Higgs v The Queen
[2021] VSCA 301
•5 November 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0009
| JOHN WILLIAM SAMUEL HIGGS | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | IRVING ASJ |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 September 2021 |
DATE OF JUDGMENT: | 5 November 2021 |
MEDIUM NEUTRAL CITATION: | [2021] VSCA 301 |
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CRIMINAL LAW – Orders for production of documents pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Victoria Police and Commonwealth Director of Public Prosecutions – Systematic executive misconduct said to be abuse of process – Whether legitimate forensic purpose –Criminal Procedure Act 2009, s 317 – R v Grant [2005] EWCA Crim 1089 – DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 35 - Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; 266 CLR 325.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr D Grace QC with Ms C Dwyer | Stephen Andrianakis and Associates |
| For the Respondent | Ms C Fitzgerald | Director of Public Prosecutions (Cth) |
| For the Commonwealth Director of Public Prosecutions | Mr A Yuile | Director of Public Prosecutions (Cth) |
| For the Chief Commissioner of Victoria Police | Dr I Freckelton QC with Mr J Bayly | Victorian Government Solicitor’s Office |
IRVING ASJ:
On 24 May 2012, following a trial, the applicant was found guilty of conspiracy to possess a commercial quantity of a border-controlled drug. The object of the conspiracy was 4.4 tonnes of MDMA tablets which had been concealed in tomato tins on board MV Monica which had arrived in the Port of Melbourne on 28 June 2007. On 30 April 2013, the applicant was sentenced to 18 years imprisonment with a non-parole period of 14 years.
On 14 January 2021, the applicant filed a notice of application for leave to appeal his conviction under s 326A of the Criminal Procedure Act 2009 (‘CPA‘). The applicant advances two proposed grounds of appeal. The proposed grounds relate to the alleged conduct of former barrister, Nicola Gobbo.[1]
[1]For an account of Ms Gobbo’s role in the detection, investigation and prosecution of the conspiracy and the events leading to the disclosure of her role as a human source for Victoria Police, see Visser v DPP (Cth) [2020] VSCA 327, [1]–[20].
On 7 April 2021, the applicant applied for orders under s 317 of the CPA seeking the respondent, the Commonwealth Director of Public Prosecutions (‘CDPP’) and the Chief Commissioner of Victoria Police (‘Chief Commissioner’) produce various categories of documents. Since then the categories of documents sought in the s 317 applications have been amended by agreement, reflecting refinement in the description of some categories and production in others. The CDPP and the Chief Commissioner however, dispute the applicant’s legitimate forensic purpose for seeking the remaining categories (‘contested categories’). The CDPP also object to producing certain categories of documents on the basis that to do so would be oppressive.
This ruling relates to whether the applicant has demonstrated a legitimate forensic purpose such that the Court should make the orders he seeks in relation to the contested categories of documents. It has not been necessary to decide the CDPP’s arguments based on oppression.
The application for leave to appeal
The applicant seeks leave to appeal under s 326A of the CPA. The Court of Appeal may grant leave to appeal under s 326A if satisfied there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal.[2] Evidence is fresh if it was not adduced at the trial of the offence and could not, even with the exercise of reasonable diligence, have been adduced at trial.[3] Evidence is compelling if it is reliable, substantial and either highly probative in the context of the issues in dispute at the trial of the offence, or it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.[4]
[2]Section 326C(1) of the Criminal Procedure Act 2009.
[3]Ibid s 326C(3)(a).
[4]Ibid s 326C(3)(b).
The case at trial against the applicant was summarised by this Court in the applicant’s prior conviction appeal:[5]
In essence, the applicant’s role in the conspiracy was said to be that of conduit between Karam on the one hand, and Barbaro, Zirilli and Falanga on the other. The prosecution asserted that he obtained information from Karam — who had experience working in customs clearance and freight forwarding — with respect to obtaining safe access to the container and its contents, which he then conveyed to Barbaro, Zirilli and Falanga. It was also alleged that the applicant facilitated various meetings involving Barbaro, Zirilli, Sergi and Visser in furtherance of the conspiracy.
In a record of interview with police on 8 August 2008, the applicant’s account was one of an innocent association with the alleged co-conspirators. Indeed, he explained his meeting with Barbaro on the basis that he wanted to sell him a hoist for use by Barbaro in his agricultural pursuits.
At trial, the prosecution relied on a substantial body of circumstantial evidence — including a large volume of intercepted conversations, transcripts of text messages and police surveillance of the various alleged co-conspirators — in order to prove the existence and object of the conspiracy, and the applicant’s participation in it. Although the applicant did not contest that Barbaro, Zirilli and Falanga were involved in a conspiracy to obtain possession of a significant quantity of a border controlled drug imported into Australia within a shipping container, he asserted that the prosecution evidence did not prove beyond a reasonable doubt that he knew of or became a party to the conspiracy.
[5]Higgs v The Queen [2015] VSCA 223, [10]–[12].
The applicant’s application for leave to appeal filed 14 January 2021 contains the following proposed grounds:
Ground 1.By reason of the discovery of fresh evidence in relation to the actions of the Applicant’s legal practitioner, a substantial miscarriage of justice has been occasioned.
Particulars
(1)Gobbo’s conduct in acting for and advising the Applicant during the period she was actively assisting police in securing evidence against him and providing information about him to police deprived the Applicant of independent counsel;
(2)Victoria Police and Gobbo exploited the privileges and obligations conferred upon Gobbo as a legal practitioner and an officer of the Court in order to obtain evidence against the Applicant which represents a defect in the resulting process so profound it offends the integrity and functions of the Court thereby constituting an abuse of process.
Ground 2.By reason of the discovery of fresh evidence, being the non-disclosure by the prosecution of Gobbo’s involvement in securing evidence against the Applicant, there has been a substantial miscarriage of justice.
The applicant’s submissions in support of his applications for s 317 orders summarise his grounds of appeal as follows:[6]
A substantial miscarriage of justice occurred on three grounds:
Ground 1.1:Gobbo’s conduct in acting for the Applicant while informing on him deprived the Applicant of independent counsel;
Ground 1.2: Victoria Police’s conduct in exploiting the privileges conferred on Gobbo as an officer of the Court in order to achieve the aims of the executive was executive misconduct so profound the subsequent trial was poisoned to its root;
Ground 2:the failure of investigating and prosecuting authorities and Gobbo to disclose her involvement in securing evidence against the Applicant.
[6]Although the applicant refers to three grounds of appeal in these submissions, grounds 1.1 and 1.2 fall within the same umbrella ground (ground 1) as described in the notice of application for leave to appeal filed 14 January 2021. See submissions of the applicant in support of the application for a notice to produce directed to Victoria Police dated 26 July 2021, [1].
The applicant concedes that the criteria for leave under s 326C of the CPA must be considered in the context of the case at trial.
The applicant’s written case sets out how he puts his case on appeal.
Ms Gobbo acted for the applicant as his solicitor in the late 1990s. In 1999, the applicant began serving a four year non-parole period for a conviction for drug offences. In 2006, after he had completed that sentence, he became reacquainted with Ms Gobbo in the ‘context of a lawyer-client relationship’.[7]
[7]Applicant’s written case on the application for leave to appeal filed 14 January 2021, [4.24].
The applicant says that the fresh evidence available from the partial disclosure of documents to him to date reveals the following.
Ms Gobbo provided the applicant’s telephone number and other intelligence to her handlers in 2006. Some aspects of Ms Gobbo’s intelligence about the applicant (including relevantly, the applicant’s telephone number) were disseminated to federal agencies on 5 September 2006. The telephone number provided became the subject of an intercept on 24 May 2007. Operations Agamas[8] and Lavernock[9] and the warrants for interception thereunder appear to have been based, at least in part, on intelligence provided by Ms Gobbo.
[8]Ibid [4.23]. Operation Agamas was a Victoria Police Drug Task Force operation targeting, among others, the applicant and a Mr Oueida.
[9]Operation Lavernock was conducted by the Australian Crime Commission and focussed on the production and trafficking of commercial quantities of amphetamines between mainland Australia and Tasmania. Mr Oueida was also a target of this operation.
Ms Gobbo was handed a bill of lading by Mr Karam,[10] which she copied and provided to her handlers on 5 June 2007. This bill of lading led to the identification of a shipping container importing tins of tomatoes and sparked what has often been called ‘the tomato tins investigation’.
[10]Ms Gobbo was acting in criminal proceedings in the County Court of Victoria on Mr Karam’s behalf at the time. See submissions of the Chief Commissioner of Police filed 9 August 2021, [4.2].
After receiving the bill of lading, Ms Gobbo’s handlers specifically tasked her to find out who was involved in the importation, the phone numbers used, the details of the freight forwarder, who particular contacts were and their roles, and up to date intelligence, such as whether the container had swapped ships.
Ms Gobbo identified to her handlers persons, including the applicant, who may be involved in the container importation and detailed the associations and movements of suspects or targets, impacting on the focus of the tomato tins investigation. She detailed numerous conversations she had with those persons and provided her handlers with telephone numbers, including the applicant’s, which were subsequently intercepted. Ms Gobbo also identified to her handlers locations used by targets, including a hotel the applicant was attending, which was subsequently the subject of listening devices.
On 19 and 21 June 2007, Ms Gobbo’s handlers met a member of Australian Customs and informed them of the impending arrival of the container. Ms Gobbo’s handlers told Customs that the Australian Federal Police (‘AFP’) were not to be told the source of the tip off and discussed a ‘strategy for finding [the container] which will not compromise human source’.[11]
[11]Applicant’s written case on the application for leave to appeal filed 14 January 2021, [4.1]–[4.13].
Ms Gobbo strategized with police about the best way to generate evidence including her planning a dinner with targets to coincide with media releases to get them talking about the container or using contemporary hearings by the Australian Crime Commission (‘ACC’) to encourage Mr Karam and the applicant to talk in a secret meeting afterwards.
On 28 June 2007, Ms Gobbo told her handlers that the applicant and Mr Karam were going to the Pacific International apartments. This was disseminated to the Victoria Police Drug Task Force, who passed it on to federal agencies. A listening device was authorised and installed in a room at the Pacific International on 2 July 2007.
On 29 June 2007, a second telephone number used by the applicant was intercepted. Ms Gobbo had told her handlers earlier that day that the applicant had obtained a new number and provided them with it. This intelligence was disseminated to the Victoria Police Drug Taskforce. Hours later, the ACC obtained a warrant to intercept that phone number.
On 10 January 2008, Ms Gobbo confirmed the phone numbers of a number of targets, including the applicant.
In September 2011, in the course of an unrelated prosecution, a solicitor at the CDPP became aware of Ms Gobbo’s role as a human source. After that solicitor accessed the Victoria Police source management log relevant to Ms Gobbo, the CDPP requested a briefing note from Victoria Police about Ms Gobbo and her role. The note prepared identified that Ms Gobbo had informed on the applicant.
The applicant says that the fresh evidence establishes that Ms Gobbo purported to act for the applicant while informing on him, that the executive exploited Ms Gobbo’s role as an officer of the Court thereby departing from fundamental aspects of the criminal justice system and failed to disclose material which would have justified the grant of a permanent stay. As such, he says, there has been an abuse of process and a substantial miscarriage of justice.
The applicant contends it is impermissible for the executive to have exploited Ms Gobbo’s role as an officer of the Court (and the subsequent trust and confidence reposed by clients in her) in order to inveigle the client to provide the lawyer with information for the purpose of that lawyer providing that information to investigating police. The applicant argues the exploitation by the executive of the lawyer-client relationship and the legitimate expectation of the client, in order to secure evidence against him, constitutes a form of executive misconduct so serious that any resulting process suffers from a defect going to its root.
The applicant says this conduct represents a defect in the resulting process so profound as to offend the integrity and functions of the Court. It represents an unfairness because it relies on a client’s understanding and/or beliefs about the lawyer as a fiduciary in order to further the will of the executive, instead of the administration of justice. It is offensive because the executive co-opted - for its own ends - the very privileges and obligations on which the administration of justice depends. As a whole, the conduct is ‘so great an affront to the integrity of the justice system, and therefore the rule of law, that the associated prosecution is rendered abusive and ought not to be countenanced by the Court’.[12]
[12]Ibid [6.16]. The applicant relies on the quoted passage from R v Grant [2005] EWCA Crim 1089, [54].
I now turn to the applicable legal principles in respect of an applications for s 317 orders.
Legislation and relevant principles
Section 317 of the CPA provides that the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if the Court of Appeal considers that it is in the interests of justice to do so.
The principles applicable to s 317 were not in dispute between the applicant, the CDPP and the Chief Commissioner. Those principles relevantly include:[13]
[13]See submissions for the Commonwealth Director of Public Prosecutions in opposition to production under s 317 order filed 6 August 2021, [6]–[8]. See also Zirilli v the Queen [2021] VSCA 174, [59].
(a) an order under s 317 bears many features in common with an order for a subpoena for production;
(b) it is incumbent on the applicant for the order to identify a legitimate forensic purpose for seeking the documents;
(c) the applicant must establish that it is ‘on the cards’ that the documents sought will materially assist their case;
(d) mere relevance to the issues is not sufficient;
(e) a ‘fishing expedition’ is not permitted;
(f) the application for an order must identify the documents sought with reasonable precision and particularity;
(g) an order should not be used as a surrogate for discovery; and
(h) an order should not be used to check whether an authority has complied with its other disclosure obligations.
The contested categories
On 6 September 2021, the applicant provided the Court with the contested categories, which had been revised since the applicant’s initial application for s 317 orders, to reflect the parties recent negotiations and consent in respect of some categories.[14]
[14]On 6 September 2021, the applicant’s solicitors provided the Court with a document headed ‘Annexure A’ which comprised of a table which set out the categories of documents originally sought by the applicant, whether each category was opposed, agreed or withdrawn and included any amendment to the description of the category.
Chief Commissioner
The applicant characterises the contested categories of documents sought from the Chief Commissioner as falling into three broad groupings,[15] namely material relevant to the:
[15]Submissions of the applicant in support of the application for a notice to produce directed to Victoria Police dated 26 July 2021, [4].
(i) extent and knowledge of executive misconduct which was pursuant to a pattern of informing whereby Ms Gobbo manipulated clients to provide information, with the assent of Victoria Police;
(j) non-disclosure of Ms Gobbo’s involvement in the tomato tins investigation while the applicant’s criminal proceedings were on foot; and
(k) extent of Ms Gobbo’s informing on the applicant.
Extent and knowledge of executive misconduct
The ‘extent and knowledge of executive misconduct’ group comprise of contested categories (a) to (e):
(l) category (a) seeks: transcript of all ‘assessment’ meetings (however referred to) between members of the SDU and Gobbo prior to her registration as a human source being approved including those on 16/9/2005, 21/9/2005, 26/9/2005, 1/10/2005, 28/10/2005;
(m) category (b) seeks: copies of ICRs and/or IRs which derive from information Gobbo provided about her clients in assessment meetings;
(n) category (c) seeks: copies of ICRs and/or IRs which derive from information provided by Gobbo about Antonios Mokbel or about [the other person] between 16/9/2005 and 1/7/2007;
(o) category (d) seeks: the investigation plan for Operation Posse dated 17 October 2005; and
(p) category (e) seeks: any ICRs recording communications prior to 1/7/2007 or transcripts of meetings prior to 1/7/2007 which record Gobbo and her handlers discussing her informing on persons she was acting for, had acted for, or may act for or discussing whether she should act in the future for persons she had informed on.
The applicant does not contend that any of these categories of documents relate directly to him or the offending the subject of his conviction. Rather, the applicant contends that these categories expose the systemic nature of Victoria Police’s misconduct in exploiting Ms Gobbo’s informing on her clients.
In order to consider any legitimate forensic purpose the applicant claims in seeking these categories of documents, it is necessary to understand how the applicant puts its case on abuse of process. In particular, it is necessary to examine the authorities that the applicant says support his contentions that, in determining his appeal, the Court must have regard to the systemic nature of the executive misconduct and its gravity.
The applicant relies on the principles relevant to abuse of process as discussed by the majority in Moti v The Queen.[16] That case involved an illegal deportation of an accused from the Solomon Islands to Australia to stand trial in circumstances where Australian Government officials, knowing of the illegality, issued travel documents that facilitated the deportation. In relation to the concept of abuse of process, the majority stated: [17]
Both submissions were advanced under the rubric of ‘abuse of process’ and sought to engage the well-established rule that in both civil and criminal proceedings ‘Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process. As four members of this Court said in Batistatos v Roads and Traffic Authority (NSW) ‘[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories’. In Ridgeway v The Queen, Gaudron J stated that the power extended to proceedings that are ‘instituted for an improper purpose’, ‘seriously and unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustifiable trouble and harassment’. In Williams v Spautz, the plurality distinguished between ‘abuse of process in the sense of proceedings instituted and maintained for an improper purpose’ and ‘abuse of process [that] precluded a fair trial’. In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many such cases can be identified as falling into one of three categories’ ‘(1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute’.
Of particular relevance to the present case is the observation of the plurality in Batistatos, to which reference was made in Dupas v The Queen, which emphasised that the power to stay proceedings for abuse of process applies to civil and criminal proceedings ‘with somewhat different emphasis attending to its exercise’. In Dupas this Court reiterated that the power ‘exist[s] to enable the courts to protect themselves and thereby safeguard the administration of justice’. But the Court emphasised that, in considering whether to grant a stay, there is a ‘need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial…as a permanent stay is tantamount to a continuing immunity from prosecution’.
…..
In deciding whether subsequent criminal proceedings in the country to which the accused has been moved without resort to extradition procedures should be stayed, particular facts and circumstances have led the courts to express the issue in different ways. So, for example, in this Court in Troung v The Queen, Gummow and Callinan JJ spoke of whether there had been ‘a deliberate disregard by the Australian authorities and by the respondent prosecutor of the statutory requirements of s 42 [of the Extradition Act 1988 (Cth)] or a knowing circumvention thereof’ (emphasis added). And in the Court of Appeal of the Supreme Court of New South Wales in Levinge v Director of Custodial Services reference was made to whether there had been a wrongful or unlawful involvement by Australian authorities in bypassing extradition procedures or participating in unauthorised or unlawful removal and to Australian authorities being party to or conniving at unlawful conduct.
But the forms of expression adopted in the decided cases must be understood in the context of the particular facts of each case. None should be read as attempting to chart the boundaries of abuse of process. None should be read as attempting to define exhaustively the circumstances of removal of an accused to this country that warrant exercise of the power to stay criminal proceedings against that person or as giving some exhaustive dictionary of words by one or more of which executive action must be described before proceedings should be stayed. None should be read as confining attention to whether any act of an Australian Government official constituted participation in criminal wrongdoing, whether as an aider and abettor or as someone knowingly concerned in the wrongdoing. And the use of words like ‘connivance’, ‘collusion’ and ‘participation’ should not be permitted to confine attention in that way. All should be understood as proceeding from recognition of the basic proposition that the end of criminal prosecution does not justify the adoption of any and every means for securing the presence of the accused. And in this case, as in others, the focus of attention must fall upon what Australian officials did or did not do.
[16](2011) 245 CLR 465; [2011] HCA 50.
[17]Ibid [10]–[11] and [59]–[60] (citations omitted).
The applicant correctly submits, on the basis of Moti, that the categories of abuse of process are not closed.
From that starting position, the applicant submits the authorities do not prevent the Court from taking into account a pattern of executive misconduct in determining whether an abuse of process has occurred. The applicant relies on the English Court of Appeal case of R v Grant[18] to make good that proposition. Grant concerned an appeal against conviction for murder on the grounds of executive misconduct amounting to an abuse of process. The executive misconduct alleged by the appellant in that case occurred when Lincolnshire police installed listening devices in the exercise yard of the Sleaford police station — to eavesdrop and record privileged conversations between the appellant and his solicitor. On the basis of this misconduct, the appellant sought a stay of his trial (which had been refused by the trial judge) as abusive.
[18][2005] EWCA 1089.
The misconduct in Grant concerned one of three prosecutions in which Lincolnshire police had placed convert listening devices in police station exercise yards. In each of the other two otherwise unrelated prosecutions, the accused sought and was granted a stay on the basis that the proceeding was abusive.[19] The central issue in Grant was whether the factual findings of Mr Grant’s trial judge (which underpinned his decision to refuse the application for a permanent stay) should be revisited by the appeal court in light of the factual findings made by the trial judges in the other two prosecutions.
[19]Ibid [6].
The applicant particularly relied upon the following statement in Grant:[20]
But counsel were agreed, and common sense dictates, that the force of the appellant’s submission that there was an abuse of process in [the police operation relating to Mr Grant] as surely as there was in [the police operations in respect of the other two unrelated accused], and that it is open to this court so to hold notwithstanding [the trial judge’s] decision (after hearing much live evidence) to the contrary, should be judged in light of the whole pattern of events across the three operations.
[20]Ibid [21].
It is on this basis the applicant says the Court should consider the whole pattern of Ms Gobbo’s conduct as a human source, even where that activity related to other people and other police operations.
It is necessary to consider the extracted sentence from Grant in its context. First, when the relevant paragraph is read as a whole, it is clear this is no more than a summary by the appeal court of the position taken by counsel for each party at the hearing of Mr Grant’s appeal. Second, it is immediately followed by a reference to the authority of the court to consider the findings made by the trial judges in the other two proceedings in deciding whether to upset the findings made by the trial judge in Mr Grant’s case.
In my view, Grant is not analogous to the current factual matrix and does not support the applicant’s contention that the Court should consider ‘the whole pattern’ of Ms Gobbo’s conduct in determining the applicant’s appeal. In Grant, the court had to determine whether exceptional circumstances existed that would justify departing from the trial judge’s findings of fact. Ultimately, such exceptional circumstances were found, notwithstanding that the trial judge had the advantage of observing the witnesses, because of the strikingly similar circumstances in which the inconsistent outcomes occurred — having involved, in some instances, evidence from the same police officers in all three prosecutions:[21]
[T]here is a perfectly extraordinary concatenation of events on the three judges’ findings: one operation where the purpose included the collection of privileged material, a second operation where it did not, and a third operation where, again, it did: all conducted in the same part of the same police station, with at least some officers (notably DS Bennett) common to all three operations.
[21]Ibid [26].
Put simply, the pattern of executive misconduct did not affect the appeal court’s assessment of the quality of prejudice suffered by Mr Grant as a result of the executive misconduct in his case. Whether that conduct amounted to an abuse of process was assessed by reference to the misconduct Mr Grant experienced, not the misconduct that occurred in the other prosecutions.
Next, the applicant sought to make good his contention that, in determining his appeal, the Court will necessarily examine whether the alleged executive conduct was widespread, its gravity and whether it was committed deliberately or recklessly. The applicant referred to DPP v Marijancevic[22] to support the proposition that there is overlap between applications brought to exclude evidence under s 138 of the Evidence Act 2008 and applications for a permanent stay on account of executive misconduct.[23]
[22](2011) 33 VR 440; [2011] VSCA 355.
[23]Transcript of oral submissions of counsel for the applicant, 6 September 2021, page 10, lines 13–16.
Marijancevic concerned an interlocutory appeal against a ruling by a trial judge to exclude evidence obtained pursuant to search warrants where the affidavits in support of the warrants had been signed but not sworn or affirmed. The trial judge regarded Victoria Police’s widespread practice of signing (rather than swearing or affirming) this type of affidavit as affecting the gravity of the alleged impropriety.
The applicant emphasises the final sentence in paragraph 54 of the judgment, namely:[24]
His Honour was right to take into account the fact that the improper conduct was widespread or entrenched as bearing upon the gravity of the impropriety.
[24]Ibid [65].
This sentence, however, must be understood in the context of the wording of s 138(3). That section allows a court to take into account ‘the gravity of the impropriety or contravention’ and ‘whether the impropriety or contravention was deliberate or reckless’.
In Marijancevic the Court specifically cautioned against drawing inferences from patterns of behaviour:[25]
It is difficult to see how the existence of the endemic practice assisted his Honour in reaching a conclusion as to whether in following that practice, these officers knew that their conduct was illegal or were reckless or careless as to whether the practice they were following was illegal.
…..
It led to the further submission that the conduct of other police members did not provide a basis upon which to elevate these officers’ conduct to a deliberate contravention. In our view, these submissions had a certain force. A deliberate or conscious decision to continue to implement a practice of longstanding does not illuminate the question whether these officers knew the practice was illegal.
[25]Ibid [73]–[74].
I am not persuaded Marijancevic supports the proposition that evidence of the existence of a widespread practice of executive misconduct in relation to other cases will assist the applicant in the prosecution of his appeal.
Finally, the applicant relied on the majority judgment in Strickland (a pseudonym) v Director of Public Prosecutions (Cth)[26] to contend that in considering his appeal ground 1.2, the Court must consider whether the conduct of Victoria Police was deliberate or reckless or seriously negligent.
[26][2018] HCA 53; 266 CLR 325.
The issue in Strickland was whether the ACC had acted so much in disregard of its own statutory requirements, and therefore in unlawful violation of each of the appellant’s common law right to silence, that the trial should be stayed. The relevant conduct involved compulsory examinations of the appellants conducted by the ACC after the appellants had each exercised their right to silence in declining a cautioned police interview. The ACC examiner had also allowed members of the AFP, some of whom were later witnesses in the appellants’ trial, to observe the examinations without the knowledge of the examinees. Additionally, the ACC examiner had authorised distribution of the transcript and other material from the examinations to the AFP.
The applicant relied on the following passage from the majority judgment in Strickland:[27]
Further, although in previous cases regarding unlawful examination and dissemination of examination product the courts’ concerns regarding the administration of justice falling into disrepute have focussed on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the ACC Act of the kind that occurred in the present case may not also bring the administration of justice into disrepute. As the majority of this Court stated in Moti v The Queen, decided cases should not be read as attempting to chart the boundaries of abuse of process. Nor should they be read as attempting to define exhaustively the circumstances that warrant exercise of the power to stay criminal proceedings or as providing some ‘exhaustive dictionary of words’ by one or more of which executive action must be capable of description before proceedings may be stayed. As Kirby J aptly summarised the position in Troung v The Queen:
“relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of.”
No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interest of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice, condonation of its breach will bring the administration of justice into disrepute regardless of the culprit’s mentality. Ultimately, these appeals turn on that distinction.
[27]Ibid [99].
Contrary to the applicant’s submission, I comprehend the above passage to direct the Court’s attention to the nature of the duty or obligation breached and its centrality to the administration of justice — rather than to the mental state of the person or institution carrying out that breach. In my view, the judgment in Strickland cautions against being distracted from that task by focussing too greatly on whether the offending party acted deliberately or recklessly.
I am not persuaded the case law relied upon supports the applicant’s contentions about the relevance to his appeal of the alleged systematic nature of Victoria Police’s deployment of Ms Gobbo as a human source and whether that system of conduct should be characterised as grave, deliberate or reckless executive misconduct.
Turning now to the application before the Court.
Ground 1.2 asserts that Ms Gobbo exploited the privileges of her status as an officer of the court, with the knowledge and assent of Victoria Police, in order to inveigle her clients into providing information to her that she, as an agent of the executive, could use against them. The applicant submits the elements of exploitation may be established by demonstrating a course of conduct on the part of Ms Gobbo and proposes ‘once it is seen that [Ms] Gobbo received details of ongoing offending from multiple clients, the case becomes compelling that she used her position to inveigle clients into revealing details of ongoing offending’.[28]
[28]Above n 15, [7].
Further, the applicant contends that Victoria Police’s knowledge of and participation in Ms Gobbo’s course of conduct will be relevant to establishing its misconduct in receiving information from her and disseminating it to investigators.
By the time of the tomato tins investigation, the applicant argues Ms Gobbo had an established practice, sanctioned and encouraged by Victoria Police, of obtaining information from her clients which she knew would be used against them. The applicant says the Court can only make a meaningful assessment of what Victoria Police knew about the illegalities and improprieties involved in receiving the information about the importation from Ms Gobbo if the Court is informed as to what preceded this investigation. He seeks to do this by providing two ‘case studies’ relating to Mr Antonios Mokbel and another man.
The applicant expects the transcripts of Ms Gobbo’s assessment meetings with Victoria Police (category (a) documents) will demonstrate that Ms Gobbo’s initial focus was on the Mokbels, one of whom was her client. This information may demonstrate that Victoria Police understood Ms Gobbo would use her position to seek to elicit information from her clients to use against them.
Similarly, the applicant expects that it is on the cards that the category (b) documents will demonstrate that Victoria Police always contemplated that Ms Gobbo would provide them with information about her clients and therefore Victoria Police ‘must have understood that [Ms] Gobbo would use her position as a lawyer to obtain the relevant information from them.’[29]
[29]Above n 15, [11].
Category (c) documents are sought to establish the two chosen examples of Victoria Police’s knowledge of Ms Gobbo informing on her clients. The applicant contends this information will be relied upon to establish that Victoria Police knew Ms Gobbo was systematically using her role as a lawyer to inveigle clients to confide in her the details of their ongoing offending, particularly at the time of receiving the document sparking the tomato tins investigation — the bill of lading.
Category (d) seeks production of the Victoria Police Investigation Plan for Operation Posse to demonstrate that a main investigative step in this operation against the Mokbel family was to use Ms Gobbo to ‘roll’ one of her clients to inform on the Mokbels. The applicant contends it is on the cards that the contents of this document can assist the applicant to establish that Victoria Police encouraged Ms Gobbo to inveigle her clients to reveal their offending to her, in line with their investigation plan.
By category (e), the applicant seeks to establish what Victoria Police and Ms Gobbo discussed and understood about her informing on her clients prior to the tomato tins investigation. The applicant says that it is on the cards that this information will assist him to establish that Ms Gobbo exploited her position to get her clients to reveal their offending to her, and did so as an agent for, and with the assent of, Victoria Police. This information will, the applicant says, reveal the knowledge and intention of Victoria Police when receiving and disseminating the information critical to the tomato tins investigation.
The Chief Commissioner submits that it is crucial the applicant identifies with specificity the potential relevance and legitimate forensic purpose of the documentation to his appeal. It is not appropriate to adopt a broad brush approach predicated upon a contention that Ms Gobbo, on occasions, breached legal professional privilege and otherwise behaved inappropriately in respect of a variety of her clients. An inquiry into whether there is a proper criticism to be made of the systematic deployment of Ms Gobbo by Victoria Police is not to the point, except insofar as it relates specifically to the applicant.
The Chief Commissioner criticises the applicant’s contentions in relation to the contested categories (a) to (e) on the basis they do not address the conduct of Victoria Police in the tomato tins investigation generally or the conduct of the applicant himself.
The Chief Commissioner says that the applicant can only have a legitimate forensic purpose if seeking documents relating to investigative operations which bear in some way on the applicant and have a connection to the evidence led at his conspiracy trial. Operation Posse (category (d) documents) was not in any way related to the applicant.
The applicant’s contention that Ms Gobbo’s pattern of behaving improperly in respect of her other clients is relevant to his appeal is, according to the Chief Commissioner, too vague and diffuse to demonstrate any legitimate forensic purpose. The applicant’s argument falls short of demonstrating how that information could be relevant to the applicant’s charged offence of which he was found guilty in the context of the trial he faced.
The Chief Commissioner submits that nothing in the applicant’s case raises the question of whether Ms Gobbo may have breached her professional obligations to any person who was not involved in the tomato tins offending. It may be that Ms Gobbo behaved inappropriately and in breach of her ethical and legal obligations in respect of a whole variety of people, but what the Court needs to consider in respect of the applicant, is Ms Gobbo’s role in assisting the prosecution to make its case in respect of charges arising out of the tomato tins investigation; whether that role was characterised by a breach of her professional obligations; and whether Ms Gobbo acted for the applicant despite a conflict of interest which was wholly unacceptable. Information about Ms Gobbo’s propensity to procure and communicate evidence in respect of others when she ought not to cannot, on a proper analysis, contribute to the questions which the Court must determine in the applicant’s appeal.
In the Chief Commissioner’s view, the documents sought amount to discovery from the Crown, which is not permissible, and otherwise call for some documents which have no connection with persons charged as a result of the ‘tomato tins offending’, thereby holding ‘no apparent relevance to the proceeding at all’.[30]
[30]Submissions of the Chief Commissioner of Police filed 9 August 2021, [17].
In my view, information about Ms Gobbo’s misconduct in relation to other people, including her clients, even where it demonstrates a propensity, cannot contribute to the questions the Court must determine on the applicant’s appeal. The crux of ground 1 in the appeal is that the applicant was denied independent counsel and that the evidence relied upon to secure his conviction was obtained improperly. Ground 2 relates to the prosecutions failure to disclose Ms Gobbo’s involvement in obtaining the evidence tendered at trial. It is incumbent on the applicant to articulate how the contested categories of documents relate to these grounds in the context of his trial in order to demonstrate a legitimate forensic purpose.
There is force in the Chief Commissioner’s submission that nothing in the applicant’s case raises the question of whether Ms Gobbo may have breached her professional obligations to any person who was not involved in the tomato tins offending. Executive misconduct in respect of others does not make good the claim of executive misconduct in respect of the applicant.
I am not persuaded it is on the cards that Ms Gobbo’s lawyer-client relationship with others, or as the applicant puts it, the ‘extent of and knowledge of executive misconduct which was pursuant to a pattern of informing whereby Ms Gobbo manipulated clients to provide information, with the assent of Victoria Police’ will materially assist the applicant’s case.
The applicant has not demonstrated a legitimate forensic purpose for seeking contested categories (a) to (e).
Non-disclosure categories
The categories of documents sought relevant to ‘non-disclosure of Ms Gobbo’s role’ are categories (f)(b), (t) and (u).
Category (f)(b) seeks: all correspondence to or from ACC, ACS, AFP, CDPP created or sent or received between 5 June 2007 and 26 August 2015 which identifies Gobbo as acting as a human source for Victoria Police in the tomato tins investigation.
Category (t) seeks: any records such as file notes, minutes of meetings, or correspondence created between 1/6/2007 and 26/8/2015 which demonstrate that any legal officers of Victoria Police or members of Victoria Police of the rank of Assistant Commissioner or higher were aware that Gobbo had provided information in the tomato tins investigation.
Category (u) seeks: any records such as file notes, minutes of meetings, or correspondence, which were created, sent or received between 8/8/2008 and 26/8/2015 in which there is reference to the issue of whether Victoria Police should disclose Gobbo’s involvement in the tomato tins investigation to the CDPP (or another federal body) and the extent to which any disclosure should be made.
The issue between the applicant and the Chief Commissioner in relation to these categories is whether each category should extend to documents created, sent or received after the date the applicant was sentenced.
The applicant submits non-disclosure of Ms Gobbo’s role as a human source, including following sentence, may be relevant to the severity of executive misconduct as well as an independent basis upon which a substantial miscarriage of justice has occurred.
The applicant argues that up until the Court of Appeal refused the applicant leave to appeal on his first conviction appeal, he could have sought to have fresh evidence admitted on the appeal. This is because senior members of Victoria Police and the Commonwealth Director came into possession of the Kellam Report[31] in February 2015, six months prior to the hearing and determination of the applicant’s first conviction appeal. In addition, the applicant says that by submitting at the applicant’s first conviction appeal that the conviction must stand, the Commonwealth Director maintained that the trial was a fair trial according to law.
[31]Report concerning Victoria Police handling of Human Source code name 3030 dated 6 February 2015, authored by The Honourable Murray Kellam AO QC for the Independent Broad-based Anti-corruption Commission of Victoria.
Further, non-disclosure constituting executive misconduct, the applicant says, is more serious prior to the applicant exhausting his appeal rights as they were at the time of his first conviction appeal and so it is on the cards that categories (f)(b), (t) and (u) will materially assist the applicant in establishing aggravated executive misconduct if the end date remains the date the applicant’s first conviction appeal was determined.
The applicant submits that there is nothing in the authorities about abuse of process that would prohibit the Court from considering issues of disclosure at particular points in time. The applicant referred the Court to the United Kingdom Supreme Court decision of R v Maxwell[32] in support of his contention that executive misconduct during the appeal is a relevant consideration for the Court.
[32][2010] UKSC 48.
The issue before the Court in Maxwell was whether the Court of Appeal was correct to order a retrial in circumstances where it had allowed an appeal against conviction on the basis of abuse of process by executive misconduct. In Maxwell, the executive misconduct involved was that the police had concealed information from the trial court, colluded in their main witness’s perjury at trial, lied in response to enquiries following conviction and perjured themselves in the leave hearing in the Court of Appeal. In the meantime, the appellant had made a series of admissions of guilt.
The Chief Commissioner says the question of whether the Crown’s failure to make disclosure undermined the fairness of the applicant’s first conviction appeal simply does not arise in this proceeding. Maxwell is distinguishable as it concerned an appeal from an appeal and involved only the question of whether a retrial should have been ordered.
I agree that Maxwell does not assist the applicant as it is concerned with whether in all the circumstances of that case (involving admissions following convictions obtained by an abuse of process) the interests of justice required a re-trial be ordered. If successful in his appeal, Maxwell may be relevant to whether the Court should order a retrial.
The Chief Commissioner consents to produce some of the documents called for in these categories if the date range ends on the date the applicant was sentenced. The Chief Commissioner says the day of sentencing represents the date on which the proceeding from which the applicant seeks leave to appeal concluded.
The Chief Commissioner contends that to the extent the applicant’s application for leave to appeal goes to:
(q) matters of substance — whether his conviction should be set aside depends on what information led to the conviction, whether that information was obtained improperly or unlawfully, and whether he had independent counsel assisting him to resist the conviction. These questions, the Chief Commissioner says, can only be answered by reference to information that existed at or before the conclusion of the applicant’s proceeding below; and
(r) procedural matters — the question is whether relevant material was disclosed at a time when ‘it could have been wielded, perhaps with some effect’[33] and that this was also before the conclusion of the applicant’s proceeding below.
[33]Anile v The Queen [2018] VSCA 235, [146].
I accept the Chief Commissioner’s submission that the end date in each category should be the date the applicant was sentenced. Namely, 30 April 2013. This is the date the proceeding below came to its conclusion. I am not satisfied that it is on the cards that documents recording the actions of the prosecuting and investigating authorities following the applicant being sentenced but prior to the refusal of leave to appeal may materially assist the applicant in prosecuting his appeal. As conceded by the applicant, criteria under s 326C of the CPA must be considered in the context of the case advanced against the applicant at trial.
It follows that I am not satisfied that the applicant has demonstrated a legitimate forensic purpose in seeking documents which may have been created post-sentence.
I will order production of the documents comprising categories (f)(b), (t) and (u) but on the basis that the end date is amended to 30 April 2013 in each case.
Extent of informing categories
The contested categories relevant to the ‘extent of Ms Gobbo’s informing on the applicant’ are categories (g), (j) and (k).
Category (g) seeks: in relation to the investigation called Agamas/Agamus insofar as it concerned Higgs and Oueida in May 2007, any document (such as briefing notes, reports, memos, investigation plans, documents seeking approval for the investigation or for resources for the investigation) which identifies the basis for the investigation or the purpose and targets of the investigation.
Category (j) seeks: any documentation (including correspondence) which proposes, records or refers to an agreement between Victoria Police (or a specific part of Victoria Police such as the Drug Task Force) and another law enforcement agency, including but not limited to the ACC, to share information or share investigating responsibility for an investigation into John Higgs between 18 May 2007 and 5 June 2007 (inclusive).
Category (k) seeks: any IRCs recording information provided by Gobbo which relates to Mohammed Oueida in the period 1/1/2006 and 18/5/2007.
It is convenient to first deal with category (g) and (k) insofar as they call for documents relating to Mohammed Oueida.
The applicant calls for these documents on the basis that such information will allow him to trace information Ms Gobbo provided to Victoria Police in the context of other operations to the information which formed the basis of the tomato tins investigation. The applicant hopes to ‘establish that another part of the evidence in his case derived from information provided by [Ms] Gobbo’.[34] The applicant does not articulate this ground any further than to say that it is ‘unclear’ to what extent the information Ms Gobbo provided to her handlers contributed to either the initiation or maintenance of Operation Agamus or Operation Lavernock.
[34]Above n 15, [27].
The Chief Commissioner opposes producing material in relation to ‘other persons’, saying that such request for documents ‘about a person who was wholly extraneous to the tomato tins offending…[has] no legitimate forensic purpose’. The substance of this contention mirrors those made by the Chief Commissioner in respect of contested categories (a) to (e).
In seeking documents relating to Mr Oueida as proposed under category (g) and (k), the applicant is attempting to yield some information which is presently ‘unclear’. This bears the hallmarks of a fishing expedition.
I reiterate my conclusions at paragraph 69 to 71 above. I am not satisfied the applicant has demonstrated a legitimate forensic purpose for seeking the documents in category (k), which relate solely to Mr Oueida. I reach the same conclusion in relation to documents under category (g) which do not relate to the applicant.
Moving to categories (g) and (j), to the extent they relate to the applicant, it is not disputed that:
(s) Operation Posse commenced in October 2004;
(t) Operation Lavernock commenced on 29 November 2006 and concluded 21 November 2008;
(u) Operation Agamas commenced on 6 March 2007 and concluded 1 April 2009;
(v) Ms Gobbo provided the bill of lading in respect of the tomato tins container on 5 June 2007;
(w) Operation Inca commenced 31 July 2007 and concluded 4 October 2007.
This timeline becomes relevant to the proposition advanced by the applicant that it is on the cards that the information in items (g) and (j) will assist the applicant to establish that other parts of the evidence in his trial were derived from information provided by Ms Gobbo prior to the tomato tins investigation in the earlier three operations (Posse, Lavernock and Agamas). Illustratively, the applicant points to information supplied by Ms Gobbo which led to the telephone intercept on the applicant’s phone on 24 May 2007, prior to the tomato tins investigation commencing, pursuant to an ACC warrant in Operation Lavernock.[35] The applicant submits this leads to a conclusion that the case against the applicant as a whole was ‘so infected by Ms Gobbo’s conduct that there’s no unscrambling of the egg, there’s no siloing the information which had not been touched by her’.[36]
[35]Above n 15, [25].
[36]Transcript of oral submissions of counsel for the applicant, 6 September 2021, page 28, line 23–26.
The Chief Commissioner contends that while the category (g) documents relate to the applicant they do so only in the context of Operation Agamus which had nothing to do with the offending with which the applicant was charged. He says these documents have no potential to assist the evaluation that the Court is required to make in respect of the specific charges that are the subject of the applicant’s appeal.
The Chief Commissioner contends the same applies to category (j). He says this category concerns operations that did not lead to the charge against the applicant the subject of his appeal.[37]
[37]The applicant was charged in a joint operation between Australian Federal Police and Australian Customs Services in Operation Bootham-Moko.
I accept that information provided by Ms Gobbo and given to her handlers prior to the tomato tins investigation in the context of other investigative operations may have been used in the tomato tins investigation. This is supported by the material already disclosed to the applicant and referred to in paragraph 13 above.
I am satisfied that there is a legitimate forensic purpose for the applicant seeking that information, in so far as it relates to the applicant. Subject to the amendment of category (g) explained below, I will order the Chief Commissioner to produce the category (g) and (j) documents.
Category (g) should be amended as follows: ‘In relation to the investigation called Agamas/Agamus insofar as it concerned Higgs
and Oueidain May 2007, any document (such as briefing notes, reports, memos, investigation plans, documents seeking approval for the investigation or for resources for the investigation) which identifies Ms Gobbo as the source of information aboutthe basis for the investigationor the purpose andHiggs as a targetsof the investigation’.
CDPP
The applicant seeks the following contested categories of documents from the CDPP:[38]
(b) any emails sent or received by the Director or the Deputy Director of the Melbourne Office of the CDPP between 1/9/2010 and 26/8/2015 which identifies Gobbo as having been a human source for a police force however the role of human source is described; and
(c)any statements, file notes (however and wherever made), correspondence or other records made or received by the CDPP Director, any Deputy Director, the Senior Assistant Director or Branch Head responsible for the tomato tins prosecutions or tomato tins appeals, and the Senior Assistant Director or Branch Head responsible for the response to the Kellam Report, or the Commonwealth Solicitor between 1/1/2015 and 26/8/2015 in response to having received: (i) notification that the Victorian Independent Broad-based Anti-corruption Commission were investigating the role of a lawyer who was a human source; or (ii) in response to having received the Kellam Report, and kept in any file (however called) created for the purpose of collecting records relating to matters (i) and (ii) above or in the tomato tins prosecution or appeals files.
[38]Since the filing of the applicant’s s 317 application, the categories of documents sought by the applicant was further amended as set out in paragraph 5 of the affidavit of Stephen Andrianakis sworn 6 September 2021. On 20 October 2021, following consent of the parties, the CDPP was ordered to produce the documents referred to in category (a) in Mr Andrianakis’ 6 September 2021 affidavit, leaving categories (b) and (c) in dispute.
Category (b) seeks records establishing what the two most senior people in the office of the CDPP knew about Ms Gobbo’s role as a human source for Victoria Police. The applicant says the commencement date is September 2010 because that is when the relevant brief of evidence was submitted by Victoria Police to the CDPP in respect of Mr Paul Dale. This is the event which ultimately led to disclosure of Ms Gobbo’s role as a police informant to the CDPP solicitor. The end date of 26 August 2015 is the date the applicant’s application for leave to appeal was refused by the Court of Appeal.
The applicant submits that it is on the cards the information in category (b) may provide direct evidence of the CDDP’s actual (as opposed to constructive) knowledge of Ms Gobbo’s status as a human source informing on her clients ‘which will be relevant to the assessment of the gravity of executive misconduct’.[39]
[39]Submissions of the applicant in support of the application for a notice to produce directed to the CDPP filed 20 August 2021, [7].
Category (c) is directed towards identifying the response of the Commonwealth Director to the information in the Kellam Report (which squarely indicated that Ms Gobbo informed on Mr Karam, triggering the tomato tins investigation). The applicant points to evidence that the Kellam Report was provided to the CDPP on 16 March 2015, before the expiration of the applicant’s appeal rights. The applicant contends the response will reveal whether or not the Commonwealth Director was in breach of her disclosure obligations to the applicant, prior to his appeal rights expiring.
The CDPP oppose an order for production of documents created after the date the applicant was sentenced. The CDPP says that these cannot be relevant to the applicant’s appeal because only matters that go to the issues at the applicant’s trial can be relevant to an appeal from that trial.
The CDPP also submit that way the applicant put his case in his oral submissions at the hearing has developed from his written case and is not supported in authority. According to the CDPP, the applicant’s written case on the issue of executive misconduct focussed on Victoria Police exploitation of Ms Gobbo’s relationship with her clients and Victoria Police’s tasking of Ms Gobbo to obtain information from them. The applicant’s written case seems to concede that the CDPP only identified the potential impact of Ms Gobbo’s conduct on the applicant’s case after the trial but prior to the applicant’s first appeal.[40]
[40]Applicant’s written case dated 23 December 2020, [6.18].
In relation to the development of the applicant’s case, the CDPP make two points. The first is that the applicant seeks to argue that post-sentence but pre-appeal documents are relevant because if disclosed to the applicant prior to his appeal, he may have been able to construct an argument on appeal to say that his original trial should have been stayed. The CDPP says disclosure of documents to craft arguments that might have been put to the Court of Appeal on the applicant’s first appeal do not assist the Court in dealing with the substantive allegation which is the fact of informing and how that may have impacted on the applicant’s trial or the CDPP’s actual knowledge at that time of Ms Gobbo’s informing.
Second, the CDPP say that the applicant’s argument about the documents being required to demonstrate the degree of executive misconduct is not supported in the authorities referred to by the applicant. In Moti and Strickland, the executive knew the things that were happening and further, were intimately involved as they were happening. Those cases, the CDPP argues, do not support the proposition that later knowledge could somehow be relevant to an earlier abuse of process.
In the case of Maxwell, the CDPP say the only question before the Court was whether the Court of Appeal was correct in ordering a retrial where it accepted that there had been very serious misconduct by the police at trial which justified the original conviction being quashed, and on the original appeal. On the question of whether a retrial should be ordered, the circumstances of what had happened at trial and on appeal were relevant. The CDPP distinguishes Maxwell from the present application because Maxwell is an appeal from a decision to order a retrial and here the applicant is seeking leave to appeal his conviction.
Furthermore, the CDPP says that the applicant’s case on appeal distinguishes between the fact of informing (which in this case entails a factual dispute about whether Ms Gobbo was acting for various people at the time she was informing) and what relevant authorities knew. The CDPP submits the relevant issue is whether the Crown knew about these matters at the time of the trial. This substantially limits the extent to which it is on the cards that the two contested categories could materially assist the applicant’s case on appeal.
The CDPP submit that there is no evidentiary basis to believe that documents showing actual knowledge of Ms Gobbo’s informing on her clients exist, let alone for believing they would assist. Indeed, the available evidence put forward in a related matter and already provided to the applicant in this proceeding suggests the opposite.[41]
[41]Visser v DPP (Cth) [2020] VSCA 327.
Lastly, the CDPP submits that there is even less probative value in category (c) documents than in respect of category (b) documents because the former’s focus is not on the documents created prior to the applicant’s sentence, but rather on post-sentence documents as well as those of Ms Gobbo’s other clients. It is unclear to the CDPP how records relating to the review, which was completed at a later date, could materially assist the applicant in his appeal.
I am not satisfied that the applicant has demonstrated a legitimate forensic purpose for seeking category (b) documents, even if the end date were amended to the date of the applicant’s sentencing, ie 30 April 2013. In my view, the applicant’s argument about gradations of the gravity of executive misconduct being relevant to the matters the Court must determine on appeal is not supported by the authorities. I refer to paragraphs 50–52 above.
I also accept the CDPP’s submission that the available evidence suggests that it is not on the cards that the documents will materially assist the applicant in the conduct of his appeal.
I accept the submissions of the CDPP that there is no legitimate forensic purpose in seeking the category (c) documents because they relate to a period entirely after the applicant was sentenced and thus cannot be relevant to what the CDPP knew about Ms Gobbo’s actions as a human source during the investigation and prosecution of the applicant for the conspiracy charge.
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