Karam v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0142
S EAPCR 2020 0211
S EAPCR 2023 0085

ROB KARAM	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	1–2 November 2023
DATE OF JUDGMENT:	14 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 318	(First Revision 18 December 2023: [221])
JUDGMENT APPEALED FROM:	DPP (Cth) v Karam [2015] VCC 855 (Judge Montgomery); DPP (Cth) v Karam [2013] VSC 133 (King J); Karam v The King [2022] VSC 808 (Osborn JA)

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CRIMINAL LAW – Appeal – Conviction – Four charges relating to trafficking and conspiracies to import and possess commercial quantities of border-controlled drugs and/or precursors – Reference determination and two separate trials, one previously appealed without success – Former lawyer acted as police informer in respect of applicant – Lawyer at times provided advice without practising certificate – Whether informing resulted in substantial miscarriage of justice – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Second or subsequent appeal – Principles governing leave to commence second or subsequent appeal – Criminal Procedure Act 2009 (‘CPA’), ss 326A, 326C(3)(b)(iii)(A), 326D – Whether evidence compelling by virtue of being highly probative in context of issues in dispute – Roberts v The Queen (2020) 60 VR 431, applied – ‘Issues in dispute’ extends to whether applicant received fair trial according to law – Consideration of fresh evidence in interests of justice – Leave to appeal granted – Appeal dismissed.

CRIMINAL LAW – Appeal – Reference determination – Leave to appeal reference determination – CPA, ss 319A(5), 319A(6) – Nature of appeal – Challenge to judge’s conclusion that no material effect of lawyer’s advice on trials had been shown – Applicant did not seek alternative positive finding that lawyer’s conduct had material effect on course of trials or deprived applicant of independent legal counsel – Appeal against reference determination would not assist applicant in substantive appeal grounds – Leave to appeal refused.

CRIMINAL LAW – Principles governing appeal against conviction – CPA, ss 274, 276(1)(b), 276(1)(c) – Baini v The Queen (2012) 246 CLR 469, applied – Awad v The Queen (2022) 275 CLR 421, discussed – No single test for substantial miscarriage of justice – Correct approach whether appellant establishes error may have affected result of trial and if so, whether respondent establishes conviction was inevitable.

CRIMINAL LAW – Appeal – Conviction – Whether substantial miscarriage of justice arising from abuse of process – 23 irregularities identified involving lawyer’s breaches of duties of loyalty and confidentiality – Informing prior to offending too remote in time and subject matter to be connected to trials – Acting for applicant in previous trial resulting in acquittal had no bearing on trials subject of appeal – Representing applicant with respect to bail and custodial matters confined in subject matter and remote from trials – Applicant had independent counsel in both trials – Lawyer’s provision of collateral legal advice and preparatory trial work had no bearing on conduct of defence in first trial – Independent senior counsel pursued different defence strategy – Nothing in subsidiary legal work performed by lawyer could have prejudiced applicant’s defence – Advice to cooperate with police had no adverse effect on defence in second trial, being consistent with defence strategy adopted by independent senior counsel – Irregularities not ‘fundamental’ nor ‘serious departures’ from trial processes – Not established irregularities may have affected result of either trial – Leave to appeal granted – Appeals dismissed.

CRIMINAL LAW – Appeal – Conviction – Whether failure to disclose lawyer’s status as informer, in breach of duties of loyalty, amounts to substantial miscarriage of justice – Szabo v The Queen [2001] 2 Qd R 214, applied – HCF v The Queen [2023] HCA 35, considered – Whether fair-minded citizen in position of the public or the accused, familiar with all circumstances of case, might have reasonable suspicion that justice may have miscarried – Whether trial might have been conducted differently if misconduct had not occurred – Lawyer had subsidiary collateral role in conduct of one trial – Applicant advised by independent barristers and solicitors – Not shown that disclosure might have resulted in permanent stay or exclusion of any evidence – Breaches could not have affected result of either trial – Breaches did not amount to substantial miscarriage of justice – Appeals dismissed.

CRIMINAL LAW – Appeal – Conviction – Whether conduct of lawyer had improper influence on defence – Right to fair hearing in s 24(1) of Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) – Charter does not impose obligation over and above protections in Victorian criminal courts – Applicant not deprived of right to independent legal counsel – Appeals dismissed.

WORDS AND PHRASES – ‘Issues in dispute at the trial of the offence’.

Criminal Procedure Act 2009, ss 274, 276, 319A, 326A, 326C, 326D. Charter of Human Rights and Responsibilities Act 2006, s 24(1).

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Counsel
Applicant:		Ms J Condon KC with Dr T Alexander, Ms J Kretzenbacher and Mr E Dober
Respondent:		Ms R Sharp KC, Commonwealth Director of Public Prosecutions, with Mr T Wood and Ms A Martin
Solicitors
Applicant:	Garde-Wilson Lawyers
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions

TABLE OF CONTENTS

Introduction

Three proceedings

The trials

Tomato Tins trial

Inca trials

Proposed grounds of appeal

Overview of Ms Gobbo’s conduct in relation to the applicant

Findings in Reference Determination

The bill of lading

Telephone numbers

Pacific International Apartments

Reports as to the applicant’s anticipation of a drug importation

General intelligence

Involvement of the AFP

Ms Gobbo’s conduct after the acquittal of the applicant until his arrest on 8 August 2008

Ms Gobbo’s conduct after the applicant’s arrest on 8 August 2008

Pre-trial advice

Advice during the Tomato Tins trial

Preparation for the first Inca trial

The second Inca trial and the Hong Kong MDMA plea

Answers to questions in the Reference Determination

Application for leave to appeal (Reference Determination)

Application for leave to appeal (Tomato Tins conviction)

Application for leave to appeal (Inca convictions)

Substantive appeals — tests to be applied

Applicant’s submissions

Respondent’s submissions

Ground 1 — abuse of process

Applicant’s submissions

Respondent’s submissions

CPA s 276

Consideration of ground 1

Preliminary matters

Serious departures 1–6

Serious departures 7–10

Serious departures 11–14

Serious departures 15 and 16

Serious departures 17 and 18

Serious departure 19

Serious departures 20 and 21

Serious departure 22

Serious departure 23

Conclusion as to ‘serious departures’

Fair-minded observer test

Ground 2(a) — non-disclosure

Ground 2(b) — improper influence on defence

Ground 3 — right to independent counsel

Conclusion

BEACH JA
MCLEISH JA
KENNEDY JA:

Introduction

There are three applications before the Court relating to the applicant’s convictions following two trials, which he contends must be set aside as a result of the conduct of his former barrister, Ms Nicola Gobbo.
In the first trial, on 24 May 2012, a jury found the applicant guilty in the Supreme Court of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug (MDMA) (‘the Tomato Tins conviction’). He was sentenced to a term of imprisonment of 19 years with a non-parole period of 15 years. On 31 March 2015, this Court refused leave to appeal the conviction and sentence.[1] On 15 April 2016, the High Court refused special leave to appeal.
[1]Karam v The Queen [2015] VSCA 50.
Secondly, on 14 November 2014, a jury found the applicant guilty in the County Court of trafficking in a commercial quantity of a controlled drug (MDMA) (‘the Inca MDMA trafficking conviction’) and conspiracy to import a commercial quantity of a border-controlled precursor (‘the Indian precursor conviction’). Three days later, the same jury found the applicant guilty of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug (cocaine) (‘the Colombian cocaine conviction’). These three convictions are referred to collectively in these reasons as ‘the Inca convictions’.
In addition, and related to the Inca convictions, on 1 May 2014, the applicant pleaded guilty to a further trafficking charge (‘the Hong Kong MDMA conviction’).[2] He was sentenced to 27 years’ imprisonment on this and the Inca convictions, with 18 years to be served cumulatively with the Tomato Tins sentence. The overall total effective sentence was 37 years’ imprisonment with a non-parole period of 22 years.[3] The applicant did not then seek leave to appeal any of the Inca convictions or the sentences imposed in relation to them.
[2]DPP (Cth) v Karam [2015] VCC 855 [1] (Judge Montgomery).
[3]Ibid [58]–[59].

Three proceedings

The three proceedings are as follows.
First, the applicant seeks leave to commence a second or subsequent appeal in relation to the Tomato Tins conviction pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’) (‘the Tomato Tins application’).
Secondly, he seeks leave to appeal against the Inca convictions pursuant to s 274 of the CPA (‘the Inca application’). An application for an extension of time has been granted in respect of that application.
Thirdly, this Court made orders in relation to the first two matters pursuant to s 319A(2) of the CPA, referring to the Trial Division, constituted by a judge, a series of issues for the purpose of making a reference determination. On 21 December 2022, Osborn JA made orders answering those questions (‘the Reference Determination’). In the third proceeding, the applicant seeks leave to appeal pursuant to s 319A(5) of the CPA in respect of one of those answers (‘the Reference Determination application’).

The trials

Osborn JA set out the history of the trials with which we are concerned in the Reference Determination, drawing on a summary prepared by the respondent with which the applicant did not take issue.[4]

Tomato Tins trial

[4]Karam v The King [2022] VSC 808 [21] (‘Reference Determination’).

On 27 February 2012, the applicant stood trial before King J in relation to the Tomato Tins matter together with co-accused John Higgs, Salvatore Agresta, and Pasquale (Tony) Sergi. He was represented by Christopher Dane QC, instructed by Marich Legal.13F[5] The Crown case was that the MDMA was imported into Melbourne concealed in a shipment of tinned tomatoes, aboard the ‘MV Monica’.
[5]DPP (Cth) v Karam [2013] VSC 133.
The ship was loaded in Naples, Italy in late May 2007 and arrived in Melbourne on 28 June 2007. On its arrival in Melbourne, the Australian Customs Service (‘Customs’) selected a container for examination. The Australian Federal Police (‘AFP’) conducted a further examination of the container. A number of tins were opened and found to contain rocks and tablets. The AFP and Customs seized 15,193,798 tablets weighing more than 4.4 tonnes and containing more than 1.4 tonnes of pure MDMA. The wholesale price of the shipment, based on a sale of each tablet for $7, was estimated to be approximately $122 million.
The consignment was addressed to a consignee who was not involved in the alleged conspiracy. The contact details for the consignee were false and the bill of lading specified that a freight forwarding company was the party to be notified upon the ship’s arrival. The Crown alleged the conspirators planned to intercept and take possession of the shipment without the consignee ever becoming aware of its existence. The container and its contents were allegedly to be diverted to a person associated with the conspirators and, when safe, the container was to be removed from the dock, and the MDMA unloaded, stored and distributed.
The Crown alleged that the applicant, who had previously worked in customs clearance and freight forwarding, had a role in the conspiracy akin to that of a ‘consultant’. It was alleged that, by using his contacts and expertise in the freight industry, the applicant was to provide information to the other conspirators, via Mr Higgs, which would enable them to track the passage of the shipment through the docks, and ultimately obtain possession of it.
The case was circumstantial. There was no direct evidence linking the applicant to the container.19F It was alleged that, between 13 June 2007 and 3 October 2007, the applicant and his co-accused engaged in various activities in furtherance of a conspiracy to obtain possession of the contents of the shipment, including meeting on various occasions, and discussing (during those meetings and on the telephone) how they would obtain possession of the container.
The applicant did not give evidence. His defence was summarised by King J as follows:21F
Your defence was that you were at all times just providing advice within your legitimate sphere of expertise and although you were aware of this being an attempt to possess a very large quantity of drugs, you were at all times telling the co-conspirators that this could not be done, that it would not work. That is, that you were never in agreement to assist the others to obtain possession of the container and its contents.[6]
[6]Ibid [28] (King J).
On 24 May 2012, after 54 sitting days, all four accused were found guilty.22F The applicant’s plea proceeded on 1 June 2012 with a further plea on 14 December 2012. He was sentenced on 30 April 2013. He was represented on these occasions by David Brustman QC, instructed by Dr Martine Marich & Associates solicitors.
Four other accused were dealt with separately. Pasquale Barbaro and Saverio Zirilli pleaded guilty to conspiring to traffick a commercial quantity of a controlled drug and were sentenced on 23 February 2012. Jan Visser and Carmelo Falanga were tried together between 5 February 2014 and 9 April 2014 and found guilty of conspiring to possess a commercial quantity of an unlawfully imported border controlled drug. They were sentenced on 4 July 2014.

Inca trials

On 15 October 2012, while the plea hearing in the Tomato Tins matter was pending, the applicant stood trial before Judge Montgomery in relation to the Colombian cocaine charge and the Indian precursor charge. He was again represented by Mr Brustman QC, instructed by Dr Martine Marich & Associates solicitors.
In relation to the Colombian cocaine charge, the Crown case was that, on 24 July 2008, a shipping container of Colombian coffee beans was unloaded at the Port of Melbourne which contained an undeclared load of 151 one kilogram boxes of cocaine (99.9 kilograms of pure cocaine).30F It was alleged that Mr Barbaro was to be the recipient of the cocaine and that the applicant provided an identity to be associated with a declared consignment, fake information so as to facilitate early identification of the arriving container, and updated information regarding whether the container would be able to be safely accessed offsite. The applicant was alleged to have liaised with a third party so as to achieve that safe access, removal of the contraband and its ultimate delivery.
The Crown alleged that the applicant was the key person to provide confirmation as to what was going to happen in the days after the arrival of the container. It was alleged that he reported to Mr Barbaro that the container was being watched by authorities, and that it was too dangerous to proceed with any attempt to access it.
In relation to the Indian precursor charge, the Crown alleged that, between 14 May 2008 and 7 August 2008, the applicant and others planned to import 100 kilograms of pseudoephedrine,34F concealed within a shipping container to be sent from India. The container carried a declared load of bedroom furniture, ostensibly imported by a regular local importer of such cargo from India. The Crown case was that the applicant provided the name of that importer to be used as the consignee, and that in response to a request from India that the importer’s letterhead be used in correspondence, he provided a document which purported to verify it as being the Australian importer and provider of the funds. The applicant was alleged to have provided strategic advice to his co-conspirators as to shipping documentation and the port at which the container should be offloaded. The container was ultimately found to contain just under 400 grams of pseudoephedrine.
In this trial, the applicant gave evidence. He said that the initial conversations about the conspiracies involved him telling his co-conspirators that it was impossible for the importations to occur successfully, and that he only then pretended to go along with them in order to cope with a threat facing Fedele D’Amico. He said that he had no intention of going along with either of the conspiracies, and no intention that either of them would succeed. He said he had fears for his friend, Mr D’Amico, throughout.
On 19 December 2012, the jury was discharged after it was unable to reach a unanimous verdict on either count.
On 14 March 2014, Judge Montgomery granted an application by the prosecution to file over a new indictment which alleged all three Inca charges namely, the Inca MDMA trafficking charge, the Colombian cocaine charge, and the Indian precursor charge. The applicant was represented by Gideon Boas, instructed by Marich Legal.
On 1 May 2014, the applicant pleaded guilty to the Hong Kong MDMA trafficking charge.
On 2 May 2014, there was pre-trial argument in the second Inca trial at which the applicant was represented by George Georgiou QC, instructed by Marich Legal. On 25 and 27 August 2014, there was further pre-trial argument at which the applicant was represented by Nick Papas QC, again instructed by Marich Legal.
On 28 August 2014, the applicant stood trial before Judge Montgomery in the second Inca trial, in relation to the Inca MDMA trafficking charge, the Colombian cocaine charge and the Indian precursor charge. He was still represented by Mr Papas QC, instructed by Marich Legal.
The Crown case in relation to the Colombian cocaine and the Indian precursor charges was the same as at the first Inca trial.
In relation to the Inca MDMA trafficking charge, the Crown case was that between 24 January 2008 and 7 August 2008, the applicant was the leader of a group of several persons who took possession of ecstasy tablets supplied by Mr Barbaro, the applicant being Mr Barbaro’s major wholesale customer.46F The applicant’s trafficking was alleged to have involved the possession, preparation, transportation, and sale of ecstasy tablets. He was alleged to have been supplied with at least 335,000 tablets by Mr Barbaro, while the total number of tablets trafficked was at least 336,906.
The applicant again gave evidence. In relation to the Inca MDMA trafficking charge, he admitted to making all the calls and arrangements and to knowing that they were about drugs, but said that he did not believe it was trafficking. He also relied on a duress defence based on the threats that Mr Barbaro was said to have made against Mr D’Amico and the applicant, to the effect that unless the applicant continued to assist Mr Barbaro, Mr D’Amico would be killed. The threats commenced on 27 June 2007, and were said to have continued throughout the period of the alleged offending.
In relation to the other matters, the applicant again did not dispute that the Indian precursor and Colombian cocaine conspiracies existed. His defence was that he did not want to be involved and did not do anything intentionally to assist. He said that he did not actually participate in the conspiracies, but was only giving the appearance of being a conspirator because of the risk to himself and Mr D’Amico from Mr Barbaro.

On 14 November 2014, the jury returned verdicts of guilty in relation to the Inca MDMA trafficking and the Indian precursor charges, and on 17 November 2014 the jury returned a verdict of guilty in relation to the Colombian cocaine charge.
The plea in relation to the Inca convictions and the Hong Kong MDMA trafficking conviction proceeded on 19 January 2015. The applicant was represented by Mr Papas QC, instructed by Marich Legal.52F Further plea hearings were held on 29 April 2015, 5 May 2015, and 15 May 2015, at which Michael Fitzgerald of Marich Legal appeared for the applicant. The applicant was sentenced on 23 June 2015, on which occasion Dr Fitzgerald of Marich Legal again appeared for him.

Proposed grounds of appeal

In the Inca application, the applicant advances three grounds of appeal as follows:
Ground 1
The conduct of Nicola Gobbo and Victoria Police resulted in a substantial miscarriage of justice because the Applicant’s trial was an abuse of process.
Ground 2
The trial of the Applicant was unfair and so resulted in a substantial miscarriage of justice because: (a) the Crown did not disclose Ms Gobbo’s status as an informer in the investigation and prosecution of the Applicant; and/or (b) Ms Gobbo improperly influenced the Applicant’s defence.
Ground 3
The conduct of Ms Gobbo and Victoria Police resulted in a substantial miscarriage of justice because the Applicant was denied the right to independent counsel.
The grounds of appeal in respect of the Tomato Tins application are in identical terms.
The ground of appeal in the Reference Determination application is that the judge erred by finding, in relation to Question F,[7] that Ms Gobbo’s conduct did not materially affect the course of the Inca or Tomato Tins trials.
[7]See below [134].
The applicant requires leave to appeal in respect of each of the three proceedings. The test in each case is different, as explained later in these reasons.
Before turning to the question of leave, it should be noted that Ms Gobbo did not appear for the applicant in the Tomato Tins or Inca trials. She did appear for him in the initial stages of the proceedings, and was involved in the preparation of the applicant’s defence in other ways, referred to later in these reasons. Ms Gobbo in effect acted as an advisor to the applicant, notwithstanding that she was providing information to police during the relevant period, as further explained below. Osborn JA found that she and the applicant were in a lawyer/client relationship, notwithstanding that she was not formally retained and, at significant times, did not hold a practising certificate.[8] That finding is not in dispute.
[8]Reference Determination [448].

Overview of Ms Gobbo’s conduct in relation to the applicant

In their written case in relation to the Inca convictions, counsel for the applicant summarised in uncontroversial terms the background to Ms Gobbo’s status as an informer and her relationship with the applicant.
Between 19 November 1998 until 30 June 2009, Ms Gobbo held a principal practising certificate as a barrister.[9] From 1 July 2009 until 26 May 2013, she did not hold a practising certificate.[10] Between 27 May 2013 and 30 June 2014, she held an employee practising certificate as an employed solicitor.[11]
[9]Ibid [60].
[10]Ibid [61].
[11]Ibid [61].
From September 2005 to January 2009, Ms Gobbo was a registered informer with Victoria Police.[12] On 16 September 2005, she first provided information to Victoria Police, and continued to do so, including information about the applicant, while both a registered and an unregistered informer, until February 2013.[13]
[12]Ibid [7].
[13]Ibid [74] n 774.
Ms Gobbo commenced acting for the applicant by, at the latest, 19 October 2005.[14]
[14]Ibid [31].
Between 21 May 2007 and 10 July 2007, she appeared for the applicant as junior counsel to David Grace QC in the County Court in the trial of the applicant for MDMA importation in 2005 (‘the 2007 MDMA trial’) which was prosecuted by the Commonwealth Director of Public Prosecutions (‘the CDPP’). The applicant was acquitted.[15]
[15]Ibid [66].
On 5 June 2007, while acting for the applicant, Ms Gobbo said that the applicant provided documents to her for safe-keeping. Those documents related to the importation of MDMA concealed in tomato tins and included the bill of lading for the incoming shipping container. Ms Gobbo made photocopies, provided them to police and assisted in translating the documents. The documents assisted authorities to discover the Tomato Tins importation.[16] On the Crown case, the failure of that importation led to the Inca importations.
[16]Ibid [91]–[96].
Victoria Police was concerned that dissemination of the information regarding the Tomato Tins importation to the AFP would risk revealing Ms Gobbo’s identity as an informer. At the same time, Victoria Police was concerned about the legality and ethics of using a barrister to inform on clients.[17]
[17]Ibid [131].
Victoria Police officers eventually told Ms Gobbo that they had worked out how to deal with the container without risking compromising her identity. They used Customs as a conduit to notify the AFP of the suspected importation.[18] Notwithstanding concerns about the ethics of using Ms Gobbo as a source of information, that continued to happen. Victoria Police took a series of steps to conceal the source of the information provided to them by Ms Gobbo, and her role as an informer (both generally and with respect to the applicant).[19]
[18]Ibid [417].
[19]Ibid [416].
On 20 June 2007, Victoria Police met with Customs regarding the container and discussed strategies to hide Ms Gobbo’s involvement. They agreed that the AFP would not be told of her involvement, and would be left to believe that Customs discovered the container itself. Victoria Police then provided the container number, freight forwarder and consignee details to Customs on condition that they would not be passed on.[20]
[20]Ibid [126]–[129].
The AFP thereafter received information from Victoria Police that a possible importation of narcotics would arrive in Melbourne on or about 28 June 2007. On that day the AFP met with the Australian Crime Commission (‘ACC’) to brief it regarding a possible pending importation.[21]
[21]Ibid [126]–[127].
On 21 June 2007, there was a meeting between Victoria Police, the AFP, the ACC, and Customs regarding the possible importation. The parties discussed setting up a joint agency investigation. It was agreed that the AFP would be the lead agency in the controlled delivery of the container.[22]
[22]Ibid [132]–[134].
The container was intercepted on 28 June 2007.[23] On that day, Ms Gobbo informed police that the applicant was meeting with Mr Higgs, Mr Barbaro and Mr Zirilli at the Pacific International Apartments. Investigating police then installed a listening device in the room in which Mr Barbaro and Mr Zirilli were staying at those apartments.[24]
[23]Ibid [95].
[24]Ibid [112], [107].
Victoria Police asked Ms Gobbo to obtain additional information about the shipment from the applicant, both before and after the container was seized. She obtained, by use of her position in respect of the applicant, various phone numbers of the applicant, co-offenders and other persons of interest.[25] The numbers (and possibly the names) provided to Victoria Police by Ms Gobbo were used to apply for telephone intercept warrants and were used as intelligence by the ACC and AFP in relation to the investigation of the Tomato Tins importation.[26]
[25]Ibid [74].
[26]Ibid [106]–[109], [414(e)].
Telephone intercept evidence was a significant part of the case against the applicant in the Tomato Tins trial. For example, on 29 June 2007, Ms Gobbo informed Victoria Police that Mr Higgs was using a particular telephone number. That information was used by the ACC to intercept the number under a warrant.[27] The information thereby obtained was subsequently used by the ACC in an application for a telephone intercept warrant in respect of a telephone number used by Mr Barbaro.[28] It was also used by the AFP in applications for search warrants that were executed on or around 8 August 2008.[29]
[27]Ibid [105].
[28]Ibid [106].
[29]Ibid [149].
Between August 2007 and August 2008, Ms Gobbo continued to provide extensive information to Victoria Police about, or derived from, the applicant while he was a current or former client.[30] On 8 August 2008, he was arrested.[31] Ms Gobbo was briefed by James Valos and Associates shortly after his arrest and visited the applicant in custody on the same day.[32] She arranged his bail application and appeared for him, including on 18 August 2008 on an application to be moved to Melbourne Assessment Prison and at bail variation applications on 27 October 2008 and 18 December 2008.[33]
[30]See ibid [153].
[31]Ibid [158].
[32]Ibid [160].
[33]Ibid [160].
Ms Gobbo continued to act for the applicant by appearing, providing legal advice or performing legal work from 2008 until 2015.[34] She visited him in gaol on numerous occasions after he was remanded in May 2012.[35]
[34]Ibid [441].
[35]Ibid [328]–[329].
After the applicant’s brief of evidence was served in early 2009, Ms Gobbo had access to it through the applicant. She worked on his matter in various ways, including during pre-trial argument in the Tomato Tins trial (which commenced on 1 February 2012) and shortly before the first hearing day of 27 February 2012. Ms Gobbo prepared a number of documents, including a Form 10A on around 9 November 2009 notifying the Court of the witnesses sought be called at committal, as well as a document called ‘Rob’s role’ setting out his defence and a Defence Response to Summary Prosecution Opening dated 15 July 2011 for the Tomato Tins trial, both of which were both provided to Dr Martine Marich’s office on 11 October 2011.[36]
[36]Ibid [168], [236].
Ms Gobbo also attended meetings with the applicant, Mr Higgs and their legal practitioners shortly before the commencement of the pre-trial argument in the Tomato Tins trial.[37] She also provided some advice to the applicant during that trial.[38]
[37]Ibid [258]–[270], [431], [441(j)].
[38]Ibid [319]–[321].
Ms Gobbo did not ultimately appear for the applicant in the Tomato Tins trial, the Inca trials, or the Hong Kong MDMA plea. However, the applicant believed she was acting in his best interests. Ms Gobbo continued to act for the applicant on a range of matters up until (and after) the conclusion of the trials.
Ms Gobbo was aware of the conflicts of interest arising from her dual role as adviser and informer. Despite having duties to the applicant as a current or former client, and despite Victoria Police, the AFP and the CDPP having obligations as investigative and prosecuting agencies, from the time of the applicant’s arrest to the finalisation of the Tomato Tins and Inca charges, Ms Gobbo at no time disclosed to the applicant that she was a registered police informer who provided information to police which was against his interests. Nor did Victoria Police or the AFP disclose to the applicant that Ms Gobbo was a registered police informer who provided information to police that led to him being arrested and charged or which was otherwise against his interests.
Nor did the AFP or the CDPP disclose to the applicant that the true source of the information that led to the discovery of the 2007 shipment of MDMA concealed in tomato tins was a human source, or that Ms Gobbo was a police informer who gave Victoria Police information about her clients.

Findings in Reference Determination

It is necessary to refer in greater detail to findings made by Osborn JA in the Reference Determination regarding these matters.
Before the 2007 MDMA trial, Ms Gobbo provided intelligence to Victoria Police concerning the applicant in her capacity as a registered human source. She passed on details of conversations said to have been had with the applicant, details of meetings between him and persons associated with organised crime including persons later charged as his co-conspirators, details of the applicant’s movements more generally and of vehicles driven by him, and details of his phone numbers and other phone numbers obtained from his phone.[39]
[39]Ibid [69].
On 9 March 2006, Ms Gobbo and her handlers talked about a potential conflict of interest. One of her handlers suggested that she would have a conflict in acting for a person after their arrest. The handler asked Ms Gobbo if the applicant would ring her if he was arrested and she said that he would. The handler observed that the situation was unprecedented and Ms Gobbo responded ‘Probably is. I’m sitting now creating half —created half the or provided half the material and half the reason why they got arrested or maybe more than half’.[40]
[40]Ibid [76].
During the 2007 MDMA trial, which ran from 21 May 2007 to 10 July 2007, Ms Gobbo passed on information to her handlers as to the progress of the trial and the applicant’s state of mind. The reports included her views on the progress of the trial, including disputes between the applicant and his co-accused as to the defences they would run and whether the co-accused would give evidence. Information was provided on at least 14 dates during the period of the trial.[41]
[41]Ibid [85].
Ms Gobbo also passed on information of potential significance with respect to the evidence that was subsequently obtained and relied on in relation to the Tomato Tins charges. The information included copies of the bill of lading and related documents, the applicant’s phone number and numbers obtained from his mobile phone, evidence that persons involved in the importation were meeting at the Pacific International Hotel, reports that the applicant anticipated an importation of drugs, and ongoing intelligence as to the applicant’s activities and interactions with the conspirators generally.[42]

The bill of lading

[42]Ibid [86].

On 5 June 2007, Ms Gobbo provided her handlers with a copy of a bill of lading and emails, all in the Italian language, which she said had been temporarily left with her by the applicant for safe keeping.[43]
[43]Ibid [88].
On the same day, Ms Gobbo told her handlers that the applicant had given her an envelope to hold in case Joe Mannella, who was then on trial, got ‘locked up’.[44] She said that the documents related to shipping containers being imported by Mr Mannella and that the applicant had returned at 1 pm that day and collected the documents in order to return them to Mr Mannella. Ms Gobbo had copied the documents without the applicant’s knowledge. Ms Gobbo told her handlers that the documents appeared to be shipping documents relating to a pending shipment of a container of tomato products in a large quantity, possibly in tins.[45]
[44]Ibid [91].
[45]Ibid [92].
The bill of lading was fundamental to the interception of the shipment which arrived on 28 June 2007 and the subsequent investigation, which commenced on the day Ms Gobbo provided the information.[46]
[46]Ibid [94]–[96].
Osborn JA noted that the applicant denied having given the bill of lading to Ms Gobbo. He was unable to determine whether that denial should be accepted, but was of the view that the report materially compromised Ms Gobbo whether that aspect of it was true or not.[47] The respondent did not seek to establish that the applicant gave the documents to Ms Gobbo.[48] Osborn JA found that, whether provided to Ms Gobbo by the applicant or some other person, the bill of lading was evidence relevant to the tomato tins offending with which the applicant was later charged and it was provided to Victoria Police under cover of an account which was adverse to the applicant in that it had linked him with the document.[49] In the circumstances, the passing on of the document ‘potentially created a conflict which prevented Ms Gobbo from acting for Karam in proceedings flowing from the provision of the bill of lading to Victoria Police’.[50]

Telephone numbers

[47]Ibid [97].

[48]Ibid [98].

[49]Ibid [99].

[50]Ibid [100].

Osborn JA found that, on 24 May 2007, Ms Gobbo reported to Victoria Police that the applicant had left his phone in her office on a charger and that she had written down phone numbers from it which she would provide to them. She further provided police with a new phone number for the alleged consignee for an importation which was written on the back of the phone. On the following day, Ms Gobbo provided a number of telephone numbers said to have been taken from the applicant’s mobile phone. On 29 May 2007, she provided the applicant’s phone number and a number for Mr Mannella.[51]
[51]Ibid [102]–[104].
On 29 June 2007, just after midnight, Ms Gobbo provided Victoria Police with a new phone number for Mr Higgs which she said she had obtained when having dinner with the applicant, Mr Higgs and others earlier that evening and had overheard Mr Higgs giving out the number to somebody else on the table and memorised it. Later that day the ACC used the information to apply for authority for a telephone intercept under s 46A of the Telecommunication (Interception and Access) Act 1979 (Cth) in respect of Mr Higgs, including for the service which used the number Ms Gobbo had provided.[52] Recordings of intercepted telephone conversations were a significant part of the evidence of the Tomato Tins trial. Osborn JA was not able to draw an inference as to whether particular conversations were recorded utilising information supplied by Ms Gobbo, but said that it was clear that they may have been.[53] Osborn JA concluded that the provision of telephone numbers by Ms Gobbo to her handlers:
potentially created a conflict which prevented Ms Gobbo from acting for Karam in proceedings which utilised evidence obtained, or potentially obtained by use of information provided by her.[54]

Pacific International Apartments

[52]Ibid [105]–[106].

[53]Ibid [110].

[54]Ibid [111].

On 28 June 2007, Ms Gobbo informed her handlers that the applicant and Mr Higgs had met and were going to the Pacific International Apartments in Little Bourke and Queen Streets to meet ‘the Italian boys from Griffith’ who were booked there for the week and that the meeting concerned the new container. She said that the applicant had said that he was still awaiting confirmation that everything was ‘still okay’ because ‘the container should have been stolen by now’ and he was on edge waiting for confirmation that this had happened. Police later made covert recordings of discussions between a number of the conspirators at the Pacific International Apartments.[55]
[55]Ibid [112].
Osborn JA found that the information was relevant to the Tomato Tins offending with which the applicant was subsequently charged and was adverse to him. The information provided by Ms Gobbo directly associated him with the conspirators and potentially created a conflict between her role as an informer and subsequent activity as the legal representative or advisor of the applicant.[56]

Reports as to the applicant’s anticipation of a drug importation

[56]Ibid [114].

Thirteen informer contact reports (‘ICRs’) during the 2007 MDMA trial indicated that the applicant knew about the attempted importation and procurement of a container of drugs. The reports associated him with that importation and Osborn JA found that they gave rise to a potential conflict of interest with respect to any subsequent prosecution in respect of that importation.[57] On 7 and 10 June 2007, Ms Gobbo stated that the applicant wanted her to see Mr Mannella in prison to get instructions from him and that Mr Mannella hoped that a container would be imported prior to the applicant’s trial.[58]
[57]Ibid [117].
[58]Ibid [118].

On 17 June 2007, Ms Gobbo reported that the applicant had described the new container as ‘three times as big as the current trial’ (that is, the 2007 MDMA trial) and had spoken of the various ways to get containers off the wharves, including how to check their status and the likelihood of them being x-rayed by Customs.[59]
[59]Ibid [118].
On 19 June 2007, Ms Gobbo advised that she had been told by the applicant that his contact was someone in the transport industry, that the container was on a ship that had either just left Singapore or was still there, that the applicant could not get the container off in Sydney and it would therefore be in Melbourne and that he was confident that he could steal it in Melbourne and that that was the plan when it arrived.[60]
[60]Ibid [118].
On 21 June 2007, Ms Gobbo reported that the applicant was at Curly Joe’s in Maribyrnong on the previous night and that Mr Higgs was present along with ‘some unknown Italians from Griffith’. The applicant had said that the meeting was to organise ‘the next import from Italy which will be worth $8 million’. Later on the same day, Ms Gobbo advised that the applicant had dinner with her, Mr Higgs and a person who worked for Chubb Security and that the arrival date of the container was 27 July 2007. In a number of subsequent conversations, Ms Gobbo gave updates of the new container including the applicant’s plans to access it and his suspicions about law enforcement authorities being aware of it.[61]
[61]Ibid [118].
Osborn JA found that these reports attributed to the applicant direct knowledge of the attempt to import the container, further associating him with those involved in the attempt. They were therefore incriminating and the provision of such information gave rise to a potential conflict of interest with respect to any proceedings arising out of the provision of the information.[62]

General intelligence

[62]Ibid [120].

In other reports, Ms Gobbo gave a ‘running feed’ to her handlers with respect to the applicant’s association with others during the period of the Tomato Tins conspiracy, giving rise to a potential conflict with respect to her involvement in subsequent proceedings relating to that conspiracy.[63]

Involvement of the AFP

[63]Ibid [122]–[123].

On 15 June 2007, Victoria Police officers informed Ms Gobbo that they had worked out how to deal with the container without compromising her position. Victoria Police used Customs as a conduit for Victoria Police to notify the AFP of a suspected importation.[64]
[64]Ibid [124].
Osborn JA found that Ms Gobbo’s handlers were aware that her actions as an informer might place her in danger.[65]
[65]Ibid [125].
On 20 June 2007, Victoria Police informed the AFP and the ACC of a pending MDMA importation.[66] Victoria Police decided not to tell the AFP that Ms Gobbo was the source of information relating to the Tomato Tins importation. Victoria Police provided a Customs officer with information derived from the shipping documents which Ms Gobbo had provided on 5 June 2007. That information was then supplied to the AFP. On 21 June 2007, the ACC told the AFP that it understood the source of the information to be a human source controlled by Victoria Police. Osborn JA found there was no evidence that the AFP knew who the human source was or how the human source had obtained the information.[67]
[66]Ibid [126].
[67]Ibid [127]–[130].
Osborn JA set out a transcript of a conversation between Ms Gobbo and her handlers on 17 June 2007 which indicated that they were aware that her actions as an informer may place her in a position of conflict of interest and might be regarded as improper:
OSW: [W]hat is the biggest sort of issue, you know, I’m sure there’d be people that would say Victoria Police have utilised a member of the Bar to work against people that were arguably her clients and I know that we would say, no, they weren’t and she was never actively representing them at the time.
MS GOBBO: And it’s not privileged anyway.
OSW: Yeah, but I’m sure that line would get very muddy.
MS GOBBO: Yeah.
OSW: And from the point of view of your colleagues, they would probably see our relationship as something which is a disgrace for Victoria Police and wrong, ethically wrong, morally ...
MS GOBBO: Some would, some wouldn’t. Some would, some wouldn’t.
OSW: Yeah. I guess I’m saying I don’t want to create a precedent that would — would be a longstanding precedent that Victoria Police will be stuck with forever …
MS GOBBO: Mm.
OSW: I know that’s being a little bit paranoid but I’d hate for — I’d hate for us to be in a situation whereby if a barrister in the future … I think there’s things you need to know about … some sort of prohibition … internally – – –
MS GOBBO: Yeah.
OSW: – – – or maybe even legislatively that would stop us …[68]
[68]Ibid [131].
On 28 June 2007, the AFP commenced an investigation called Operation Moko. It was intended to make a controlled delivery of inert substances replacing the MDMA which had been intercepted upon the arrival of the MV Monica that day.[69] A joint agency agreement between the ACC, Victoria Police, the AFP and Customs was executed for Operation Moko on 29 June 2007. The agreement identified the applicant as the target. On 30 June 2007, a handler tasked Ms Gobbo with obtaining updates on the applicant and the container.[70]
[69]Ibid [133].
[70]Ibid [134]–[135].
On 3 July 2007, Ms Gobbo and her handlers discussed ways to avoid her acting for, or representing, the applicant. In response to a suggestion from one of the handlers that she should cease contact with the applicant, she said that she would ‘entertain manoeuvring myself to a position of not acting for him actually in a committal or a trial if he was charged — or a bail application, for that matter’. When the handler told her that it was ‘really important for all of us that you don’t represent anyone’ and that he would ‘hate to think’ that ‘a conviction could be overturned because there was an allegation or a suggestion or a bloody inquiry in relation to whether he got completely unbiased uncompromised defence’, Ms Gobbo responded, ‘Who’s ever going to know about that?’[71]
[71]Ibid [136].
Prior to the seizure of the container, Mr Barbaro and Mr Zirilli had been the subject of surveillance as part of an AFP operation called Operation Bootham, which was directed towards ongoing drug-related activity. On 6 July 2007, Operation Moko was merged with this operation to become Operation Bootham-Moko. Operation Inca continued investigation into the ongoing activities of those who were the subject of Operation Bootham-Moko. The AFP’s main focus was on Mr Barbaro, Mr Zirilli and a person against whom charges were never laid. Victoria Police and the ACC concentrated on Mr Falanga, Mr Higgs and the applicant.[72]
[72]Ibid [139].
On 10 July 2007, the 2007 MDMA trial concluded when the applicant was acquitted.[73]

Ms Gobbo’s conduct after the acquittal of the applicant until his arrest on 8 August 2008

[73]Ibid [85].

On 17 July 2007, Ms Gobbo told her handlers why she thought the applicant had been acquitted, in terms which Osborn JA found were ‘an extraordinary betrayal of defence counsel’s duty of loyalty towards a client’:[74]
[74]Ibid [142].
MS GOBBO: Look, one thing Karam did which was very clever was the minute — he says that once he had that phone call in the morning where Sergi says to him, ‘A hold,’ and Karam says, ‘Yeah.’ Sergi goes, ‘Why?’ and Karam says, ‘Probably O.K.’ — no , he said, ‘O.K. Probably all good,’ and then they meet up in North Melbourne. Now, Karam says from the minute he heard there was a hold on that container, Customs have put a hold on it or AQIS actually put a hold on it on behalf of Customs, he said he knew it was fucked and he said the rest of the day he set about on the basis that his phone was off and was — had dogs on him, doing things that he could later say you wouldn’t be doing if you were involved in $300 million worth of - - -
OSW …
MS GOBBO:So he had heaps and heaps of phone calls, self-serving kind of calls where he intermingled the codes that have been used with legitimate things. Very clever. All even-toned, not — you know, didn’t show one iota of interest in anything, and the informant was a bit silly because she — part of her evidence was she decided which phone calls were relevant and she decided which ones were coded and which ones weren’t so then we play to the jury 11 SMSs and 19 phone calls that she didn’t consider relevant and that - - -
OSW: Which are obviously exculpated.
MS GOBBO: Yeah.[75]
[75]Ibid [141].
Ms Gobbo also discussed the applicant’s state of mind with respect to the container and advised that he had a suspicion that it had been seized but there was still a plan to ‘go and nick it’. She said that the applicant knew where the container was because he said he had the documents. She also discussed meetings the applicant had had with underworld figures. Ms Gobbo said that the applicant’s view was that he was not going to involve ‘my people’ but there was still the chance that someone else would go and get it ‘because it’s too much to just walk away from’.[76] Osborn JA found that each of these reports directly inculpated the applicant in the Tomato Tins offending and gave rise to a potential conflict of interest in respect of acting for him in relation to the offending which concerned the matters discussed.[77]
[76]Ibid [143]–[145].
[77]Ibid [146].
Osborn JA set out a summary of further relevant ICRs between 10 July 2007 and 31 December 2007.[78] Among other things, Ms Gobbo provided the applicant’s mobile telephone numbers, details of his movements, information that the applicant had told her that he was going to Adelaide in relation to a large drug import which had already arrived and would be unpacked soon and that this container ‘was not the only one on the go at the moment’, information that Ms Gobbo believed the applicant was expecting a cocaine import early in October 2007, information that the applicant told her that the AFP had missed seven phones when they executed a search warrant in November 2007, and information that they had not searched the applicant’s wallet which contained the addresses of consignees. Ms Gobbo also provided updated information about the applicant’s telephone numbers.
[78]Ibid [149].
On about 4 October 2007, Victoria Police and the ACC ceased their direct involvement in Operation Bootham-Moko and Operation Inca.[79] Ms Gobbo continued to provide Victoria Police with information about the applicant between 1 January 2008 and 7 August 2008, including phone numbers used by the applicant, his movements that were potentially relevant to surveillance, his knowledge of the Tomato Tins importation, his involvement in drug distribution, measures taken by him to avoid surveillance and matters relating to his financial position. Osborn JA found that this was further information which potentially compromised the applicant.[80]

Ms Gobbo’s conduct after the applicant’s arrest on 8 August 2008

[79]Ibid [152].

[80]Ibid [153]–[155].

After the arrest of the applicant, Ms Gobbo continued to inform on him to Victoria Police, in circumstances where she was at the same time acting for him in respect of preliminary issues in the Tomato Tins and Inca proceedings, by advising him and by representing him at preliminary hearings relating to custody issues.[81]
[81]Ibid [159].
On 8 August 2008, Ms Gobbo saw the applicant at the Melbourne Custody Centre following his arrest. On 18 August 2008, she appeared for the applicant in the Melbourne Magistrates’ Court at a special mention relating to a prisoner transfer application. On 31 August 2008, she arranged a bail application hearing for the applicant, at which he was represented by Mr Grace QC and obtained bail. On 27 October 2008, Ms Gobbo appeared for the applicant in the Melbourne Magistrates’ Court on an application to vary bail, and appeared at a further similar application on 18 December 2008.[82]
[82]Ibid [160].
Osborn JA found that each report made by Ms Gobbo as a registered human source after the applicant’s arrest was ‘on the face of it a gross breach of duty of loyalty to a client’.[83] On 8 August 2008, she reported that she had been asked to attend the Melbourne Custody Centre to help the applicant, and had seen him along with others including Mr Higgs and Mr Barbaro. She said that the applicant had asked her to pass a message to his brother to advise ‘the Asian connection’ to change numbers and ‘postpone the next shipment’. The applicant had told her that the AFP had missed a ‘crucial laptop’ that was at his sister’s place. On 18 August 2008, Ms Gobbo reported that the applicant had read the AFP summary and was ‘devastated’. On 12 September 2008, after the applicant was granted bail, Ms Gobbo said that in her opinion bail had been granted because there was a poor witness for the AFP who did not have a full grasp of the case. On 20 September 2008, Ms Gobbo reported that the applicant had told her that he had organised another import to pay for all the legal fees. On more than one occasion in this period, the applicant asked Ms Gobbo how she thought the AFP had found out about the import. He was ‘worried about his Customs man and his wharf man’ and that ‘they might come unstuck’.[84]
[83]Ibid [161].
[84]Ibid [160].
Osborn JA found that these reports extended to criticising the conduct of the case by the AFP, and showed that it was contemplated that Ms Gobbo would act in an ongoing way for the applicant as a formal client and that he believed that she would represent him. There was recurrent discussion of his case between them.[85]
[85]Ibid [163].
Ms Gobbo ceased to be a registered human source on 13 January 2009, but continued to have contact with Victoria Police as a prospective prosecution witness in relation to murder charges brought against former Victoria Police member Paul Dale and consequential proceedings. In that regard, she dealt with officers of Victoria Police Petra Taskforce, and had contact with Jason Kelly, a member of the Purana Taskforce leading Operation Kennels, which was an investigation into an alleged conspiracy to murder a number of people including Fedele D’Amico.[86]
[86]Ibid [164]–[165].
At the committal, the applicant was represented by Mr Shirrefs QC together with Ms Ristivojevic, instructed by Mr Valos. Osborn JA found that it was more probable than not that the committal was conducted without any material input from Ms Gobbo.[87] He accepted, however, that before the committal she did advise the applicant, and that she obtained and read the combined brief. She also prepared documents which involved implicit advice as to relevant evidence at the committal, namely a Form 10A in November 2009 nominating witnesses whom the applicant sought leave to cross-examine and a draft summons to produce documents in January 2011. There was also evidence that Ms Gobbo had spoken with Mr Shirrefs prior to the committal and that he had praised her for the documents she had drafted.[88]
[87]Ibid [167].
[88]Ibid [168].
Osborn JA accepted that, before the committal, Ms Gobbo had developed a case concept in discussion with the applicant (‘the pretext conspiracy defence’).[89] Osborn JA was satisfied that Ms Gobbo advised the applicant to cooperate with police who were investigating a conspiracy to murder Mr D’Amico, in Operation Kennels.[90]
[89]Ibid [169].
[90]Ibid [179].
On 25 March 2009, the applicant was arrested in relation to the alleged conspiracy to murder and taken to St Kilda Police Station for interview. During this period, Ms Gobbo made a phone call to the applicant and spoke with him. He asked whether he should go ahead with the interview. When the interview commenced, the applicant agreed he had spoken to a legal practitioner whom he named as ‘Nicola’.[91] Osborn JA found that it was more probable than not that Ms Gobbo advised the applicant to participate in the record of interview.[92] The interview enabled the applicant to assist Victoria Police to make out a conspiracy to murder by other persons which, if established, would underpin the applicant’s pretext conspiracy defence which was Ms Gobbo’s preferred case concept. The interview enabled the applicant to elaborate and articulate aspects of his defence. In essence, that defence was that he had told others that the Tomato Tins importation was hopeless, that he did not actively cooperate with Mr Barbaro in that importation or thereafter, and that he only went along with Mr Barbaro to the extent that he did because of fear that others, and in particular Mr D’Amico, would be killed if he did not.[93] At the end of the interview, the applicant indicated that he would be happy to make a statement on the matter.[94]
[91]Ibid [180]–[187].
[92]Ibid [194].
[93]Ibid [194].
[94]Ibid [196].
On about 9 September 2009, Ms Gobbo advised police officers involved in Operation Kennels that she had received a copy of the combined brief relating to the Tomato Tins, Inca and Hong Kong offending, which ran to approximately 102,000 pages. After the interview, Ms Gobbo actively participated in the preparation of a draft witness statement elaborating and clarifying the matters the applicant put forward in his interview.[95] Osborn JA found that both the interview and the preparation of the draft statement reflected a consistent strategy.[96]
[95]Ibid [198].
[96][194].
In the course of the Tomato Tins trial, Mr Dane QC put to the informant, federal agent Herman, that the applicant had participated in the preparation of a draft statement relating to the alleged conspiracy to murder. Mr Dane QC sought to adduce evidence of this fact before the jury. The trial judge excluded that evidence on the basis that it was irrelevant to the time period of the Tomato Tins offending. Osborn JA said that it could be inferred that senior counsel for the applicant did not regard the draft statement as adverse to his client’s interests.[97] In any event, the applicant did not sign the draft statement.[98] Osborn JA was satisfied, having regard to Ms Gobbo’s repeated involvement in the production of the draft statement, that she had consistently advised him to make such a statement.

Pre-trial advice

[97]Ibid [203]–[204].

[98]Ibid [205].

In October 2011, Dr Marich (as her Honour then was) replaced Mr Valos as the applicant’s solicitor. Ms Gobbo was involved in a series of conferences directed to obtaining legal aid and selecting and retaining counsel for the Tomato Tins trial. Ms Gobbo discussed the prosecution brief with the applicant and formulated a case strategy. Osborn JA found that she had been involved in preparation for the trial during this period.[99]
[99]Ibid [233]–[235].
On 11 October 2011, Ms Gobbo sent an email to Dr Marich and Mr Grace QC attaching two documents. One was a summary of the prosecution opening which had been served a few months earlier. The other was a defence response document. Osborn JA found that the summary of the prosecution opening was of potential help to Dr Marich and to new defence counsel as an introduction to a complex circumstantial case founded in extensive objective evidence and surveillance and covert recordings which could not readily be disputed. He held that the summary appeared to be careful and competent but was necessarily a preliminary document.[100]
[100]Ibid [236]–[239].
On 12 October 2011, Ms Gobbo emailed Dr Marich a copy of a summons to produce directed to the ACC which had previously been sent to Mr Valos. On the same day, she forwarded to Dr Marich a copy of the Form 10A she had drafted before the committal. Her covering note confirmed that she had drafted the form and read the depositions. Ms Gobbo also forwarded to Dr Marich a copy of a draft summons directed to the AFP which she had previously prepared. Osborn JA found that each of these documents involved implicit legal advice as to the content of relevant evidence.[101]
[101]Ibid [240]–[243].

In her evidence, Judge Marich said that the material provided by Ms Gobbo was very helpful and contained instructions that she had obtained when representing the applicant earlier. She described Ms Gobbo as ‘vetting’ counsel who were to be appointed for the trial.[102] Osborn JA accepted that Mr Dane probably had conversations with Ms Gobbo. Mr Dane told Dr Marich that he considered that Ms Gobbo was ‘trouble’ because she had ‘a certain approach to the way that she wanted to run the trial’ which he considered ‘subversive’.[103]
[102]Ibid [244]–[246].
[103]Ibid [251].
At the commencement of his brief, Mr Dane took part in a conference with the applicant, Dr Marich and Ms Gobbo at the Melbourne office of Lewenberg & Lewenberg. Mr Higgs and Mr Papas were also present. The conference detailed the history of the matter and the defence strategy. Mr Dane said that he would not have engaged in it had he known that Ms Gobbo was at any time a registered police informer.[104]
[104]Ibid [255].
Two conferences between the legal representatives acting for Mr Higgs and those acting for the applicant took place on 30 and 31 January 2012. At the second conference, Ms Gobbo detailed the history of the matter and expressed her views on strategy. Mr Papas gave evidence that the purpose of the meeting was to speak with Ms Gobbo so that the solicitors acting in the matter for each accused might benefit from her knowledge of the case. Mr Papas was not assisted by Ms Gobbo’s input. He was sceptical of her assistance because he had seen her meeting with alleged conspirators in covert video surveillance recordings contained in the brief.[105] The topics of discussion at the second conference included admissions, the bill of lading, subpoenas and the potential defence strategy. Osborn JA was not satisfied that substantial decisions were made at the conference which Ms Gobbo attended.[106]
[105]Ibid [256], [265]–[266].
[106]Ibid [267]–[269].
Osborn JA said that the question of defence strategy raised the case concept Ms Gobbo preferred, namely the affirmative pretext conspiracy defence. Mr Dane did not accept this concept. His position was that he would not form a committed view as to whether the applicant should be called as a witness until the end of the Crown case. In the first instance, his case concept was simply to require the Crown to demonstrate on the evidence that the applicant actually joined in the conspiracy charge. This involved accepting that there was a conspiracy between Mr Barbaro and his close allies but attempting to paint the applicant as an outlier who did not participate in it.[107]
[107]Ibid [270]–[271].
At the first conference on 30 January 2012, there was discussion of the role that Ms Gobbo should play. There was agreement that she would be tasked with the job of preparing the applicant’s evidence. Ms Gobbo was duly given this specific subsidiary role. The applicant regarded her as part of his ‘legal team’. Judge Marich gave evidence that the decision to give Ms Gobbo this role was partly taken because Mr Dane did not want her to ‘interfere’ with the ongoing performance of his own role.[108]
[108]Ibid [272]–[274].
Mr Dane told Judge Marich at some point after the conference that he had told Ms Gobbo that she had a choice between getting a practising certificate and becoming his junior or getting out of the case. Ms Gobbo however ultimately claimed to have done tens of hours of preparation undertaking the tasks she had been given. She arranged for herself, Mr Higgs and the applicant to attend at the Lewenberg & Lewenberg office before the trial to listen to various recordings. Neither Mr Dane nor Dr Marich was present.[109]
[109]Ibid [276]–[277].
Judge Marich gave evidence that she saw Ms Gobbo’s role ‘if anything as a de facto junior counsel’, carrying ‘something between no influence and a steering role’. Osborn JA preferred to characterise her role as a subsidiary collateral one.[110]
[110]Ibid [280].
Pre-trial argument in the Tomato Tins trial commenced on 1 February 2012. On 10 February 2012, Ms Gobbo sent an email to Dr Marich and Mr Dane about a pre‑trial publicity issue. The email raised a valid point and was not adverse to the applicant’s case. On 14 February 2012, Ms Gobbo produced a set of notes entitled ‘For discussion’ about the conduct of the Tomato Tins trial. In Judge Marich’s opinion, the notes provided ‘the breadcrumbs of her pretext conspiracy defence’.[111] The notes were provided to Mr Dane. They included practical suggestions as to whether the applicant should be called to give evidence, raising the need to clarify Customs procedure, questioning whether the fact that the applicant had given evidence for the Crown in the New South Wales Supreme Court should be raised, and detailing steps that the applicant needed to take by way of preparation. The notes summarised threats of violence relevant to the pretext conspiracy defence and actions of the applicant taken in response to those threats. They set out instructions about an initial meeting between Mr Barbaro and the applicant and further addressed the applicant’s relationship with Mr Falanga. The notes also highlighted items to look at in the prosecution brief and suggested points for cross-examination, including setting out details of Customs procedure which the applicant contended had not been implemented.[112]
[111]Ibid [281]–[283].
[112]Ibid [284]–[288].
On 15 February 2012, two days after jury empanelment commenced, Ms Gobbo sent an email to Dr Marich and Mr Dane which Osborn JA characterised as advice on evidence relevant to the pretext conspiracy defence. The email emphasised aspects of the applicant’s instructions bearing on that defence. On 20 February 2012, during the empanelment of a second jury, Ms Gobbo sent a further email to Dr Marich and Mr Dane canvassing matters relevant to the pretext conspiracy defence.[113] Osborn JA again characterised this email as an advice on evidence, the focus being on the pretext conspiracy defence. The email reflected an information gathering exercise ‘that may or may not have borne fruit in a defence’.[114]
[113]Ibid [289]–[291].
[114]Ibid [295]–[296].
Osborn JA found that there was nothing in the two documents which he characterised as advice on evidence which suggested that they were other than objective advice from counsel with expertise in criminal law. They identified and detailed problems with the evidence in respect of the pretext conspiracy defence and potential sources of further evidence. He found that nothing had been identified which would suggest that the advice had prejudiced the applicant’s subsequent defence.[115]

Advice during the Tomato Tins trial

[115]Ibid [297].

As previously noted, Ms Gobbo did not appear at or attend the Tomato Tins trial. Osborn JA found that there was no direct circumstantial evidence of input by her into the applicant’s defence after 20 February 2012.[116] He accepted that Mr Dane had coffee with Ms Gobbo and the applicant on one occasion during the trial, but did not accept that Mr Dane received instructions from Ms Gobbo during the trial.[117] Osborn JA then went on to consider the question whether Ms Gobbo nonetheless gave the applicant legal advice herself during that period. Osborn JA noted that the task which Ms Gobbo was given of preparing the applicant for evidence could not sensibly be completed without having regard to the evidence that was actually called at the trial. The evidence showed that Ms Gobbo received and read trial transcripts to a substantial extent during the trial, and in particular up until about two weeks before its conclusion, at about the time at which the decision must have been taken not to call the applicant to give evidence.[118]
[116]Ibid [303].
[117]Ibid [308].
[118]Ibid [310]–[311], [319].
Osborn JA found that the evidence as a whole favoured the conclusion that the applicant sought and obtained Ms Gobbo’s advice in both a personal and legal capacity. He was satisfied that she counselled him by way of legal advice as to the conduct of his trial. Osborn JA found that the overwhelming probability was that the advice related to the ongoing prospect of raising the pretext conspiracy defence which would involve the applicant giving evidence.[119] However, Ms Gobbo’s advice did not affect Mr Dane’s presentation of the defence case, and he persisted in his own case concept.[120]

Preparation for the first Inca trial

[119]Ibid [321]–[322].

[120]Ibid [326].

The applicant was remanded in custody on 4 May 2012 and there was no contact between him and Ms Gobbo until 6 July 2012. Between that time and the verdict in the first Inca trial on 19 December 2012, Ms Gobbo visited the applicant on three occasions as a normal prison visitor. Prison records further showed that between 6 July 2012 and 22 August 2013, the applicant made a total of 134 telephone calls to Ms Gobbo. In a number of those calls in July 2012, they discussed the manner in which the Tomato Tins trial had been conducted and the applicant’s appeal. They also discussed the defence of the Inca prosecutions. Ms Gobbo advised the applicant about defence strategy and also discussed the appeal process with him. She expressed opinions about trial counsel, the applicant’s police statement, his appeal and the necessity to call evidence which explained his involvement in the events forming the basis of the charges of conspiracy.[121]
[121]Ibid [328]–[335].
The first Inca trial commenced on 15 October 2012. Osborn JA was satisfied that, between the completion of the Tomato Tins trial and the commencement of the first Inca trial, Ms Gobbo advised the applicant to adopt the pretext conspiracy case concept and advised him to make a police statement to advance that defence.[122]
[122]Ibid [345].
Osborn JA was also satisfied that the first Inca trial was run on the basis of instructions given by the applicant to Mr Brustman and Dr Fitzgerald of Marich Legal. He was not satisfied that Ms Gobbo materially contributed to preparation for the first Inca trial. He found that the probability was that her work was overtaken by detailed instructions to the applicant’s independent counsel and solicitors.[123] The jury in the first Inca trial was discharged on 19 December 2012.[124]

The second Inca trial and the Hong Kong MDMA plea

[123]Ibid [346]–[347].

[124]Ibid [348].

On 30 April 2013, the applicant was sentenced by King J to 19 years’ imprisonment with a non-parole period of 15 years in relation to the Tomato Tins offending.[125]
[125]Ibid [352].
On 27 May 2013, Ms Gobbo obtained an employee solicitor’s practising certificate with Lewenberg & Lewenberg.[126]
[126]Ibid [355].
On 14 March 2014, Judge Montgomery granted leave to the CDPP to file a combined indictment for the three Inca charges. The applicant was represented by Dr Boas, instructed by Marich Legal.[127]
[127]Ibid [356].
Pre-trial argument took place between 14 March 2014 and 2 May 2014 in relation to the Hong Kong charges. The applicant was represented by Mr Georgiou SC, instructed by Marich Legal. On 1 May 2014, he pleaded guilty to the Hong Kong MDMA trafficking charge and there was further pre-trial argument the following day. Osborn JA found that there was no evidence that Ms Gobbo had any input into this aspect of the proceeding.[128]
[128]Ibid [357].
Between 11 June 2014 and 30 June 2015, the applicant made 110 telephone calls to Ms Gobbo which were not recorded. Osborn JA accepted that the probability was that in these calls Ms Gobbo and the applicant discussed legal matters including the second Inca trial and that Ms Gobbo gave the applicant legal advice including as to incidental practical considerations affecting his appeal and trial, together with continuing endorsement of the pretext conspiracy defence.[129]
[129]Ibid [358]–[359].
Between 25 and 27 August 2014, there was further pre-trial argument at which the applicant was represented by Mr Papas with Dr Fitzgerald now acting as junior counsel, instructed by Marich Legal. Osborn JA found there was no evidence that Ms Gobbo had any direct input into this aspect of the proceeding.[130]
[130]Ibid [362].
On 28 August 2014, the applicant stood trial before Judge Montgomery and a jury in respect of the Inca MDMA trafficking charge, the Colombian cocaine charge and the Indian precursor charge in the second Inca trial. Mr Papas gave evidence that, at the trial, he was substantially guided by the evidence which the applicant had given at the first Inca trial and that his strategy was obviously guided by what had then happened. The applicant was locked into the version he had given in evidence at the first trial.[131] Osborn JA found that Mr Papas had exercised his own judgment in advising the applicant and in running the pretext conspiracy defence.[132]
[131]Ibid [363], [365].
[132]Ibid [368].
Osborn JA found that there was no evidence that Ms Gobbo was directly involved in the second Inca trial, although she came into the court hearing on one occasion.[133] Osborn JA accepted that, although in the second Inca trial the defence adopted the general case concept Ms Gobbo had argued for prior to the Tomato Tins trial, there was no evidence that she had input into the detailed evidence called at the second Inca trial or that the evidence which was called was adduced other than on the direct instructions of the applicant.[134]
[133]Ibid [370].
[134]Ibid [375].
The applicant was found guilty of the three Inca charges on 17 November 2014. On 23 June 2015, Judge Montgomery sentenced him to 27 years’ imprisonment in respect of the Inca and Hong Kong MDMA trafficking offending.[135]
[135]Ibid [376], [378].

Answers to questions in the Reference Determination

Osborn JA went on to address the questions which had been referred to him by this Court. For present purposes, it is not necessary to set out each of the questions and the answers which the judge gave to them. That is partly because those answers consisted to some extent of summaries of the findings which have already been outlined in these reasons. However, particular aspects of the Reference Determination should now be mentioned which bear centrally on the issues raised in the three applications before the Court.
In para [414] of the Reference Determination, in the course of answering question B (about the use made of information provided by Ms Gobbo to Victoria Police), the judge summarised the information in question in the following terms:
Ultimately, the evidence demonstrates Ms Gobbo provided the following information which was passed on by her handlers to the AFP and other agencies.
(a) On 29 June 2006, Jason Kelly told the AFP that Victoria Police had received information from a human source that Karam was using a particular phone number. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.
(b) On 20 September 2006, information in relation to a large importation of cigarettes that the applicant was alleged to have been involved in, was provided to the AFP. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.
(c) On 21 September 2006, an AFP case note recorded information received about an anticipated MDMA importation with which Karam was allegedly involved. I accept that the source of this information was probably Ms Gobbo. There is no satisfactory evidence as to the use (if any) that the AFP made of the information.
(d) In June 2007, Ms Gobbo provided the bill of lading and passed on information as to its source. The bill of lading was the fount and origin of the subsequent Tomato Tins investigation. Information was passed on by Victoria Police first to Customs on or about 19 June 2007 and then to the ACC and AFP on about 20 June 2007.
(e) Early on 29 June 2007, Ms Gobbo provided Higgs’ mobile telephone number to her handlers and this number was supplied to the ACC. Later on 29 June 2007, the ACC applied for and obtained authority to conduct a telephone intercept on Higgs’ phone. The respondent submits that the extent to which this phone number was used in the subsequent investigation was limited. This may be so, but the telephone intercept evidence as a whole was critical to the prosecution case in the Tomato Tins proceeding and any contribution to that evidence must be regarded to have had some significance.
(f) The AFP records indicate that on an unidentified date, Victoria Police advised the AFP that Karam’s nickname was ‘Rockstar’. The informant, Mr Herman, gave evidence that this nickname was not used in the Bootham-Moko investigation. There is no evidence that it was of forensic significance.
(g) On 8 January 2008, one of Ms Gobbo’s handlers met with officers of the ACC and advised that Higgs was alleged to be paying a large sum of money to Karam. There is no record of dissemination of this information and the respondent submits that Victoria Police and the ACC were no longer involved in Operation Inca at this time. The respondent further submits that it is unlikely in these circumstances that the information was informally disseminated. I am unable to conclude one way or another whether the information was passed on to the AFP.
(h) On 17 March 2008, Ms Gobbo provided Victoria Police with Karam’s phone number. This was provided to the ACC on the same day. For reasons I have previously stated, I accept that the updating of this number was relevant information. Nonetheless, there is no evidence that the updating of the number was passed on to the AFP.
(i) On or about 19 June 2008, the Source Development Unit of Victoria Police provided information to Jason Kelly that the applicant was involved in money laundering with Jim Mavridis, Jim Valos and Fedele D’Amico. An ICR supports the conclusion that this information came from Ms Gobbo. Karam submits that the Court should conclude that this information was further discussed by Jason Kelly with FA Corey Wiggett on the same day. As the respondent submits, Jason Kelly’s diary record does not support this conclusion. I am not satisfied that the speculation made on behalf of Karam is justified. The evidence is that the discussion involved the AFP updating Jason Kelly as to the state of proceedings against Karam.
(j) On 29 February 2012, during the course of the Tomato Tins trial, the AFP uploaded into ‘PROMIS’, an intelligence report from Victoria Police (Victoria Police Information Report INT12IR479433) which included the following:
Subject: DRUG IMPORT — Frank D’AMICO involved in a pending drug importation
Information: Frank D’AMICO is involved in a pending large drug importation
Frank D’AMICO has a brother Fred D’AMICO whos [sic] is also involved in the importation
John HIGGS and Shane BUDGEJA [sic] are also involved in the importation
The drug importation is believed to be worth $15 million dollars
Comments: Information identifies a further two players, Frank D’AMICO and HIGGS, to information INT12IR478646 (23/02/2012) where KARAM, BUGEJA and Fred D’AMICO are believed to be involved in a drug importation for $15m arriving early to mid March 2012. (IR associated) … Further investigation and enquires [sic] being made to identify current associations to Frank D’AMICO.
It is probable that this information derived from Ms Gobbo. The evidence of the informant, Mr Herman, is that this information related to a separate operation known as Operation Trudere and did not relate to Operation Bootham-Moko or Inca.[136]
[136]Ibid [414] (citations omitted).
Next, in response to question D (whether there was a lawyer/client relationship between the applicant and Ms Gobbo), Osborn JA identified the following matters in para [441] of the Reference Determination:
For the reasons I have stated in setting out the course of events, I am satisfied Ms Gobbo acted for and advised Karam sequentially as follows:
(a) Ms Gobbo represented Karam with respect to custodial bail and related matters ... It may be inferred that in the course of doing so, Ms Gobbo gave Karam some incidental legal advice as to his position (‘the custodial hearing representation’).
(b) Prior to the committal, Karam obtained first a summary of the Crown case (August 2008), an initial version of the combined GEMS brief (February 2009) and then the combined GEMS brief (September 2009). Gobbo obtained a copy of the combined GEMS brief and discussed it with Karam. It may be inferred she discussed potential defences with him (‘the preliminary case concept advice’).
(c) Prior to the committal, Ms Gobbo advised Karam ... This advice included advice that Karam should participate in a record of interview participate in the preparation and review of a draft police statement … (‘the Operation Kennels advice’).
(d) Ms Gobbo also directly participated in and facilitated meetings for the purpose of preparation of the draft statement and actively drafted suggested amendments to the statement (‘the statement preparation’).
(e) Ms Gobbo prepared documentation directed to the production of relevant evidence at the committal and also prepared a draft Defence Response which was never served (‘preparation of documentation for the committal’).
(f) Prior to the committal, Ms Gobbo expressed an opinion to Mr Shirrefs as to strategic considerations affecting Karam’s defence (‘the pre-committal opinion’).
(g) Prior to the Tomato Tins trial, Ms Gobbo assisted Karam to obtain legal aid and advised him as to the choice of counsel (‘the representation assistance’).
(h) Ms Gobbo provided Dr Marich with copies of documentation which she had previously prepared, including a summary of the prosecution case and a chronology (‘the summary advices’).
(i) Ms Gobbo expressed [her] opinion to Mr Dane as to the appropriate defence strategy. This opinion reflected advice she continued to give to Karam (‘the pretrial defence concept advice’).
(j) Ms Gobbo attended a joint conference of Karam’s legal representatives with the legal representatives of Higgs on 31 January 2012 and expressed advisory opinions on the conduct of the case (‘the case conduct advice’).
(k) Ms Gobbo was given the specific role of preparing Karam for examination and cross-examination. She prepared notes for counsel in performance of this role which were provided to Mr Dane (‘provision of notes for Mr Dane’).
(l) Ms Gobbo also attended the offices of Higgs’ solicitor with Karam and Higgs to listen to the GEMS brief recordings. This may also be regarded as performing the role she had been assigned (‘preparation of the case with respect to covert recordings’).
(m) On 15 February 2012, Ms Gobbo gave an email advice on evidence relating to aspects of the pretext conspiracy defence (‘the first advice on evidence’).
(n) On 20 February 2012, Ms Gobbo gave a second email advice on evidence (‘the second advice on evidence’).
(o) During the Tomato Tins trial, Ms Gobbo gave Karam collateral oral advice independently of the advice that he received from the solicitors and counsel representing him (‘the Tomato Tins trial collateral advice’).
(p) In July 2012, Ms Gobbo communicated with Jason Kelly again concerning Karam’s proposed police statement. This, and other circumstantial evidence, supports the conclusion Ms Gobbo again advised Karam to sign a police statement (‘the further statement advice’).
(q) In July and August 2012, Ms Gobbo gave Karam general litigation advice concerning Karam’s ongoing proceedings including advice with respect to the choice of counsel. Ms Gobbo also advised Karam as to defence strategy (‘the general pretrial Inca advice’). This advice was independent of the preparation for the first Inca trial undertaken by Mr Brustman and Dr Fitzgerald.
(r) After the first Inca trial, Ms Gobbo gave Karam advice both in the course of prison visits and telephone calls. In particular, it is probable that Ms Gobbo gave ongoing counsel as to defence strategy in the course of 110 exempt telephone calls between June 2014 and June 2015. This advice was independent of the preparation for the second Inca trial undertaken by Karam’s solicitors and counsel, Dr Fitzgerald and Mr Papas. It is probable that it related to aspects of Ms Gobbo’s preferred case concept (‘the second Inca trial advice’).[137]
[137]Cross-references omitted.

In Szabo, the appellant alleged that defence counsel had been in a relationship with the Crown prosecutor, which deprived the appellant of independent legal advice and caused a miscarriage of justice. The trial in question took place in April 1999. Defence counsel and the Crown prosecutor had been in a relationship for 11 months up until January 1999. The relationship resumed in July 1999, after the trial. A few days after the trial, both counsel spent the weekend together in a motel room. Thomas JA said that the overall appearance of the circumstances was that of a separated couple who retained at least some interest in renewal. As such, they were ‘much closer to each other than ordinary arm’s-length legal adversaries’.[281]
[281]Ibid 224 [47].
Thomas JA emphasised the importance of s 668E of the Criminal Code, as follows:
The authorities that deal with apparent bias do not automatically accommodate to a decision of a jury following a trial where the convicted person complains that he has suffered injustice by reason of an association between his counsel and the Crown prosecutor. The true source of law for the resolution of such a question is the power of a Court of Appeal to set aside a conviction when it considers that there was a miscarriage of justice. In Queensland s 668E of the Criminal Code requires the court to allow an appeal on various grounds including that on any ground whatsoever there was a miscarriage of justice. Section 668E(1) of the Criminal Code provides:
The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal. (emphasis added)
Similar statutory formulae confer such a power on courts of criminal appeal in other Australian jurisdictions. This is of course qualified by a power commonly referred to as ‘the proviso’ to dismiss the appeal if the court considers that no substantial miscarriage of justice has actually occurred.[282]
[282]Ibid 225 [49] (citations omitted).
Thomas JA said that, on analysis, the complaint in Szabo was that there was a perceived rather than an actual miscarriage of justice.[283] He observed that while a broad approach had been taken in relation to setting aside a conviction where an appeal court is of the opinion ‘on any ground whatsoever that there was a miscarriage of justice’, the provision did not empower a court to set aside a verdict upon a speculative or intuitive basis.[284]
[283]Ibid 226 [50].
[284]Ibid 226 [51]–[52].
Next, Thomas JA turned to the question whether an appearance of a miscarriage of justice was ‘sufficiently important to have the same destructive effect as the reality’. He identified this as a ‘question of degree’.[285] He gave as one example the setting aside of a verdict where an unauthorised communication had taken place involving a jury, noting that setting aside a verdict in that situation was sometimes based on perception rather than actuality — for example, when the details of the unauthorised communication were not known but the court considered that there was sufficient danger that the verdict was influenced by the material. In such cases, Thomas JA said, ‘it is the risk of miscarriage that justifies the decision’.[286]
[285]Ibid 226–227 [53].
[286]Ibid 227 [54], citing R v Chaouk [1986] VR 707 and R v Spencer [1987] AC 128, 144, 146 (Lord Ackner).
Thomas JA also stated that the need to uphold public confidence in the administration of justice was a factor that ‘may properly play a part in determining whether there has been a miscarriage of justice’.[287]
[287]Szabo [2001] 2 Qd R 214, 227 [57].
Turning to the facts of the case, Thomas JA drew an analogy between apparent bias on the part of a decision maker and disquiet concerning the conduct of counsel. He said:
The disquiet that arises from the fear that counsel may have failed in their duty is a serious matter, but it is a disquiet of a different kind. It arises out of concern that a person with an important role in the trial may not have discharged it adequately in favour of the client. If a reasonable suspicion arises that defence counsel has ‘run dead’ or colluded with the Crown prosecutor contrary to the interests of the accused or for some extraneous purpose failed to play the proper role of defence counsel, that would reveal a seriously unfair contest, and would in my view demonstrate a miscarriage of justice sufficient to require the conviction to be set aside.
The question might best be posed as whether, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried. Such a conclusion however does not necessarily follow from the mere fact that the Crown prosecutor and defence counsel have an association or even a sexual relationship. All relevant circumstances have to be considered, including the conduct displayed by defence counsel which might feed or rebut any suspicion of unfairness.[288]
[288]Ibid 228 [59]–[60].
Thomas JA concluded that an ordinary fair-minded citizen in the position of the appellant in Szabo, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice miscarried.[289]
[289]Ibid 234 [80].
Chief Justice de Jersey agreed with Thomas JA.[290] He stated the test as being whether the circumstances ‘would engender reasonable suspicion or apprehension in a fair-minded, informed observer as to whether defence counsel necessarily acted’ with fearless independence.[291] In a slightly different formulation, the Chief Justice asked whether a fair-minded, informed observer would entertain a reasonable suspicion or apprehension that defence counsel ‘may not have’ properly defended his client.[292]
[290]Ibid 215 [1].
[291]Ibid 215 [6].
[292]Ibid. See also ibid 216 [9], where de Jersey CJ referred to a reasonable ‘suspicion or apprehension that justice may not have been done’.
Davies JA accepted the test as being ‘whether a fair-minded person, in the position of either the appellant or a member of the public, might reasonably apprehend that, because of defence counsel’s relationship with the prosecutor or its consequences, the applicant was deprived of a fair trial’.[293] He added:
If that is the appropriate test then such a person could not have such reasonable apprehension unless he or she might entertain a reasonable view that, had the relationship not existed, the trial would have been conducted differently by the appellant’s counsel.[294]
[293]Ibid 217 [15].
[294]Ibid.
Reference should also be made to the decision of the High Court in HCF v The Queen,[295] which was decided after oral argument in the present matters. The parties indicated that they did not wish to make specific submissions in relation to this decision. It again concerned s 668E of the Criminal Code (Qld). The case involved an irregularity in the conduct of the jury in a criminal trial. In that context, the test for establishing whether a miscarriage of justice occurred asks whether the irregularity ‘gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially’.[296] Gageler CJ, Gleeson and Jagot JJ stated that, if an irregularity of this kind gives rise to such a reasonable apprehension, there would then have been a failure to observe the requirements of the criminal process in a fundamental respect and, regardless of any potential effect on the trial, there will have been a miscarriage of justice which is inherently substantial.[297] They elaborated as follows:
Irregular conduct by a jury or juror, whether described as procedural or otherwise, involves a miscarriage of justice if a fair‑minded and informed member of the public might reasonably apprehend that the jury (or juror) might not discharge its function of rendering a verdict according to law, on the evidence, and in accordance with the directions of the judge. If the jury or juror misconduct would give rise to such a reasonable apprehension then, for that reason, the misconduct will involve a ‘failure to observe the requirements of the criminal process in a fundamental respect’. In such a case, satisfaction of the reasonable apprehension test means that the ‘shadow of injustice over the verdict’ cannot be dispelled, that the trial is ‘incurably flawed’, that there has been a ‘serious breach of the presuppositions of the trial’, and that "the irregularity [is] so material that of itself it constitutes a miscarriage of justice without the need to consider its effect on the verdict’.[298]
[295][2023] HCA 35 (‘HCF’).
[296]Ibid [6] (Gageler CJ, Gleeson and Jagot JJ), citing Webb v The Queen (1994) 181 CLR 41, 53 (Mason CJ and McHugh J) and Smith v Western Australia (2014) 250 CLR 473, 486 [54]–[55] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).
[297]HCF [2023] HCA 35 [7], citing Hofer v The Queen (2021) 274 CLR 351, 391 [123] (Gageler J) and Lee v The Queen (2014) 253 CLR 455, 471–2 [47]–[48] (French CJ, Crennan, Kiefel, Bell and Keane JJ).
[298]HCF [2023] HCA 35 [11] (citations omitted).
Although these cases involved the common form appeal provisions and not s 276, and HCF involved misconduct by jurors rather than defence counsel, it is tolerably clear that they support the proposition that a substantial miscarriage of justice will be established if it is shown that, with knowledge of all relevant circumstances, an ordinary fair-minded citizen in the position of the appellant might entertain a reasonable suspicion that justice might have miscarried on account of the misconduct of the appellant’s legal counsel.[299]
[299]Szabo [2001] 2 Qd R 214, 228 [60] (Thomas JA), modified to incorporate the ‘double might’ test for reasonable apprehension of bias confirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ): see HCF [2023] HCA 35 [6] (Gageler CJ, Gleeson and Jagot JJ).
As Davies JA pointed out, an ordinary fair-minded citizen could not have such a reasonable suspicion, or apprehension, unless he or she might entertain a reasonable view that, had the misconduct not occurred, the trial might have been conducted differently.[300]
[300]Szabo [2001] 2 Qd R 214, 215 [15].
The respondent did not suggest that this principle was inapplicable to the present case. None the less, to our minds, it is somewhat anomalous for an appellate court, having had the benefit of extensive findings of fact in relation to the relevant misconduct and its effect on the convictions under appeal, and having found that there is no possibility that the misconduct affected the result of the trial, to then embark on an inquiry as to whether a fair-minded citizen might none the less suspect, in effect, that this conclusion was wrong.
In principle it would seem possible to distinguish the present case from both Szabo and HCF, in which the factual record was significantly less extensive. Moreover, this Court’s conclusion as to what might have happened had the misconduct not occurred would appear to preclude any different reasonable suspicion on the part of the ordinary fair-minded citizen, for the reason given by Davies JA set out above.[301]
[301]See above [348].
Since no issue was taken, however, with the applicability of the Szabo reasoning to the present case, we will turn directly to apply that reasoning.
The ordinary fair-minded citizen must be taken to be familiar with the circumstances of the case. They include all the actions of Ms Gobbo, and the other facts to which we have referred including the fact of the applicant’s independent legal representation at both trials and the fact that Ms Gobbo’s legal assistance, which was not given in the capacity of counsel representing the applicant at trial, did not affect the course taken by senior counsel acting for him.
We accept that the ordinary fair-minded citizen would be rightly appalled by the ethical failures exhibited by Ms Gobbo as revealed in this case, and would recognise that there were questions to be asked as to whether they might have affected the applicant’s trials. But we do not think that the putative citizen, once made aware of the facts as we have outlined them in these reasons, could entertain any lingering suspicion that Ms Gobbo’s conduct might have had any effect on either trial.
On that basis, the Szabo analysis does not lead to any different result from the Baini analysis we have already undertaken.
We reject the argument in ground 1 that either of the trials was an abuse of process.

Ground 2(a) — non-disclosure

As noted earlier, the applicant submits that, whereas ground 1 concerns the overall effect of Ms Gobbo’s misconduct and the alleged abuse of process it created, ground 2 is concerned with the effect on his right to a fair trial. Despite that difference in emphasis, no real distinction was drawn between the two grounds. In the circumstances, we are able to deal with ground 2 comparatively briefly. Indeed, the applicant acknowledges that the concepts of abuse of process and fair trial are difficult to disassociate and that it may be undesirable to attempt to do so.[302]
[302]Jago v District Court (NSW) (1989) 168 CLR 23, 71–2 (Toohey J).
The applicant submits in relation to ground 2(a) that he was entitled to disclosure by Victoria Police, the AFP and/or the respondent of the facts that Ms Gobbo was an informer for Victoria Police, and had informed on clients including the applicant, and that information provided by her led to the applicant’s arrest. He says that, by reason of the failure to disclose these matters, he was denied a fair trial in three ways.
First, he lost the opportunity to seek a stay of the proceedings before the trials commenced. Secondly, he lost the opportunity to seek to have evidence ruled inadmissible under s 138 of the Evidence Act. Thirdly, he lost the opportunity to have a public interest immunity claim heard in respect of Ms Gobbo’s identity and work as an informer.
The applicant submits that it is the loss of these forensic opportunities that made the trials unfair, irrespective of what would have been the outcome of any application at or before trial.
The non-disclosure of the payments to Ms Gobbo which constitute the twenty-second alleged ‘serious departure’ is also relevant at this point.
The respondent accepts that there were a number of non-disclosures which, it is submitted, amounted to errors or irregularities in respect of the Tomato Tins and Inca trials without being fundamental departures from proper trial processes. In particular, the defence ought to have been advised before the Tomato Tins trial that Ms Gobbo was a registered informer and should have been told of her conversation with her handlers on 5 June 2007 about the bill of lading (and been given related documents).
It is submitted, however, that the applicant has not shown that any non-disclosure had the capacity to affect the result of either trial.[303] The respondent submits that the applicant’s case does not rise above speculation and vague allegations.[304]
[303]Edwards (2021) 273 CLR 585, 596 [30] (Kiefel CJ, Keane and Gleeson JJ), 597 [35], 612 [84] (Edelman and Steward JJ) (‘Edwards’).
[304]Ibid 595 [26] (Kiefel CJ, Keane and Gleeson JJ), 609–10 [76] (Edelman and Steward JJ).
We proceed on the basis of the respondent’s concession that there was a breach of the duty of disclosure as identified above. The concession appears to us to cover the matters upon which the applicant relies in this context. We assume, further, that the payments made to Ms Gobbo[305] as outlined in respect of the twenty-second ‘serious departure’ ought also to have been disclosed.
[305]Reference Determination [583]–[584].
We do not, however, accept the applicant’s submission that it is not necessary for him to establish that breaches of the duty of disclosure may have affected the result of the trials. That submission is inconsistent with the High Court’s decision in Edwards v The Queen.[306] In that case, the prosecutor did not provide to the defence a downloaded searchable collection of more than 60,000 files including over 20,000 text messages which had been derived from the accused’s mobile telephone. The issue was whether the verdict at trial was a miscarriage of justice by reason of that non-disclosure.
[306](2021) 273 CLR 585.
Kiefel CJ, Keane and Gleeson JJ held that it had not been shown that the statutory duty of disclosure that applied in the case had been breached. The relevant provision required disclosure of information ‘that would reasonably be regarded as relevant to the prosecution case or the defence case’.[307] But more importantly for present purposes, they went on to say that, even if the provision was contravened, it had not been shown that the fairness of the trial was thereby prejudiced.[308]
[307]Ibid 594–5 [25] (Kiefel CJ, Keane and Gleeson JJ).
[308]Ibid 596 [30].
Similarly, Edelman and Steward JJ held that, while the information ought to have been provided, it had not been established that it was ‘capable’ of providing the defence with any advantage at trial.[309] They held that ‘miscarriage of justice’ required some erroneous occurrence with the capacity for practical injustice, or which is capable of affecting the result of the trial.[310]
[309]Ibid 597 [35].
[310]Ibid 609 [74]–[75].
As we have explained earlier, the requirement to show a ‘substantial miscarriage of justice’ in s 276 imposes a like condition.
In the present case, the applicant has not attempted to meet this requirement. Ground 2(a) must therefore fail.
In any event, the possibility that either trial would have been permanently stayed is purely speculative. If Ms Gobbo had been acting for the applicant at trial, that would plainly have not been permitted to continue. But the prospect of the trial being permanently stayed, rather than adjourned so that the applicant could be properly represented, is much less obvious. The question need not be pursued because Ms Gobbo was not representing the applicant and he was represented by independent senior counsel and instructing solicitors.
Similarly, it has not been shown that any evidence might have been excluded. In the Tomato Tins trial, the bill of lading was not put into evidence.[311] The applicant denies, in any event, that he gave it to Ms Gobbo at all. It is hard to see what evidence could conceivably have been excluded on the basis of her provision of a copy of that document to police in these circumstances.[312] The matter again rises no further than mere speculation.
[311]Reference Determination [499].
[312]Ibid [495]–[496].
As to the suggestion that the applicant lost the opportunity of contesting a public interest immunity claim regarding Ms Gobbo’s identity and activities, it is unclear what this is said to have added. The premise of this part of the case is that those matters ought to have been disclosed, leaving no issue of public interest immunity to contest.
It is also unclear what the fact of the payments is said to add. Ms Gobbo was not a witness whose credit was in issue in the trial. The fact of the payments might have been part of the context in relation to the posited stay application or the attempt to exclude evidence, both of which we have found to be speculative, but it could not have created the possibility of a successful application by itself.

Ground 2(b) — improper influence on defence

In respect of ground 2(b), the applicant submits that Ms Gobbo’s involvement in his trials worked a substantial disadvantage upon him such that he was denied the opportunity to present his case under conditions of equality. He relies, in particular, on the right to a fair hearing in s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’).[313]
[313]Knight v Wise [2014] VSC 67 [36] (T Forrest J).
The applicant relies in this context on a myriad of pieces of work undertaken by Ms Gobbo in relation to the Tomato Tins and Inca trials. Most of them have been canvassed as parts of the alleged ‘serious departures’ considered in ground 1. It is clear that these are the principal matters relied on. In circumstances where we have found that the performance of that work, both individually and collectively, has not been shown to have had the capacity to affect the outcome of either trial adversely to the applicant, no different result is realistic when other subsidiary items of work are also taken into account. The fact remains that Ms Gobbo had a subsidiary and collateral role, in which she pursued a defence which independent counsel appearing at the Tomato Tins trial eschewed, and independent counsel at the Inca trials advanced without any identifiable adverse impact of Ms Gobbo’s involvement.
The parties gave no attention in oral argument to the possible application of the Charter. We do not in any event accept that the Charter imposes an obligation to conduct a fair trial that differs in substance from that which applies in Victorian criminal courts as a matter of course. Reliance on the Charter therefore does not advance the applicant’s case.
Ground 2(b) therefore fails also.

Ground 3 — right to independent counsel

By ground 3, the applicant contends that there was a miscarriage of justice because Ms Gobbo performed legal work for the applicant in relation to his trials while in a position of conflict and having an interest in ensuring his conviction.
For the reasons already canvassed, this ground too must fail. The applicant has not shown that Ms Gobbo’s legal work deprived him of independent legal counsel, or that there is any possibility that the fact that Ms Gobbo performed legal work for him while in a position of conflict could have affected the outcome of the trial adversely to him. We have, moreover, not accepted that there is a proper foundation for finding that she sought to secure his conviction.[314]
[314]See above [234]–[237].

Conclusion

Leave should be granted in the Tomato Tins and Inca applications but should be refused in the Reference Determination application.
The appeals must be dismissed.
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[2023] VSCA 318

14 December 2023