Mokbel v The King
[2025] VSCA 243
•3 October 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2020 0180 S EAPCR 2025 0045 S EAPCR 2025 0065 |
| ANTONIOS MOKBEL | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH, KENNEDY and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2–4 September 2025 |
| DATE OF JUDGMENT: | 3 October 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 243 |
| JUDGMENT APPEALED FROM: | DPP v Mokbel (Supreme Court of Victoria, 18 April 2011) (Conviction); [2012] VSC 255 (Whelan J) (Sentence); Mokbel v The King [2024] VSC 725 (Fullerton J) (Reference Determination) |
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CRIMINAL LAW – Appeal – Conviction – Seven prosecutions relating to drug trafficking – Guilty pleas entered to charges in three prosecutions in exchange for discontinuation of remaining prosecutions – Barrister registered as police informer and informing on applicant – Other clients persuaded to give evidence against applicant – Breaches of barrister’s professional duties – Barrister and police shared common purpose of ensuring applicant charged with and convicted of serious offences – Applicant convicted and exhausted rights of appeal without knowing of misconduct – Whether substantial miscarriage of justice – Leave to appeal granted – Appeal allowed in part.
CRIMINAL LAW – Appeal – Conviction – Whether common purpose of barrister and State police undermined administration of justice – Barrister secured cooperation of clients to act as witnesses against applicant – Breaches of professional duties to clients – Method used to obtain evidence grossly improper – Fundamental departure from proper processes for trial – State conviction involving substantial miscarriage of justice – Order for acquittal – Common purpose not infecting Commonwealth prosecution – No fundamental departure from proper processes for trial – Misconduct having capacity to affect result in Commonwealth prosecution – Conviction not inevitable – Commonwealth conviction involving substantial miscarriage of justice – Order for retrial – Further State conviction unaffected – Baini v The Queen (2012) 246 CLR 469; Awad v The Queen (2022) 275 CLR 421; Karam v The King [2023] VSCA 318, applied.
CRIMINAL LAW – Appeal – Conviction – Whether common purpose of barrister and State police undermined appearance of administration of justice – Whether fair-minded observer might reasonably apprehend that accused might have been deprived of fair trial – Test not applicable where Court has found guilty pleas did not involve substantial miscarriage of justice – R v Szabo [2001] 2 Qd R 214, distinguished.
CRIMINAL LAW – Appeal – Conviction – Guilty pleas – Integrity of pleas impugned by non-disclosure of misconduct of barrister and police – Non-disclosure affecting assessment of strength of prosecution case on subject charges and charges discontinued by agreement – Whether prosecutions could not in law have proceeded – Affront to justice – Whether non-disclosure had capacity to affect outcome of prosecutions – Whether issuable question of guilt – Peters [No 2] v The Queen (2019) 60 VR 231; Karam v The King [2023] VSCA 318; Honeysett v DPP (NSW) [2023] NSWCCA 215, applied – Leave to appeal granted – Appeal allowed in part.
CRIMINAL LAW – Appeal – Conviction – Guilty pleas – Integrity of pleas impugned by non-disclosure of misconduct of barrister and police in connection with applicant’s extradition – Whether reasonable prospect of permanent stay of prosecutions on grounds of misconduct – No reasonable prospect of stay – Strickland v DPP (Cth) (2018) 266 CLR 325; Ballard v The King [2024] VSCA 26, applied.
CRIMINAL LAW – Appeal – Conviction – Guilty pleas – Integrity of pleas impugned by non-disclosure of misconduct of barrister and police – Whether non-disclosure had capacity to affect outcome of prosecutions – Whether evidence improperly obtained – Evidence would have been excluded from trials of subject charges and discontinued charges – Evidence Act 2008, s 138.
CRIMINAL LAW – Appeal – Second or subsequent appeal – Principles governing leave – Whether fresh evidence ‘compelling’ – Criminal Procedure Act 2009, s 326C(3)(b)(iii)(A) – Whether fresh evidence can be ‘highly probative in the context of the issues in dispute at the trial of the offence’ where no trial following plea of guilty – Statutory context points to wider meaning – Context of issues in dispute at prospective trial includes plea – Issues in dispute extend to question whether integrity of plea impugned – Van Beelen v The Queen (2017) 262 CLR 565; Roberts v The Queen (2020) 60 VR 431; Karam v The King [2023] VSCA 318, applied – Leave to appeal granted.
CRIMINAL LAW – Appeal – Jurisdiction – Crown appeal from reference determination under Criminal Procedure Act 2009, s 319A(5) – Where Crown respondent to substantive appeal – No express conferral of right of appeal on Crown – Parties not joining issue on question whether Crown has right of appeal – Director of Public Prosecutions v State of Victoria [2025] VSCA 41, referred to – Crown may be applicant or respondent to appeal against reference determination – Court sufficiently satisfied of jurisdiction to hear and determine respondent’s application for leave to appeal.
CRIMINAL LAW – Appeal – Reference determination – Judge found former Director of Public Prosecutions breached prosecutorial duty of disclosure on 4 September 2012 – Director informed of possibility of barrister’s informing against applicant on 1 June 2012 – Before reference judge applicant argued breach from 1 June 2012 encompassing duty to make further inquiries – Edwards v The Queen (2021) 273 CLR 585; Eastman v Director of Public Prosecutions (ACT) [No 13] [2016] ACTCA 65; Marwan v Director of Public Prosecutions(NSW) (2019) 278 A Crim R 592, referred to – Whether judge erred by not finding breach of duty on 1 June 2012 – Alleged breach not put to Director in cross-examination – Substantial departure from rule in Browne v Dunn – Failure to put allegation to Director meant judge could not reach informed conclusion – Leave to appeal refused.
CRIMINAL LAW – Appeal – Reference determination – Judge found respondent had conceded reasonable grounds existed for applicant to have made stay application in respect of prosecutions – Submissions before judge showing no express or implied concession – Leave to appeal granted – Appeal allowed.
CRIMINAL LAW – Appeal – Reference determination – Question before judge required consideration of strength of prosecutions – Two prosecutions advanced on joint presentment/indictment – Whether judge erred by failing to consider strength of prosecutions separately – Parties agreeing Court of Appeal should assess strength of each prosecution for itself – Proposed ground of appeal having no utility – Leave to appeal refused.
CRIMINAL LAW – Appeal – Reference determination – Judge found joint criminal enterprise between barrister and four police officers to attempt to pervert course of justice – Judge ‘supplemented’ evidence relied on in support of applicant’s case – Whether judge made finding in breach of rules of procedural fairness – Respondent on notice that applicant sought findings of unlawful or improper conduct of parties to enterprise – Cross-examination traversed matters relied on by judge – No breach of rule in Browne v Dunn – R v Morrow (2009) 26 VR 526, referred to – Requirements of procedural fairness met where underlying facts put to witnesses and parties had opportunity to address relevant evidence in course of submitting how reference questions to be answered – No error in judge’s approach – Leave to appeal granted – Appeal dismissed.
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| Counsel | |||
| Applicant: | Mr T Game SC with Ms J Condon KC, Dr J R Murphy and Ms E Fargher | ||
| Respondent: | Mr D Glynn with Mr T Wood and Mr S Thomas | ||
Solicitors | |||
| Applicant: | Stephen Andrianakis & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
TABLE OF CONTENTS
PART A:. INTRODUCTION
PART B:. LEAVE TO BRING SECOND APPEAL
The evidence must be ‘compelling’
Submissions
Does the test in sub-paragraph (iii)(A) require there to have been a trial?
Meaning of ‘highly probative in the context of the issues in dispute’ where there has not been a trial
Conclusion as to leave to bring second appeal
PART C:. LEAVE TO APPEAL AGAINST REFERENCE DETERMINATION
Submissions
Jurisdiction
Leave to appeal
PART D:. FACTUAL FOUNDATION OF THE SUBSTANTIVE APPEAL — THE REFERENCE DETERMINATION
Convictions sought to be appealed
Police operations concerning the applicant: charges subject of the proposed appeal
Quills
Orbital
Magnum
Police operations concerning the applicant: charges discontinued in plea deal
Kayak
Landslip
Matchless
Spake
Ms Gobbo’s assistance to police — ‘rolling’ potential witnesses (Quills and Orbital)
Mr Cooper
Mr Bickley
Mr Thomas
Ms Gobbo’s assistance to police — Magnum
Ms Gobbo’s assistance to police — extraditing the applicant
Ms Gobbo acting as the applicant’s lawyer
Relationship before the applicant absconded (20 March 2006)
Relationship during extradition process
Relationship after the applicant’s return to Australia
Relationship between Ms Gobbo’s deregistration as an informer (13 January 2009) and the applicant’s plea of guilty (18 April 2011)
Ms Gobbo acting as the lawyer for potential witnesses
Mr Cooper
Mr Bickley
Mr Thomas
Duties owed by Ms Gobbo to the applicant and potential witnesses
Best interests duty
Duty to exercise reasonable skill and care
Duty of confidentiality
Duty of loyalty
Duties owed to the Court
Ms Gobbo’s duties to the Court
Victoria Police’s duties to the Court
DPP’s duties to the Court
Breaches of duties owed by Ms Gobbo to clients
Breaches of duties to the applicant
Breaches of duties to other clients
Breaches of duties owed to the Court
Breaches of Ms Gobbo’s duties to the Court
Breaches of Victoria Police’s duties to the Court
Breaches of DPP’s duties to the Court
Common purpose of Ms Gobbo and Victoria Police
Unlawfulness and impropriety
Specific unlawfulness and impropriety in respect of ‘rolling’ potential witnesses
Mr Cooper
Mr Bickley
Mr Thomas
Whether Victoria Police took steps to ensure lawfulness and propriety
Knowledge of Victoria Police
Importance of improperly or unlawfully obtained evidence
Timing of knowledge of police and prosecutors as to possible effect on prosecutions or extradition
Victoria Police
DPP
AFP
CDPP
Breaches of duty of disclosure
DPP
Victoria Police
Specific effects of non-disclosure
Would the applicant have pleaded guilty anyway?
The applicant’s ability to properly evaluate the proposed plea bargain
PART E:. REFERENCE DETERMINATION APPLICATIONS
Applicant’s ground 1 — DPP’s breach of duty
The findings of the reference judge
Applicant’s submissions
Respondent’s submissions
Applicant’s reply
Analysis and conclusion
Respondent’s ground 1 — reasonable grounds for stay application
Submissions
Analysis
Conclusion
Respondent’s ground 2 — separate treatment of Orbital
Judge’s reasons
Respondent’s submissions
Applicant’s submissions
Respondent’s reply submissions
Oral submissions
Consideration
Respondent’s ground 3 — joint criminal enterprise
Leave to appeal
Findings of the reference judge concerning joint criminal enterprise
Respondent’s submissions — procedural fairness
Applicant’s submissions — procedural fairness
Procedural fairness — analysis and conclusion
Respondent’s submissions — no proper evidentiary basis
Applicant’s response — proper evidentiary basis
Respondent’s reply — no proper evidentiary basis
Proper evidentiary basis — analysis and conclusion
PART F:.. SUBMISSIONS ON SUBSTANTIVE APPEAL
Applicant’s submissions
Proposed grounds of appeal
Ground 1 — administration of justice
Ground 2 — non-disclosure
Disposition
Respondent’s submissions
Ground 1 — administration of justice
Ground 2 — non-disclosure
Disposition
PART G:. DISPOSITION OF SUBSTANTIVE APPEAL
Legal principles
Ground 1 — administration of justice: analysis and conclusions
The common purpose
Quills
Orbital
Magnum
Stay based on the extradition process
The appearance of the administration of justice
Stay based on exclusion of evidence under s 138
Conclusion
Ground 2 — non-disclosure: analysis and conclusions
Integrity of the pleas
Issuable question of guilt
Conclusion
Disposition
PART H:. CONCLUSIONS
Leave to appeal against reference determination — applicant
Leave to appeal against reference determination — respondent
Substantive appeal
Consequential orders
MCLEISH JA
KENNEDY JA
KAYE JA:
PART A:INTRODUCTION
On 18 April 2011 the applicant pleaded guilty in the Supreme Court to multiple drug offences arising out of three police investigations. As part of an agreement reached with the Director of Public Prosecutions (‘the DPP’), prosecutions on various other charges for drug offences were discontinued. The applicant was sentenced to 30 years’ imprisonment, with an effective non-parole period of 22 years.
The applicant sought leave to appeal against the convictions on the basis of matters concerning his extradition to Australia to face the charges. This Court refused leave to appeal on 17 May 2013 and an application to the High Court for special leave to appeal was dismissed on 13 December 2013.0F[1]
[1]Mokbel v The Queen (2013) 40 VR 625; Mokbel v The Queen [2013] HCATrans 321.
The applicant had been on trial on another drug charge commencing in February 2006. On 20 March 2006, after evidence had concluded, he failed to answer bail and absconded. He was convicted upon a jury verdict and sentenced to 12 years’ imprisonment with a non-parole period of 9 years on those charges.1F[2]
[2]On 11 February 2010, this Court refused leave to appeal against this conviction: R v Mokbel (2010) 30 VR 115. On 10 December 2010, the High Court refused special leave to appeal: Mokbel v The Queen [2010] HCATrans 329.
The applicant was arrested in Greece on 5 June 2007 and extradited to Australia on 16 May 2008 to face the charges referred to above, together with two murder charges.
Since 16 September 2005, Ms Nicola Gobbo, who was the applicant’s barrister at various relevant times, assisted Victoria Police in different ways to obtain evidence and intelligence against the applicant. This included a period until January 2009 during which Ms Gobbo was registered by Victoria Police as a human source. She was motivated by a desire to ensure that the applicant was charged with and convicted of serious offences.2F[3] Her conduct during this period included disclosure of privileged and confidential information to police, obtained from the applicant or from other clients about the applicant, and provision of information about the applicant’s activities and movements and those of his associates. Victoria Police were complicit in this conduct and shared Ms Gobbo’s motivating purpose.
[3]Mokbel v DPP [2024] VSC 725 [852] (Fullerton J) (‘Reference determination’).
Ms Gobbo also assisted Victoria Police in pursuing a strategy of charging his criminal associates and encouraging them to ‘roll’, or cooperate in their investigations against the applicant. Her conduct in this respect included providing intelligence to enable police to arrest and charge her other clients and advising those clients to cooperate with police.
The conduct of Ms Gobbo and Victoria Police was not known to the applicant or his lawyers when he pleaded guilty to the charges with which the Court is now concerned. Nor was it known during the extradition proceedings or when the applicant sought to have the criminal proceedings stayed on various grounds.
In February 2016, the DPP informed the Chief Commissioner of Victoria Police of his intention to disclose matters relating to Ms Gobbo to various persons whose convictions may have been affected by her conduct, including the applicant. Victoria Police and Ms Gobbo commenced proceedings seeking to prevent that disclosure (‘the disclosure proceedings’). Those proceedings were unsuccessful.3F[4]
[4]AB v CD [2017] VSC 350; AB v CD [2017] VSCA 338; AB v CD (2018) 93 ALJR 59; [2018] HCA 58.
The applicant then sought leave to bring a second appeal against the above convictions. The Commonwealth Director of Public Prosecutions (‘the CDPP’) conceded the appeal in respect of the 2006 conviction. This Court granted leave to bring a second appeal, allowed the appeal and quashed the conviction.4F[5] The sentences imposed on the remaining convictions, from 2011, were subsequently reduced so that the applicant is currently serving a term of 26 years’ imprisonment, with a non-parole period of 20 years on those charges.5F[6]
[5]Mokbel v Director of Public Prosecutions (Cth) [2020] VSCA 325.
[6]Mokbel v The King (2023) 375 FLR 290; [2023] VSCA 40.
The matters now before the Court concern the balance of the application for leave to bring a second appeal, namely in respect of the 2011 convictions.
On 6 May 2022, the Court referred an initial 21 matters in the form of questions for determination by a judge in the Trial Division pursuant to s 319A of the Criminal Procedure Act 2009 (the ‘CPA’); eventually, 25 matters were referred. After a hearing lasting some 66 sitting days, the reference judge gave judgment answering those questions. Both the applicant and the respondent seek leave to appeal aspects of those answers, as part of the applicant’s proposed second appeal against conviction.
The applicant seeks to have the 2011 convictions quashed and verdicts of acquittal entered in their place.
For the reasons that follow, the applicant should be granted leave to bring a second appeal in respect of the 2011 convictions. As explained in greater detail below, in that second appeal, two of the convictions should be set aside, but the appeal should be dismissed in respect of the third. There should be an acquittal on one of the charges on which the appeal succeeds and an order for a trial on the other, subject to the DPP’s decision whether to continue to prosecute that charge.
The applicant advances two proposed grounds of appeal. The first alleges that Ms Gobbo’s conduct so impugned the integrity of the applicant’s pleas of guilty, and the consequent convictions, and so compromised the administration of justice, as to cause in each case a substantial miscarriage of justice. The second ground alleges a substantial miscarriage of justice by reason of fundamental breaches of the prosecution’s duty of disclosure. It will be convenient to address those grounds sequentially, and in the course of doing so, to consider the proposed appeals in respect of aspects of the reference determination.6F[7]
[7]The grounds are set out at [507] below.
Before describing the factual background at greater length, we shall refer to the statutory provisions governing second and subsequent appeals, in order to identify the matters which the applicant must address in support of the relief he seeks, and the requirements for appeals in respect of the reference determination.
PART B:LEAVE TO BRING SECOND APPEAL
The applicant applies for leave to bring a second appeal pursuant to s 326A of the CPA. By that provision, a person convicted of an indictable offence who has exhausted their right of appeal against conviction may appeal to this Court against that conviction if the Court grants leave to appeal. Section 326C(1) provides that the Court may grant leave to appeal if it is satisfied that there is ‘fresh and compelling evidence that should, in the interests of justice, be considered on an appeal’.
The parties accept, inevitably, that the evidence concerning the assistance given by Ms Gobbo to Victoria Police is ‘fresh’ in the relevant sense. They differ as to whether the evidence is ‘compelling’. Section 326C(3)(b) defines ‘compelling’ as follows:
(3)In this section, evidence relating to an offence of which a person is convicted is—
…
(b)compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) either—
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
In Roberts v The Queen, the meaning of ‘compelling’ was explained as follows:
[T]he words ‘reliable’, ‘substantial’, and ‘highly probative’ are to be given their ordinary meanings. In Van Beelen,[7F[8]] the High Court observed (of the equivalent South Australian provision):
Nothing in the scheme of the CLCA or the extrinsic material provides support for a construction of the words ‘reliable’, ‘substantial’ and ‘highly probative’ in other than their ordinary meaning. Understood in this way, each of the three limbs of sub-s (6)(b) has work to do, although commonly there will be overlap in the satisfaction of each. The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding. The criterion of substantiality requires that the evidence is of real significance or importance with respect to the matter it is tendered to prove. Plainly enough, evidence may be reliable but it may not be relevantly ‘substantial’. Evidence that meets the criteria of reliability and substantiality will often meet the third criterion of being highly probative in the context of the issues in dispute at the trial, but this will not always be so. The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case. Fresh evidence relating to identity is unlikely to meet the third criterion in a case in which the sole issue at the trial was whether the prosecution had excluded that the accused’s act was done in self-defence. On the other hand, fresh evidence disclosing a line of defence that was not apparent at the time of trial may meet the third criterion because it bears on the ultimate issue in dispute, which is proof of guilt.
… [T]he Victorian statute raises as a further alternative to the final component of ‘compelling’ evidence, that which would have eliminated or substantially weakened the prosecution case if it had been presented at trial.8F[9]
[8]Van Beelen v The Queen (2017) 262 CLR 565 (‘Van Beelen’).
[9](2020) 60 VR 431, 441–2 [46]–[47] (Osborn and T Forrest JJA and Taylor AJA) (‘Roberts’) (citations omitted, emphasis added), quoting Van Beelen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ). See also Bromley v The King (2023) 416 ALR 570, 573 [8] (Gageler CJ, Gleeson and Jagot JJ), 624 [218] (Edelman and Steward JJ); [2023] HCA 42.
The evidence must be ‘compelling’
The question in the present case concentrates on sub-para (iii) of the definition of ‘compelling’.
Submissions
The respondent accepted that, to the extent that the applicant relies on findings made by the reference judge, those findings were made on the basis of evidence that was ‘reliable’ and ‘substantial’.
The applicant submitted that the evidence is ‘highly probative in the context of the issues in dispute at the trial’,9F[10] which extends to the underlying question whether the applicant received a fair trial according to law.10F[11] He submitted that the fresh evidence is probative of the nature and extent of illegalities and improprieties in the investigation, extradition and prosecution of the applicant. He points out that the issue is not whether the evidence is highly probative of an issue at the trial, but whether it is highly probative in the context of the issues at trial.
[10]CPA, s 326C(3)(b)(iii)(A).
[11]Roberts (2020) 60 VR 431, 453 [91] (Osborn and T Forrest JJA and Taylor AJA).
In respect of two of the three convictions,11F[12] the applicant also submitted that the evidence would have ‘eliminated or substantially weakened the prosecution case’12F[13] if it had been presented at trial. He submitted that the evidence would have required the exclusion of the evidence of Mr Bickley, Mr Cooper and Mr Thomas (all pseudonyms), or would have drastically undermined their credibility, and that of the informant in one matter, Detective Senior Sergeant Paul Rowe. In respect of all three matters,13F[14] the applicant submitted that the fresh evidence would also have given rise to the prospect of a stay.
[12]Named ‘Quills’ and ‘Orbital’, as described below.
[13]CPA, s 326C(3)(b)(iii)(B).
[14]The third matter being ‘Magnum’, described below.
Finally, the applicant submitted that, if the Court is satisfied that the evidence is fresh and compelling, it will almost always follow that it is in the interests of justice that it be considered on appeal.14F[15] The applicant referred to the statement of the High Court when rescinding special leave to appeal in respect of the disclosure proceedings, that the maintenance of the integrity of the criminal justice system demanded that the propriety of the relevant convictions be re-examined in light of the information that had come to light.15F[16]
[15]Roberts (2020) 60 VR 431, 461 [137] (Osborn and T Forrest JJA and Taylor AJA); Karam v The King [2023] VSCA 318 [169] (Beach, McLeish and Kennedy JJA) (‘Karam’).
[16]AB (a pseudonym) v CD(a pseudonym) (2018) 93 ALJR 59, 62 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
The respondent accepted that this Court should follow its own previous decisions to the effect that the concept of ‘issues in dispute at the trial’ extends to the underlying question whether the applicant received a fair trial according to law.16F[17] The respondent formally submitted, however, that those decisions are incorrect and that it is necessary that the evidence be capable of going to the proof or disproof of issues in dispute at the trial.17F[18]
[17]Roberts (2020) 60 VR 431, 453 [91] (Osborn and T Forrest JJA and Taylor AJA).
[18]Baker v The King (2022) 68 VR 76, 106 [104] (Emerton ACJ, Priest and Niall JJA).
The respondent submitted that, in any event, s 210(1) of the CPA provides that a ‘trial’ commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with s 217. It was submitted that, because the applicant pleaded guilty to the charges in question, no trial ever commenced. The respondent submitted that the applicant therefore cannot satisfy sub-para (iii)(A) of the definition of ‘compelling’. The respondent relied on the statement of Vandongen JA in Vella v Western Australia [No 2],18F[19] to the effect that the requirement that fresh evidence be ‘highly probative in the context of the issues in dispute at the trial of the offence’ in the equivalent Western Australian provision was incapable of being satisfied in a case where an accused pleaded guilty, because there was no ‘trial’ in that context.
[19][2025] WASCA 70 [226] (‘Vella’).
As to sub-para (iii)(B), the respondent submitted that the applicant had failed to show that the evidence of the identified witnesses ‘would’ have been excluded. It was submitted that the applicant had not identified how the impugned evidence was ‘obtained’ within the meaning of s 138 of the Evidence Act 2008, nor had he established that the evidence was obtained unlawfully or improperly or ‘in consequence’ of an impropriety or contravention of the law. In other words, the applicant is said not to have articulated a causal connection between impropriety or illegality in around 2005 and 2006 and the putative giving of evidence at a trial commencing in 2011. The respondent made extensive submissions as to why it was contended that the evidence in question would not have been excluded under s 138.
In reply submissions, the applicant contested the respondent’s construction of sub‑para (iii)(A) and the application of s 138 of the Evidence Act in the context of sub‑para (iii)(B).
The applicant drew attention, in particular, to the fact that the determinative question in a second or subsequent appeal is whether there has been a substantial miscarriage of justice: s 326D. This reflects the position in respect of a first appeal, as to which it is not in doubt that an appeal lies, and may succeed, notwithstanding that the accused has pleaded guilty.
The applicant also referred to s 326E(1)(c)(ii), which expressly recognises that a second or subsequent appeal may be brought, and may succeed, ‘in the case of a plea of guilty’.
Does the test in sub-paragraph (iii)(A) require there to have been a trial?
The respondent’s construction of sub-para (iii)(A) must be rejected. The construction depends on a literal reading of the provision. That reading is not supported by the statutory text, context or purpose, all of which indicate the wider construction for which the applicant contended.
First, the text of sub-para (iii)(A) is not necessarily restricted to trials that have actually taken place. It is capable of embracing trials that would have taken place, if not for a plea of guilty. The issues may have been in dispute at a trial of the offence, or they may have been going to be in dispute at such a trial. In either case, they are aptly described as ‘issues in dispute at the trial’. Nothing in the language of sub-para (iii)(A) prevents the issues in dispute at the trial from being identified as at a point before any trial has commenced.
Secondly, the context points strongly to the wider meaning. Sub‑para (iii)(B) is expressed in the subjunctive and clearly contemplates a hypothetical scenario. It readily accommodates evidence that would have weakened the prosecution case if presented at trial, whether or not a trial has actually occurred. The inquiry is into the effect on the prosecution case, not an effect on a trial. It would be anomalous if sub-paras (iii)(A) and (B) applied to different subject matter, with only the latter provision applying in a case where there has been no trial. That would give rise to an arbitrary difference between appeals after conviction by a jury and appeals after a guilty plea.
Thirdly, the provisions for second and subsequent appeals are intended to enable the remedying of substantial miscarriages of justice: s 326D. There is no apparent reason why that purpose would be confined to convictions after trial, and there is no textual indication to that effect. To the contrary, as the applicant noted, s 326E(1)(c)(ii) expressly contemplates an appeal after a plea of guilty. The respondent’s construction is at odds with principles of statutory construction that favour a remedial provision having a broad operation and require a grant of jurisdiction to a court to be construed generously. The respondent’s construction would give sub-para (iii)(A) a markedly more confined operation than its words are capable of conveying. Given that the provisions for second and subsequent appeal are intended to enable such appeals after a guilty plea, a construction of sub-para (iii)(A) that promotes that purpose should be preferred.19F[20]
[20]Interpretation of Legislation Act 1984, s 35(a).
Specifically, the respondent’s construction would mean that (in cases where sub‑para (iii)(B) does not apply) there could be no second appeal in a case where there is fresh, reliable and substantial evidence that is highly probative in the context of the issues that would have been in dispute at the trial if the applicant had not pleaded guilty. The respondent advanced no rationale for excluding the application of sub-para (iii)(A) in those circumstances.
It is significant that the South Australian provisions considered by the High Court in Van Beelen, the construction of which has guided this Court in its approach to s 326C, contain no equivalent to sub-para (iii)(B). The respondent’s approach therefore suggests that, in South Australia, there can be no second appeal in a case where an accused has pleaded guilty. There is no such suggestion in Van Beelen. Rather, the High Court stated that the ‘evident intention’ of the provisions is that ‘the Full Court have jurisdiction to remedy any substantial miscarriage of justice’ if, ‘following an unsuccessful … appeal, further fresh and compelling evidence is discovered’.20F[21]
[21]Van Beelen (2017) 262 CLR 565, 576 [27] (Bell, Gageler, Keane, Nettle and Edelman JJ).
We are conscious that our conclusion differs from the view expressed by Vandongen JA in Vella. We are not, of course, bound by that obiter dictum, which the other two members of the court did not address, but we would respectfully note that the Western Australian Court of Appeal does not appear to have had the benefit of full argument on the point, in any event.
Meaning of ‘highly probative in the context of the issues in dispute’ where there has not been a trial
As noted earlier, the respondent accepted (subject to a formal submission to the contrary) that we should proceed on the basis that ‘issues in dispute at the trial’ extends to the underlying question whether the applicant received a fair trial according to law.21F[22] In Van Beelen, the High Court said of the South Australian equivalent of sub‑para (iii)(A):
The focus of the third criterion is on the conduct of the trial. What is encompassed by the expression ‘the issues in dispute at the trial’ will depend upon the circumstances of the case.22F[23]
[22]Roberts (2020) 60 VR 431, 453 [91] (Osborn and T Forrest JJA and Taylor AJA).
[23]Van Beelen (2017) 262 CLR 565, 577 [28] (Bell, Gageler, Keane, Nettle and Edelman JJ); see Roberts (2020) 60 VR 431, 441–2 [46]–[47] (Osborn and T Forrest JJA and Taylor AJA); Karam [2023] VSCA 318 [169] (Beach, McLeish and Kennedy JJA).
The treatment of the fair trial question as falling within the provision was explained in Karam as follows:
We accept that this interpretation gives a broad meaning to the expression ‘issues in dispute at the trial’. However, it would be surprising if the provision for second and subsequent appeals did not allow for an appeal where highly probative fresh evidence brings the fairness of a trial into question, unless it can be shown that, had the evidence been presented at trial, it would have eliminated or substantially weakened the prosecution case. That construction would have the anomalous result that the availability of an appeal seeking to establish serious departures from proper trial processes, which by definition amount to a substantial miscarriage of justice in and of themselves, would depend on demonstrating a further matter, namely a substantial effect of those departures on the strength of the prosecution case.23F[24]
[24]Karam [2023] VSCA 318 [170] (Beach, McLeish and Kennedy JJA).
The same rationale justifies construing the statutory language as extending to the fairness of a plea. Just as the fairness of a trial is part of the ‘context’ of the issues in dispute at that trial, in a case where there has been no trial because the applicant pleaded guilty, the plea is part of the ‘context’ of the issues in dispute at that prospective trial. And just as the ‘issues in dispute’ can extend to the question whether the trial was fair according to law, in a case where there has been no trial because the applicant pleaded guilty, the ‘issues in dispute’ can extend to the question whether the integrity of the plea was impugned. That question arises in the context of the issues that are in dispute in the prospective trial, until the applicant pleads guilty.
Accordingly, if there is evidence that the plea was not fully informed in a material respect, or that there was a failure to perform prosecutorial disclosure obligations, that evidence may, depending on its strength and significance, be highly probative in the context of the issues that were in dispute before the matter had reached trial.
Senior counsel for the applicant submitted that ‘highly probative’ means ‘of real significance’ or ‘of importance’.24F[25] That submission is consistent with the Court’s conclusion in Roberts that evidence was highly probative in that case because it raised a ‘serious question as to the fairness of the trial’ and a ‘serious issue’ as to the reliability of evidence ‘central to the trial’.25F[26]
[25]In written submissions, the applicant submitted that ‘highly probative’ meant ‘has a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate result in a case’.
[26]Roberts (2020) 60 VR 431, 434 [12], 452 [86], 461 [137] (Osborn and T Forrest JJA and Taylor AJA).
Conclusion as to leave to bring second appeal
Turning to the merits of the present leave application, we accept that the evidence of Ms Gobbo’s conduct was probative in the context of the issues in dispute at the trial of the relevant offences that would have taken place, had the applicant not pleaded guilty. The evidence reflected in the findings of the reference judge is in effect axiomatically ‘probative’, by virtue of having been accepted after extensive hearings. It is evidence squarely concerned with the integrity of the plea and is therefore probative in the ‘context’ of the issues that were in dispute until the plea was entered.
The question whether the evidence is ‘highly’ probative depends on the strength of the fresh evidence in light of the end to which it is proposed to be directed, namely proof of the substantial miscarriage of justice which is alleged. In this case, the inquiry must address whether the fresh evidence raises a serious question as to the integrity of the applicant’s respective convictions. For reasons which will become apparent, we are satisfied that it does. In each of the three cases, the evidence raises a real question as to whether the administration of justice was compromised and whether the applicant’s guilty pleas were tainted by the conduct of Ms Gobbo and Victoria Police and the non-disclosure of that conduct to the applicant or the Court. In the case of Quills, there is an additional real question as to the admissibility of the evidence of Mr Bickley, upon which the prosecution critically relied. That question is also relevant to the Orbital matter.
The result is that the fresh evidence is ‘compelling’ as defined. In the circumstances, it is not necessary to decide whether the evidence ‘would have’ eliminated or substantially weakened the prosecution case if it had been presented at trial, within sub-para (iii)(B). However, we observe that the respondent conceded that, if the evidence of Mr Bickley was excluded in the Quills trial, this would, in effect, ‘eliminate’ the prosecution case in that matter.26F[27]
[27]For completeness, we record our opinion, based on our reasoning in the substantive appeal, that the fresh evidence would not have satisfied sub-para (iii)(B) in the case of Magnum.
In our view, for the very reasons that the evidence in this case is seen to be ‘compelling’, it is in the interests of justice that the evidence be considered on an appeal. The respondent does not contest that conclusion, once the evidence is found to be ‘compelling’.27F[28] Nor does the respondent invite us to refuse leave on a discretionary basis, once that conclusion is reached.
PART C:LEAVE TO APPEAL AGAINST REFERENCE DETERMINATION
[28]Van Beelen (2017) 262 CLR 565, 578 [30] (Bell, Gageler, Keane, Nettle and Edelman JJ).
It is now convenient to address the law governing the applications for leave to appeal against aspects of the reference determination.
Sections 319A(5) and (6) of the CPA provide:
(5)If the Court of Appeal gives leave, the Court of Appeal may hear and determine an appeal against a reference determination as part of the appeal or application for leave to appeal to which the reference determination relates.
(6)Unless the Court of Appeal otherwise determines in accordance with subsection (5), a reference determination is taken to be a determination of the Court of Appeal in the appeal or application for leave to appeal to which the reference determination relates.
In respect of the criteria for a grant of leave, the Court said in Karam:
The section is silent as to the nature of … an appeal [from a reference determination] and the grounds upon which the Court may determine whether or not to grant leave to appeal. As to the ground of leave, it is plain that the question of leave is at the discretion of the Court. At the least, it can be expected that it must be shown that the grounds upon which leave to appeal is sought are reasonably arguable.28F[29] That is not to say that the existence of reasonable grounds will always warrant a grant of leave. It will also be necessary to show that the ground upon which the applicant seeks leave to appeal against a reference determination is one which, by reason of its relationship to proposed grounds in a substantive appeal, might reasonably have a bearing on the conviction or sentence sought to be appealed. Leave is likely to be refused if success on the proposed appeal against the reference determination would not materially advance the prospects of success of the proposed substantive appeal.29F[30]
[29]Cf Raad v The Queen (2006) 15 VR 338.
[30][2023] VSCA 318 [144] (Beach, McLeish and Kennedy JJA).
In Karam, the parties argued a proposed appeal against a reference determination application on the basis that the proposed appeal was an appeal by way of rehearing, and the Court proceeded on that basis.30F[31] The parties urge the same course in this matter.
[31]Ibid [145]–[148].
Submissions
The applicant submitted that s 326A(5) of the CPA permits both appeals against a particular finding in a reference determination and an appeal against a failure to make a particular finding. The subject matter of the proposed appeal by the applicant is the finding of the reference judge that the DPP was in breach of his duty of disclosure from 1 June 2012, rather than from 4 September 2012.
The parties submitted that the Court is required to conduct a real review of the matter in issue. They relied on the observation in Fox v Percy31F[32] that the appellate court is required to weigh conflicting evidence and draw its own inferences and conclusions, bearing in mind that it has neither seen nor heard the witnesses and making due allowance in that respect.32F[33]
[32](2003) 214 CLR 118.
[33]Ibid 127 [25] (Gleeson CJ, Gummow and Kirby JJ), citing Warren v Coombes (1979) 142 CLR 531, 551 (Gibbs ACJ, Jacobs and Murphy JJ); Lee v Lee (2019) 266 CLR 129, 148–9 [55] (Bell, Gageler, Nettle and Edelman JJ, Kiefel CJ agreeing at 134 [1]).
The applicant contended that his proposed appeal against the reference determination goes to the significance of the breach of the DPP’s duty of disclosure, including whether it was so serious as to constitute a fundamental irregularity in the applicant’s trials. It was submitted that the difference in dates when the DPP was in breach of his duty is potentially significant, including because, at the earlier date, the applicant had not been sentenced and could therefore have sought to change his plea based on the information which the DPP should have provided.
The respondent seeks leave to appeal in respect of three findings of the reference judge, namely:
(a)a finding that the respondent had conceded that there would have been reasonable grounds for the applicant to have sought a stay of the prosecutions;
(b)a failure to assess the strength of the prosecution case on the Orbital charge separately from that in respect of the Quills charge and failing to find that the case in respect of the Orbital charge would have remained strong even if Mr Bickley’s evidence had been excluded; and
(c)a finding that there was a joint criminal enterprise committed by Ms Gobbo and four police officers who had formed an agreement by 20 April 2006 that, upon his arrest, Mr Cooper would be denied independent legal assistance before deciding to admit his guilt and agreeing to assist police on 22 April 2006, in circumstances where the respondent was denied procedural fairness and the finding was erroneous because there was no proper evidentiary basis to find that the five individuals had entered the agreement by 20 April 2006.
Jurisdiction
A preliminary issue arises with respect to the respondent’s proposed appeal against these aspects of the reference determination. The only identified source of a right to appeal against a reference determination is s 319A(5). The provision does not identify the party or parties who may appeal. It provides only that, with leave, the Court may hear and determine an appeal against a reference determination ‘as part of the appeal or application for leave to appeal to which the reference determination relates’. In other words, the appeal against a reference determination is heard as part of the applicant’s proposed substantive appeal.
This language is not especially apt to confer a right of appeal (with leave) upon the respondent. In general, the clearest language is required in order to confer a right of appeal in a criminal case on the Crown.33F[34] Far from containing such language, s 319A(5) envisages any appeal against a reference determination being heard and determined ‘as part of’ an applicant’s substantive appeal, which readily sits with an applicant’s appeal against a reference determination but less comfortably with a respondent’s appeal.
[34]R v Snow (1915) 20 CLR 315, 322 (Griffith CJ); Lacey v A-G (Qld) (2011) 242 CLR 573, 582–4 [17]–[20] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In light of these considerations, the Court sought short written submissions from the parties as to its jurisdiction to hear the respondent’s application for leave to appeal against the reference determination, and any such appeal. The respondent filed submissions contending that the Court had jurisdiction, and the applicant informed the Court that it took ‘no issue’ with those submissions.
There is no issue, therefore, between the parties in respect of jurisdiction. This does not relieve the Court of the need to be satisfied as to its jurisdiction, but it does mean that the issue of jurisdiction need not be finally determined. As explained in Director of Public Prosecutions v State of Victoria:34F[35]
While jurisdiction cannot be conferred by consent, … the level of scrutiny a court applies to the question of jurisdiction when orders are made by consent is less than when jurisdiction is in issue between the parties.35F[36] In a consent matter, ‘very slight inquiry may be adequate’.36F[37]
[35][2025] VSCA 41 [18] (Beach, McLeish and Kennedy JJ).
[36]Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd ed, 2020) 38–9.
[37]Federated Engine Drivers’ & Firemen’s Association of Australasia v The Broken Hill Pty Co Ltd (1911) 12 CLR 398, 428 (Barton J).
Among the points made by the respondent, one suffices to give the Court the requisite satisfaction that it has jurisdiction. The provisions for reference determinations apply not only to second and subsequent appeals brought by convicted persons under pt 6.4 of the CPA, but also to appeals under pt 6.3: s 319A(1). Part 6.3 relevantly provides for appeals to the Court of Appeal from the County Court and the Trial Division of the Supreme Court, including appeals against conviction (div 1), appeals against sentence by offenders (div 2) and by the DPP (div 3), and interlocutory appeals by a party to a proceeding for the prosecution of an indictable offence (div 4). The fact that there can be a reference determination in an appeal brought by the DPP under div 3 or div 4 strongly suggests that s 319A(5) confers a right of appeal (with leave) on both parties in that circumstance. It would be anomalous if it were only the DPP who had that right, in that context. Yet that would be the result if the provision were construed as giving a right of appeal only to the applicant in the appeal to which the reference determination relates.
Put differently, if s 319A(5) were construed as not conferring a right of appeal on the Crown in a reference determination relating to a second or subsequent appeal under pt 6.4, then nor would it confer a right of appeal on an offender the subject of a sentence appeal by the DPP or an interlocutory appeal brought by the DPP. Again, there is no apparent reason why that would have been the parliamentary intention, and the result would run counter to the presumption governing statutory interpretation of provisions conferring rights of appeal in criminal proceedings.
In short, because the appeal to which a reference determination relates is not necessarily an appeal brought by an offender, the respondent to that appeal is not necessarily the Crown. In the circumstances, giving the remedial provision in s 319A(5) its full effect, we are sufficiently satisfied that s 319A(5) does not have a differential operation, and that the Court therefore has jurisdiction to hear and determine the respondent’s proposed appeal against the reference determination.
Leave to appeal
It is convenient to defer consideration of the respective applications for leave to bring an appeal against the reference determination. That is principally because, as indicated above, one issue germane to the question of leave is whether the ground of the proposed appeal is one which, by reason of its relationship to proposed grounds in the substantive appeal, might reasonably have a bearing on the conviction sought to be appealed in that appeal.37F[38]
PART D:FACTUAL FOUNDATION OF THE SUBSTANTIVE APPEAL — THE REFERENCE DETERMINATION
[38]See [48] above.
The reference determination runs to more than 500 pages, addressing numerous specific questions. The reference judge determined not only what assistance Ms Gobbo provided to Victoria Police in respect of investigations and prosecutions concerning the applicant, but identified breaches of Ms Gobbo’s obligations in respect of the applicant and others, and the knowledge of Victoria Police of those breaches.
We will outline, in some detail, the findings of the reference judge under the following headings:
(a)police operations concerning the applicant: charges subject of the proposed appeal;38F[39]
[39]This extends to the specific relationship between two of those investigations.
(b)police operations concerning the applicant: charges discontinued in plea deal;
(c)Ms Gobbo’s assistance to police — ‘rolling’ potential witnesses (Quills and Orbital);
(d)Ms Gobbo’s assistance to police — Magnum;
(e)Ms Gobbo’s assistance to police — extraditing the applicant;
(f)Ms Gobbo acting as the applicant’s lawyer;
(g)Ms Gobbo acting as the lawyer for potential witnesses;
(h)duties owed by Ms Gobbo to the applicant and potential witnesses;
(i)duties owed to the Court;
(j)breaches of duties owed by Ms Gobbo to clients;
(k)breaches of duties owed to the Court;
(l)common purpose of Ms Gobbo and Victoria Police;
(m)unlawfulness and impropriety;
(n)specific unlawfulness and impropriety in respect of ‘rolling’ potential witnesses;
(o)whether Victoria Police took steps to ensure lawfulness and propriety;
(p)knowledge of Victoria Police;
(q)importance of improperly or unlawfully obtained evidence;
(r)timing of knowledge of police and prosecutors as to possible effect on prosecutions or extradition;
(s)breaches of duty of disclosure;
(t)specific effects of non-disclosure;
(u)would the applicant have pleaded guilty anyway?; and
(v)the applicant’s ability to properly evaluate the proposed plea bargain.39F[40]
[40]The reference also extended to other matters to which we need not refer, including findings as to the maintaining of records, and whether there was a wider course or pattern of conduct on the part of Victoria Police.
Convictions sought to be appealed
The applicant seeks leave to bring a second appeal in respect of convictions relating to three drug offences, to which it is convenient to refer by use of the names of the relevant police operations, namely Quills, Orbital and Magnum.
The convictions followed pleas of guilty in April 2011 to two State charges of trafficking not less than a large commercial quantity of MDMA (Quills) and methylamphetamine (Magnum) respectively,40F[41] and a Commonwealth charge of incitement to import a commercial quantity of MDMA41F[42] (Orbital). The pleas were entered pursuant to an agreement with the prosecution by which further charges relating to other State drug offences, the subject of police operations Kayak, Landslip, Matchless and Spake, were discontinued.
[41]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981.
[42]Contrary to s 11.4(1) of the Criminal Code (Cth).
The applicant was also the subject of other police operations, namely Macaw (concerning the murder of Michael Marshall — the applicant was extradited from Greece to face this charge; the trial was discontinued on 3 April 2009) and Gotta (concerning the murder of Lewis Moran — the applicant was extradited from Greece to face this charge also; he was acquitted by jury verdict on 25 September 2009). The applicant was also the subject of further investigation, concerning a suspected attempt to pervert the course of justice, which was designated ‘Landslip 2’ although it did not constitute a distinct police operation.
We will set out below more details in respect of the three operations which gave rise to the convictions sought to be appealed, and the four prosecutions which were discontinued when the applicant pleaded guilty to charges brought in the first three operations. It is convenient, however, to first outline the procedural history which puts the various charges in their context. The position was helpfully summarised by this Court in a bail application brought by the applicant earlier this year:
Following a trial in early 2006, the applicant was found guilty of one charge of being knowingly concerned in the importation into Australia of a prohibited import, namely a traffickable quantity of cocaine. This offence is referred to by the parties as the ‘Plutonium’ offence.
On 31 March 2006, he was sentenced for the Plutonium offence by Gillard J to 12 years’ imprisonment with a non-parole period of nine years. ...42F[43]
The applicant breached his bail prior to the completion of the Plutonium trial and fled the country. The trial concluded, and sentence was delivered, in the applicant’s absence. He was arrested in Greece on 5 June 2007 ...
At the time that he absconded, the applicant had been charged with the Orbital offence but not the Quills offence. Both offences were alleged to have been committed in 2005. The Magnum offence was alleged to have been committed on various dates between 2006 and 2007 after the applicant had absconded and before his arrest in Greece.
Following his arrest in Greece, extradition proceedings were instituted by the Commonwealth Attorney-General.43F[44] The applicant fought these proceedings in the Greek courts, and also by way of an application to the European Court of Human Rights and by proceedings in the Federal Court of Australia.
The applicant was extradited in May 2008 to face trial on nine matters comprising two charges of murder and seven drug [prosecutions] being Quills, Orbital, Magnum, Kayak, Landslip, Matchless and Spake, and to serve the Plutonium sentence imposed on him in March 2006.
Following his extradition, the applicant made three unsuccessful stay applications based upon alleged impropriety or illegality in the extradition process.44F[45]
The two murder prosecutions against the applicant failed. One resulted in an acquittal in September 2009 and the other resulted in a nolle prosequi in April 2009.
A global plea deal was then negotiated with respect to the outstanding drug offences and the applicant pleaded guilty to Quills, Orbital, and Magnum on 18 April 2011.
Thereafter, the applicant sought unsuccessfully to change his pleas on the basis of arguments directed to the validity of search warrants arising out of practices adopted by the police.45F[46]
The applicant’s plea hearing in the Quills, Orbital, and Magnum matters commenced before Whelan J (as his Honour then was) on 24 May 2012 and on the same day a nolle prosequi was entered in respect of the other four drug matters (Kayak, Landslip, Matchless and Spake).46F[47]
[43]R v Mokbel [2006] VSC 119; R v Mokbel (2010) 30 VR 115.
[44]The Quills, Orbital, Magnum, Kayak, Landslip, Matchless and Spake offences, amongst others, were included in the extradition request: Reference determination [18].
[45]Mokbel v DPP (2008) 26 VR 1; DPP v Mokbel(Orbital & Quills - Ruling No 1) [2010] VSC 331; R v Mokbel (Magnum - Ruling No 2 - Stay) [2011] VSC 128.
[46]R v Mokbel (2012) 35 VR 156.
[47]Mokbel v The King [2025] VSCA 62 [9] (Emerton P, Osborn JA and Jane Dixon AJA).
Police operations concerning the applicant: charges subject of the proposed appeal
Quills
In December 2004, Victoria Police commenced the Quills investigation into the use of pill presses to press MDMA powder into tablet form at a factory in Coburg and at a private garage at Craigieburn. The applicant was a target of this operation. The other targets included Mr Bickley.47F[48]
[48]Reference determination [190].
In April 2005 Victoria Police learnt of a ‘parallel investigation’48F[49] by the Australian Federal Police (the ‘AFP’) into the importation of a range of precursor chemicals, including for the manufacture of MDMA in tablet form. This became known as Operation Orbital (see below). From that point there was an exchange of information between Victoria Police and the AFP.49F[50]
[49]Ibid [191].
[50]Ibid.
The applicant absconded in the course of the Plutonium trial, before being charged with any offence arising from the Quills investigation; he had, however, been charged by the AFP in the course of the Orbital investigation with incitement to import prohibited drugs, including a large quantity of MDMA powder.50F[51]
[51]Ibid [195].
The applicant was extradited from Greece, having been charged with the Quills offence of trafficking a large commercial quantity of MDMA.51F[52]
Orbital
[52]Ibid [205]–[206].
As part of the Orbital investigation, the AFP charged the applicant with two counts of incitement to import prohibited drugs, namely 1000 kilograms of MDMA powder and 200 litres of benzyl methyl ketone. He was extradited from Greece to face these charges.
On 6 April 2009, the applicant was committed to stand trial on the first of the two Orbital charges (referred to below as ‘the Orbital charge’).52F[53]
[53]Ibid [220]. By that time, he had been discharged in respect of the second charge on the basis that one of the informer witnesses was not available to give evidence: ibid [220] n 199.
Around July 2009, the DPP assumed conduct of the Orbital trial from the CDPP.53F[54]
[54]Ibid [213]–[214], [217], [220].
On 5 October 2009, the DPP applied to present a joint Quills/Orbital presentment/indictment, which was opposed by the applicant.54F[55] The Court was provided with the document and it was ultimately filed by consent.55F[56]
[55]Ibid [222]. Strictly speaking, the applicant was presented on the State charge in Quills, and indicted on the Commonwealth charge in Orbital.
[56]R v Mokbel (2012) 35 VR 156, 166 [54] (Whelan J).
The applicant filed an application for a permanent stay of the joint Quills/Orbital presentment. The application was heard by Whelan J over multiple dates in November and December 2009 and in February, March, April, May, June and August 2010. On 5 August 2010, Whelan J refused the application.56F[57]
[57]Ibid [223]–[224]; DPP v Mokbel(Orbital & Quills – Ruling No 1) [2010] VSC 331.
On 18 April 2011, as part of plea negotiations with the DPP which commenced in early April 2011, the joint presentment/indictment including the Orbital and Quills offences was filed. The applicant was arraigned and pleaded guilty to both offences.57F[58]
[58]Reference determination [226].
The reference judge found that
it became increasingly obvious as the Quills and Orbital investigations unfolded, when the briefs of evidence were being prepared and, finally, when the prosecution strategy was being developed that there would be considerable forensic advantages to the prosecution were an order made for joinder of the two counts on one indictment.58F[59]
The reference judge was satisfied that the relationship between the two cases was such that, in an evidentiary sense, the investigations the subject of the two operations were (or proved to be) mutually reinforcing.59F[60]
[59]Ibid [1219].
[60]Ibid.
In particular, the reference judge found that, in light of that relationship, Ms Gobbo’s assistance or attempted assistance in the investigation and prosecution of the applicant in Operation Quills (referred to below) also assisted police in the prosecution of the applicant for the Orbital offence.60F[61]
Magnum
[61]Ibid [1221].
Operation Magnum commenced on 19 April 2007. It concerned the applicant’s alleged control of a large‑scale criminal enterprise manufacturing and distributing methylamphetamine while he was overseas.61F[62]
[62]Ibid [243].
On 19 June 2007, the applicant was charged with a drug trafficking offence arising out of Operation Magnum. Nine co‑offenders were also charged. Between 6 March 2009 and September 2011 they each pleaded guilty and were sentenced.62F[63]
[63]Ibid [246].
The prosecution brief of evidence in Magnum included thousands of hours of intercepted telephone conversations between the applicant and his associates in which he was recorded directing the drug trafficking operations from overseas.63F[64]
[64]Ibid [249].
On 23 October 2009, the applicant was committed to stand trial in the Supreme Court on the Magnum offence. It was intended to be the second of the drug trials to be prosecuted, after the Quills/Orbital prosecution.64F[65]
[65]Ibid [250].
On 23 March 2011, the applicant abandoned a pre‑trial challenge to the validity of the telephone interception warrants that generated the recorded telephone conversations which were relied upon by the prosecution in Magnum.65F[66]
[66]Ibid [252].
On 5 April 2011, Whelan J refused an application for a permanent stay of the Magnum prosecution.66F[67]
[67]Ibid [253]; R v Mokbel (Magnum – Ruling No 2) [2011] VSC 128 [31], referring to Mokbel(Orbital & Quills – Ruling No 1) [2010] VSC 331.
On 18 April 2011, the applicant was arraigned and entered a plea of guilty to the Magnum offence along with the Quills and Orbital offences.67F[68]
[68]Reference determination [254].
Police operations concerning the applicant: charges discontinued in plea deal
Kayak
The Kayak operation commenced in October 2000. On 24 August 2001, the applicant was arrested and charged by Victoria Police with three drug trafficking offences arising from Operation Kayak: one count of trafficking in a drug of dependence in a quantity no less than the commercial quantity (MDMA) and two counts of trafficking in a drug of dependence, respectively methylamphetamine and cocaine.68F[69]
[69]Ibid [132], [134].
On the same date, the applicant was charged by the AFP with being knowingly concerned in the importation of cocaine. That offence was ultimately prosecuted by the CDPP in 2006 in the Plutonium trial, which commenced before Gillard J in February 2006.69F[70]
[70]Ibid [135].
On 15 February 2005, the applicant was committed to stand trial on the Kayak offences. The prosecution case depended largely on incriminating tape‑recorded conversations in which the applicant was alleged to have participated with a police informer.70F[71]
[71]Ibid [137].
The applicant left the jurisdiction before the Kayak trial commenced. He was extradited to stand trial on the Kayak offences.71F[72]
[72]Ibid [140]–[141].
On 18 April 2011, after the plea negotiations which had commenced in early April 2011 culminated in the applicant pleading guilty to the Quills, Orbital and Magnum offences, the respondent informed the Court that a nolle prosequi would be entered for the Kayak offences. The nolle prosequi was formally entered on 24 May 2012.72F[73]
Landslip
[73]Ibid [143].
Operation Landslip was established in 2001 to investigate the manufacture of methylamphetamine at a clandestine laboratory in Pascoe Vale between February 2001 and February 2002.73F[74]
[74]Ibid [153].
As will be explained later, Mr Cooper was arrested on 13 February 2002 and charged as a result of this investigation. In July 2007, he signed a witness statement implicating the applicant in the manufacture of methylamphetamine at the Pascoe Vale laboratory. Mr Thomas had also signed a statement implicating the applicant in this offending, in July 2006. Ms Gobbo acted for Mr Cooper and Mr Thomas in relation to these matters. Her role in the production of these statements was not disclosed to the applicant at any time before the negotiations which resulted in him pleading guilty to the Quills, Orbital and Magnum offences.74F[75]
[75]Ibid [154], [159]–[160], [165].
On 20 June 2007, following the applicant’s arrest in Greece on 5 June 2007, a warrant was issued for his arrest on a charge of conspiracy to traffic in a commercial quantity of methylamphetamine. The applicant was extradited for that offence and other offences that related to Operation Landslip, including conspiracy to manufacture a commercial quantity of methylamphetamine.75F[76]
[76]Ibid [161]–[163].
The applicant was committed to the Supreme Court to stand trial for the latter offence. It was intended that this would be the last of the drug trials to be prosecuted.76F[77]
[77]Ibid [163].
On 18 April 2011, the respondent informed the Court that a nolle prosequi would be entered for the Landslip offence. The nolle prosequi was formally entered on 24 May 2012.77F[78]
Matchless
[78]Ibid [164].
Operation Matchless was established in January 2003 to investigate the manufacture of methylamphetamine in a clandestine laboratory in Rye by Mr Cooper and his brother for three separate drug trafficking syndicates: one associated with the applicant’s brother Milad Mokbel; one associated with the applicant with the assistance of his brother Kabalan Mokbel; and a third associated with others, including Mr Thomas who was working for Carl Williams.78F[79]
[79]Ibid [174].
On 11 April 2003 Mr Cooper was arrested and charged with manufacturing a commercial quantity of methylamphetamine at the Rye laboratory. At that time, there was insufficient evidence to charge the applicant with that offending.79F[80]
[80]Ibid [176].
Following a contested committal hearing on 22 March 2005, Mr Cooper was committed to the County Court for sentence on a plea of guilty to the Matchless offence.80F[81]
[81]Ibid [178].
In July 2007 Mr Cooper signed a witness statement implicating the applicant in the Matchless offence.81F[82]
[82]Ibid [179].
In July 2006 Mr Thomas signed a witness statement also implicating the applicant (and others) in the Matchless offence.82F[83]
[83]Ibid [180].
On 20 June 2007, following the applicant’s arrest in Greece on 5 June 2007, a warrant was issued in the Melbourne Magistrates’ Court for his arrest on a charge of trafficking in a large commercial quantity of methamphetamine between 1 September 2002 and 11 April 2004, being the Matchless offence. That offence also formed part of the extradition request.83F[84]
[84]Ibid [181]–[182].
In June 2009, Mr Cooper and Mr Thomas gave evidence for the prosecution at the applicant’s committal proceeding for the Matchless offence.84F[85]
[85]Ibid [183].
On 19 June 2009 the applicant was committed to the Supreme Court for trial on that offence, where he indicated that he would plead not guilty.85F[86]
[86]Ibid [184].
Again, on 18 April 2011, the respondent informed the Court that a nolle prosequi would be entered for the Matchless offence. The nolle prosequi was formally entered on 24 May 2012.86F[87]
[87]Ibid [185].
As with Landslip, the role played by Ms Gobbo in Mr Cooper and Mr Thomas giving evidence against the applicant was not disclosed to him at any time before the negotiations which resulted in him pleading guilty to the Quills, Orbital and Magnum offences.87F[88]
Spake
[88]Ibid [186].
Operation Spake was commenced in late August 2006 to investigate the manufacture of methylamphetamine at clandestine laboratories in Toolern Vale and Springvale in 2003 after Mr Cooper provided information upon his arrest on 22 April 2006 and agreed to assist police. Mr Cooper signed a witness statement implicating the applicant in that offending in July 2007.88F[89]
[89]Ibid [229], [231].
Mr Thomas had previously signed a witness statement in July 2006 implicating the applicant (and others) in the Spake offences.89F[90]
[90]Ibid [232].
In addition, Mr Bickley told police that the applicant sourced chemicals and equipment for the drug manufacturing enterprises through him.90F[91]
[91]Ibid [233].
On 19 June 2007, following his arrest in Greece on 5 June 2007, a warrant was issued in the Melbourne Magistrates’ Court for the applicant’s arrest for trafficking in a large commercial quantity of methylamphetamine and trafficking in MDMA on various dates between 19 December 2003 and 19 March 2006, being the two Spake offences.91F[92]
[92]Ibid [235].
The applicant was extradited for the Spake offences. At a committal hearing in March 2009, Mr Cooper and Mr Bickley gave evidence and were cross‑examined. On 6 March 2009 the applicant was committed for trial.92F[93]
[93]Ibid [236]–[237].
The Spake charges were also the subject of a nolle prosequi that was formally entered on 24 May 2012.93F[94]
[94]Ibid [238].
Once again, the role played by Ms Gobbo in Mr Cooper giving evidence against the applicant in respect of the Spake offences, and in Mr Thomas and Mr Bickley agreeing to implicate the applicant, was not disclosed to him at any time before the negotiations which resulted in him pleading guilty to the Quills, Orbital and Magnum offences.94F[95]
[95]Ibid [239].
Ms Gobbo’s assistance to police — ‘rolling’ potential witnesses (Quills and Orbital)
As will be seen, the applicant places particular reliance on assistance Ms Gobbo gave to Victoria Police as part of an overarching strategy to charge the criminal associates of the applicant and encourage them to give evidence or ‘roll’ against him. This included providing intelligence to police against her other clients so that they could be arrested and charged, and she could then give purportedly independent legal advice to those persons encouraging them to cooperate with police.
Mr Cooper
Ms Gobbo was retained by Mr Cooper:
(a)in relation to the Landslip charge from 14 November 2002 until no later than 23 February 2007 (date of sentence);
(b)in relation to the Matchless charge from at least 26 September 2003 (bail application) until no later than 23 February 2007; and
(c)after he was charged in relation to a clandestine laboratory in Strathmore from 22 April 2006 until no later than 23 February 2007.95F[96]
[96]Ibid [699]–[701].
Ms Gobbo assisted in ‘rolling’ Mr Cooper and in maintaining his continued cooperation as a witness against the applicant in six ways:96F[97]
(a)she identified Mr Cooper to Victoria Police as a vulnerable and valuable target to incriminate the applicant;
(b)she provided intelligence and assistance that was essential to Mr Cooper being arrested ‘red-handed’ in the clandestine drug laboratory at Strathmore in April 2006, so that he would be most predisposed to cooperating with police;97F[98]
(c)she advised police how to approach Mr Cooper following his arrest, including how best to conduct an interview with him;
(d)on Mr Cooper’s arrest, Ms Gobbo was contacted by police to provide him with legal advice, and when she attended the police station, she advised him to cooperate with police;
(e)she was involved in the statement-taking processes that followed; and
(f)she was involved in an extended process of maintaining Mr Cooper’s resolve to give evidence against the applicant in accordance with his statements.98F[99]
[97]Ibid [325].
[98]Ibid [328].
[99]Ibid [332].
Among other things, in the lead-up to Mr Cooper’s arrest, Ms Gobbo provided intelligence to her handlers which ‘informed the techniques of persuasion and the interview strategy ultimately employed by Victoria Police’.99F[100] On 18 April 2006, she suggested a ‘soft approach’ upon Mr Cooper’s arrest. She provided information about Mr Cooper’s children and his relationship with them and said that Mr Cooper thought positively of Detective Sergeant Dale Flynn, the police officer responsible for managing Mr Cooper after his arrest in April 2006. The information provided by Ms Gobbo was helpful to investigators and was conveyed in a meeting held on the same day to develop an interview strategy for Mr Cooper’s arrest and to discuss the ‘sales pitch’ and process of ‘rolling’ him.100F[101]
[100]Ibid [344].
[101]Ibid.
The reference judge found that Ms Gobbo cooperated with Mr Flynn, and that she continued to speak with Mr Cooper and visit him in custody, with the knowledge of Mr Flynn, while registered as an informer. Mr Flynn had a discussion with Mr Cooper that lasted over two hours, in which he sought to persuade him to agree to assist police, and Ms Gobbo actively assisted in that process.101F[102]
[102]Ibid [332], [346].
The reference judge found that a competent lawyer would almost certainly have advised Mr Cooper, on his arrest, that by agreeing to assist police, the sentence which would be imposed on him in the County Court would be discounted. The lawyer might have advised Mr Cooper that he should agree to assist police and that he should do so on that night. However, it was equally (if not more) likely that a competent lawyer would not have given Mr Cooper advice that night to assist police, or to agree to participate in an interview, without the lawyer first being fully apprised of all the circumstances, and having the opportunity to fully research the weight of the evidence against Mr Cooper.102F[103]
[103]Ibid [350], [356].
The reference judge did not accept that Ms Gobbo’s advice to Mr Cooper on the night of his arrest and thereafter was attributable to friendship.103F[104]
Mr Bickley
[104]Ibid [339].
Mr Bickley was arrested on 15 August 2005 as part of Operation Quills. He made a largely ‘no comment’ record of interview on his arrest. Ms Gobbo was retained by Mr Bickley to appear on a bail application following his arrest. She did not appear when his bail application was ultimately heard on 6 September 2005 due to a conflict of interest in respect of another client.104F[105]
[105]Ibid [193], [703].
In late September 2005, Ms Gobbo identified Mr Bickley as a person who had ‘something big’ on the applicant.105F[106] On 13 December 2005, Victoria Police asked Ms Gobbo to assist in ‘rolling’ Mr Bickley.106F[107]
[106]Ibid [365].
[107]Ibid [366].
Ms Gobbo received a brief of evidence in Quills in late December 2005 and was retained to advise Mr Bickley in the Quills matter as at that date.107F[108] She shared with Mr Rowe, the informant, the ‘full complement of her instructions from Mr Bickley on his arrest’ in the Quills operation.108F[109]
[108]Ibid [705].
[109]Ibid [706].
In mid-March 2006, Ms Gobbo devised a plan with her handlers to transfer a phone from Mr Cooper to Mr Bickley on the instructions of Mr Cooper, who wanted the phone because Mr Bickley had access to pill presses and MDMA powder. Ms Gobbo kept her handlers informed as the plan progressed.109F[110]
[110]Ibid [327(b)], [360].
On 13 June 2006, Mr Bickley was arrested for allegedly conspiring with Mr Cooper to manufacture a large commercial quantity of MDMA. That arrest was based solely on a covertly recorded conversation the two men had on 24 April 2006, after Mr Cooper’s arrest and agreement to assist police. Ms Gobbo was retained to act for Mr Bickley. Thereafter she provided advice in his pending plea proceeding, settled his case, and assisted in preparing his plea to the Quills offending. Ms Gobbo did not appear on the plea on 9 May 2007, at which Mr Bickley was represented by Mr Philip Dunn QC.110F[111]
[111]Ibid [201], [707].
On Mr Bickley’s June 2006 arrest, Ms Gobbo advised him to agree to assist police by incriminating the applicant in the Quills offence.111F[112]
[112]Ibid [361].
Between January 2007 and May 2008, Ms Gobbo informally provided Mr Bickley with advice. She gave him ad hoc advice about his legal affairs during his plea proceedings. The reference judge found that, at the least, the evidence supported the proposition that Mr Bickley reasonably believed Ms Gobbo was one of his lawyers at that time.112F[113]
[113]Ibid [708]–[709].
The reference judge rejected a contention by the respondent that Mr Bickley would have cooperated with police irrespective of any involvement of Ms Gobbo on his arrest, or the advice she gave him after his arrest.113F[114]
[114]Ibid [371]–[377].
She also did not accept the respondent’s proposition that an independent lawyer would have given Mr Bickley the advice Ms Gobbo gave him (namely, to participate in the interview and assist police). A competent lawyer would have advised Mr Bickley that by agreeing to assist police, any sentence would be discounted. They might also have advised him that he should agree to assist police, and that he should do so that night, to maximise his prospects of being released on bail. But, as with Mr Cooper, it was equally likely that a competent lawyer would not have given Mr Bickley advice to assist police that afternoon or to participate in an interview, without the lawyer first being apprised of all the circumstances, including having researched the weight of the evidence against Mr Bickley.114F[115]
[115]Ibid [389], [392].
Ms Gobbo did not assume the role of ‘handling’ Mr Bickley as a witness. In contrast to her ongoing involvement in managing Mr Cooper, by the time Mr Bickley engaged other lawyers to represent him in the plea proceeding, she was not in regular contact with him.115F[116]
Mr Thomas
[116]Ibid [395].
Between September 2004 and August 2006, Ms Gobbo was retained by Mr Thomas in relation to the murders of Jason Moran and Pasquale Barbaro. She ceased to act for Mr Thomas in those matters on 8 August 2006.116F[117]
[117]Ibid [711], [713].
After Ms Gobbo’s registration as an informer on 16 September 2005, she identified Mr Thomas to police as someone who (together with Mr Cooper) had information that had the potential to ‘put [the applicant] away for a long time’. Ms Gobbo was referring to what she knew of Mr Thomas and Mr Cooper ‘cooking’ drugs for the applicant (in respect of either Matchless or Landslip).117F[118]
[118]Ibid [397]–[398].
Detective Sergeant Stuart Bateson and Detective Inspector James O’Brien visited Mr Thomas at Barwon Prison on three occasions between 22 February 2006 and 23 March 2006. Ms Gobbo was in regular telephone contact with Mr Thomas at that time, including immediately preceding the second police visit. On 19 March 2006, she visited Mr Thomas in prison, after which she reported to her handlers that he was ‘99 per cent likely’ to make a statement to assist police.118F[119]
[119]Ibid [399].
Ms Gobbo’s role in persuading Mr Thomas to make statements implicating the applicant in drug offending was significant. She was instrumental in Mr Thomas’s decision to assist police in their pursuit of the applicant and, with her encouragement and persistence, Mr Thomas was prepared to do so.119F[120]
[120]Ibid [402].
The reference judge found that, in view of Mr Thomas’ particular circumstances in early to mid-2006, when he inevitably faced a very lengthy term of imprisonment, a competent, independent lawyer would have given the same advice to Mr Thomas as Ms Gobbo did, to mitigate his sentence.120F[121]
[121]Ibid [403].
Ms Gobbo attended the St Kilda Road police station on the evening of 18 July 2006 to read Mr Thomas’s statements. She was shown all his statements then in existence in various investigations into drugs, homicides and other matters. She was asked to comment on their accuracy, and made amendments and annotations on them in red pen. On 19 July 2006, Mr Thomas signed statements in the Matchless, Quills and Spake matters. The reference judge found that Ms Gobbo’s attendance at the St Kilda Road police station was entirely in the interests of assisting Victoria Police in her role as an informer, and her assistance as such was significant.121F[122]
[122]Ibid [406], [409].
Although s 138 of the Evidence Act involves, essentially, the same balancing exercise between the two competing aspects of public policy, there are two principal differences between the common law discretion and s 138.
First, s 138 alters the burden of proof that applied at common law. Under s 138, the onus is on the accused to establish the relevant impropriety on the balance of probabilities. Once that impropriety is established, the burden then shifts to the prosecution to establish, under s 138(3), that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been illegally or improperly obtained in that way.598F[599]
[599]Kadir v The Queen (2020) 267 CLR 109, 137 [47] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) (‘Kadir’).
Secondly, s 138 is not expressed as a discretion, but in mandatory terms. That is, evidence that was obtained unlawfully or improperly must be excluded, unless the prosecution establishes that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the manner in which the evidence in the particular case was obtained.
In undertaking the balancing exercise, the courts have given particular weight to the gravity of the illegality or impropriety, and whether the illegality or impropriety was deliberate or reckless, which are factors prescribed by s 138(3)(d) and (e).
In Pollard v The Queen, a case concerning the admissibility of a police interview of an accused, Deane J stated the principles in the following terms:
The weight to be given to the public interest in the conviction and punishment of crime will vary according to the heinousness of the alleged crime or crimes and the reliability and unequivocalness of the alleged confessional statement. The weight to be given to the principal considerations of public policy favouring the exclusion of the evidence will vary according to other factors of which the most important will ordinarily be the nature and the seriousness of the unlawful conduct engaged in by the law enforcement officers. In that regard, a clear distinction should be drawn between two extreme categories of case. At one extreme are cases in which what is involved is an ‘isolated and merely accidental non-compliance’ with the law or some applicable judicially recognized standard of propriety. In such cases, particularly if the alleged offence is a serious one, it would ordinarily be quite inappropriate to exclude evidence of a voluntary confessional statement on public policy grounds. The critical question in those cases will be whether the evidence should or should not be excluded on the ground that its reception would be unfair to the accused. At the opposite extreme are cases where the incriminating statement has been procured by a course of conduct on the part of the law enforcement officers which involved deliberate or reckless breach of a statutory requirement imposed by the legislature to regulate police conduct in the interests of the protection of the individual and the advancement of the due administration of criminal justice. Such cases manifest ‘the real evil’ at which the discretion to exclude unlawfully obtained evidence is directed, namely, ‘deliberate or reckless disregard of the law by those whose duty it is to enforce it’. In such cases, the principal considerations of public policy favouring exclusion are at their strongest and will ordinarily dictate that the judicial discretion be exercised to exclude the evidence.599F[600]
[600](1992) 176 CLR 177, 203–4 (citations omitted); see also Bunning (1978) 141 CLR 54, 79 (Stephen and Aickin JJ); Kadir (2020) 267 CLR 109, 133 [37] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ); Parker v Comptroller-General of Customs (2007) 243 ALR 574, 592 [65] (Basten JA, Mason P agreeing at 575 [1], Tobias JA agreeing at 576 [2]); [2007] NSWCA 348; Johnston (2023) 306 A Crim R 247,271–2 [155]–[158] (Beach and T Forrest JJA and J Forrest AJA).
Section 138 is not confined to evidence obtained by or in consequence of misconduct of those engaged in law enforcement.600F[601] In the present case, the evidence in issue was derived as a result of the combined and joint conduct of both Victoria Police and of Ms Gobbo, who was then a duly admitted legal practitioner and a practising member of the Victorian Bar. The degree of impropriety involved in the compilation of evidence against the applicant comprised the totality of the impropriety of the conduct of members of Victoria Police in their investigation and compilation of evidence against the applicant, together with the impropriety of the conduct engaged in by Ms Gobbo who breached the most fundamental duties of, and ethical principles that apply to, every legal practitioner and to every member of the Victorian Bar.
[601]Kadir (2020) 267 CLR 109, 125 [12]–[13] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
As counsel acting for the applicant, and for other relevant clients, including Mr Cooper, Mr Bickley and Mr Thomas, Ms Gobbo was subject to important duties, both to the clients and to the system of justice. As de Jersey CJ stated in R v Szabo:
Litigants see members of the Bar conducting themselves as officers of the Court, owing a special duty to the Court. Just as the Court expects fearlessly independent presentation by counsel, so the client expects that subject to counsel’s supervening duty to the Court, counsel will with fearless independence promote the client’s cause.601F[602]
[602][2000] 2 Qd R 214, 215 [5].
Allied to that obligation, and as an aspect of the fiduciary relationship between Ms Gobbo and her clients, was the obligation of loyalty owed by Ms Gobbo to each of her clients, the central aspect of which required that she avoid any conflict of interest between her role as counsel for the clients and any other role that she then undertook.602F[603] As the reference judge noted, the ‘no conflict’ rule also found its expression in the Victorian Bar Rules.
[603]See Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41, 102–3 (Mason J); Maguire v Makaronis (1997) 188 CLR 449, 465 (Brennan CJ, Gaudron, McHugh and Gummow JJ); Breen v Williams (1996) 186 CLR 71, 93 (Dawson and Toohey JJ); Nangus Pty Ltd v Charles Donovan Pty Ltd [1989] VR 184, 185–6 (Young CJ); Beach Petroleum (1999) 48 NSWLR 1, 46–8 [192]–[205] (Spigelman CJ, Sheller and Stein JJA).
The duty owed by counsel to a client necessarily involves and includes maintenance of the confidentiality of communications made by the client to counsel. That aspect of the relationship is of utmost importance in enabling clients to have full confidence that communications made by them to their legal representatives will be respected.
That aspect of the relationship was considered by the High Court in the often cited case of Tuckiar v The King.603F[604] In that case, the appellant was charged with, and convicted of, murder. The evidence adduced on behalf of the prosecution included two different accounts given by the appellant of the circumstances in which he fatefully injured the deceased, a police officer, with a spear. One such account exculpated the appellant, and the second account inculpated him in the offence. After the jury pronounced its verdict of guilt, the appellant’s counsel disclosed to the judge, in open court, that he had had an interview with the appellant, who told him that the correct account was the second version of the events, namely, the version which implicated him in the murder of the police officer.
[604](1934) 52 CLR 335; see also Baker v Campbell (1983) 153 CLR 52, 114 (Deane J); Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 64–5 [35] (Gleeson CJ, Gaudron and Gummow JJ).
In their joint reasons, Gavan Duffy CJ, Dixon, Evatt and McTiernan JJ strongly criticised the conduct of counsel, stating:
Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted. The subsequent action of the prisoner’s counsel in openly disclosing the privileged communication of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his client, or the moment at which he chose to make the disclosure. … Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.604F[605]
[605]Tuckiar v The King (1934) 52 CLR 335, 346–7.
The duties owed by counsel to a client are subject to, and co-ordinate with, strict and important obligations of counsel to the Court and to the system of justice. In Ziems v Prothonotary of the Supreme Court of New South Wales, Kitto J stated:
[A] barrister is more than his client’s confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations.605F[606]
[606](1957) 97 CLR 279, 298.
In determining the degree of impropriety engaged in by Ms Gobbo, it needs to be borne in mind that the principles of confidentiality and loyalty, to which we have referred, are of central importance to the proper administration of justice. Each person who is charged with a criminal offence is entitled to be represented by counsel who is entirely independent, objective and free of any conflict of interest. The accused person must be confident that counsel acts, and will continue to act, solely in his or her best interests, subject, of course, to the ethical constraints that apply to each practitioner. In that way, each accused person is able to confide in counsel, and obtain appropriate, objective advice from counsel, in full confidence that such discussions will remain confidential. That process is of utmost importance in ensuring that each person charged with a criminal offence is properly and sufficiently represented in the legal process.
As we have discussed, the conduct of Ms Gobbo in respect of the applicant, Mr Cooper and Mr Bickley flagrantly breached the most fundamental duties which she owed to each of those three clients. Ms Gobbo pursued a purpose, shared with Victoria Police, of securing the conviction and imprisonment of the applicant by exploiting her lawyer/client relationships in a grossly improper manner. Her conduct was, and hopefully will always remain, entirely unprecedented, unique and extraordinary. Axiomatically, the degree of impropriety involved in that conduct was of the highest order.
As we have also noted, the degree of impropriety involved in the compilation of evidence against the applicant consisted of the totality of the impropriety of the conduct both of members of Victoria Police in their investigation and compilation of evidence against him, together with the impropriety of the conduct engaged in by Ms Gobbo.
The impropriety was deliberate (s 138(3)(e)). The members of Victoria Police, and in particular the senior members, who dealt with Ms Gobbo, were either well aware at the time of the magnitude of the breaches by her of her fundamental duties, or ought to have been aware of them. It may be accepted that the conduct of police was driven by a desire to solve serious crime and bring serious criminal offenders to justice. However, in view of the degree of impropriety involved in the process, it could not be accepted that the ends justified the means.
The extent of the impropriety by Ms Gobbo and Victoria Police constituted more than the sum of the individual parts. The impropriety of police, and particularly senior officers, in engaging with Ms Gobbo was aggravated by the circumstance that they were abetting fundamental breaches by her of her duties to the client and to the system of justice. We refer, in that context, to the judge’s finding as to a joint criminal enterprise regarding Mr Cooper, which we have upheld.
Ms Gobbo, as a practising member of the Victorian Bar, must have known and been aware of the gross breaches by her of her duties, and must also have been aware that, by engaging with police as she did, she was abetting them in the violation of their responsibilities to the system of justice. Taken together, then, the overall impropriety, involved in the conduct of the relevant members of Victoria Police and particularly of Ms Gobbo, constituted a most serious and gross form of impropriety for the purposes of s 138 of the Evidence Act.
On the other hand, the offending that was the subject of the various charges was particularly serious.
Charge 1 on the joint presentment/indictment (the Quills charge) was to the effect that between 1 February 2005 and 15 August 2005, the applicant trafficked in a drug of dependence, namely MDMA (ecstasy) in a quantity that was not less than a large commercial quantity applicable to that drug of dependence. The maximum prescribed sentence for that offence was life imprisonment. It was alleged that the applicant was the principal or head of a business enterprise in 2005 that involved the large scale preparation and pressing of ecstasy pills from ecstasy powder on two pill presses at a factory in Coburg, and later at a third pill press in a private garage in premises in Craigieburn. In total, it was alleged that in excess of 30 kilograms of MDMA was pressed into ecstasy pills on those three presses. At the time, a large commercial quantity for ecstasy, under s 71 of the Drugs, Poisons and Controlled Substances Act 1981, was 1 kilogram.
The second charge on the presentment/indictment (the Orbital charge) alleged that between 29 June 2005 and 13 July 2005, the applicant incited the commission of the offence of importation of a prohibited import, namely a commercial quantity of MDMA into Australia, contrary to s 233B(1) of the Customs Act 1901 (Cth).606F[607] The maximum prescribed sentence for that offence was 10 years’ imprisonment.607F[608] As we have noted, the offending had allegedly been committed by the applicant placing an order with a police undercover operative to import a large quantity of MDMA powder, in communications that took place in late June 2005. It was alleged that the applicant ordered 100 kilograms of MDMA powder initially at a price equivalent to $1.2 million.
[607]Since repealed by Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth) sch 1 item 61.
[608]Pursuant to s 11.4(5)(a) of the Criminal Code (Cth) the maximum penalty was 10 years if the offence incited was punishable by life imprisonment. Pursuant to s 235(2) of the Customs Act1901 (Cth) the offence of importing narcotic goods into Australia carried a penalty of life imprisonment.
The Landslip charge alleged that the applicant between February 2001 and early 2002 conspired to traffick, by manufacture, a commercial quantity of methylamphetamine, contrary to s 79(1) of the Drugs, Poisons and Controlled Substances Act. The maximum prescribed sentence for that offence was 25 years’ imprisonment.
The Matchless charge alleged that the applicant between 1 September 2002 and 11 April 2003 trafficked a large commercial quantity of methylamphetamine at Rye, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act. The maximum prescribed sentence for that offence was life imprisonment.
The Spake charges alleged that the applicant:
(a)between 19 December 2003 and 19 March 2006 trafficked a large commercial quantity of methylamphetamine at Toolern Vale, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act. The maximum prescribed sentence for that offence was life imprisonment; and
(b)between 19 December 2003 and 1 October 2004 trafficked methylamphetamine at Kerrie, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act. The maximum prescribed sentence for that offence was 15 years’ imprisonment.
There is no suggestion that evidence of Mr Bickley or Mr Cooper bore on the prosecutions in Kayak or Magnum.
Plainly, the offending alleged against the applicant was of a most serious kind. At the time of the offending, the widespread proliferation of drugs was, and still is, a disastrous blight on modern society. The trafficking and consumption of prohibited substances has been, and is, a primary cause of widespread social dislocation, violent offending, mental and physical ill-health, and tragedy in our community. Those who have been, and are, involved in the importation and trafficking of such substances, motivated purely by profit, are engaged in conduct that can only be described as evil.
The question then is whether, taking those matters into account, it should be concluded that, as a consequence of the gross and unprecedented wrongdoing involved in the procuring of the evidence of Mr Bickley and Mr Cooper, the evidence of those two witnesses would have been excluded in the trial of the Quills, Orbital, Landslip, Matchless or Spake charges.
The importance of the evidence in the proceedings (s 138(3)(b)) has already been canvassed. In short:
(a)in Quills, the evidence of Mr Bickley was critical to the case proceeding, but the judge was unable to assess the importance of the evidence of Mr Cooper;
(b)in Orbital, the case would have been significantly weakened without Mr Bickley’s evidence (although it was far less important than in Quills), and the judge seems again to have been unable to assess the importance of the evidence of Mr Cooper;
(c)in Landslip, which did not involve Mr Bickley, the prosecution case would have been significantly weakened without Mr Cooper’s evidence;
(d)in Matchless, Mr Bickley was likewise not involved, but the prosecution case would have been significantly weakened without Mr Cooper’s evidence;
(e)in Spake, the prosecution case would have been significantly weakened if the evidence of both Mr Bickley and Mr Cooper was excluded, but the judge does not appear to have made a finding about the exclusion of the evidence of only one or the other of them.
All of the considerations we have mentioned, and in particular the gravity of the impropriety (s 138(3)(d)) and the nature of the relevant offences (s 138(3)(c)), weigh necessarily in the balance in determining the admissibility of the evidence of Mr Bickley and Mr Cooper under s 138 of the Evidence Act. However, applying the principles to which we have referred, the undesirability of admitting evidence obtained in the egregious and improper way in which the evidence of Mr Bickley and Mr Cooper was obtained through the efforts of Victoria Police and Ms Gobbo, in pursuit of a common purpose targeting the applicant in a manner fundamentally at odds with Ms Gobbo’s professional obligations, clearly outweighs the desirability of admitting that evidence. To place material obtained in that way before a jury in a criminal trial would undermine fundamental principles of our criminal justice system and contaminate the due administration of justice in this State.
For those reasons, it must be concluded that the evidence of both Mr Bickley and Mr Cooper would have been excluded from the prosecutions on the Quills, Orbital, Landslip, Matchless and Spake charges, had the matters proceeded to trial and applications under s 138 been made with full knowledge of the circumstances.
It follows that this is an alternative ground for upholding the appeal on ground 1 in respect of Quills. The trial could not have proceeded if the evidence of Mr Bickley was excluded, as it should have been. In those circumstances, the applicant pleaded guilty to a charge which should not in law have proceeded, and there has been a substantial miscarriage of justice as a result.
For reasons already given, the exclusion of the evidence of Mr Bickley and Mr Cooper in the Orbital prosecution does not mean that the trial in that matter could not have proceeded. We shall further consider the effect of our conclusion regarding s 138 in that matter, and in Landslip, Matchless and Spake, in the context of ground 2.
Conclusion
Ground 1 must be upheld in respect of the Quills conviction, on the applicant’s primary case, and in respect of Orbital on his alternative case, but it fails in respect of Magnum.608F[609]
[609]See [628], [639] and [641] above.
Ground 2 — non-disclosure: analysis and conclusions
We described earlier in these reasons the content of the prosecutorial duty of disclosure.609F[610] The question presented by ground 2 is whether the integrity of the applicant’s guilty pleas was impugned as a result of him not having been informed of Ms Gobbo’s role assisting police and her breaches of duty to Mr Bickley and Mr Cooper, and, if so, whether there was an issuable question of guilt in respect of the prosecution in question.
Integrity of the pleas
[610]See [379]–[382] above; see also Asare [2025] VSCA 222 [53] (Priest, Beach and Walker JJA).
In this context, it is not necessary for the applicant to establish that the various applications and submissions he could have made, had he been fully informed of the relevant circumstances, would have succeeded. The issue is the integrity of the plea, which in turn raises the question whether the decision to plead guilty was properly informed.
The judge found that, without disclosure of Ms Gobbo’s role as an informer and the conduct she undertook in that capacity, the applicant was in no position to properly assess whether it was in his best interests to agree to the plea deal with the prosecution in April 2011.610F[611] The respondent accepted before the judge that, as a result of the non-disclosure, the applicant was unable to fully assess the strengths and weaknesses of the prosecution cases against him in Quills, Orbital, Landslip, Matchless and Spake.611F[612]
[611]Reference determination [1484].
[612]Ibid [1485].
Those findings suffice to impugn the integrity of the guilty pleas in Quills and Orbital. They have the same effect on the plea in Magnum, even though the non-disclosure did not directly affect it. The applicant pleaded guilty to Magnum as part of a deal in which the DPP was not proceeding with Landslip, Spake and Matchless, but the applicant was unaware that the prosecution cases in those matters were significantly weaker than they appeared.
The lost prospect of an application under s 138 of the Evidence Act to exclude the evidence of Mr Bickley and Mr Cooper is plainly an important integer in ascertaining the impact of the non-disclosure. The prospect of seeking a stay based on the extradition is less weighty. Even assuming that the applicant would have made such an application, we have indicated our unfavourable view of its prospects. If this was the only consequence of the non-disclosure, it would have been more difficult to establish that the integrity of the plea was undermined as a result.
Issuable question of guilt
The conclusion that the non-disclosure of the conduct of Ms Gobbo and Victoria Police impugned the integrity of the applicant’s guilty pleas in the three cases means that the pleas were not really attributable to a genuine consciousness of guilt, by reason of not having been fully informed. The next question is whether the applicant has established an ‘issuable question of guilt’ or a ‘real question’ as to his guilt, so as to be able to have his convictions set aside despite the pleas of guilty.612F[613]
[613]We note a submission made by the applicant, in the context of the appeal regarding the DPP’s duty of disclosure in June 2012, to the effect that he had lost the opportunity of applying to withdraw his plea before Whelan J, who was then yet to pass sentence. Assuming that to be so, it would not alter our analysis. The premise for the argument, that the test for deciding a change of plea application at trial is less strict than the test for overturning a conviction based on a guilty plea on appeal, is correct but its application is misconceived. Reliance on the trial test in the context of an appeal would serve to undermine that very difference. See generally, White v The Queen (2022) 110 NSWLR 163, 184–6 [62]–[65] (Bell CJ, Button and N Adams JJ).
In the case of Quills, the question is academic, as we have already upheld ground 1 in that case. Plainly, however, the same reasoning would uphold ground 2. The respondent’s concession that the Quills prosecution could not have proceeded without the evidence of Mr Bickley necessarily acknowledges that the prosecution case raised an issuable question of guilt, at the very least.
In the case of Orbital, there was an issuable question of guilt because Mr Bickley’s evidence ought to have been excluded. That evidence was important to the prosecution case because it sought to undermine the account of the allegedly offending conduct given by the applicant in his police interview. Mr Bickley would have given evidence to the effect that the applicant was worried about being under police surveillance, which on the prosecution case was why he withdrew from the proposed importation. In the absence of his evidence, the case against the applicant in Orbital was viable but weakened. That entails that there was a real question about the applicant’s guilt. The appeal against the conviction in Orbital must be upheld on ground 2.
In respect of Magnum, the applicant pointed to what was submitted to have been a finding by the reference judge to the effect that the applicant may have had a different assessment of the prospects of an application to stay the Magnum prosecution, had there been full disclosure. It was submitted that the applicant’s decision-making in respect of Magnum would have been very different if he had understood the true circumstances. The judge did not go so far, however. In careful language, she noted that she had not been asked to assess the prospects of a stay, but that it was ‘at least open to find’ that with full disclosure the applicant may have made a different assessment of the prospects of an application to stay the Magnum prosecution. This observation does not entail any assessment of the strength of the prosecution case in Magnum.
In this context, the applicant pointed to the pressure he was under, in various respects, in reaching the plea deal. The gist of this submission seemed to be that his decision to plead guilty did not serve as an acknowledgment of the overwhelming case against him in Magnum. We accept that, even without evidence of specific pressure on an accused, it would be erroneous to seek to draw conclusions as to whether there was an issuable question of guilt from the conduct of an accused who has pleaded guilty without full knowledge of relevant facts.
Senior counsel for the applicant finally pointed to evidence the applicant had given before the reference judge, to the effect that the case in Magnum was strong but not overwhelming. The applicant had said ‘there were holes in it, left, right and centre’ which he could ‘easily’ point out.
However, the applicant has not indicated what the ‘holes’ were.
The prosecution case in Magnum was, in the view of the applicant’s senior counsel who had been briefed for the trial, ‘very strong’.613F[614] The judge considered that this reflected the fact that the evidence comprised recorded telephone intercept and listening device material in which the applicant was in communication with various co-offenders including the principal prosecution witness. Indeed, senior counsel had advised the applicant that he had ‘no defence’, an assessment with which his instructing solicitor agreed in her evidence before the reference judge.614F[615] The applicant does not take issue with that analysis.
[614]Ibid [1472].
[615]Ibid [1466].
The judge also found, and the applicant accepted, that disclosure of the misconduct of Ms Gobbo and Victoria Police would not have resulted in the exclusion of any evidence in respect of Magnum.615F[616]
[616]Ibid [1260].
In our opinion, the applicant has fallen well short of establishing that there was a real question as to his guilt in the Magnum matter. Accordingly, there was no ‘issuable question’ in that regard, and his appeal against the Magnum conviction must be dismissed, at least on the primary basis on which the appeal was advanced.
The applicant’s alternative case rested on the contention that the convictions could not be said to have been inevitable. As we understood the submission, it relied on the fact that, with full disclosure, the applicant would not have pleaded guilty but would have pursued interlocutory applications which would, or might, have weakened the prosecution cases against him. In particular, those applications would have sought a stay based on the misconduct that attached to the extradition proceedings, and exclusion of evidence under s 138.
This submission only falls for consideration in respect of Magnum, since we have upheld the appeal in respect of Quills and Orbital on the primary case.
There are two insuperable difficulties with the secondary submission.
First, the question of inevitability does not arise unless the applicant has first established that (in this case) the non-disclosure had the capacity to affect the result of the trial.616F[617]
[617]Karam [2023] VSCA 318 [216] (Beach, McLeish and Kennedy JJA); see [590] above.
Secondly, the fact that the applicant might, or would, not have pleaded guilty but would have embarked on interlocutory applications, does not of itself establish a possible effect on the outcome of the trial. The focus is on the trial and its outcome, not only the plea.
In the case of Magnum, the applicant has not established any issuable question of guilt. The case did not rely on the evidence which we have found would have been excluded under s 138 of the Evidence Act. We have rejected the argument that there were reasonable prospects of a stay based on the extradition proceedings and have found that there is no indication that the common purpose of Victoria Police and Ms Gobbo affected the Magnum prosecution.617F[618] In the end, the applicant has not shown that full disclosure would have had the capacity to affect the outcome of the Magnum prosecution including at any trial if he were ultimately to plead not guilty.
[618]See [640] above.
The alternative case therefore fails.
Conclusion
Ground 2 succeeds in respect of Quills and Orbital, but fails in respect of Magnum.
Disposition
It follows that the convictions in Quills and Orbital must be set aside. In such a case, s 326E(1) of the CPA requires the Court to do one of the things listed in that provision, relevantly including ordering ‘a new trial’, or entering a judgment of acquittal.
The parties agreed that, if the conviction in Quills could not proceed with the evidence of Mr Bickley, there should be an order for acquittal on that charge. We agree.
In the case of Orbital, the position is less clear.
The applicant submitted that it would be unjust to have him stand trial again, and an acquittal should be ordered.618F[619] The applicant relied on the delay since the alleged offences (which was a product of the prosecution’s breach of its obligations of disclosure), the fact that the applicant has served the majority of his non-parole period and a large portion of his total effective sentence, the difficult circumstances in which he has undergone imprisonment (including the infliction of a serious brain injury), the debasement of the criminal justice system that has occurred, and the public expense.
[619]DPP (Nauru) v Fowler (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ) (‘Fowler’); Mokbel v DPP (Cth) (2021) 289 A Crim R 1, 3 [7] (Maxwell P); [2021] VSCA 94 (‘Mokbel Plutonium Disposition’).
The respondent submitted that there was an underlying public interest in the prosecution of the Orbital charge, which had never gone to trial. It was submitted that there was no oppression in the applicant facing a trial for the first time. Rather, the conduct of Ms Gobbo and Victoria Police having been exposed, a trial with full disclosure would vindicate the integrity of the criminal justice system. The respondent submitted that there were no circumstances that would render an order for a trial unjust.
This Court addressed a similar question after the Plutonium conviction was set aside, in the Mokbel Plutonium Disposition.619F[620] Although the Court was divided as to the result, the principles to be applied are not in doubt. The majority referred to Fowler,620F[621] in which the High Court described the power to order a new trial as discretionary, and stated that the appellate court is required to decide whether the interests of justice require that there be a new trial. The majority identified two matters which Fowler requires the appellate court to consider:
(a)first, whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction; and
(b)secondly, whether there were any circumstances that might render it unjust to the accused to make him stand trial again.621F[622]
[620](2021) 289 A Crim R 1, 9 [41] (Beach and Osborn JJA); [2021] VSCA 94.
[621]Ibid.
[622]Fowler (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ).
The High Court noted, in relation to the second matter, that it took account of the public interest in the administration of justice, and not only the interests of the individual accused.622F[623]
[623]Ibid; see also R v A2 (2019) 269 CLR 507, 534 [84]–[87] (Kiefel CJ and Keane J).
The first matter focuses on the strength of the prosecution case at the original trial. It appears to put out of account any enhancements the prosecution might seek to make to its case on a new trial.
In the present case, however, in light of the fact that the applicant pleaded guilty and there was no ‘original trial’, the first matter must be understood a little differently. The appellate court in that situation must look at the admissible evidence that would have been given if there had been a trial.
This Court in the Mokbel Plutonium Disposition referred to this Court’s earlier decision in R v Thomas [No 3],623F[624] in which it was said that the Court must be careful not to usurp the functions of the properly constituted prosecutorial authorities, which are entrusted with responsibilities and discretions to act in the public interest in the initiation and conduct of criminal prosecutions.624F[625] In that regard, it is important not to set aside too readily the system of trial by jury where there is evidence capable of supporting a conviction.625F[626] In the ordinary course, the decision to continue a prosecution in those circumstances is a matter for the executive rather than the courts.626F[627]
[624](2006) 14 VR 512.
[625]Ibid 517 [27] (Maxwell P, Buchanan and Vincent JJA); Mokbel Plutonium Disposition (2021) 289 A Crim R 1, 10 [45] (Beach and Osborn JJA).
[626]Ibid.
[627]Mokbel Plutonium Disposition (2021) 289 A Crim R 1, 11 [49] (Beach and Osborn JJA), citing Walker v The Queen [2014] VSCA 177 [48] (Osborn JA, Weinberg JA agreeing at [1], Priest JA agreeing at [56]).
For reasons we have already given, the evidence in the Orbital prosecution, excluding that of Mr Bickley, and any evidence of Mr Cooper, was sufficient to justify a prosecution. It has also not been shown that a trial in the Orbital matter would necessarily be unfair, despite the passing of time and the loss of some evidence.627F[628] To the extent that such an argument is available, it could be advanced before trial. Similarly, with full disclosure, an argument for a stay based on the conduct of Ms Gobbo and Victoria Police in respect of the extradition could also be advanced (albeit that we have held that, on the material before this Court, such an argument would not have reasonable prospects of success).
[628]See especially [538] above.
As to the specific matters raised by the applicant, including the delay and attendant loss of evidence, the serving of most of his non-parole period and a large portion of his total effective sentence, and his treatment in prison, in our opinion they are all considerations which may be weighed by the prosecuting authorities in deciding whether to continue the prosecution. We do not consider them sufficiently weighty to justify this Court usurping that prosecutorial function.
For these reasons, we will make an order for a new trial on the Orbital charge.
PART H:CONCLUSIONS
Leave to appeal against reference determination — applicant
The applicant will be refused leave to appeal against the reference determination.
Leave to appeal against reference determination — respondent
The respondent will be granted leave to appeal against the reference determination on proposed grounds 1 and 3.
Leave will be refused on ground 2.
As to ground 1, the appeal succeeds. The finding of the reference judge made at [1227] and repeated at [1478] of the reference determination, as to the making of a concession by the respondent, should be set aside.
The appeal fails in respect of ground 3.
Substantive appeal
The applicant will be granted leave under s 326A of the CPA to bring a second appeal against his convictions on the Quills, Orbital and Magnum charges.
The appeal will be allowed in respect of the convictions on the Quills and Orbital charges. The appeal will be dismissed in respect of the conviction on the Magnum charge.
The convictions on the Quills and Orbital charges will be set aside. Judgment of acquittal will be entered on the Quills charge. We will order a new trial on the Orbital charge.
Consequential orders
We will invite submissions from the parties to address the question of sentence, as provided by s 326E(3), and the position regarding bail.
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