]Ibid 441–2 [46]–[47] (citations omitted) (Osborn and T Forrest JJA and Taylor AJA), quoting Van Beelen v The Queen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ) (‘Van Beelen’).
As the Court in Roberts went on to point out, jurisdiction under s 326C(1) ‘is further conditioned upon the appellate court’s satisfaction that it is in the interests of justice that the fresh evidence be considered on appeal’.[12] The concept of the ‘interests of justice’ in this context is not to be conflated with the ultimate issue of a substantial miscarriage of justice.[13]
[12]Roberts I (2020) 60 VR 431, 442 [48] (Osborn and T Forrest JJA and Taylor AJA).
[13]Ibid [51], citing Van Beelen (2017) 262 CLR 565, 578 [31] (Bell, Gageler, Keane, Nettle and Edelman JJ).
Where leave is granted for an appeal to proceed under s 326A, the question whether there has been a substantial miscarriage of justice, for which s 326D provides, is the same as the question under a first appeal as provided by s 276(1) of the Criminal Procedure Act.[14] A substantial miscarriage of justice may be established by demonstrating a material irregularity in the trial process.[15] This means that the principles in Baini v The Queen (‘Baini’) are to be applied in this context as well.[16]
[14]Roberts v The Queen [2020] VSCA 277, [21]–[44] (T Forrest and Osborn JJA and Taylor AJA) (‘Roberts II’).
[15]Ibid [32].
[16](2012) 246 CLR 469.

The four aspects of the proposed ground of appeal

We now turn to consider the four aspects of the proposed ground of appeal. The applicant submitted that a substantial miscarriage of justice arose from the collective effect of each of the four aspects. It is convenient, however, to start by considering each of them individually.

(a) Ms Gobbo acted for the applicant

The applicant was charged on 9 October 2006, and was presented the next day to the court for a filing hearing. At that hearing, he was represented by Ms Gobbo. The evidence does not suggest that anything took place at this hearing other than the fixing of a date for service of the hand-up brief and a date for a further hearing. This was the only occasion upon which the applicant was represented by Ms Gobbo or received legal advice from her. Indeed, there is no evidence that she gave any legal advice even on this occasion, or that she and the applicant spoke in relation to the hearing at all.
Counsel for the applicant accepted that, by itself, this circumstance was not capable of giving rise to a substantial miscarriage of justice. However, she submitted that the fact that Ms Gobbo had acted for the applicant gave rise to a duty of loyalty which precluded Ms Gobbo from acting in the interests of the prosecution of the charges thereafter. It was submitted that she had done just that, including by having been instrumental in causing Mr Cooper to give evidence against the applicant at the applicant’s trial.
In his written case, the applicant pointed to a number of occasions before 10 October 2006 when Ms Gobbo was said to have informed police of matters relevant to the applicant, including having told them on 28 October 2005 that he was a manufacturer of methylamphetamine, and on 25 July 2006 that he was ‘cooking for Horty Mokbel’.[17] It was said that, on the date of the applicant’s arrest, Ms Gobbo had informed police that she believed that he would call her if he was arrested.
[17]Ms Gobbo had also given police the applicant’s mobile telephone number on 14 August 2006. By that stage, however, police already knew that number, as is indicated in the affidavit in support of a warrant to install and use a surveillance device in Khodr’s motor vehicle, referred to below.
On 9 October 2006, Ms Gobbo reported to police that she had been contacted by Horty Mokbel and told that the applicant and Khodr had been arrested. Mokbel had told Ms Gobbo to go to the police station to represent the applicant. The police had instructed Ms Gobbo not to become involved, including in preliminary hearings, but she ultimately represented the applicant and Khodr at their filing hearings. Ms Gobbo did not speak personally to either of the accused. On 10 October 2006, Ms Gobbo was further cautioned by police about representing the applicant and Khodr and the ‘risk of compromise’.
It is not suggested that Ms Gobbo was acting as the applicant’s lawyer at any time other than when she appeared at the filing hearing on his behalf on 10 October 2006. In the circumstances, the fact that she had previously given information to police adverse to his interests, including information bearing on the subject matter of the eventual charges, involved no breach of any duty owed to the applicant. Nor can it be said that Ms Gobbo’s performance of her very limited retainer in this case, even if she ought not have accepted it, was in any way compromised by her past actions. This material does not advance the argument under this head of the proposed ground.

The applicant submitted that he had been deprived of confidential and independent counsel at the initiation of the proceedings against him, and that this was enough to constitute a fundamental departure from process, or an irregularity, in his trial. It was submitted that this irregularity was so radical or fundamental that it went to the root of the proceeding.[18]
[18]The applicant relied on Wilde v The Queen (1988) 164 CLR 365, 373 (Brennan, Dawson and Toohey JJ) and Roberts II [2020] VSCA 277, [254] (T Forrest and Osborn JJA and Taylor AJA).
The applicant relied on observations made by the High Court, in the course of rescinding a grant of special leave, about the ‘fundamental and appalling breaches’ of Ms Gobbo’s obligations to her clients and duty to the court as counsel, and the ‘reprehensible conduct’ of Victoria Police in ‘knowingly encouraging’ her in doing so, which meant ‘sanctioning atrocious breaches’ of the sworn duties of police officers.[19] Those observations have been found to be apt in other cases.[20] They cannot, however, simply be uncritically transposed to this case.
[19]AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59, 62 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[20]See, eg, Mokbel v The Queen (2021) 289 A Crim R 1, 6 [21] (Maxwell P), 14 [59] (Beach and Osborn JJA); [2021] VSCA 94. See, to similar effect, the observations in Orman v The Queen (2019) 59 VR 511, 513 [12] (Maxwell P, Niall and Emerton JJA).
To the contrary, the present case reveals the barest involvement of Ms Gobbo as counsel in relation to the charges against the applicant, and shows that police, far from sanctioning breaches of her obligations as counsel, warned her against that very thing. It is necessary, therefore, to evaluate the conduct of Ms Gobbo, and police, more closely by reference to the facts of the case.
In circumstances where the applicant was only represented by Ms Gobbo at a filing hearing four years before a trial at which he was vigorously represented by experienced counsel, counsel sought to rely on a duty of loyalty said to have arisen by virtue of that appearance. It should be noted that there is no evidence that Ms Gobbo even communicated with the applicant immediately prior to or during the appearance at the filing hearing, and no suggestion that she conveyed anything learnt at that hearing to police. As such, it was not suggested that there was any breach of the duty of confidentiality which would have attached to information acquired by Ms Gobbo in the course of her retainer.
The applicant relied on three occasions on which it was said that Ms Gobbo continued to inform against the applicant around the time of, and after, the retainer. In particular, on 19 October 2006, Ms Gobbo informed police that, when the applicant and Khodr were arrested, Mr Cooper knew about it and he wanted to tell police that the applicant was in his lab. She said that Mr Cooper had told her that he had shown the applicant ‘how to cook’. On 21 October 2006, Ms Gobbo told police that Horty Mokbel had taken on a debt owed by the applicant.[21] On 10 April 2007, she told police that the applicant was threatening Mokbel over $200,000 owed over an old lab.
[21]She had told police about the debt, said to be owed to ‘bikies’ in New South Wales, on 19 October 2006.
Counsel of course owe a fiduciary duty to their clients, which means that they must act in the interests of the client to the exclusion of their own interests.[22] There is authority to the effect that the duty may survive the cessation of the retainer, affording a basis upon which counsel may be restrained from subsequently acting for a party with an interest in the same matter, or one closely related, which is adverse to that of the former client.[23] That has not been the position taken in the United Kingdom, where the courts will only intervene in such a case to protect confidential information.[24]
[22]AB v CD [2017] VSC 350, [113] (Ginnane J), citing Gibson Motorsport Merchandise Pty Ltd v Forbes (2006) 149 FCR 569, 574 [12] (Finn J).
[23]Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501, 522 [53] (Brooking JA). Ormiston JA expressly declined to decide the point (at 525–6 [61]–[62]), as did Chernov JA, who nonetheless regarded (at 526 [63]) the reasoning of Brooking JA on the point as ‘compelling’. See also Sent v John Fairfax Publication Pty Ltd [2002] VSC 429, [103]–[104] (Nettle J) (‘Sent’); Adam 12 Holdings Pty Ltd v Eat & Drink Holdings Pty Ltd [2006] VSC 152, [40] (Whelan J).
[24]Prince Jefri Bolkiar v KPMG (a firm) [1999] 2 AC 222, 234–5 (Lord Millett). Note also the different position taken in other Australian jurisdictions: Belan v Casey [2002] NSWSC 58, [21] (Young CJ); Kallinicos v Hunt (2005) 64 NSWLR 561, 582 [76] (Brereton J); Turner v Turner [2018] NSWSC 1140, [80] (Sackar J); PhotoCure ASA v Queen’s University at Kingston (2002) 56 IPR 86, 97–8 [54]–[58] (Goldberg J); [2002] FCA 905.

That is, however, not this case. Even assuming that Ms Gobbo could have been restrained from accepting a brief from the Crown in the ultimate trial of the applicant, her actions subsequent to the retainer in the present case were of a very different order. They include passing on background information about a debt owed to the applicant, whose bearing on the present trial is tenuous, and advising that Mr Cooper wished to give evidence against the applicant, including that he had taught the applicant ‘how to cook’. This was not information Ms Gobbo had obtained through her retainer to act for the applicant. It was evidence of criminal activity, obtained on social occasions, which she conveyed to police. No authority was advanced to support the proposition that a lawyer acts in breach of a duty of loyalty if he or she informs police of evidence, obtained otherwise than through the retainer of a former client, which may be used in the same matter against that client.
It would be surprising if such authority existed, and we have not found it. In effect, this aspect of the proposed ground asserts a fiduciary obligation to keep secret evidence of criminal conduct obtained independently of the retainer and after it has concluded. The applicants’ concession that the conduct relied on under this head of the proposed ground would not of itself lead to the appeals being allowed was rightly made.

(b) Information provided by Ms Gobbo led to evidence being obtained

Under the second limb of the proposed ground, the applicant submitted that the Crown case against him relied upon evidence obtained by means of search warrants which had been obtained in reliance upon information obtained from Ms Gobbo as a police informer. It was said that the evidence had been illegally or improperly obtained because the warrants had been obtained as a result of information deriving from Ms Gobbo holding herself out to the applicant as a barrister able to keep his confidence and to provide him with legal representation and advice. This was said to be a fundamental abuse of Ms Gobbo’s position as an officer of the court.
First, the applicant relied upon the application made for a search warrant of the Melville Road premises, which was said to have relied in large part on information provided by Ms Gobbo. In the affidavit in support of that application, it was stated that, on 25 July 2006, Ms Gobbo had supplied information in relation to Horty Mokbel, namely that he had arranged for the applicant to come down from Sydney and that the applicant was ‘cooking’ large quantities of methylamphetamine on behalf of Mokbel. It was said to be this information, together with knowledge that the applicant was then residing at the property, that had provided the primary basis for the deponent to say later in the affidavit that investigators believed that the applicant was currently manufacturing methylamphetamine at the Melville Road premises.
Secondly, the applicant relied on the application that had been made to permit the installation and use of a surveillance device in Khodr’s vehicle. The affidavit in support included a statement that between March 2006 and August 2006, Ms Gobbo had told police that Horty Mokbel was continuing to traffic amphetamine and ecstasy, that the applicant and another person were ‘cooking amphetamine’ for Mokbel, and that the applicant was ‘operating a clandestine laboratory’ on behalf of Mokbel.
The applicant submitted that, had he been aware that Ms Gobbo had provided this information to police, he would have applied to have the evidence obtained by means of the warrants excluded under s 138 of the Evidence Act2008, and that it was highly likely that such an application would have been successful as a result of the unprecedented nature of the illegality or impropriety and the need to deter police and legal representatives from similar conduct in the future.
In oral argument, counsel for the applicant also submitted that the information given to police also constituted a breach of a duty owed by Ms Gobbo to Horty Mokbel. Although this duty was not clearly spelled out, counsel placed reliance on evidence that Ms Gobbo had ‘checked’ briefs for Mokbel, including the brief of evidence against the applicant in relation to charges in New South Wales, while simultaneously relaying the information provided by the applicant and his alleged associates to investigating authorities.
It was further suggested that it could have been put to police witnesses that, since Victoria Police had encouraged and enabled Ms Gobbo to provide information, as a registered informer, against her own clients, officers may also have been prepared to engage in other unlawful or improper activity in order to obtain convictions in the applicant’s trial.
The information provided by Ms Gobbo in this context was obtained by her and conveyed to police before she acted for the applicant. It involved no breach of fiduciary duty to the applicant. Nor did the fact that she had passed the information to police conceivably affect her performance of the retainer which she later accepted. The applicant therefore relies on other alleged impropriety or illegality to suggest that the evidence obtained under the warrants would, or could, have been excluded at trial.
These submissions are without substance. It has not been shown that the conveying of the information by Ms Gobbo, upon which reliance was placed to obtain the warrants, was in any way improper or unlawful. Ms Gobbo was not acting for the applicant when she provided the information. There is no specific evidence about any retainer of Ms Gobbo on the part of Horty Mokbel, or evidence that her passing on of the information about him and the applicant conflicted with any duty to Mokbel, or any duty owed under any other retainer. Nor does the mere fact that Ms Gobbo was a practising barrister mean that there was any impropriety or illegality in her conveying to police information obtained on social occasions from persons who were not her clients.
In the absence of any identified impropriety or illegality, in consequence of which it might be argued that the evidence derived from executing the warrants was improperly obtained, we do not accept that there is any realistic possibility that any such evidence would have been excluded on the grounds suggested.
The submission about the potential questioning of police witnesses raises the issue of non-disclosure, which it is convenient to consider as part of the fourth aspect of the proposed ground.

(c) Evidence of Mr Cooper was obtained as a result of improper or illegal conduct

The third aspect of the proposed ground is that Mr Cooper gave evidence against the applicant as a result of improper or illegal conduct on the part of Ms Gobbo. It was said that Ms Gobbo was instrumental in securing Mr Cooper to give evidence against the applicant. This was said to emerge from the following material in the fresh evidence:
(a)Ms Gobbo had represented Mr Cooper’s nephew, for which Mr Cooper was ‘extremely grateful’;
(b)Ms Gobbo had represented Mr Cooper in his own proceedings, including as early as October 2005, shortly after being registered as a police informer;
(c)Ms Gobbo described Mr Cooper as ‘very lonely’, ‘vulnerable’ and ‘jealous’, and cultivated her relationship with him including him sending her chocolates for her birthday, which cultivation was ultimately directed towards facilitating him becoming a Crown witness;
(d)Ms Gobbo attended upon the arrest of Mr Cooper in April 2006 and spoke to him while he was in custody, at which time he agreed to cooperate with police and to participate in covert meetings with other targets;
(e)Ms Gobbo visited Mr Cooper in prison after he was remanded;
(f)Ms Gobbo further cultivated her relationship with Mr Cooper while he was in prison, including being in ‘daily contact’, not missing his calls, allowing him to read her horoscope to her, proposing to her and apparently allowing him to persist in the belief that she would marry him;
(g)Ms Gobbo advocated for regular payments to be made to Mr Cooper while he was in prison from at least 29 August 2006, and advocated for police to buy a computer for his use in prison (or in fact bought one herself); and
(h)Ms Gobbo acted as a trouble-shooter for problems that arose about Mr Cooper agreeing to give evidence and visited him in prison to fix such problems.
It was submitted that, in light of these matters, it was to be concluded that police use of Ms Gobbo as an informer and, effectively, witness handler caused Mr Cooper to give evidence against the applicant. Ms Gobbo herself had stated that it was her ‘support and intervention’ that led to Mr Cooper cooperating with police. These events took place before Ms Gobbo acted for the applicant. By the time of the retainer, there was a case against the applicant and Mr Cooper was already cooperating with police.
It was submitted that the obtaining of Mr Cooper’s cooperation was improper or illegal because of Ms Gobbo’s position as a barrister and officer of the court, which she had abused to facilitate the gathering of evidence from persons whose trust and confidence in her was the product of her holding herself out to be a barrister acting, or able to act, in their interests.
The applicant submitted that, had this been known to him at trial, it would, as in relation to the matters canvassed under the second limb considered above, inevitably have formed the basis for an application to exclude the evidence under s 138 of the Evidence Act, and/or an application for a permanent stay.
The applicant submitted that, in this respect, the case was indistinguishable from Cvetanovski v The Queen (‘Cvetanovski’).[25]
[25][2020] VSCA 272.
As in the second limb of the proposed ground, the applicant asserts impropriety or illegality in the manner in which Mr Cooper came to give evidence, sufficient to require excluding his evidence under s 138 of the Evidence Act. The difficulty with the argument in this context is that, assuming for present purposes that Ms Gobbo was instrumental in causing Mr Cooper to give evidence against the applicant, it has not been shown that there was any impropriety or illegality in her having done so. It has not been suggested, in particular, that Mr Cooper had any available defence to the charges to which he pleaded guilty, or that he did not receive a significant sentencing benefit by virtue of his cooperation.
The matters relied on might be thought to show, at most, that Mr Cooper was under the influence of Ms Gobbo for reasons extraneous to her role as his lawyer, but they do not suggest that, in that role, she gave advice other than in his interests. Even if she acted improperly in relation to Mr Cooper, in her capacity as his lawyer or otherwise (for example, by disloyalty towards him in her dealings with police), that does not establish that his decision to give evidence against the applicant was a consequence of any such impropriety.
For those reasons, we do not think that there is any reasonable prospect that Mr Cooper’s evidence would have been excluded under s 138, had the matters relied on under this head of the proposed ground been known at the time of the trial. Equally, there is no prospect that the trial would have been stayed on that basis.
Cvetanovski does not assist the applicant in this context. The ground upon which that appeal succeeded was non-disclosure, and we will return to the case in that context. The Court considered the effect of the non-disclosure on the trial. It did not enter into the question whether the evidence of Mr Cooper (who was a key witness in that case) would have been excluded under s 138.

(d) Non-disclosure

Under the fourth and final aspect of the proposed ground, the applicant alleged that there had been a failure to disclose matters which were bound to be disclosed to defence counsel in order for the applicant’s trial to have been fairly conducted. It was submitted that the obligation of disclosure extended to evidence that may affect the credibility or reliability of a Crown witness.[26] The obligation also extends, it was submitted, to evidence that would be inadmissible but may be of use to an accused in formulating a case theory, exploring avenues of investigation or identifying potential lines of cross-examination.[27]
[26]Roberts II [2020] VSCA 277, [128]–[131] (T Forrest and Osborn JJA and Taylor AJA).
[27]R v Mokbel (Ruling No 1) [2005] VSC 410, [71]–[76], [84] (Gillard J).
It was said that in the present case, the Crown had failed to disclose evidence of Ms Gobbo’s involvement in the investigation of the alleged offences and her involvement in securing Mr Cooper as a witness. In addition, it was submitted that the Crown had failed to disclose any evidence of the payments Mr Cooper was receiving from police while he was in prison waiting to testify against the applicant. It was said that the result was to deny the applicant potential lines of investigation and cross-examination relevant to the credibility of Mr Cooper, including by suggesting:
(a)that he was motivated to give evidence against the applicant, not by a desire to tell the truth but in order to continue to receive payments from Victoria Police;
(b)that his general mental wellbeing was poor around the time of the arrest of the applicant and that he had ‘lost the plot a bit’;
(c)that he was in, or wanted to be in, a relationship with Ms Gobbo and would do anything to maintain it or the possibility of it;
(d)that he felt indebted to Ms Gobbo for her representation of his nephew;
(e)that he felt indebted to Ms Gobbo because he thought that the regular payments he was receiving in prison and a payment for a computer had come from her rather than from Victoria Police.
It was submitted that, had the applicant been aware of these matters, he would have sought to use that knowledge to inform his cross-examination of Mr Cooper, and may have sought to adduce independent evidence so as to impugn the credibility and reliability of Mr Cooper. The jury had, in the circumstances, been unable to make a proper assessment of Mr Cooper’s credibility.
It was also submitted in this context that evidence of Ms Gobbo’s communications to her handlers corresponded to evidence given by Mr Cooper. It was said that this raised the ‘spectre’ that Mr Cooper’s evidence was sourced, not from his knowledge, but from the knowledge or opinions of Ms Gobbo, and that this was a further field of cross-examination that had been denied to the applicant.
The applicant finally relied on what were said to be the close parallels between this case and Cvetanovski.
The importance of the prosecution’s duty of disclosure in a criminal trial is not in doubt. The principles were recently summarised by this Court in Roberts v The Queen:[28]
·The duty of disclosure ordinarily requires the Crown to disclose to an accused all material relevant to his or her defence.
…
·The rationale for the duty of disclosure derives from the need to give an accused a fair trial in circumstances where the resources of the State and an accused are disproportionate and the State is charged both with the investigation of the offence and the prosecution of the trial for that offence.
·The duty is owed to the Court, not the accused. It is an aspect of the prosecutor’s function to assist in the attainment of justice between the Crown and the accused.
·The duty is ongoing.
·As such, the duty is an aspect of the fundamental right to a fair trial. …
·Information material to the defence that was in the possession of investigating police at the time of trial should be regarded as in the possession of the Crown.[29]
[28]Roberts II [2020] VSCA 277.
[29]Ibid [127] (T Forrest and Osborn JJA and Taylor AJA) (citations omitted).
The Court in Roberts went on to confirm that the duty of disclosure extends to matters affecting the assessment of the credibility and reliability of Crown witnesses. They quoted the following passage in R v Brown (Winston),[30] where Lord Hope of Craighead (with whom the other members of the House of Lords agreed) stated:
The prosecution is not obliged to lead evidence which may undermine the Crown case, but fairness requires that material in its possession which may undermine the Crown case is disclosed to the defence. The investigation process will also require an inquiry into material which may affect the credibility of potential Crown witnesses. Here again, the prosecution is not obliged to lead the evidence of witnesses who are likely in its opinion to be regarded by the judge or jury as incredible or unreliable. Yet fairness requires that material in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed. The question whether one or more of the Crown witnesses is credible or reliable is frequently one of the most important ‘issues’ in the case, although the material which bears upon it may be, as Steyn LJ observed, … collateral.[31]
[30][1998] AC 367.
[31]Ibid 377 (emphasis added by the Court in Roberts); see also Mallard v The Queen (2005) 224 CLR 125, 153 [74] (Kirby J).
The Court cited with approval the following passage in the judgment of Kirby J in Mallard v The Queen:[32]
The foregoing review of the approach of courts, in national and international jurisdiction, indicates the growth of the insistence of the law, particularly in countries observing the accusatorial form of criminal trial, of the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.[33]
[32](2005) 224 CLR 125.
[33]Ibid 155 [81] (emphasis added) (citation omitted).
The fact that the foundation of the duty of disclosure is the notion of a fair trial necessarily means that, conversely, ‘failure to make proper disclosure may give rise to serious unfairness and substantial injustice as the result of the manner in which a trial is conducted’.[34] While not every non-disclosure of relevant evidence results in a substantial miscarriage of justice, the Court in Roberts warned of the difficulty in evaluating the effects of non-disclosure, citing with approval the following statement in R v Ward:[35]
Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.[36]
[34]Roberts II [2020] VSCA 277, [132] (T Forrest and Osborn JJA and Taylor AJA).
[35][1993] 1 WLR 619.
[36]Ibid 642 (Glidewell LJ).
The Court in Roberts concluded:
The difficulty referred to may be particularly acute when the non-disclosure goes to the credibility or reliability of evidence given at trial in ways which were not tested or advanced at trial. Further, where such a difficulty exists it may be a significant matter to deprive an accused of the right to make forensic choices and conduct his or her defence by reference to material which was not disclosed.[37]
[37]Roberts II [2020] VSCA 277, [133] (T Forrest and Osborn JJA and Taylor AJA).
The issue is therefore whether the material to which the applicant now points was capable of casting doubt on the credibility or reliability of Crown witnesses in the applicant’s trial.
In our opinion, it is plain that, as the Court held in rather similar circumstances in Cvetanovski, the fact that police made payments to Mr Cooper before he gave evidence against the applicant ought to have been disclosed to the defence.[38] This was a fact upon which defence counsel could have cross-examined, potentially going to the credibility and reliability of Mr Cooper’s evidence. It is no answer to point to the other rich sources upon which defence counsel was able to draw, in any event, to pursue the same result.[39] The fact of the payments (which were not insubstantial) was capable, independently of that other material, of bearing upon the weight that the jury attached to Mr Cooper’s evidence. As such, the prosecution was bound to disclose it. We note that the obligation exists even though it appears, on the material available to us, only that the information was known to Victoria Police, not to the prosecuting authorities.[40]
[38]Cvetanovski [2020] VSCA 272, [7]–[9] (Maxwell P, Beach and Weinberg JJA).
[39]See, eg, [22] to [26] above.
[40]See [73] above.

The other matters upon which the applicant relies in this context are in a different position. For the reasons given, the evidence concerning Ms Gobbo’s assistance to police did not materially bear on the issues in the case, including the credibility or reliability of Mr Cooper’s evidence. As such, there was no obligation to disclose it.
That conclusion applies also to the evidence of Ms Gobbo’s alleged influence over Mr Cooper and his related sense of indebtedness towards her. We do not accept that any serious light could have been cast on the credibility or reliability of Mr Cooper’s evidence by reason of those considerations. Similarly, the possible area of cross-examination of Mr Cooper, to the effect that his evidence depended on things told to him by Ms Gobbo, rather than things he had seen or heard for himself, draws too long a bow.
We also reject the applicant’s contention that, had the inappropriate conduct of Victoria Police in permitting Ms Gobbo to act as an informer, against the interests of her clients and in breach of her obligations as counsel, been known at the trial, this could have formed a basis for cross-examining police witnesses about their honesty and integrity. This possibility is entirely speculative. The applicant did not seek to show that any witness in the applicant’s trial was involved in or knew of any impropriety involving Ms Gobbo. No foundation has been demonstrated for the cross-examination hypothesised.
We will return below to the question whether these conclusions point to a substantial miscarriage of justice.

Consequences of conclusion on the four aspects

Taken individually, the only aspect of the applicant’s case which has been found to have merit concerns the failure to disclose the making of payments by Victoria Police to Mr Cooper.
The applicant submits that, nonetheless, the total effect of the matters identified is greater than the sum of the individual parts. We disagree. The parts are, with the exception identified, of such little weight that the same must be said of their total effect.
On a slightly different approach, it was also submitted that, taken overall, the conduct of Ms Gobbo gave rise to a reasonable suspicion on the part of a fair-minded citizen that justice had miscarried, citing Szabo v The Queen.[41]
[41][2001] 2 Qd R 214 (Court of Appeal) (‘Szabo’); see also Sent [2002] VSC 429, [112]–[114] (Nettle J), and Dyer v Chrysanthou [No 2] [2021] FCA 641, [133]–[142] (Thawley J), which was upheld on appeal in Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116.
Although that formulation may state the test to be applied when the issue is whether counsel should be restrained from acting in a matter, it does not supplant the statutory test that applies in the present case, namely whether there has been a substantial miscarriage of justice. In any event, Szabo involved very different facts. The appellant had been represented at trial by counsel who had recently been in a de facto relationship with the prosecutor. At the time of the trial, there was a prospect of that relationship recommencing, which it did shortly after the trial concluded.[42] The appellant was unaware of these circumstances. Counsel’s failure to disclose the circumstances to his client was held, without more, to have given rise to a reasonable suspicion on the part of a hypothetical fair-minded person that he may not have acted properly in representing the appellant, so as to constitute a miscarriage of justice.[43] The case is immediately distinguishable because in the present case Ms Gobbo did not conduct the applicant’s trial. It is not tenable to suggest that her non-disclosure affected her performance of the limited retainer she did have, still less that any such affectation flowed through to the trial.
[42][2001] 2 Qd R 214, 216 [7] (de Jersey CJ); 224 [46]–[47] (Thomas JA).
[43]Ibid 215–16 [6]–[7] (de Jersey CJ), 233–4 [79]–[80] (Thomas JA); cf 218 [18] (Davies JA).
The irregularity in the trial identified in Szabo therefore has no parallel in the present case.
We are left, then, with the question of the effect of the identified instance of material non-disclosure, concerning the payments to Mr Cooper.

Charge 3 — ‘fresh and compelling’ evidence

In relation to charge 3, the question resolves to whether the fresh evidence that Victoria Police made payments to Mr Cooper prior to him giving evidence at the applicant’s trial is ‘compelling’ in the sense defined in s 326C(3)(b) of the Criminal Procedure Act, namely that it is reliable, substantial and either highly probative in the context of the issues in dispute at the trial or ‘would have eliminated or substantially weakened the prosecution case’.
The evidence is plainly ‘reliable’. As explained by the High Court in Van Beelen, ‘substantial’ in this context means that the evidence is of ‘real significance or importance with respect to the matter it is tendered to prove’.[44] In our view, the evidence fits that description. The evidence was sufficiently important to Mr Cooper’s credibility and reliability to have demanded its disclosure. As such, it was of real significance to that subject.
[44]Van Beelen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ).
The difficulty for the applicant lies in the third aspect of the definition. We do not accept that the evidence was ‘highly probative’ as to the question of the applicant’s guilt on charge 3, or that it would have substantially weakened the prosecution case on that charge. First, although it is difficult to speculate as to the effect of a potential line of cross-examination, in the present case there was a wealth of material casting real doubt on the honesty of Mr Cooper, including material showing a very real incentive to give false evidence in circumstances where he had frequently done so in the past.[45] We cannot be satisfied in that context that the fresh evidence that he was in receipt of payments by police pending giving evidence was ‘highly’ probative in the context of the issues in dispute, or that it ‘would’ have ‘substantially’ weakened the prosecution case. We are reinforced in that conclusion by the fact that it is evident from the acquittal on charge 1 that the jury harboured real doubts about Mr Cooper’s evidence.
[45]See [22] to [26] above.
Secondly, in respect of charge 3 the evidence of Mr Cooper was extremely limited. It was confined to the evidence that the applicant had told him that he was experienced in the pseudoephedrine method of manufacturing methylamphetamine, and had demonstrated some proficiency when being trained in the P2P method.[46] In the context of the trial, even if that evidence had been more comprehensively discredited, this would not be highly probative in the context of the issues in dispute, and it would not have substantially weakened the prosecution case. Indeed, the prosecutor acknowledged the force of the attacks on Mr Cooper’s credit, and urged the jury to convict irrespective of whether they accepted any of his evidence.
[46]See [16] above.
Among other things, the other evidence in respect of charge 3 included evidence that the applicant resided from time to time at the Melville Road premises, which were rented by Khodr (who lived there with his wife). There was evidence of a clandestine laboratory operating at the rear of the property, including the presence of pseudoephedrine and other relevant chemicals, and equipment showing the presence of methylamphetamine and ephedrines, consistent with the recent manufacture of methylamphetamine by the pseudoephedrine method.
Each of the applicant and Khodr were seen on surveillance footage coming and going from the Melville Road premises, alone and together; they were also seen entering the Pascoe Street property. The applicant possessed the means of gaining entry to both properties. On 6 October 2006, when the manufacture at Melville Road was alleged to have taken place, the applicant and Khodr were seen transporting relevant equipment there, from the Pascoe Street property, to which Khodr subsequently returned. On the same evening, Khodr was seen leaving the Melville Road premises, buying a large quantity of ice (being a substance required for the manufacturing process) and returning to those premises.
The Pascoe Street property, despite being residential premises, was devoid of personal effects other than some basic furniture, but contained substantial quantities of chemicals and other equipment suitable for use in manufacturing methylamphetamine, as well as vacuum sealed bags found to contain methylamphetamine. DNA testing of gloves found at those premises showed that it was 2,000 times more likely that the applicant and another unknown source had contributed to the sample.
In our opinion, it is inconceivable that the fresh evidence that Victoria Police made payments to Mr Cooper could have made any difference to the applicant’s conviction on charge 3. While it could have been used to mount a further attack on Mr Cooper’s credibility and reliability, it is nonetheless not ‘compelling’ in the defined sense. For the same reasons, it would not in any event be in the interests of justice for that evidence to be considered on an appeal, as s 326C(1) requires. The proposed appeal would necessarily fail.
For those reasons leave to appeal under s 326A of the Criminal Procedure Act must be refused.

Charge 2 — ‘substantial miscarriage of justice’

The issue in respect of charge 2 is different because the applicant need not establish that the evidence is fresh and compelling. In light of the failure to disclose the payments made to Mr Cooper, we would grant the extension of time and also grant leave to appeal. The question then is whether there has been a substantial miscarriage of justice as a result of that non-disclosure.
That issue is to be resolved by application of the principles in Baini.[47] In short, the question whether the identified irregularity has caused a substantial miscarriage of justice is to be answered by considering whether, on the whole of the evidence, the conviction on charge 2 was inevitable.
[47](2012) 246 CLR 469.
It will be recalled that charge 2 was alleged in two alternative ways, based on a joint criminal enterprise and individual liability. It is only necessary, as it transpires, to consider the case based on individual liability.
The broad contours of the relevant evidence have been set out in connection with charge 3. For the purposes of this exercise, we put the evidence of Mr Cooper to one side.
Having done so, there remains abundant evidence going to prove the applicant’s guilt on charge 2, and his conviction was inevitable. Without repeating what is said above in relation to charge 3, that evidence includes the applicant’s ready and regular access to the Pascoe Street premises (along with Khodr), the delivery by the applicant of chemicals to the address, and the specific chemicals, equipment and methylamphetamine found there. It also includes the DNA evidence from the gloves, and the related evidence connecting the applicant to the Melville Road premises at which he resided from time to time, where other similarly incriminating chemicals and equipment were located. The applicant had rented the Pascoe Street premises, and an intercepted telephone conversation involving the applicant referred to the rent being paid by Mokbel. As mentioned above, the premises were largely devoid of household items and were not being used as a residence. Again, the Crown urged the jury to convict on charge 2 even if they did not accept Mr Cooper’s evidence.
This material amply supported the conclusion that the applicant possessed the relevant substances and equipment at the Pascoe Street premises, and intended to use them for the purpose of manufacturing methylamphetamine. The Crown case was an overwhelming one irrespective of the evidence of Mr Cooper, and in that context the failure to disclose the fact that police had been making payments to him did not result in a substantial miscarriage of justice. The appeal must be dismissed.

Conclusion

An extension of time should be granted to seek leave to appeal against the conviction on charge 2. Leave to appeal should be granted, but the appeal should be dismissed.
Leave to commence a second appeal in respect of the conviction on charge 3 should be refused.
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[2022] VSCA 271

9 December 2022