Karam v The Queen
[2022] VSCA 23
•2 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0142
S EAPCR 2020 0211
| ROB KARAM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| 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 |
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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.
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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 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 the parties, which are alleged to underpin the applicant’s proposed grounds of appeal, might be resolved has been the subject of considerable debate between the parties. Resolving what factually occurred in relation to the many events or circumstances alleged by the applicant in his written cases, before then determining what (if any) legal consequences flow, is a matter of considerable concern in this case.
Section 319A of the Criminal Procedure Act 2009 permits this Court to refer to the Trial Division constituted by a judge, for the making of a reference determination, any specified issue or matter arising on an application for leave to appeal to which that section applies. Thus s 319A provides a way in which the considerable factual disputes between the parties may be resolved.
Notwithstanding the filing of voluminous material by both the applicant and the respondent, in response to a request that the applicant identify a list of factual issues that ought be referred under s 319A, the applicant responded that he is ‘not presently in a position to prepare a list of factual issues that ought to be referred for consideration under s 319A … as there are still uncertainties as to what is in fact in dispute’. The unsatisfactory nature of this response is obvious.
The parties have filed multiple affidavits about the multitude of factual issues in dispute between them. The material filed is extensive, and the issues in dispute will not be easily resolved. A Court of Appeal is not the ideal forum for the resolution of such matters. Notwithstanding the applicant’s inability to provide a list of factual issues that ought to be referred for consideration under s 319A, that section permits this Court to refer the various factual matters and issues currently in dispute between the parties to a single judge for the purpose of resolving them. The present case is a paradigm example of a case where s 319A should be utilised.
While the applicant was not able to prepare a list of factual issues that ought to be referred under s 319A because there are ‘uncertainties as to what is in fact in dispute’, the parties were able to make some submissions as to issues and matters that might more generally be referred under the section. In his submissions, the applicant proposed a list of issues and matters which he contended were raised by the facts he relies upon in support of his proposed grounds of appeal. In its submissions, the respondent proposed a narrower and more confined list of issues and matters by reference to concessions said to have been made by the respondent and arguments about the ultimate relevance of various facts asserted by the applicant.
This is not the occasion on which to consider the ultimate relevance of each of the facts relied upon by the applicant in support of his proposed grounds of appeal. Without in any way foreshadowing what the Court which ultimately hears the applications for leave to appeal might conclude about the relevance of any particular facts, we are not persuaded that we should limit the referral under s 319A in the way contended for by the respondent. Having regard to the ultimate submissions the applicant wishes to make in his applications for leave to appeal, we do not think that the applicant should be shut out at this stage from establishing the facts he seeks to rely upon in relation to the conduct of Ms Gobbo, Victoria Police and the other authorities about whom he makes allegations.
Having considered the submissions to which we have just referred, we propose to refer to the Trial Division constituted by a judge, for the making of a reference determination within the meaning of s 319A, the following issues and matters:
(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 that Ms Gobbo provided to Victoria Police?
(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)?
(g) Did the AFP, Victoria Police and/or the respondent know that Ms Gobbo was an informant and when did they know this?
(h) [Redacted]
(i) Was the applicant compelled to give evidence at the [redacted] in relation to matters that were relevant to his trials?
(j) [Redacted]
(k) [Redacted]
(l) Did Ms Gobbo profit to any and what extent from disclosing information about the applicant to Victoria Police?
The respondent submitted that, as part of the s 319A referral, we should refer for determination the issue of the admissibility of evidence, submissions, and findings of the Royal Commission into the Management of Police Informants. In our view, it is not necessary to specifically refer this issue. The admissibility of evidence before the judge to whom the matter will be referred (‘the referral judge’) will be a matter for the referral judge. That is, we would expect that whenever an objection is taken to admissibility, or an objection is taken to any particular question, on any basis, the referral judge will hear and determine that objection.
To the extent that either party submitted that the referral judge would merely ‘take the evidence’ — leaving factual disputes arising out of that evidence to be resolved by this Court, we reject that submission. The possibility of the credit of a particular witness or witnesses being put in issue makes any such course unacceptable. The making of appropriate and relevant findings of fact is best performed by the referral judge, who will have the opportunity to see and hear the witnesses over a period which we anticipate might run to a number of weeks.
The parties have identified the various witnesses from whom evidence will be taken. Those witnesses have filed affidavits. While the applicant has submitted that, at least out of an abundance of caution, this Court should make an order under s 318 of the Criminal Procedure Act for witnesses to attend and be examined before the referral judge, the respondent has stated that no further s 318 order is necessary because each of the witnesses who has made an affidavit ‘can and will be made available for cross-examination as agreed or required by the Court’.[1] In the circumstances, we do not propose to make a s 318 order at this stage. In the event that any particular witness is not made available or does not attend before the referral judge, the parties will be at liberty to make any further application under s 318 to us as they see fit.
[1]Respondent’s response to the applicant’s list of issues and matters proposed to be the subject of a s 319A referral, n 12.
To the extent that the respondent submitted that we should limit (or even prevent) the cross-examination of some of the witnesses in respect of whom it has filed affidavits, we reject that submission. The respondent’s submissions on this issue appear to us to proceed on an unduly narrow approach to the complaints made by the applicant in his proposed grounds of appeal. Specifically, we reject the respondent’s submission that, given concessions made by the respondent about Ms Gobbo and her activities, cross-examination as to the Commonwealth Director’s own knowledge by her officers (as distinct from the knowledge of investigating police) is irrelevant.
First, taken at its highest, the evidence may go to the discretion exercisable pursuant to s 138 of the Evidence Act 2008 which the trial judge would have been able to exercise with respect to the admissibility of evidence if the underlying facts had been known at trial. Section 138(3) lists the matters a court is to take into account in carrying out the balancing exercise referred to in s 138(1). They include:
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless.
Secondly, the applicant’s case is not simply that he was deprived of a fair trial by reason of the non-disclosure. His case is also that he was a victim of a deliberate abuse of process which calls for the condemnation of the Court whether or not it had a material effect on the fairness of his trial. In such circumstances, we see no basis for limiting any cross-examination on the bases suggested by the respondent. Objections to the relevance of any question in cross-examination may be taken before, and ruled upon, by the referral judge.
Finally but without ruling on the issue at this stage, we would observe that there is some force in the respondent’s complaint about the provision of additional facts in the narrative chronology. To the extent that the narrative chronology contains any fact which the applicant will rely upon in support of one or more of his proposed grounds of appeal, that fact should be contained within the applicant’s written cases. Neither the respondent nor this Court should have to source the facts upon which the applicant’s proposed grounds of appeal are premised from documents additional to the applicant’s written cases.
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