Karam v The Queen - [2022] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0142
S EAPCR 2020 0211

ROB KARAM	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2022
DATE OF JUDGMENT:	2 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 23

---

CRIMINAL LAW – Conviction – Applications for leave to appeal against conviction – Abuse of process – Whether activities or involvement of Lawyer X and/or failures to disclose such activities and involvement resulted in unfair trials – Multiple factual disputes in issue between parties – Need to resolve factual disputes underpinning proposed grounds of appeal – Referral of factual issues and matters to Trial Division for reference determination – Appropriate terms of referral – Criminal Procedure Act 2009, s 319A.

---

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 QC with Ms R Sharp and Ms A Martin	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

BEACH JA

KENNEDY JA:

The applicant seeks leave to appeal his convictions arising out of two trials which, in the documents lodged in this case, have been referred to as ‘the tomato tins conviction’ and ‘the Inca convictions’. Each application for leave raises the conduct of Nicola Gobbo as a police informer. In his applications, the applicant makes four essential complaints:

(1) The applicant’s trials constituted abuses of process.
(2)The applicant’s trials were unfair because the Crown did not disclose Ms Gobbo’s status as an informer in the investigation and prosecution of the applicant and/or because she improperly influenced the applicant’s defences.
(3)The applicant was denied the right to independent counsel.
(4)There was a substantial miscarriage of justice because the applicant was denied his right to silence as a result of particular conduct by Ms Gobbo.

The applicant has filed detailed and lengthy written cases in support of his applications for leave to appeal. The written cases contain a large number of factual assertions about Ms Gobbo and her conduct, spanning a number of years. The applicant has also filed a document headed ‘Narrative chronology’, which contains many facts additional to those contained in his written cases.

The respondent has filed a long and detailed response to the applicant’s written cases. In its response, the respondent admits some facts, but disputes many others. In relation to the narrative chronology, the respondent contends that any facts in it, additional to those in the applicant’s written cases, are irrelevant — and that the only facts alleged by the applicant which are capable of being relevant in his applications for leave to appeal are those contained in the applicant’s written cases.

The respondent has also filed a document headed ‘Facts not in dispute’ and an addendum to that document. The ‘Facts not in dispute’ document includes a table of facts not in dispute, identified by reference to the applicant’s written cases.

The question of how facts in dispute between…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Karam v The Queen

Details

AGLC: Karam v The Queen [2022] VSCA 23
Case: [2022] VSCA 23
Decision Date: 2 March 2022

CaseChat Overview and Summary

The matter of Karam v The Queen came before the Court, where the defendant, Karam, sought leave to appeal against his conviction. The nature of the dispute centred around the involvement of Lawyer X and the alleged failures to disclose this involvement, which Karam argued led to unfair trials. The Court was tasked with determining whether these issues warranted an appeal against conviction. The legal issues the Court had to decide included whether the activities or involvement of Lawyer X, and the failures to disclose such activities, resulted in unfair trials, and whether the factual disputes underpinning the proposed grounds of appeal could be resolved.

The Court considered the statutory framework under the Criminal Procedure Act 2009, specifically section 319A, which allows for the referral of factual issues to the Trial Division for a reference determination. The Court found that there were multiple factual disputes that needed resolution before the proposed grounds of appeal could be properly assessed. Given the complexity and the necessity to resolve these underlying factual matters, the Court decided that the appropriate course of action was to refer these issues to the Trial Division for determination. The Court then outlined the terms of referral, ensuring that the Trial Division had all necessary information to make an informed decision.

The Court's reasoning was grounded in the need for a comprehensive and factual basis to assess the merits of the appeal. By referring the factual issues to the Trial Division, the Court aimed to ensure a fair and thorough examination of the circumstances surrounding Lawyer X's involvement and the failures to disclose such involvement. The Court concluded that the factual disputes were too complex and contentious to be resolved within the confines of the appeal process and thus mandated the referral to the Trial Division. This decision was made in the interests of justice, aiming to provide a clear and definitive resolution to the underlying issues.

Orders