Karam v The King
[2022] VSC 808
•21 December 2022
| IN THE SUPREME COURT OF VICTORIA | REDACTED |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0053
| ROB KARAM | Applicant |
| v | |
| THE KING | Respondent |
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JUDGE: | OSBORN JA | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 22, 23, 24, 28, 29, 30 March, 4, 5 April, 26, 27, 28 September 2022 | ||
DATE OF JUDGMENT: | 21 December 2022 | ||
CASE MAY BE CITED AS: | Karam v The King | ||
MEDIUM NEUTRAL CITATION: | [2022] VSC 808 | 1st revision, 3 March 2023, [134], [139], [396] | |
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CRIMINAL LAW — Applications for leave to appeal — Referral pursuant to s 319A of the Criminal Procedure Act 2009 — Answers to questions with respect to the conduct of a registered police informer and consequential matters.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr T Alexander with Ms J Kretzenbacher and Mr E Dober | Garde Wilson Lawyers |
| For the Respondent | Mr L Crowley KC with Ms R Sharp SC Ms A Martin and Mr T Wood | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
| For the Chief Commissioner of Victoria Police | Ms S Maharaj KC with Mr J Bayly | Victorian Government Solicitor’s Office |
| For the Office of the Special Investigator | Mr G Hevey with Ms A Harrold | Office of the Special Investigator |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The evidence..................................................................................................................................... 12
The oral evidence........................................................................................................................ 14
The affidavit evidence................................................................................................................ 16
The ICRs....................................................................................................................................... 16
Gaps in the evidence................................................................................................................... 19
The course of events........................................................................................................................ 21
Background matters.................................................................................................................... 21
Provision of information about Karam between September 2005 and the commencement of the 2005 MDMA importation charge trial in May 2007............................................................... 23
Information supplied during the 2007 MDMA importation trial — 21 May 2007 to 10 July 2007........................................................................................................................................................ 31
(i)....... The bill of lading.................................................................................................... 32
(ii)...... Telephone numbers............................................................................................... 35
(iii)..... Pacific International Apartments........................................................................ 39
(iv)..... Reports as to Karam’s anticipation of a drug importation.............................. 40
(v)...... General Intelligence............................................................................................... 42
Ms Gobbo’s position and the joint investigation.................................................................... 43
Ms Gobbo’s conduct after the 2007 MDMA importation trial up to Karam’s arrest in 2008 48
Informing after Victoria Police ceased direct involvement in Operation Bootham-Moko and Operation Inca............................................................................................................................. 53
Ms Gobbo’s conduct after Karam’s arrest on 8 August 2008............................................... 57
Pre-committal advice.................................................................................................................. 62
The draft police statement......................................................................................................... 70
XXX XXX..................................................................................... Error! Bookmark not defined.
Pretrial advice.............................................................................................................................. 84
Advice during the Tomato Tins trial...................................................................................... 102
Preparation for the first Inca trial........................................................................................... 109
Karam’s credit................................................................................................................................. 121
Question A: When and about what did Nicola Gobbo inform on the applicant to Victoria Police or assist Victoria Police in respect of the applicant?......................................................... 137
Question B: Who was provided with the information about the applicant that Ms Gobbo provided to Victoria Police? What use (if any) was made of such information by Victoria Police, Customs, the Australian Crime Commission, the AFP or the respondent?................................... 139
Question C: Was there a strategy by Ms Gobbo and Victoria Police to conceal Ms Gobbo’s role as a police informer?.................................................................................................................... 147
Question D: Was there a lawyer/client relationship in existence between the applicant and Ms Gobbo? What legal work did Ms Gobbo perform for the applicant and when? What was the nature of the applicant’s relationship with Ms Gobbo between 1 June 2007 and 23 June 2015?...................................................................................................................................................... 149
Question E: Was Ms Gobbo in conflict in her role as the applicant’s current or former lawyer and a current or former registered police informer?................................................................. 161
Question F: What was Ms Gobbo’s involvement in the applicant’s trials? What was Ms Gobbo’s involvement in the conduct of the applicant’s defences in the Inca and Tomato Tins trials (if any)? Did Ms Gobbo’s conduct deprive the applicant of independent representation at the Inca or Tomato Tins trials or materially affect the course of the Inca and Tomato Tins trials? 167
Question G: Did the AFP, Victoria Police and/or the respondent know (and if so, when) that Ms Gobbo:........................................................................................................................................ 177
(i).... was a registered policer informer?............................................................................... 177
(ii)... had informed on Paul Dale?......................................................................................... 177
(iii).. had informed on her clients other than Paul Dale?................................................. 177
(iv).. had informed on the applicant and/or provided information about or relating to the applicant?.......................................................................................................................... 177
Question H: Did Ms Gobbo influence the applicant regarding the record of interview / witness statement / XXXXX XXXXX XXXXX XXXXX XXXXX X?.......................................................... 190
Question I: Was the applicant compelled to give evidence at the XXX in relation to matters that were relevant to his trials?...................................................................................................... 191
Question J: Did the applicant’s participation in the Victoria Police investigation Operation Kennels by way of a record of interview XXXXX XXXXX XXXXX XXXX and/or the provision of a draft witness statement, relate to the subject matter of either the Inca or Tomato Tins charges?...................................................................................................................................................... 192
Question K: Was there any dissemination of the applicant’s Operation Kennels record of interview, XXXXX XXXXX XXXXX XXX , or draft witness statement to the Australian Federal Police or the Commonwealth Director of Public Prosecutions?..................................... 193
Question L: Did Ms Gobbo profit to any and what extent from disclosing information about the applicant to Victoria Police?.................................................................................................. 196
HIS HONOUR:
Introduction
This proceeding arises out of a referral pursuant to s 319A of the Criminal Procedure Act 2009 by the Court of Appeal to a single judge of the Trial Division of factual issues arising with respect to two applications for leave to appeal made by the applicant, Rob Karam.
The first is an application for leave to appeal under s 326A of the Criminal Procedure Act against Karam’s conviction for conspiracy with Pasquale Barbaro and others to possess a commercial quantity of a controlled drug (MDMA) between 13 June 2007 and 3 October 2007, in what has been called the ‘Tomato Tins’0F[1] trial.
[1]The name derives from the fact that the drugs were concealed within tins labelled as containing tomatoes and shipped as such within a shipping container from Naples to Melbourne.
The second is an application for leave to appeal under s 274 of the Criminal Procedure Act in respect of the following convictions arising out of what have been called the ‘Inca’1F[2] proceedings:
[2]The name derives from the relevant investigative operation of Australian Federal Police (‘AFP’).
(a) trafficking in a commercial quantity of a controlled drug (MDMA) between 5 February 2008 and 7 August 2008 (‘the MDMA trafficking charge’);
(b) conspiracy with Pasquale Barbaro and others to possess a commercial quantity of an unlawfully imported border-controlled drug (cocaine) between 26 June 2008 and 8 August 2008 (‘the Colombia cocaine charge’); and
(c) conspiracy with Pasquale Barbaro and others to import a border-controlled precursor chemical in a commercial quantity (pseudoephedrine) between 16 March 2008 and 7 August 2008 (‘the India precursor charge’).
On 30 April 2013, the applicant was sentenced to 19 years’ imprisonment with a non-parole period of 15 years in respect of the Tomato Tins offending.2F[3]
[3]DPP (Cth) v Karam & Ors [2013] VSC 133R A (King J).
On 23 June 2015, the applicant was sentenced to 27 years’ imprisonment for the Inca offending (together with what was called the Hong Kong MDMA trafficking charge)3F[4] with 18 years to be served cumulatively upon the Tomato Tins sentence.4F[5] The global total effective sentence for the Tomato Tins, Hong Kong MDMA trafficking and Inca sentences was 37 years. A single non-parole period of 22 years was fixed.
[4]See [18]–[20] below.
[5]DPP v Karam [2015] VCC 855 (Judge Montgomery).
The applications for leave to appeal are founded on allegations with respect to the conduct of Nicola Gobbo acting as the applicant’s legal representative or advisor in respect of matters affecting the course of the proceedings which are the subject of challenge.
Between 16 September 2005 and 13 January 2009, Ms Gobbo was a registered informer with Victoria Police and provided information to them with respect to Karam.5F[6]
[6]Respondent’s Facts Not in Dispute dated 28 June 2021, Court book (‘CB’) Vol 4, Tab 8, p 479 [17].
Subsequently, Ms Gobbo was managed by Victoria Police as a proposed witness in the prosecution of Paul Dale for the murder of two police informers and related proceedings. In that capacity, she also communicated with police.
Karam contends that in consequence of her activities as an informer Ms Gobbo could neither act properly for, nor advise, him with respect to matters relating to the convictions in issue.
In his applications for leave to appeal, Karam makes four essential complaints:
(1) His trials constituted abuses of process.
(2) His trials were unfair because the Crown did not disclose Ms Gobbo’s status as an informer in the investigation and prosecution of Karam and/or because she improperly influenced Karam’s defences.
(3) He was denied the right to independent counsel.
(4) There was a substantial miscarriage of justice because Karam was denied his right to silence as a result of particular conduct by Ms Gobbo.6F[7]
[7]Karam v The Queen [2022] VSCA 23, [1] (Beach and Kennedy JJA).
The written cases and the documentary evidence filed by the parties in the applications for leave to appeal raise a complex matrix of disputed facts with respect to an extended series of events. Although much is common ground, much is not and the relative significance of particular circumstances is hotly contested. Moreover, none of the facts relating to Ms Gobbo’s conduct were agitated at trial let alone determined.
On 2 March 2022, the Court of Appeal referred a series of factual issues to a single judge of the Trial Division of this Court for determination pursuant to s 319A of the Criminal Procedure Act.7F[8]
[8]Ibid.
This is the first such referral made pursuant to s 319A.
On 16 August 2022, the issues were amended in order to clarify their ambit.8F[9]
[9]Karam v The Queen [No 2] [2022] VSCA 163 (Beach and Kennedy JJA).
The issues as amended are as follows:
(a) When and about what did Nicola Gobbo inform on the applicant to Victoria Police or assist Victoria Police in respect of the applicant?
(b) Who was provided with the information about the applicant that Ms Gobbo provided to Victoria Police? What use (if any) was made of such information by Victoria Police, Australian Customs Service (‘Customs’), the Australian Crime Commission (‘ACC’), the AFP or the respondent?
(c) Was there a strategy by Ms Gobbo and Victoria Police to conceal Ms Gobbo’s role as a police informer?
(d) Was there a lawyer/client relationship in existence between the applicant and Ms Gobbo? What legal work did Ms Gobbo perform for the applicant and when? What was the nature of the applicant’s relationship with Ms Gobbo between 1 June 2007 and 23 June 2015?
(e) Was Ms Gobbo in conflict in her role as the applicant’s current or former lawyer and a current or former registered police informer?
(f) What was Ms Gobbo’s involvement in the applicant’s trials? What was Ms Gobbo’s involvement in the conduct of the applicant’s defences in the Inca and Tomato Tins trials (if any)? Did Ms Gobbo’s conduct deprive the applicant of independent representation at the Inca or Tomato Tins trials or materially affect the course of the Inca and Tomato Tins trials?
(g) Did the AFP, Victoria Police and/or the respondent know (and if so, when) that Ms Gobbo:
(i) was a registered police informer?
(ii) had informed on Paul Dale?
(iii) had informed on her clients other than Paul Dale?
(iv) had informed on the applicant and/or provided information about or relating to the applicant?
(h) Did Ms Gobbo influence the applicant regarding the record of interview/witness statement/XXXXX X XX XXX XXXXX XXXXX XXX XXX XXXXX XXXX XXX XXXXX XXXXX XXXXX ?
(i) Was the applicant compelled to give evidence at XXX XXX in relation to matters that were relevant to his trials?
(j) Did the applicant’s participation in the Victoria Police investigation Operation Kennels by way of a record of interview XXXXX XXXXX XXXXX XXXXX XX and/or the provision of a draft witness statement, relate to the subject matter of either the Inca or Tomato Tins charges?
(k) Was there any dissemination of the applicant’s Operation Kennels record of interview, XXXXX XXXXX XXXXX X, or draft witness statement to the AFP or the respondent?
(l) Did Ms Gobbo profit to any and what extent from disclosing information about the applicant to Victoria Police?
Karam accepts that for the purpose of answering these questions he bears the burden of establishing the facts on the balance of probabilities. Conversely, the respondent has accepted he bears the burden of proving any fact that he positively contends ought to be found. The gravity of the allegation in issue logically affects the application of the burden.9F[10]
[10]Evidence Act 2008 s 140(2) applies by analogy; Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2.
In order to understand the context in which the evidence as to Ms Gobbo’s dealings with Karam falls to be considered, it is useful to set out the chronology of the relevant trial proceedings.
This history is somewhat complex. In addition to the charges leading to the convictions which are the subject of the applications for leave to appeal, on 13 August 2008 Karam was also charged with conspiracy with Fadl Maroun to import a commercial quantity of a border-controlled precursor between 14 May 2008 and 7 August 2008 (‘the Hong Kong precursor charge’). That charge was ultimately discontinued on 19 January 2015.
Further, a component of the MDMA trafficking charge (which ultimately resulted in the first of the Inca convictions) as filed extended to conduct of Karam in Hong Kong. This conduct was later the subject of a separate charge on an indictment alleging Karam did aid, abet, counsel or procure Maroun in the commission of an offence of trafficking in a controlled drug, namely a commercial quantity of MDMA on 10 May 2008 (‘the Hong Kong MDMA trafficking charge’).10F[11]
[11]Maroun took delivery of a quantity of ecstasy tablets from an undercover agent.
Karam pleaded guilty to the Hong Kong MDMA trafficking charge on 1 May 2014 and this conviction is not the subject of an application for leave to appeal.
The history of Karam’s trials is summarised by the respondent as follows:11F[12]
[12]Response to Applicant’s Revised Written Cases, 28 June 2021, CB Vol 1, Tab 2.1, pp 157–64 [25]–[76] (emphasis in original) (citations in original).
The Tomato Tins Conviction
The Proceedings in the Supreme Court
25.The applicant was ultimately indicted on a charge of conspiracy to possess the imported MDMA, rather than the original charge of conspiracy to import the MDMA.12F[13]
[13]Kirne affidavit #1 (A319) [19].
26.On 27 February 2012, the applicant stood trial before Justice King together with co-accused John Higgs, Salvatore Agresta, and Pasquale (Tony) Sergi.
27.At trial, the applicant was represented by Mr Christopher Dane QC, instructed by Marich Legal.13F[14]
[14]Kirne affidavit #1 (A319) [20].
The Crown case at trial
The Shipment, its Arrival and Interception14F[15]
[15]See Tomato Tins sentence [7]-[27] and Appeal Reasons [7]-[29] for a more detailed summary. See, also, CDPP v Karam, Higgs, Agresta & Sergi [2013] VSC 133 (sentencing remarks in relation to the applicant’s co-accused).
28.The MDMA was imported into Melbourne concealed in a shipment of tinned tomatoes, aboard the ‘MV Monica’. The ship was loaded in Naples, Italy in late May 2007 and arrived in Melbourne on 28 June 2007.15F[16]
[16]Appeal Reasons [7], [9].
29.On the container’s arrival in Melbourne, the Australian Customs Service (Customs) selected it for examination. On examination, Customs noticed anomalies and the AFP conducted a further examination of the container. A number of tins were opened and found to contain rocks and tablets.16F[17]
[17]Appeal Reasons [12]–[13].
30.The AFP and Customs seized 15,193,798 tablets. The tablets weighed more than 4.4 tonnes. The tablets contained 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.17F[18]
[18]Tomato Tins sentence [12]–[13].
The Alleged Conspiracy
31.The consignment was addressed to Transglobal Food Brokers Pty Ltd (Transglobal). Transglobal was not involved in the conspiracy. The contact details for Transglobal were false and the bill of lading specified that F. J. Tytherleigh Logistics Australia, a freight forwarding company, was the party to be notified upon the ship’s arrival.
32.The Crown alleged the conspirators planned to intercept and take possession of the shipment prior to it arriving at Transglobal, and without Transglobal ever becoming aware of the container’s existence. The container and its contents were 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 Case against the Applicant
33.The applicant had previously worked in customs clearance and freight forwarding. The Crown described his role as being akin to that of a ‘consultant’. 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.18F[19]
[19]Appeal Reasons [19].
34.The case was circumstantial: there was no direct evidence linking the applicant to the container.19F[20] 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.20F[21]
[20]Tomato Tins trial transcript (King J’s Charge), 3 May 2012, 2707:18–31.
[21]See Tomato Tins sentence [13], [31] and Appeal Reasons [15]–[17], [23]–[28] for more detail of these discussions and meetings.
The Defence
35. The applicant did not give evidence.
36.The applicant’s defence was summarised by her Honour Justice King as follows:21F[22]
[22]Tomato Tins sentence [28].
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.
The Verdict
37.On 24 May 2012, after 54 sitting days, all four accused were found guilty.22F[23]
[23]Tomato Tins sentence [1].
The Plea and Sentence
38.The applicant’s plea proceeded on 1 June 2012 with a further plea on 14 December 2012. He was sentenced on 30 April 2013.23F[24]
[24]Tomato Tins sentence [3], [5].
39.The applicant was represented at the plea, further plea and sentence by Mr David Brustman QC, instructed by Dr Martine Marich & Associates solicitors.24F[25]
[25]Tomato Tins sentence.
Other Tomato Tins co-conspirators
40.Mr Barbaro and Mr Zirilli pleaded guilty to conspiring to traffick a commercial quantity of a controlled drug and were sentenced on 23 February 2012.25F[26]
[26]DPP v Barbaro & Zirilli [2012] VSC 47.
41.Mr Visser and Mr 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 2014.26F[27]
[27]R v Falanga & Visser [2014] VSC 306, Visser v Director of Public Prosecutions (Cth) [2020] VSCA 32, [7].
The Inca Convictions27F[28]
[28]See Inca sentence [5]-[18] for a more detailed summary.
The First Inca Trial
42.On 15 October 2012, the applicant stood trial before Judge Montgomery in relation to the Colombian cocaine charge and the Indian precursor charge.28F[29]
[29]Kirne affidavit #1 (A319) [27].
43.At trial, the applicant was represented by Mr Brustman QC, instructed by Dr Martine Marich & Associates solicitors.29F[30]
[30]Kirne affidavit #1 (A319) [46]–[47] and Exhibit SPK-2 (A320).
The Crown Case: the Colombian Cocaine importation
44.On 24 July 2008, a shipping container of Colombian coffee beans was unloaded at the Port of Melbourne and contained an undeclared load of 151 x 1 kg boxes of cocaine (99.9 kg of pure cocaine).30F[31] Mr Barbaro was to be the recipient of the cocaine.
[31]Commercial quantity at the time was 2kg of pure cocaine.
45. The Crown case was that the applicant:31F[32]
[32]Inca sentence [9]–[13].
45.1.provided an identity to be associated with a declared consignment;
45.2.provided fake information so as to facilitate early identification of the arriving container;
45.3.provided updated information regarding whether the container would be able to be safely accessed offsite; and
45.4.liaised with a third party so as to achieve that safe access to the contraband, its removal and its ultimate delivery to interested parties.
46.The applicant was said to be the key person to provide the confirmation as to what was going to happen in the days after the arrival of the container. Crucially, he reported to Mr Barbaro that there were problems with the container, in that it was being watched by authorities, and that it was too dangerous to proceed with any attempt to access the container.32F[33]
[33]Inca sentence [14].
47.When later sentencing the applicant, Judge Montgomery described the applicant’s role as pivotal and important in particular in relation to obtaining the cocaine from the docks.33F[34]
[34]Inca sentence [48].
The Crown Case: the Indian Precursor Importation
48.Between 14 May 2008 and 7 August 2008, the applicant and others planned to import 100 kg of pseudoephedrine,34F[35] which was to be concealed within a shipping container sent from India.35F[36]
[35]Commercial quantity at the time was 1.2kg of pure pseudoephedrine.
[36]Inca sentence [16].
49.The container carried a declared load of bedroom furniture, ostensibly imported by Phil Bee Interiors, a regular local importer of such cargo from India.36F[37]
[37]Inca sentence [16].
50.The prosecution case was that the applicant provided the name of Phil Bee Interiors to be used as the consignee, and that in response to a request from India that the Phil Bee letterhead be used in correspondence, he provided a document to co-conspirator Mr Scarponi which purported to verify Phil Bee as being the Australian importer and provider of the funds.37F[38]
[38]Inca sentence [17].
51.The applicant also provided strategic advice to his co-conspirators as to shipping documentation and which port the container should be offloaded.38F[39]
[39]Inca sentence [18].
52.The container was ultimately found to contain just under 400 grams of pseudoephedrine. The Crown case was that the supplier intended to scam the purchasers by only providing a small amount of the precursor.
The Defence
53. The applicant gave evidence.
54.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 it in order to cope with the threat to Fedele D’Amico.39F[40]
[40]First Inca trial transcript (Montgomery J’s Charge), 10 December 2012, 2454:10–15.
55.He was asked, ‘Did you have any intention to go along with these two conspiracies or either of them?’ He answered, ‘No’. He was also asked, ‘Did you have any intention that either of these conspiracies would succeed?’ and he answered, ‘No’. He said he had fears for his friend, Mr D’Amico throughout.40F[41]
[41]First Inca trial transcript (Montgomery J’s Charge), 10 December 2012, 2461:14–18.
The Verdict
56.On 19 December 2012, the jury was discharged after it was unable to reach a unanimous verdict on either count.41F[42]
[42]Kirne affidavit #1 (A319) [28].
The Second Inca Trial
57.On 14 March 2014, his Honour Judge Montgomery granted an application by the prosecution to file over a new indictment which alleged all three Inca charges namely, the MDMA trafficking charge, the Colombian cocaine charge, and the Indian precursor charge. The applicant was represented by Dr Gideon Boas, instructed by Marich Legal.42F[43]
[43]Ruling of his Honour Judge Montgomery, dated 14 March 2014; Kirne affidavit #1 (A319) [46].
58.As set out … above, on 1 May 2014, the applicant pleaded guilty to the Hong Kong MDMA trafficking charge.43F[44]
[44]Kirne affidavit #1 (A319) [42].
59.On 2 May 2014, there was further pre-trial argument. The applicant was represented by Mr George Georgiou QC, instructed by Marich Legal.44F[45]
[45]Kirne affidavit #1 (A319) [41].
60.On 25 and 27 August 2014, there was further pre-trial argument. The applicant was represented by Mr Nick Papas QC, instructed by Marich Legal.45F[46]
[46]Second Inca trial transcript, 25 and 27 August 2014.
61.On 28 August 2014, the applicant stood trial before Judge Montgomery in relation to the MDMA trafficking charge, the Colombian cocaine charge and the Indian precursor charge.
62.At trial, the applicant was represented by Mr Papas QC, instructed by Marich Legal, at the trial.
The Crown Case
63.The Crown ran the same case in relation to the Colombian cocaine charge and the Indian precursor charge.
64.In relation to the 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[47]
[47]Inca sentence [6].
65.The applicant’s trafficking involved the possession, preparation, transportation, and sale of ecstasy tablets. The applicant was supplied with at least 335,000 tablets by Mr Barbaro, while the total number of tablets trafficked by the applicant was at least 336,906.47F[48]
[48]Inca sentence [7]. Commercial quantity at the time was 500g of pure MDMA.
The Defence
66. The applicant again gave evidence.
67.In relation to the MDMA trafficking charge, he admitted to making all the calls and arrangements and knowing they were about drugs, but he did not believe it was trafficking and, if the jury found it was trafficking then the defence of duress was relied upon.48F[49]
[49]Second Inca trial transcript (defence closing address), 6 November 2014, 3907:1–6.
68.The duress defence was based on threats that Mr Barbaro made against Mr D’Amico and the applicant. The threats were that unless the applicant continued to assist Mr Barbaro, Mr D’Amico would be killed. The threats commenced against Mr D’Amico on 27 June 2007, the first night the applicant met Mr Barbaro at Curly Joe’s, and were said to have continued throughout the period of offending.49F[50]
[50]Second Inca trial transcript (defence closing address), 6 November 2014, 3904:6–21; 3909:19–23.
69.The applicant 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 did not actually participate in the conspiracies: he was only giving the appearance of being a conspirator because of the risk to himself and Mr D’Amico from Mr Barbaro.50F[51]
[51]Second Inca trial transcript, 25 August 2014, 5:15, 117:19-27. Second Inca trial transcript (defence closing address), 6 November 2014, 3909:1–9, 19–23.
70.His defence was summarised by Judge Montgomery as being a ’strategic ”confess and avoid” defence.’51F[52]
[52]Inca sentence [52].
The Verdict
71.On 14 November 2014, the jury returned verdicts of guilty in relation to the 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 and Sentence
72.The plea in relation to the Inca convictions and the Hong Kong MDMA trafficking conviction proceeded on 19 January 2015.
73.The applicant was represented by Mr Papas QC, instructed by Marich Legal.52F[53]
74.Further plea hearings were held on 29 April 2015, 5 May 2015, and 15 May 2015.
75.Dr Michael Fitzgerald of Marich Legal appeared for the applicant on those occasions.53F[54]
76.The applicant was sentenced on 23 June 2015. Dr Fitzgerald of March Legal again appeared for the applicant.
[53]Second Inca trial transcript (plea hearing), 19 January 2015.
[54]Second Inca trial transcript (further plea hearing), 5 May 2015.
The applicant does not take issue with this summary.54F[55]
[55]Applicant’s Reply (Inca Trials and Tomato Tins Trial), 30 August 2021, CB Vol 1, pp 116–17 [1].
The evidence
There is a substantial body of facts which is not in dispute.
More particularly, the respondent has filed a detailed document entitled Facts Not In Dispute (with annexures) and an addendum to that document.
In addition, matters asserted by the respondent have been accepted by Karam in the process of exchange of the parties’ written cases.
The parties’ submissions with respect to the referred questions following the taking of oral evidence have also demonstrated some further agreement as to factual matters.
The respondent has filed a separate suggested answer to question (a) which comprises Annexure A to its final written submissions entitled Respondent’s Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022. The answer includes admissions in regard to this foundational aspect of the case.
Further, the applicant filed a document entitled Narrative Background to Reference Determination Questions dated 17 May 2022 and an amended version of that document dated 25 September 2022 (‘Narrative Background’). The respondent has filed a Response to Narrative Background comprising Annexure B to its confidential submissions of 24 June 2022 (‘Response to Narrative Background’) and Annexure C — Further Response to Narrative Background dated 30 September 2022 (‘Further Response to Narrative Background’). The Response to Narrative Background and Further Response to Narrative Background tabulate entries in the Narrative Background that are not in dispute; entries that are not disputed subject to minor correction or clarification; entries that are disputed; and entries that are submitted to be irrelevant because they are not referred to in the applicant’s written submissions.
Read as a whole, the documents demonstrate agreement as to a substantial volume of facts.55F[56]
[56]The most significant issues identified in the Response to Narrative Background as being in dispute are as follows:
·The extent of fees paid by Karam to Gobbo — [12], [51], [283].
·The nature of meetings and communications between Jason Kelly and the AFP on and between 18 and 22 June 2008 — [140], [150], [153], [154].
·The characterisation of questions relating to drug related matters asked of Karam during his record of interview conducted as part of the Operation Kennels investigation into alleged conspiracies to murder — [228], [233].
·The nature of a conversation between Federal Agent Herman and Gobbo on 18 August 2009 — [243].
·The nature and extent of text messages between Gobbo and Karam concerning legal proceedings — [279], [281].
·Whether Gobbo advised Karam before, during and after the committal — [287].
·Whether Gobbo advised Karam at the time of XXXXX XXXXX XXXXX — [305], [306].
·The extent of Breckweg’s communications with Argitis about Gobbo’s status as an informer — [334].
·Other details of Breckweg’s evidence — [379], [395].
·The extent of Gobbo’s involvement with Christopher Dane — [429].
·The extent of Gobbo’s role as an advisor in the Tomato Tins case — [442], [443].
The Further Response to Narrative Background clarifies a series of further details of the evidence and takes hearsay objections to the production of some documentation. These objections must be upheld but the documents are not necessary to my determination.
The primary evidence relied on by the parties is of four principal kinds:
·The oral evidence of a series of witnesses including affidavit evidence adopted in oral evidence. Oral evidence was called from:
oRob Karam;
oSarah Jane Brener;
oKrista Maria Breckweg;
oJudge Martine Marich;
oNicholas Papas KC;
oPaul Andrew Erdmann;
oCorey Gordon Wiggett;
oShane Patrick Kirne;
oVicki Argitis;
oDavid Paul Herman; and
oJason Kelly.
·The affidavit of Christopher Dane QC (deceased) who was trial counsel for Karam on the Tomato Tins trial.
·Documentary records of police relating to Ms Gobbo’s activities comprising records made by Ms Gobbo’s handlers in diaries and Informer Contact Reports (‘ICRs’). The handlers also made audio recordings of some meetings with Ms Gobbo which have been transcribed. Further records relate to the conduct of investigations in the course of Operation Kennels (an investigation into alleged conspiracies to murder) and records made by the Petra Taskforce when dealing with Ms Gobbo as a prospective witness in respect of murder and other charges brought against Paul Dale.
·Documentary records of dealings by the respondent’s office with Ms Gobbo in the context of the prosecution of Paul Dale for murder.
The oral evidence
Karam gave evidence as to the sequence of his dealings with Ms Gobbo. Amongst other things he stated that:
·his relationship with Ms Gobbo was at all relevant times primarily that of client and lawyer;
·he had placed his trust in her and relied on her for legal advice before, during and after the Tomato Tins trial;
·she was the source of the ‘pretext conspiracy defence’ case concept. This concept was that he only went along with Pasquale Barbaro to the extent that he did because of fear that others and in particular Fedele D’Amico would be killed if he did not appear to be going along with conspiracies to import and obtain illicit drugs; and
·Ms Gobbo further advised him prior to the completion of the Inca trials.
Judge Marich gave evidence of taking over as solicitor for Karam in respect of the Tomato Tins and Inca prosecutions in October 2011. She described contact with Ms Gobbo during preparation for the Tomato Tins trial, preparation for that trial more generally, her recollection of the trial, and the conduct of further proceedings for Karam by her office.
Mr Papas gave evidence as to his recollection of preparation for the Tomato Tins trial in which he acted for Higgs. This included a joint conference with representatives of Karam. He also gave evidence of the defence of the second Inca trial in which he appeared for Karam.
Victoria Police Superintendent Kelly56F[57] gave evidence of his dealings with Karam and Ms Gobbo in the context of Operation Kennels.57F[58]
[57]During the period in issue, Supt Kelly held the following positions: Detective Senior Constable (1998–2004), Sergeant (2004), Detective Sergeant (2004–2005), Supervisor (Sergeant) (2006–2009), Detective Senior Sergeant (2009–2013), Detective Inspector (2013–2019), and Superintendent (2019–). For simplicity, I will refer to him as Jason Kelly.
[58]See [169]–[170] below.
Federal Agent Detective Senior Constable Brener gave evidence as to searches of AFP records.
Federal Agent Senior Constable Herman, the informant in the Tomato Tins and Inca proceedings, gave evidence of dealings with Victoria Police and his limited knowledge of relevant matters relating to Ms Gobbo.
Federal Agents Detective Sergeant Erdmann and Detective Sergeant Wiggett gave evidence of dealings with Victoria Police with respect to Operation Bootham-Moko.58F[59] Detective Sergeant Wiggett was the team leader for Operation Inca until late 2011. Detective Sergeant Erdmann had a supervisory role as Detective Acting Superintendent between June 2010 and February 2011.
[59]See [139] below.
Mr Kirne, Ms Argitis and Ms Breckweg were solicitors in the office of the respondent at the time of the Tomato Tins and Inca trials. They gave evidence as to the history of the proceedings concerning Karam and their limited awareness of Ms Gobbo’s status as an informer prior to the completion of the Tomato Tin and Inca trials.
The affidavit evidence
Mr Dane’s evidence addresses Ms Gobbo’s involvement in the defence of the Tomato Tins trial.
Additional affidavit evidence was adduced from Karam’s solicitor, Ms Garde-Wilson, as to documents obtained by her and Ms Andrea Pavleka, another solicitor of the respondent, as to searches of the respondent’s records.
The ICRs
The ICRs are tendered by the applicant to demonstrate the fact and content of informing by Ms Gobbo. They further contain statements by her as to actions taken in the course of her relationship with Karam.
No objection has been taken to the failure to call the makers of the ICRs or the makers of audio recordings of discussions between Ms Gobbo and her handlers. Both parties have treated the ICRs as the basis for detailed submissions as to the course and nature of Ms Gobbo’s informing. Nonetheless, there is a material limitation upon the extent to which they can be treated as evidence of the underlying truth of their contents.
Sections 59(1) and (2) of the Evidence Act 2008 provide:
59The hearsay rule—exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
Section 60(1) and (2) of the Evidence Act provides an exception to the hearsay rule contained in s 59 of that Act.
60 Exception—evidence relevant for a non-hearsay purpose
(1)The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact.
(2)This section applies whether or not the person who made the representation had personal knowledge of the asserted fact (within the meaning of section 62(2)).
‘Representation’ is defined to include:
(a)an express or implied representation (whether oral or in writing); or
(b)a representation to be inferred from conduct; or
(c)a representation not intended by its maker to be communicated to or seen by another person; or
(d)a representation that for any reason is not communicated;59F[60]
[60]Evidence Act, Dictionary, pt 1 — Definitions.
In the present case, these provisions have the effect that once a handler’s record of a report given by Ms Gobbo is tendered on behalf of Karam for the non-hearsay purpose of proving that the report was given, then it may also be used to prove the truth of its contents, subject to further provisions of the Evidence Act.
Critically, however, s 60(3) goes on to provide:
However, this section does not apply in a criminal proceeding to evidence of an admission.
In turn, ‘admission’ is defined broadly to mean a previous representation that is —
(a)made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person’s interest in the outcome of the proceeding.60F[61]
[61]Ibid.
As Ms Gobbo is not a party to the present proceeding, evidence of a previous representation made by her, however adverse to her interest, cannot constitute an admission for the purposes of s 60(3).61F[62] But the position is different in respect of Karam. Evidence of a previous representation made by Karam will constitute an admission if it is adverse to his interest in this proceeding. Section 60(3) will then prevent evidence of that admission being used to prove its truth.
[62]See Power v The Queen (2014) 43 VR 261, 279 [66] (Redlich JA and Robson AJA).
In summary, these provisions have the effect that where an ICR records Ms Gobbo as reporting to her handler that Karam told her something adverse to his interest:
(a) section 60 permits the use of the ICR for the non-hearsay purpose of proving what Ms Gobbo reported to her handler;
(b) section 60(1) then permits the use of the ICR for the hearsay purpose of proving that Karam told Ms Gobbo the thing she reported to her handler; but
(c) section 60(3) prevents the use of the ICR for the further purpose of proving that the thing Karam told Ms Gobbo was true.
In practical terms, this means that the ICRs may be used to prove what Ms Gobbo reported doing or observing, including her reports of actions by Karam (eg his attendance at a dinner or other meeting at which she was present). On the other hand, it means that her reports of statements made by Karam (which are adverse to his interest) may not be used to prove the truth of those statements. Critically, this includes her reports of statements allegedly made by Karam in connection with the Tomato Tins and Inca offending.
However, this position is further complicated by the fact that, in his evidence in this proceeding, Karam made a series of statements that expressly or impliedly conceded that some of the ICRs were at least partially correct.62F[63] At the same time, Karam also disputed the accuracy of the ICRs as a record of statements made by him on a variety of bases including alleged fabrication, partial falsity of content and his own inability to recollect the matter they record.
[63]Kaddour v The Queen [2019] NSWCCA 90, [88]–[90] (Bathurst CJ, Harrison and Davies JJ).
Lastly, I should record that insofar as the ICRs purport to record involvement in or admissions of criminal conduct on the part of Karam, there are some obvious preliminary difficulties with the weight which might be extended to them in any event. First, they are summaries of reports. Second, most of the conversations in issue took place in a social context and there is a real risk that Ms Gobbo’s account of those conversations is complicated by elements of fabrication or exaggeration. Karam may have fabricated or exaggerated matters when speaking to Ms Gobbo socially and Ms Gobbo may have fabricated or exaggerated matters when speaking to her handlers. A simple example is the alleged statement by Karam that he possessed or had access to ‘thousands of kilograms’ of MDMA powder.63F[64] As he pointed out in answer to cross-examination, possession by him of more than a tonne of MDMA is improbable.64F[65] Ms Gobbo’s absence as a witness amplifies these problems. Quite apart from questions of admissibility, these factors complicate the reading of the ICRs.
[64]See [75] below.
[65]T92–3.
Gaps in the evidence
No evidence was called from the following persons:
·Ms Nicola Gobbo;
·Mr Jim Valos, who acted as Karam’s solicitor from the time he was relevantly charged up until after the joint committal when Dr Marich (as she then was) replaced Mr Valos as Karam’s solicitor;
·the makers of the ICRs and of recordings of discussions between Ms Gobbo and her handlers;
·the makers of Petra Taskforce records relating to the prosecution of Paul Dale;
·Victoria Police officers Detective Senior Constable Baulch and Detective Senior Constable Locke, who conducted the record of interview undertaken as part of Operation Kennels;
·Mr Shirreffs QC (now deceased) and his junior, Ms Ristivojevic, who appeared for Karam on the joint committal with respect to the Tomato Tins and Inca proceedings;
·Mr Dane QC (now deceased), who acted as trial counsel on the Tomato Tins trial save for a short affidavit sworn by him and filed in the matter;
·Mr Brustman KC, who acted as trial counsel for Karam on the first Inca trial;
·his Honour Judge Georgiou, who appeared for Karam on pretrial argument before the second Inca trial;
·Dr Fitzgerald of Dr Martine Marich & Associates, who acted as solicitor on the first Inca trial and solicitor and counsel second Inca trial and appeared on plea proceedings for Karam.
The parties accept that no inferences of a Jones v Dunkel65F[66] kind can be drawn from the failure to call particular witnesses. The provisions of the Jury Directions Act 2015 apply to the proceeding by reason of s 4A(1)(b) and s 42(c) prohibits the drawing of an inference that Karam did not call a witness because that witness would not have assisted his case.66F[67] Section 43 might also be potentially relevant to the respondent’s failure to call witnesses and, in particular, the respondent’s failure to call Ms Gobbo.67F[68] In the present case, however, in circumstances where Karam bears the onus on the balance of probabilities, Karam has not sought that any inferences should be drawn against the respondent as a consequence of the failure to call any witnesses.68F[69]
[66](1959) 101 CLR 298.
[67]Section 42(c) provides:
The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may—
…
(c)draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.
[68]Section 43 provides:
(1)If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution—
(a) was reasonably expected to call or question the witness; and
(b) has not satisfactorily explained why it did not call or question the witness.
(3)In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case.
[69]In the course of final address, the respondent indicated that if any such inference were sought by Karam he would seek leave to adduce evidence explaining why he had not called Gobbo: T105–6, 26 September 2022.
The full record of proceedings which are the subject of the applications for leave to appeal was not tendered or relied on by the parties including:
·the full prosecution brief served with respect to the Tomato Tins and Inca proceedings;
·the depositions demonstrating the course taken by the defence at the joint committal (although a short passage of cross-examination from the committal is referred to in Karam’s final submissions);
·the trial transcripts (save for limited passages including passages relating to admissions made by the defence at the Tomato Tins trial and to the attempt by Mr Dane QC to introduce evidence of participation in the making of a draft statement as part of Operation Kennels);
·more particularly, the evidence given by Karam, and adduced on his behalf, at the Inca trials;
·the exhibits tendered at the trials evidencing the surveillance, telephone intercepts and covert recordings upon which the Crown relied.
I have had regard to the committal and trial transcripts only insofar as they have been identified as relevant in the course of written submissions or in the course of the hearing. I accept the respondent’s submission that this is not an open-ended investigation and that I should restrict myself to evidence tendered by the parties as relevant.
With the consent of the parties, I have treated the summaries of evidence contained in the sentencing remarks of the relevant trial judges as evidence of the course of the trials before them. They form the basis of much of the agreed summary history quoted at [21] above. I have also had regard to the prosecution opening in the Tomato Tins trial to which Karam made reference.69F[70]
[70]Summary of Prosecution Opening Tomato Tins trial, 15 June 2011, (Doc A161), CB Vol 2.6, Tab 11, pp 652–732.
The course of events
The individual questions referred to me can only sensibly be answered in the context of a coherent account of Ms Gobbo’s conduct. The probabilities with respect to individual matters in issue fall to be assessed within the context of the evidence as a whole.
Background matters
Ms Gobbo signed the Victorian Bar Roll on 19 November 1998 and held a practising certificate until 30 June 2009. During this period she practised actively at the Criminal Bar.
Between 1 July 2009 and 26 May 2013, Ms Gobbo did not hold a practising certificate. From 27 May 2013 until 30 June 2014, Ms Gobbo held an employee solicitor practising certificate. From 1 July 2014, Ms Gobbo did not hold a practising certificate. On 4 November 2020, Ms Gobbo’s name was removed from the Supreme Court Roll of Practitioners.70F[71]
[71]Victorian Legal Service Board v Gobbo [2020] VSC 692.
Karam’s evidence is that he met Ms Gobbo in about August 2001 at a time when Ms Gobbo was acting for Tony Mokbel in respect of a Commonwealth prosecution which did not involve Karam.
In May 2005, the AFP charged Karam with aiding and abetting the importation of a commercial quantity of MDMA between 6 and 14 April 2005 (‘the 2005 MDMA importation charge’). Ms Gobbo initially appeared for Karam’s co-accused, Tony Sergi, on a bail application on 1 June 2005 and subsequently appeared for Karam in committal proceedings relating to this charge between 7 November 2005 and 17 November 2005.
Between January 2006 and March 2006, Ms Gobbo was briefed to prepare a defence response and to appear at a bail variation and two directions hearings in relation to the 2005 MDMA importation charge.
Between December 2006 and May 2007, Ms Gobbo was briefed to appear at five directions hearings and a subpoena hearing relating to the 2005 MDMA importation charge.
Between 21 May 2007 and 10 July 2007, Ms Gobbo appeared for Karam as junior counsel to David Grace KC in the trial of the 2005 MDMA importation charge in the County Court of Victoria at which Karam was ultimately acquitted. This appearance overlapped with the Tomato Tins conspiracy which occurred between 13 June 2007 and 3 October 2007.71F[72]
[72]At the Tomato Tins trial, Karam did not deny there was a conspiracy. He denied that he was party to it.
Ms Gobbo’s involvement as counsel for Karam in the period leading into the events now in issue lends support to Karam’s overarching assertion that at all times he regarded her as a trusted legal advisor.
Provision of information about Karam between September 2005 and the commencement of the 2005 MDMA importation charge trial in May 2007
It is necessary to say something in detail about Ms Gobbo’s activities as an informer with respect to Karam, because that informing provided cumulative intelligence which potentially provided a background to the surveillance, covert recordings and telephone interceptions relating to the conspiracies which formed the basis of the case against Karam in the Tomato Tins and the Inca prosecutions.
Prior to the 2005 MDMA importation charge trial in May 2007, Ms Gobbo acting as a registered human source (‘RHS’)72F[73] had provided intelligence to Victoria Police concerning Karam. In particular, Ms Gobbo had passed on details of conversations said to have been had with him; details of meetings between Karam and persons associated with organised crime, including persons subsequently charged as his co-conspirators; details of Karam’s movements more generally; details of vehicles driven by Karam; details of Karam’s phone numbers; and other phone numbers taken from his phone.
[73]Many of the documents use the acronym ‘HS’.
Insofar as this intelligence attributed knowledge of criminal activities to Karam, in particular knowledge of the attempted importation of drugs and tobacco illegally using shipping containers, Karam denied in the course of cross-examination before me both that he had advised Ms Gobbo of these matters and that they were true. He repeatedly characterised the records of Ms Gobbo’s reports in this regard as ‘Gobbo garbage’.
Nonetheless, Ms Gobbo’s conduct during the period referred to provides a context for the subsequent provision of information relevant to the Tomato Tins and Inca proceedings. It provided Ms Gobbo’s handlers with a picture of Karam’s personal situation and characteristics. It included matters relating to his financial position which might be regarded as providing a motive for subsequent offending. It recorded his acquaintance and association with persons alleged to be subsequently involved in criminal conspiracies.
The matters recorded in police records also demonstrate a preparedness on Ms Gobbo’s part:
·not simply to provide information derived about third parties from her professional practice, but to provide information with respect to a personal client including information as to the conduct of proceedings on his behalf; and
·to engage in duplicitous behaviour in which Ms Gobbo both provided information to Victoria Police as a RHS and at the same acted for Karam assisting in advancing his ultimately successful defence to the 2005 MDMA importation charge brought by the AFP.
They further demonstrate that Ms Gobbo and Karam developed a close personal relationship and met socially on a regular basis.
ICRs, transcribed discussions between Ms Gobbo and her handlers, and diary notes record that from 16 September 2005 to 20 December 2005, Ms Gobbo provided information relating to Karam which included the following:
·that Karam was involved in a case relating to a semi-trailer in Brunswick, where charges were withdrawn (provided on 16 September 2005);73F[74]
[74]This initial meeting between Gobbo and her handlers was recorded and transcribed and comprises 134 pages, five pages of which relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 16 September 2005, (Doc A4), CB Vol 2.2, Tab 3, p 117–19; ICR001, 16 September 2005, (Doc A6), CB Vol 2.2, Tab 5, p 214.
·two telephone numbers being Karam's phone number and another number from which Karam phoned Ms Gobbo and that Karam had called Ms Gobbo during a meeting with her handlers in order to obtain legal advice for a friend (provided on 21 September 2005);74F[75]
[75]The meeting between Gobbo and her handlers was recorded and transcribed and comprises 200 pages of which 12 pages relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 21 September 2005, (Doc A9), CB Vol 2.2, Tab 8, pp 408–9, 411–14; ICR002, 21 September 2005, (Doc A7), CB Vol 2.2, Tab 6, p 222; Diary of Officer Peter Smith dated 20 September 2005, (Doc A8), CB Vol 2.2, Tab 7, p 224; Information report SID277 dated 21 September 2005, (Doc A10), CB Vol 2.2, Tab 9, p 425.
·that Ms Gobbo had called police on behalf of Karam’s ‘mate’. Karam and Tony Mokbel went for a walk and Ms Gobbo held their phones while they went out. She did not know what they talked about but assumed it related to an importation because ‘[t]hat’s what Rob does’. Ms Gobbo was acting for Karam’s co-accused on the 2005 MDMA charge (Tony Sergi) who had ‘the capacity to put Karam away …’ ‘[b]ig time’ (provided on 26 September 2005);75F[76]
[76]The meeting between Ms Gobbo and her handlers was recorded and transcribed and comprises 342 pages in total, 17 pages of which relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 26 September 2005, (Doc A11), CB Vol 2.2, Tab 10, pp 464–71; ICR003, 26 September 2005, (Doc A12), CB Vol 2.2, Tab 11, p 769.
·that Karam had called Ms Gobbo and wanted to meet in the city that night. Ms Gobbo’s handlers tasked her with obtaining amongst other things a series of personal details relating to Karam (provided on 13 October 2005);76F[77]
[77]ICR006, 12 October 2005, (Doc A15), CB Vol 2.3, Tab 2, pp 5–6, the correct date appears to be 13 October based on the next day’s entry of the ICR at p 7, and the diary entry of Sandy White, (Doc A19), CB Vol 2.3, Tab 6, p 15.
·that Karam had taken Ms Gobbo to a pizza place and said he wanted to speak to her about going bankrupt. Ms Gobbo further provided information that she had been tasked to obtain: the type of car driven by Karam, its registration number (the fact that it was his wife’s car) and confirmation that Karam was using the same mobile phone number Ms Gobbo provided on 21 September 2005 (provided on 14 October 2005);77F[78]
[78]ICR006, 14 October 2005, (Doc A15), CB Vol 2.3, Tab 2, p 7; Diary of Officer Peter Smith dated 14 October 2005, (Doc A16), CB Vol 2.3, Tab 3, p 11; Information report SID287 dated 14 October 2005, (Doc A17), CB Vol 2.3, Tab 4, p 12.
·that Karam had called Ms Gobbo and arranged to meet her in South Melbourne (provided on 18 October 2005)78F[79] and that the meeting took place (provided on 19 October 2006);79F[80]
[79]ICR006, 18 October 2005, (Doc A15), CB Vol 2.3, Tab 2, p 8.
[80]ICR006, 19 October 2005, (Doc A15), CB Vol 2.3, Tab 2, pp 8–9.
·that while appearing for Karam at the committal in relation to the 2005 MDMA importation charge that she was working on Karam’s brief (provided on 12 November 2005);80F[81]
[81]ICR008, 12 November 2005, (Doc A20), CB Vol 2.3, Tab 7, p 25.
·that she was having almost daily contact with Karam for no real reason; he was calling, sending SMSs, wanting to take her out for dinner, and she would persist with the contact as it could help Victoria Police. Ms Gobbo also provided Karam’s mobile phone number again (provided on 29 November 2005);81F[82]
·that Karam drove Ms Gobbo to hospital (provided on 1 December 2005).82F[83]
·that she had met with Karam to discuss a variation to his bail on the 2005 MDMA importation charge (provided on 5 December 2005);83F[84]
·that Karam visited Ms Gobbo and used her phone to call an associate. Later that day, Karam turned up again and said he needed to speak with Mokbel. Ms Gobbo contacted Mokbel and told him Karam wanted to see him. The three soon after met for a coffee away from Ms Gobbo’s chambers. After initial greetings, Karam and Mokbel left their mobile phones and keys with Ms Gobbo and walked around the block (provided on 7 December 2005);84F[85]
·that Karam thought he was under surveillance and handed Ms Gobbo a piece of paper with three car registration numbers which he asked her to check (provided on 7 December 2005);85F[86]
·that Karam was ‘more careful and more clever than anyone else I act for’ (provided on 13 December 2005);86F[87]
·that Karam was travelling to Sydney on 17 January 2006 (provided on 14 December 2005);87F[88]
·that Karam was texting Ms Gobbo 20 times a day and asking about her personal life. Ms Gobbo said she and others called Karam ‘stalker’ (provided on 16 December 2005);88F[89]
·that Karam had visited Ms Gobbo in hospital and later dropped her off near her home (provided on 20 December 2005);89F[90]
[82]ICR010, 29 November 2005, (Doc A28), CB Vol 2.3, Tab 15, pp 45–6.
[83]ICR010, 1 December 2005, (Doc A28), CB Vol 2.3, Tab 15, p 47.
[84]ICR010, 5 December 2005, (Doc A28), CB Vol 2.3, Tab 15, p 51.
[85]ICR011, 7 December 2005, (Doc A29), CB Vol 2.3, Tab 16, pp 53–4.
[86]ICR011, 7 December 2005, (Doc A29), CB Vol 2.3, Tab 16, pp 53–4.
[87]Transcript of discussion between Ms Gobbo and Victoria Police, 13 December 2005, (Doc A31), CB Vol 2.3, Tab 18, p 158; ICR012, 13 December 2005, (Doc A30), CB Vol 2.3, Tab 17, p 64.
[88]ICR012, 14 December 2005, (Doc A30), CB Vol 2.3, Tab 17, p 66.
[89]Transcript of discussion between Ms Gobbo and Victoria Police, 13 December 2005, (Doc A31), CB Vol 2.3, Tab 18, pp 139–44, 154.
[90]ICR013, 20 December 2005, (Doc A32), CB Vol 2.3, Tab 19, p 324.
ICRs further record that in January and February 2006, Ms Gobbo provided regular reports including that:
·Karam had asked Ms Gobbo to provide him with George Peters’ phone number (provided on 15 January 2006);90F[91]
[91]ICR016, 15 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 330.
·Karam had asked Ms Gobbo to find him an apartment to rent (provided on 17 and 24 January 2006, and 3, 6 and 17 February 2006);91F[92]
[92]ICR016, 17 and 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, pp 331, 338; ICR017, 3 and 6 February 2006, (Doc A35), CB Vol 2.3, Tab 22, pp 350–1; ICR018, 17 February 2006, (Doc A36), Vol 2.3, Tab 23, p 363.
·Karam told Ms Gobbo he had 1,000s of kilograms of MDMA and wanted to offload it. He asked Ms Gobbo if she knew anybody who would be interested in his supply of MDMA and suggested Mr Peters might be interested (provided on 18, 19 and 24 January 2006).92F[93]
[93]ICR016, 18, 19 and 24 January 2006 (Doc A34), CB Vol 2.3, Tab 21, pp 332–3, 339.
·Karam had asked Gobbo about her love life and what she was waiting for in a partner (provided on 18–19 January 2006);93F[94]
[94]ICR016, 18-19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, pp 332, 334.
·Karam had given Ms Gobbo a bottle of perfume for Christmas but owed her $5,500 for legal fees (provided on 19 January 2006);94F[95]
[95]ICR016, 19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 333.
·Karam was still driving his wife’s car and was still using a mobile number Ms Gobbo previously provided Victoria Police, and another ‘non-attributable number’ he would not give to Ms Gobbo. He was ‘paranoid’ and ‘extremely careful’ about using phones because he had learnt about triangulation and intercepts from his previous briefs (provided on 19 January 2006);95F[96]
[96]ICR016, 19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 334.
·Karam asked Ms Gobbo to get George Peters to join them at a Japanese restaurant in the city (provided 24 January 2006);96F[97]
[97]ICR016, 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 338.
·on 24 January 2006, Ms Gobbo was tasked to obtain Karam’s unknown phone number;97F[98] Ms Gobbo was now acting for Karam. Karam asked Ms Gobbo if she had an non-attributable phone and offered to get one for her. Ms Gobbo was tasked to encourage Karam to give her his old phone and Ms Gobbo to only SMS his new number (provided on 25 January 2006);98F[99]
[98]ICR016, 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 339.
[99]ICR016, 25 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 340–1.
·Karam had been hugging Ms Gobbo and being more affectionate (provided on 31 January 2006);99F[100]
[100]ICR017, 31 January 2006, (Doc A35), CB Vol 2.3, Tab 22, p 346.
·Karam had asked Ms Gobbo to advise him of George Peters’ whereabouts (provided on 6 February 2006);100F[101]
·Ms Gobbo had drafted a letter about bankruptcy for Karam (provided on 7 February 2006);101F[102]
·Ms Gobbo had discussed legal fees with Karam and Karam was worried because he was a declared bankrupt, his wife was a surety and there were problems at home (provided on 13 February 2006);102F[103]
·Karam’s bail reporting days had been varied (provided on 16 February 2006);103F[104]
·Karam asked Ms Gobbo to go to Sydney with him for a weekend (provided on 18 February 2006);104F[105]
·Ms Gobbo had been out with Karam and his associate, Shane Bugeja, arriving home at 4:30 am (provided on 23 February 2006);105F[106]
·Karam ‘knows his competition for [Ms Gobbo’s] love is George PETERS’ (provided on 23 February 2006);106F[107]
·Ms Gobbo had been out to a Japanese restaurant with George Peters and Karam the previous night and ‘They discussed a pill press and the MDMA powder that [Karam] has that needs pressing’ (provided on 25 February 2006);107F[108]
·Karam had two new mobile phone numbers (provided on 25 February 2006).108F[109]
[101]ICR017, 6 February 2006, (Doc A35), CB Vol 2.3, Tab 22, p 351.
[102]ICR017, 7 February 2006, (Doc A35), CB Vol 2.3, Tab 22, p 351.
[103]ICR018, 13 February 2006, (Doc A36), CB Vol 2.3, Tab 23, p 359.
[104]ICR018, 16 February 2006, ((Doc A36), CB Vol 2.3, Tab 23, p 362.
[105]ICR019, 18 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 365.
[106]ICR019, 23 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 369.
[107]ICR019, 23 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 370.
[108]ICR020, 25 February 2006, (Doc A302), CB Vol 2.11, Tab 3, p 6.
[109]Ibid.
ICRs and transcribed discussions between Ms Gobbo and her handlers record that in March and June 2006, Ms Gobbo provided Victoria Police with further information about Karam, which included:
·Karam’s movements including interstate travel (provided 7 March 2006);109F[110]
·discussion on 9 March 2006 about potential conflict of interest during which one of Ms Gobbo’s handlers suggested that she would have a conflict of interest in acting for a person after their arrest. Ms Gobbo replied ‘What conflict? He’ll be pleading guilty. What difference does it make?’ The handler asked ‘Well, what if it was Rob, then? ‘Cause he probably wouldn’t plead guilty.’ Ms Gobbo replied: ‘That’s a different story.’ Ms Gobbo’s handler asked if Karam would ring her if he was arrested and Ms Gobbo responded ‘Yep. All of them will, they wont… ring anyone else.’ The handler observed that the situation was unprecedented and Ms Gobbo responded ‘Probably is. I’m sitting now creating half – created half the or provided half the material and half the reason why they got arrested or maybe more than half.‘;110F[111]
·Karam thought there was a tracking device in his car and believed he was under surveillance (provided on 28 March 2006);111F[112]
·Karam wanted to vary his bail conditions so that he could go to Queensland for a holiday with his children (provided on 8 June 2006);112F[113]
·one of Karam’s mobile phone numbers which was already known to police (provided on 28 June 2006).113F[114]
[110]ICR021, 7 March 2006, (Doc A39), CB Vol 2.3, Tab 26, p 542.
[111]Transcript dated 9 March 2006, (Doc A38), CB Vol 2.3, Tab 25, pp 477–9.
[112]ICR024, 28 March 2006, (Doc A42), CB Vol 2.3, Tab 29, p 578.
[113]ICR034, 8 June 2006, (Doc A43), CB Vol 2.3, Tab 31, p 603.
[114]ICR036, 28 June 2006, (Doc A48), CB Vol 2.3, Tab 35, p 645.
On 29 June 2006, an AFP case note recorded that Victoria Police officer Jason Kelly provided Karam’s mobile phone number to the AFP and that it came from an unnamed human source.114F[115] The AFP case note also records that AFP investigators had been aware of Karam’s use of this telephone for some months and had previously advised Purana Taskforce investigators of this number.115F[116] In evidence, Supt Kelly could not recall whether that human source was Ms Gobbo116F[117] but I accept that it is likely that it was.
[115]AFP Case Note, 29 June 2006, (Doc A53), CB Vol 2.4, Tab 3, p 23.
[116]Ibid.
[117]T294–5 S.
ICRs further record that Ms Gobbo informed her handlers:
·that Karam was now driving his mother’s 1999 M series Mercedes Benz (provided on 31 July 2006);117F[118]
·of Ms Gobbo’s understanding of Karam’s importation methodology and of his belief that a container from China contained cigarettes (provided on 14 August 2006).118F[119]
[118]ICR039, 31 July 2006, (Doc A51), CB Vol 2.4, Tab 1, p 13.
[119]ICR041, 14 August 2006, (Doc A52), CB Vol 2.4, Tab 2, pp 17–18. Karam said in evidence that discussions he had in 2006 about shipping were in preparation for his defence for the 2005 matter: T124–5.
On 20 September 2006, an AFP information report recorded that the AFP received information about Karam and an alleged importation of cigarettes.119F[120] It is likely that Ms Gobbo was the source of this information.120F[121]
[120]AFP Information Report 914949, 20 September 2006, (Doc A53), CB Vol 2.4, Tab 3, p 24.
[121]Letter from AFP to Garde-Wilson Lawyers, 14 August 2020, (Doc A325), CB Vol 2.11, Tab 20, p 146 [15].
On 21 September 2006, an AFP case note recorded that the AFP received information from Victoria Police about an MDMA importation of 5 million tablets.121F[122] The case note recorded that Karam is alleged to be involved in the importation.122F[123] It is likely Ms Gobbo was the source of this information.
[122]AFP Case Note, 21 September 2006, (Doc A53), CB Vol 2.4, Tab 3, pp 26–7.
[123]Ibid p 26.
On 28 September 2006, Victoria Police officers Jason Kelly and Jim O’Brien met with the AFP to discuss the contents of two information reports received concerning the activities of Brian Armatruda and Fedele D’Amico. During that meeting, Jason Kelly and O’Brien were shown information reports.123F[124] An AFP case note recorded that ‘[w]hen shown the second information report stating that [Armatruda and D’Amico] were undertaking an importation of narcotics, both KELLY and O’BRIEN stated that they were aware of that information as it had originated from a human source currently assisting the Purana Taskforce. Both stated that they believe the information to be quite credible.’124F[125]
[124]AFP Case Note, 29 September 2006, (Doc A53), CB Vol 2.4, Tab 3, p 29.
[125]Ibid.
In January and February 2007, Ms Gobbo provided regular information to her handlers about Karam’s activities.
This included information that Karam had said he was waiting for a phone call from his man in Customs to discover the reasons for three containers going missing. Karam was considering he may be being ripped off by somebody on his side. Karam had told Ms Gobbo that a fourth container was on its way (provided on 26 February 2007).125F[126]
[126]ICR068, 26 February 2007 (Doc A78), CB Vol 2.4, Tab 28, p 178.
In April 2007, she provided information of discussions about the possible adjournment of Karam’s trial.126F[127]
[127]ICR074, 10 April 2007 (Doc A92), CB Vol 2.4, Tab 42, p 739; ICR075, 15 April 2007 (Doc A93), CB Vol 2.4, Tab 43, p 752.
Information supplied during the 2007 MDMA importation trial — 21 May 2007 to 10 July 2007
During the 2007 MDMA importation trial, Ms Gobbo passed on information as to its progress and Karam’s state of mind. These reports included Ms Gobbo’s views on the progress of Karam’s 2007 trial, including disputes between Karam and his co-accused as to defences that they would run, and whether the co-accused would give evidence (provided on dates including 25, 28, 29 and 30 May 2007; 5, 14, 15, 17, 19, 20 and 21 June 2007; and 1, 3 and 10 July 2007).
In addition, Ms Gobbo passed on five categories of information of potential significance with respect to the evidence subsequently obtained and relied on in relation to the Tomato Tins importation:
(i)copies of a bill of lading;
(ii)Karam’s phone number and phone numbers obtained from Karam’s mobile phone;
(iii)evidence that persons involved in obtaining the importation were meeting at the Pacific International Hotel;
(iv)reports that Karam anticipated an importation of drugs;
(v)ongoing intelligence as to Karam’s activities and interactions with the conspirators generally.
It is necessary to say something in greater detail about each of these categories because they bear on the question of subsequent conflict which I must ultimately address. For convenience, I also attach as Appendix A the respondent’s chronological summary of the ICRs during this period contained in Annexure A to the Respondent’s Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022 which is substantially correct.
(i) The bill of lading
On 5 June 2007, Ms Gobbo passed her handlers a copy of a bill of lading and emails, all in the Italian language, which she said had been temporarily left with her by Karam for safekeeping on behalf of Joe Mannella. Karam is identified as the source of this document in a series of records.
An ICR recorded that at 10:09 am, Ms Gobbo sent a message to one of her handlers saying that she had been asked to hold documents on behalf of Karam.127F[128]
[128]ICR082, 5 June 2007, (Doc A103), CB Vol 2.4, Tab 53, p 855.
The ICR further recorded that at 1:42 pm, Ms Gobbo called Detective Sergeant Anderson and told her handlers:
·Karam had given her an envelope from Mannella to hold just in case Mannella (who was then on trial) got ‘locked up’;
·the documents related to shipping containers being imported by Mannella;
·Karam returned at 1:00 pm and collected the documents to return;
·she had copied the documents and would provide them to Victoria Police that evening; and
·the documents were in Italian.128F[129]
[129]Ibid.
In the evening of the same day, Ms Gobbo met with her handlers, Anderson and Fox. This meeting was audio recorded.129F[130] Both the ICR relating to the meeting130F[131] and the audio recording identified Karam as the source of the documents. The account given in the recorded meeting is detailed and circumstantial. The key passage in the transcript of the recording is as follows:
[130]Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007, (Doc A106), CB Vol 2.5, Tab 1, pp 1–498.
[131]ICR082, 5 June 2007 (Doc A103), CB Vol 2.4, Tab 53, pp 855–6.
MS GOBBO: What happened was, he was – we had a cup of coffee before court this morning and Mannella was there and Rob and Sergi.
DSA Yeah.
MS GOBBO: And then he said – Mannella left to go to court, and Rob said to me, ‘Can you hold on to this, leave it in the office.’ And I said to him, ‘It’s not gunna get me in trouble, is it?’ He goes - - -
DSA Yeah.
MS GOBBO: ‘- - - Oh, your fingerprints are already on the outside of it, so thank you, thanks.’ ‘Cause I said, ‘What’s this one in relation to good quality importation, it’s ecstasy, cocaine? Not tobacco, is it?’
DSA Mm .
MS GOBBO: He goes, ‘Bit of this, bit of that.’ And then he said, ‘No,’ he said, ‘I got to hold on to them because in case Mannella goes.’ I said to him, ‘Why don’t you take it to court - - - ‘
DSA Yeah.
MS GOBBO: - - - just take it with him, ‘But obviously you don’t wanna be – you got incriminating documents you don’t want to ever run the risk of having them on yourself.’
DSA No.
MS GOBBO: It’s the golden rule. So he said, ‘No,’ he said, ‘They’re documents that Mannella has given me to look after in case he gets locked up.’
DSA Yeah.
MS GOBBO: Then at lunchtime – see, lucky I ………. ‘cause at lunchtime we’re walking around the corner, he goes, ‘I need to come and get those documents.’ So he came down to my office with his brother and his brother took the documents away.
DSA : His brother .......... that’s - - -
MS GOBBO: Bill.
DSA - - - Bill.131F[132]
[132]Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007, (Doc A106), CB Vol 2.5, Tab 1, pp 49–50.
Lastly, in respect of Question L, Karam submits that the notion of ‘profit’ extends to the psychological satisfaction Ms Gobbo obtained from being a successful informer as evidenced in a number of the ICRs.
I do not accept that the ordinary meaning of ‘profit’ extends this far. Further, it is unnecessary to make findings in this respect in order to resolve the answer to Question E.
- - -
APPENDIX A TO JUDGMENT OF OSBORN JA
Excerpt from Annexure A to the Respondent’s Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022, 7–11 [49]–[73] (citations in original).
21 MAY 2007 – 10 JULY 2007: THE 2007 TRIAL
49.The applicant’s trial was starting on 21 May 2007 (provided on 21 May 2007).913F[914]
[914]ICR080, 21 May 2007 (A98), Vol 2.4 / Tab 48 / p 803. Narrative Background [60]
50.A new phone number for the consignee for an importation, obtained by Ms Gobbo when she saw it written on the back of the phone the applicant had left in her office (provided on 24 May 2007).914F[915]
[915]ICR080, 24 May 2007 (A98), Vol 2.4 / Tab 48 / pp 814-816. Inca WC [116(c)]. Narrative Background [61].
51. A list of phone numbers Ms Gobbo had copied from the applicant’s mobile telephone while he had left it in her office the day before (provided on 25 May 2007).915F[916]
[916]ICR080, 25 May 2007 (A98), Vol 2.4 / Tab 48 / p 818. Inca WC [130]. RWC [130.3]. Narrative Background [61].
52.Ms Gobbo’s concerns about potential plans to kill one of the applicant’s co-accused (provided on 24-25 May 2007).916F[917]
[917]ICR080, 24-25 May 2007 (A98), Vol 2.4 / Tab 48 / pp 814-816, 819, 821; RWC [130.3].
53.Conversations Ms Gobbo is having with the applicant and Mr Mannella and their attempts to have their trials adjourned; all co-accused against Mr Mannella and the applicant will not consider rolling against each other; at present time AFP can’t prove that they all had knowledge of the contents of the container; all offenders, especially the applicant’s crew are prepared to run the risk of a trial rather than admitting knowledge of contents of container (provided on 25 May 2007).917F[918]
[918]ICR080, 25 May 2007 (A98), Vol 2.4 / Tab 48 / pp 819-820. Narrative Background [62].
54.The applicant had discussed the defence of Mr Claite and Mr Straveff, that they thought they were unloading containers of tobacco. The applicant wanted the trial to commence and required both Mr Claite and Mr Straveff there (provided on 28 May 2007).918F[919]
[919]ICR081, 28 May 2007 (A99), Vol 2.4 / Tab 49 / pp 825-826. Narrative Background [63].
55.The applicant and his co-accused had a conference with Ms Gobbo that day, the purpose of which was to have Mr Claite assist the Mr Sergi defence. Mobile phone numbers for the applicant and Mr Mannella (provided on 29 May 2007).919F[920]
[920]ICR081, 29 May 2007 (A99), Vol 2.4 / Tab 49 / pp 827-828. Narrative Background [64].
56.The applicant provided Ms Gobbo with $20,000 in cash. Brian Amatruda gave evidence that was favourable to the applicant and AFP wanted to have his evidence excluded (provided on 30 May 2007).920F[921]
[921]ICR081, 30 May 2007 (A99), Vol 2.4 / Tab 49 / p 832. Narrative Background [65].
5 June 2007
57.Ms Gobbo left a message for one of her handlers indicating that she had been asked to hold some documents on behalf of the applicant, which she believed related to the new importation (provided at 10.09am on 5 June 2007).921F[922]
[922]ICR082, 5 June 2007 (A103), Vol 2.4 / Tab 53 / p 855. Inca WC, [55], [131]; TT WC [33]. RWC [128]. Narrative Background [66].
58.The applicant gave Ms Gobbo the envelope from Mr Mannella to hold just in case Mr Mannella got locked up; the documents relate to shipping containers being imported by Mr Mannella; the applicant returned at 1pm and collected the envelope to return; the documents are in Italian (provided at 1.42pm on 5 June 2007).922F[923]
[923]ICR082, 5 June 2007 (A103), Vol 2.4 / Tab 53 / p 855. Inca WC [55], [131]. Narrative Background [67].
59.Ms Gobbo provided Victoria Police with a copy of documents which were a bill of lading and emails, all in the Italian language. Ms Gobbo assisted Victoria Police by translating the documents to English, and explained they appeared to be shipping documents relating to a container of tomato products, possibly in tins.923F[924] She also gave the following information (provided after 6pm on 5 June 2007):
[924]ICR082, 5 June 2007 (A103), Vol 2.4 / Tab 53 / pp 855-856. Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007 (A106), Vol 2.5 / Tab 1 / pp 48-65. Inca WC, [50], [131]; TT WC [33]. RWC [128]. Narrative Background [70].
59.1.Mr Mannella left to go to court and the applicant ask her to hold onto the envelope. Ms Gobbo asked the applicant, “It’s not gunna get me in trouble, is it?” He goes “Oh your fingerprints are already on the outside of it, so thank you, thanks.” Ms Gobbo said “What’s this one in relation to good quality importation, it’s ecstasy, cocaine? Not tobacco, is it?” He goes, “Bit of this, bit of that.” And then he said, “No, I got to hold on to them because in case Mr Mannella goes… in case he gets locked up.”924F[925]
[925]Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007 (A106), Vol 2.5 / Tab 1 / pp 49-50. Narrative Background [67(a)].
59.2.At lunchtime, the applicant told Ms Gobbo he needed to come and get the documents and he came to her office with his brother, Bill, who took the documents away.925F[926]
[926]Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007 (A106), Vol 2.5 / Tab 1 / p 50. Narrative Background [68(d)].
59.3.The applicant was spooked about the current container and is not going near it now. Unknown why spooked. The applicant left a whole container of MDMA late last year which was imported through Customs via a connection. It did not get checked. The container then went missing three days later, turning up on the side of the road empty.926F[927]
[927]ICR082, 5 June 2007 (A103), Vol 2.4 / Tab 53 / pp 855-856. Narrative Background [68(a) and (b)].
After 5 June 2007
60.The applicant wanted Ms Gobbo to see Mr Mannella at Melbourne Assessment Prison to get instructions from him. Mr Mannella hoped a new container would be imported prior to the applicant’s trial (provided on 7 and 10 June 2007).927F[928]
[928]ICR082, 7 and 10 June 2007 (A103), Vol 2.4 / Tab 53 / pp 863, 865. RWC [130.3].
61.The applicant conversed with Mr Mannella on Ms Gobbo’s phone for ten minutes and they would be communicating again tomorrow (provided on 14 June 2007).928F[929]
[929]ICR083, 14 June 2007 (A113), Vol 2.5 / Tab 8 / p 530. Inca WC [132]. RWC [130.3]. Narrative Background [71].
62.In relation to the 2007 trial, Mr Sergi will say that he told them all it was tobacco and nothing else. In his interview, the applicant denied having anything to do with the three calls relating to the container. Ms Gobbo considers it will be difficult to use the tobacco defence with the applicant. General talk regarding the applicant’s trial and incidents throughout the day (provided on 15 June 2007).929F[930]
[930]ICR083, 15 June 2007 (A113), Vol 2.5 / Tab 8 / p 534. Narrative Background [73].
63.General talk regarding the applicant’s trial. The applicant described the new container coming to Melbourne as “three times” as big as his current trial (the 2007 trial), and the applicant usually checked the status of containers and likelihood of Customs x-rays (provided on 17 June 2007).930F[931]
[931]ICR084, 17 June 2007 (A121), Vol 2.5 / Tab 16 / pp 572, 575-576. RWC [130.3]. Narrative Background [74].
64.General talk about the applicant’s trial; there was lots of infighting between co-accused; Mr Sergi wanted to sack his lawyer; Mr Sergi wants to give evidence re tobacco but his barrister says no, this is why Mr Sergi wants to sack him; Ms Gobbo conceded this would hurt all accused (provided on 19, 20 and 21 June 2007).931F[932]
[932]ICR084, 19-21 June 2007 (A121), Vol 2.5 / Tab 16 / pp 581, 583, 585-586. Diary of Officer Fox, 21 June 2007, Vol 2.5 / Tab 30 / p 767-768, 772. Narrative Background [78], [79], [85].
65.Information Ms Gobbo received from the applicant about the container, including: the applicant’s contact is someone in the transport industry; the container is on a ship that has either just left Singapore or still in Singapore; the applicant’s contact has therefore not confirmed where it is exactly; the applicant said he could not get it offloaded in Singapore; the applicant cannot get it off in Sydney therefore it will definitely be in Melbourne; the applicant is confident he can steal it in Melbourne and that is the plan when it gets here (provided on 19 June 2007).932F[933]
[933]ICR084, 19 June 2007 (A121), Vol 2.5 / Tab 16 / p 581. Narrative Background [78].
66.The applicant was at Curly Joe’s in Maribyrnong last night; Higgs was present and some unknown Italians from Griffith; the applicant said it was to organise the next import from Italy which will be worth $8 million; the applicant is going to Sydney on the weekend with family and might be catching up with a freight forwarder while there (provided at 5.23pm on 21 June 2007).933F[934]
[934]ICR084, 21 June 2007 (A121), Vol 2.5 / Tab 16 / p 586. Narrative Background [85].
67.The applicant had dinner with Ms Gobbo, Mr Higgs and Evan who works for Chubb Security; 27 July is the arrival date of the container (provided at 11.35pm on 21 June 2007).934F[935]
[935]ICR084, 21 June 2007 (A121), Vol 2.5 / Tab 16 / p 588. Narrative Background [85].
68.Ms Gobbo would be having dinner with the applicant and his crew the following night (ie 28 June 2007), that the applicant had said the dinner was an “alibi” for the container (provided on 27 June 2007).935F[936]
[936]ICR085, 27 June 2007 (A138), Vol 2.5 / Tab 34 / p 814. RWC [130.1].
69.The applicant and Mr Higgs had met and were going to the Pacific International Apartments in Little Bourke and Queen Street to meet “the Italian boys from Griffith”, who were booked in there for the week, in relation to the new container; the applicant said he was still waiting on confirmation that everything was “O.K.” as the container should have been “stolen” by then; the applicant said he was on edge waiting for confirmation that everything would be alright and it has been stolen (provided on 28 June 2007).936F[937]
[937]ICR086, 28 June 2007 (A147), Vol 2.11 / Tab 46 / p 635. Inca WC, [62], [134]. RWC [179]. Narrative Background [90].
70.Ms Gobbo planned to have dinner with the applicant that night at the Waterfront restaurant and intended to raise with him payment for the trial (provided 28 June 2007).937F[938]
[938]ICR086, 29 June 2007 (A147), Vol 2.11 / Tab 46 / pp 635-636. Narrative Background [94].
71.At dinner with the applicant, Mr Higgs, Mr Bugeja and Evan, Ms Gobbo overheard Mr Higgs giving his phone number to someone else on the table and Ms Gobbo memorised it for Victoria Police and gave it to them (on 29 June 2007).938F[939]
[939]ICR086, 28 June 2007 (A147), Vol 2.11 / Tab 46 / p 638. Inca WC [67]. Narrative Background [95].
72.Status updates about the new container, including the applicant’s plans to access it and the applicant’s suspicions about law enforcement being aware of it (provided on 29 June 2007 and 1, 3, 5 and 10 July 2007).939F[940]
[940]ICR086, 29 June 2007 (A147), Vol 2.5 / Tab 43 / p 877-878, 880-881. ICR087, 1 and 3 July 2007 (A154), Vol 2.6 / Tab 4 / pp 17-18, 24-26. ICR088, 5 and 10 July 2007 (A159), Vol 2.6 / Tab 9 / pp 632, 644. RWC [130.3].
73.The applicant and others talked to Ms Gobbo openly; when they invite her out, they start out by asking legal questions, but then get used to her being around and start talking about other things (on 3 July 2007).940F[941]
[941]ICR087, 3 July 2007 (A154), Vol 2.6 / Tab 4 / pp 26-27. Respondent’s 319A submissions [363.3].
APPENDIX B TO JUDGMENT OF OSBORN JA
Text (omitting formal parts) of an email dated 15 February 2012 from Nicola Gobbo to Martine Marich, being exhibit RK2-10 to the Affidavit of Rob Karam affirmed 6 March 2017.941F[942]
[942]Exhibit RK2-10 to the Second Affidavit of Rob Karam in support of application for leave to appeal against conviction, affirmed 6 March 2017, (Doc A351), CB Vol 4, Tab 10, pp 804–5 [34], 890–2.
Having now spent approximately 30 hours with Rob, focusing solely on the issue of locating any “evidence” that lends support to Rob’s proposition that he ONLY continued to meet with Pat and co. in order to try to save the lives of others, principally Fred/Hair, I do not share the same degree of confidence or enthusiasm as Rob does for using the “trying to save Fred’s life” explanation as a reason capable of explaining Rob’s continued association with Pat & others. I am not trying to be cryptic but Rob & I disagree as to what material is available that may assist in this regard.
My primary concern is that whilst it is true that during the period of the MDMA conspiracy, there are plans afoot by Pat to kill Fred (and MB as well as others), and true it is that Rob informs Fred of the fact that Pat wants to harm him, I do not think that relying upon the excuse/reason of “well I had to keep seeing Pat and going along with him to try to find out what was going on with his plans to try to kill Fred” is necessarily capable of explaining Rob’s continued contact with Pat (and Pat’s crew), particularly given that their contact extends over a lengthy period and there is not any direct evidence that shows that Fred escaped a murder attempt because of direct information from Rob.
I have marked the relevant pages of the transcript from Fred D’Amico’s committal proceeding from 2011 in which D/Sgt Jason Kelly confirms that Fred confirmed to Police that Rob Karam had warned him that his life was in danger. Please note Fred abides by a strict honour code and refused to make a statement to Police …
I think it is problematic to try to take certain propositions further. For example, to attempt to prove that Rob saved Fred’s life, it would be suicidal to call D’Amico to give evidence notwithstanding that he has almost no priors but is currently on bail for large commercial trafficking/manufacturing … He would not be a particularly credible witness. For completeness, in the brief of evidence against Rob (for drug trafficking and trafficking particularly with the under cover operative), there are numerous intercepted conversations between Fred & Rob which appear to relate to drug trafficking and Rob’s comments in my opinion, would satisfy the broader definition of trafficking i.e., an agreement to sell or supply.
So beyond the evidence of Jason Kelly (see pages marked with sticky notes on transcript) and possibly another detective from Purana, there seems little else to definitively rely upon. Rob claims that he kept Fred informed of what Pat was up to by calling Fred from phone boxes. I have not been able to find any evidence of this in GEMS although I do not have access to a computer/GEMS to re-check this. In any event as luck would have it, Fred himself was the subject of a VicPol Drug Squad investigation in 2007/08 and his mobile was intercepted. I have suggested to Rob that he obtain the relevant information about Fred’s T/I Warrant from Fred and then discuss with you the possibility of obtaining via subpoena, the conversations between Rob (from phone boxes) to Fred’s mobile. I am concerned that there may not be much at all to substantiate Rob’s claims. For completeness, what Rob says is that he didn’t want to risk calling Fred from his own mobile phone (preferring phone boxes) to tell him about Pat in case Pat got his mobile phone and saw the number he’d been dialing [sic].
Rob also says that he felt as time passed that he could not get away from Pat and that Pat would not listen to reason nor leave him alone. There is merit to this proposition as the conversations you are aware of demonstrate Pat chasing Rob on occasion and notwithstanding that there is no possibility of ever actually getting the container or its contents, Pat simply will not accept this from Rob or anyone else.
In broad terms, Rob would like to explain away his continued association with Pat, Zirilli, Falanga, Higgs & to a lesser degree, others, on the basis that he had to stay in contact with them to save lives. I agree that there is evidence of a conspiracy to murder Fred (by Pat & Potter) and a conspiracy to murder M.B. (Pat again). There will be no great difficulty proving that those conspiracies occurred, in fact a 10 volume brief of evidence exists to that end but taking it the next step, that is to try to argue that the only reason for Rob being anywhere near Pat was to prevent such murders from occurring, is in my view inherently dangerous. There is a lack of actual evidence in support and additionally, by way of example, M. B. survived an actual murder attempt because of a car breaking down (on route to the venue where he was to be killed). That had nothing to do with Rob (who was as you know, arrested and interviewed with respect to being involved in supplying the car to Potter which he then used in the attempt on M.B.)
If this kind of affirmative “defence” was foreshadowed to the jury in an Opening I think it would give Brent Young far too much time to prepare to rebut anything that was said.
I have gone through all of this in repeated detail with Rob and have also indicated that whilst I believe he would be credible if you were to call him to give evidence, I have concerns that there are some matters that he would not really be able to explain under cross-examination.
We have put together a folder of documents that are marked and self-explanatory which Rob believes help to show he only maintained contact with Pat because he could not get away from him and because he had to to save Fred from harm. (Will be dropped off to Martine later today).
In addition to the possibility of issuing a subpoena for Fred’s intercepted conversations from 2007–08 (as detailed above), Rob would like the opportunity of looking through the balance of conversations recorded pursuant to the Warrants on his mobile phones during the period of the investigation. He believes there will be exculpatory calls that may assist him. Given that he cannot attend at the AFP each day to look through call logs/records, he states that after raising this with you Martine, a subpoena is required for the production of the balance of all calls that are not contained within GEMS. My suggestion is that Rob first examines ALL the conversations in which he features that form part of the GEMS material and then perhaps proceed with a subpoena for the balance, or perhaps after examining the GEMS conversations, he may be able to limit/identify time periods. I will leave this for you to consider and will discuss further when we meet tomorrow.
As discussed, I’ll see you tomorrow at lunchtime if that is convenient; just let me know where & when suits.
For your information, I have agreed to assist Rob on a limited basis. I have serious medical issues that necessitate various appointments on a weekly basis but I can try to assist him as much as I can.
See you tomorrow,
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