Mokbel v The King
[2024] VSC 725
•25 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0117
| ANTONIOS SAJIH MOKBEL | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | Fullerton J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 5–9, 12–13, 15–16, 19–23, 26–29 February, 1, 4–8, 12–15, |
DATE OF JUDGMENT: | 25 November 2024 |
CASE MAY BE CITED AS: | Mokbel v The King |
MEDIUM NEUTRAL CITATION: | [2024] VSC 725 |
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CRIMINAL LAW — Applications for leave to appeal — Referral pursuant to s 319A of the Criminal Procedure Act 2009 with respect to the conduct of a registered police informer and the conduct of Victoria Police and consequential matters — Victoria Police’s duty of disclosure and whether it was breached — Scope of the Director of Public Prosecutions’ duty of disclosure — Whether the Director breached his duty of disclosure — Impact of the duty of disclosure on criminal proceedings including plea negotiations — What constitutes a lawyer/client relationship in the absence of a written retainer — Scope of lawyer’s duties — Whether Victoria Police engaged in conduct which was unlawful or improper in the investigation, extradition and prosecution of the applicant.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms J Condon KC with Dr J Murphy and Ms E Fargher | Sarah Tricarico Lawyers Pty Ltd |
| For the respondent | Mr D Glynn with Mr T Wood and Mr S Thomas | Office of Public Prosecutions |
| For the Chief Commissioner of Police | Ms S Maharaj KC with | Victorian Government Solicitor’s Office |
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TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
The application for leave to appeal pursuant to s 326A of the Criminal Procedure Act....... 1
An overview of the procedural history of the applicant’s criminal matters in this Court and their provenance........................................................................................................................... 3
The first indictment............................................................................................................. 3
The second indictment........................................................................................................ 4
The sentence on the Quills, Orbital and Magnum offences.......................................... 6
Appellate review.................................................................................................................. 6
The referral questions in overview................................................................................... 7
The contested facts in overview........................................................................................ 9
An overview of the position of the parties.................................................................... 15
Issues of actual or constructive knowledge............................................................................ 20
The onus and standard of proof............................................................................................... 21
The nature of the evidence......................................................................................................... 24
The oral evidence............................................................................................................... 24
The documentary evidence.............................................................................................. 26
Ms Gobbo did not give evidence..................................................................................... 28
Sections 59 and 60 of the Evidence Act 2008 (Vic)........................................................ 28
The applicant’s evidence.................................................................................................. 31
The “Lawyer X” cases................................................................................................................. 32
A chronology of the police operations......................................................................................... 33
The Purana Taskforce................................................................................................................. 34
Phase 1................................................................................................................................. 34
Phase 2................................................................................................................................. 37
Operation Posse........................................................................................................................... 38
Operation Kayak......................................................................................................................... 41
The Plutonium trial..................................................................................................................... 44
Operation Landslip..................................................................................................................... 45
Operation Landslip 2.................................................................................................................. 49
Operation Matchless................................................................................................................... 50
Operation Quills.......................................................................................................................... 53
Operation Orbital........................................................................................................................ 58
Operation Spake.......................................................................................................................... 61
Operation Magnum.................................................................................................................... 64
Operation Macaw........................................................................................................................ 66
Operation Gotta........................................................................................................................... 67
Events subsequent to the applicant’s plea............................................................................... 68
The issue of disclosure (finally) surfaces................................................................................. 70
Referral question 1A........................................................................................................................ 77
The parties’ interpretation of this question............................................................................. 77
The ultimate position of the parties.......................................................................................... 79
“Rolling” Mr Cooper.................................................................................................................. 81
The applicant’s position on the six ways Ms Gobbo assisted Victoria Police.......... 81
The second proposition....................................................................................... 82
The fourth proposition........................................................................................ 84
The sixth proposition........................................................................................... 86
The two factual findings sought by the respondent with regards to Ms Gobbo assisting police to “roll” Mr Cooper............................................................................................... 87
The second factual finding............................................................................................... 88
My findings........................................................................................................................ 90
The first factual finding.................................................................................................... 90
My findings........................................................................................................................ 94
“Rolling” Mr Bickley.................................................................................................................. 97
The position of the parties................................................................................................ 97
The applicant’s position.................................................................................................... 97
The respondent’s position................................................................................................ 99
The two factual finding sought by the respondent with regards to Ms Gobbo assisting police to “roll” Mr Bickley............................................................................................. 102
The first factual finding..................................................................................... 102
The second factual finding................................................................................ 104
“Rolling” Mr Thomas............................................................................................................... 110
Operation Kayak....................................................................................................................... 117
The Kayak investigation................................................................................................. 118
The Kayak prosecution................................................................................................... 118
Operation Landslip................................................................................................................... 119
The Landslip investigation............................................................................................. 120
The Landslip prosecution............................................................................................... 121
Operation Matchless................................................................................................................. 121
The Matchless investigation and prosecution............................................................. 121
Operation Macaw...................................................................................................................... 121
The Macaw investigation............................................................................................... 121
The Macaw prosecution.................................................................................................. 122
Operation Gotta......................................................................................................................... 124
The Gotta investigation................................................................................................... 124
The Gotta prosecution..................................................................................................... 125
Operation Spake........................................................................................................................ 126
The Spake investigation and prosecution.................................................................... 126
Operation Landslip 2................................................................................................................ 127
The Landslip 2 investigation.......................................................................................... 128
The Landslip 2 prosecution............................................................................................ 129
Operation Quills........................................................................................................................ 130
The Quills investigation.................................................................................................. 130
The Quills prosecution.................................................................................................... 132
Operation Orbital...................................................................................................................... 133
The Orbital investigation and prosecution.................................................................. 133
Operation Magnum.................................................................................................................. 134
Referral question 1B...................................................................................................................... 138
The approach of the parties..................................................................................................... 142
The first category of assistance in regards to the extradition of the applicant....... 143
The applicant’s submission............................................................................... 143
The respondent’s submission........................................................................... 149
Findings of fact sought by the respondent..................................................... 150
The second category of assistance in regards to the extradition of the applicant.. 152
The applicant’s submissions............................................................................. 152
The respondent’s submissions......................................................................... 154
The likely impact of the disclosure of Ms Gobbo’s conduct on the extradition process 155
The expert evidence........................................................................................................ 156
Referral question 2......................................................................................................................... 159
Referral question 3......................................................................................................................... 160
The contractual relationship of a lawyer and client............................................................. 161
Was there a lawyer/client relationship prior to the applicant absconding in March 2006? 165
The positions of the parties............................................................................................ 165
The Plutonium retainer............................................................................................................ 165
The Kayak retainer.................................................................................................................... 166
The Orbital retainer................................................................................................................... 166
The restraining order retainer........................................................................................ 167
Was a general/blanket retainer also in existence?..................................................... 168
My findings...................................................................................................................... 171
The applicant’s evidence................................................................................................ 171
What Ms Gobbo relayed to the SDU about her professional relationship with the applicant................................................................................................................................ 175
Were there a series of additional individual retainers before the applicant absconded? 179
Were the retainers in relation to Operations Kayak, Plutonium and Orbital terminated when the applicant absconded in March 2006?......................................................... 184
Was there a lawyer/client relationship during the extradition process and following the applicant’s extradition to Australia?............................................................................. 184
The positions of the parties............................................................................................ 184
My findings...................................................................................................................... 186
Dr Bagaric’s evidence...................................................................................................... 189
Ms Morgan’s evidence.................................................................................................... 195
The “break‑up call” of 20 May 2008.............................................................................. 197
The significance of the prison calls between May 2008 and August 2010.............. 201
Competing explanations for the prison telephone records....................................... 207
Scenario (a).......................................................................................................... 207
Scenario (b).......................................................................................................... 207
Scenario (c).......................................................................................................... 208
The significance of the applicant having retained other lawyers............................. 209
The significance of Ms Gobbo not receiving any payments for legal services in the period after May 2008...................................................................................................... 209
My findings as to the existence of a lawyer/client relationship after May 2008 until January 2009........................................................................................................................ 210
Referral question 4......................................................................................................................... 211
Referral question 5......................................................................................................................... 217
Mr Bickley.................................................................................................................................. 218
Mr Thomas................................................................................................................................. 220
Mr Andrews............................................................................................................................... 222
Mr Hastings............................................................................................................................... 223
Mr Cooper’s brother (not named to protect Mr Cooper’s anonymity)............................. 223
Referral question 6......................................................................................................................... 224
The best interests duty............................................................................................................. 226
Duty to exercise reasonable skill and care............................................................................. 227
Duty of confidentiality............................................................................................................. 229
Duty of loyalty........................................................................................................................... 233
Referral question 6A...................................................................................................................... 240
The duties Ms Gobbo owed to the court............................................................................... 241
The duties Victoria Police owed the court............................................................................. 243
The duty owed by the DPP to the court................................................................................ 244
Referral question 6B...................................................................................................................... 245
Did Ms Gobbo breach the best interests duty and/or the duty to exercise reasonable care and skill?................................................................................................................................... 245
Did Ms Gobbo breach the duty of loyalty she owed to the applicant and those of his criminal associates who gave evidence against him?................................................................ 247
Mr Cooper......................................................................................................................... 252
Mr Bickley......................................................................................................................... 252
The conspiracy retainer..................................................................................... 252
The Quills retainer.............................................................................................. 253
Mr Thomas........................................................................................................................ 254
Mr Andrews..................................................................................................................... 255
Mr McGrath...................................................................................................................... 256
Mr Hastings...................................................................................................................... 256
Did Ms Gobbo breach the duty of confidentiality she owed to the applicant and those of his criminal associates who gave evidence against him?................................................ 256
The applicant.................................................................................................................... 256
Mr Cooper......................................................................................................................... 257
Mr Bickley......................................................................................................................... 257
Mr Thomas, Mr Andrews and Mr McGrath................................................................ 258
Referral question 6C...................................................................................................................... 259
Did Ms Gobbo breach her duties to the court?..................................................................... 259
Did Victoria Police breach any duties it owed to the court?.............................................. 262
Did the DPP breach any duties it owed to the court?.......................................................... 262
Referral question 7......................................................................................................................... 262
The motivations of Victoria Police in registering Ms Gobbo as an informer and their purpose in doing so............................................................................................................................. 263
Ms Gobbo’s motivation in becoming an informer at the time of her registration........... 267
Referral question 8......................................................................................................................... 269
Unlawfulness and impropriety............................................................................................... 269
Unlawfulness.................................................................................................................... 270
Impropriety...................................................................................................................... 270
The administration of justice................................................................................................... 272
The positions of the parties...................................................................................................... 274
The applicant’s position on Ms Gobbo’s duties and the complicity of Victoria Police 275
The respondent’s position on Ms Gobbo’s duties and the complicity of Victoria Police 276
My findings...................................................................................................................... 277
The parties’ positions on Ms Gobbo’s breaches of the duty of confidentiality and the complicity of Victoria Police.................................................................................................................. 278
My findings...................................................................................................................... 279
The positions of the parties on the conduct of Ms Gobbo and Victoria Police in relation to the applicant’s extradition proceedings.............................................................................. 280
My findings...................................................................................................................... 282
The applicant’s position on Victoria Police’s non‑disclosure in the applicant’s extradition proceeding........................................................................................................................ 284
The respondent’s position on Victoria Police’s non‑disclosure in the applicant’s extradition proceeding........................................................................................................................ 285
Whether Mr Overland’s response to the SWOT analysis constituted unlawful conduct 286
Referral question 9......................................................................................................................... 287
Mr Cooper.................................................................................................................................. 289
(a) ..... The joint criminal enterprise to pervert the course of justice........................ 289
(b) ..... The joint criminal enterprise to attempt to pervert the course of justice.... 294
The applicant’s case......................................................................................................... 297
The respondent’s case..................................................................................................... 303
(a) .......... The time of the agreement................................................................ 303
(b) .......... Irrelevant evidence identified by the applicant............................ 304
The relevance of the meetings on 18 and 19 April 2006 prior to Mr Cooper’s arrest 305
The events on the day of Mr Cooper’s arrest.............................................................. 313
Issues with the evidence................................................................................................. 322
My findings...................................................................................................................... 327
Mr Bickley.................................................................................................................................. 330
Mr Thomas................................................................................................................................. 331
Other alleged criminality......................................................................................................... 332
Mr Cooper’s adjournment.............................................................................................. 332
The transference of the mobile phone from Mr Cooper to Mr Bickley................... 332
Referral question 10....................................................................................................................... 333
The failure to make a claim for public interest immunity until 2016................................ 336
The failure to obtain legal advice............................................................................................ 337
The Maguire advice of 4 October 2011......................................................................... 337
Missed opportunities to obtain legal advice................................................................ 341
Other steps taken....................................................................................................................... 352
Referral question 11....................................................................................................................... 356
The knowledge of Victoria Police (as an institution): the applicant’s position................ 356
The knowledge of Victoria Police (the institution): the respondent’s position............... 357
Did Victoria Police know that its use of Ms Gobbo in relation to the applicant and/or persons who became witnesses against him was or may be unlawful from the time of the initial approach to Ms Gobbo on 31 August 2005 through to the date of her registration as an informer on 16 September 2005?......................................................................................................... 360
The knowledge of individual members of Victoria Police: the applicant’s position...... 364
The knowledge of individual members of Victoria Police: the respondent’s position... 365
Did Mr O’Brien know that the use of Ms Gobbo was or may be unlawful from when he first proposed to Mr Overland that she be used as an informer on 12 September 2005? 366
Did Mr Overland know that the use of Ms Gobbo was or may be unlawful from the time he first learned of the proposal to use her as an informer on 12 September 2005, a state of affairs which was confirmed when he read the SWOT analysis on 5 January 2009?........ 367
Did Officer White know that the use of Ms Gobbo was or may be unlawful from the first time he asked her to divulge privileged information about the applicant on 16 September 2005?............................................................................................................................................ 372
Referral question 12A.................................................................................................................... 373
(a) ... To what extent were clear records made of precisely what was communicated by the applicant to Ms Gobbo?.................................................................................................. 374
(b) ... To what extent were clear records made of precisely what Ms Gobbo communicated to police (including investigators); and (c) precisely what was done with the information communicated to Victoria Police?................................................................................. 375
(d) ... To what extent were clear records made of precisely what were Ms Gobbo and Victoria Police’s interactions with persons who became witnesses against the applicant (both before and after they made statements and including in relation to the content of their statements and oral evidence at committal hearings)?.................................................................. 379
Referral question 12B.................................................................................................................... 379
Referral question 13....................................................................................................................... 380
A summary of Operations Quills and Orbital: the investigative phase........................... 381
The positions of the parties............................................................................................ 384
My findings...................................................................................................................... 385
A summary of Operations Quills and Orbital: post‑investigative phase......................... 385
The positions of the parties............................................................................................ 390
My findings...................................................................................................................... 391
Deferred findings from referral question 1A........................................................................ 391
Referral question 14....................................................................................................................... 392
Would the strength of the Quills/Orbital prosecution cases have been affected by the exclusion of evidence from Mr Bickley (and Mr Cooper and Mr Thomas)?................................ 395
The positions of the parties............................................................................................ 395
Would the strength of the Landslip prosecution case have been affected by the exclusion of evidence from Mr Cooper?............................................................................................ 399
The positions of the parties............................................................................................ 399
Would the strength of the Matchless prosecution case have been weakened by the exclusion of evidence from Mr Cooper?............................................................................................ 400
Would the strength of the Spake prosecution case have been weakened by the exclusion of evidence from Mr Cooper (and Mr Bickley and Mr Thomas)?................................ 400
The Magnum and Kayak prosecutions.................................................................................. 401
Referral question 15....................................................................................................................... 402
The CDPP................................................................................................................................... 402
The Australian Federal Police................................................................................................. 403
Victoria Police............................................................................................................................ 403
The failure to take steps in 2008/2009................................................................................... 407
My findings on the issue of delay after 2009............................................................... 409
The failure to take steps between 2011 to 2016..................................................................... 409
The Comrie review.......................................................................................................... 410
Operation Loricated........................................................................................................ 417
Operation Bendigo.......................................................................................................... 418
The Kellam report............................................................................................................ 424
My findings on the issue of delay between 2011 and 2016....................................... 424
The Director of Public Prosecutions (Vic)............................................................................. 425
Referral question 16....................................................................................................................... 425
The duty of disclosure.............................................................................................................. 425
The content of the duty of disclosure at common law............................................... 426
The conflict between the parties regarding the scope of the prosecutor’s duty of disclosure................................................................................................................................ 427
A refinement of the applicant’s case............................................................................. 428
Was the duty of disclosure activated at the 4 September 2012 meeting?................ 430
What the Director knew after the 4 September 2012 meeting................................... 434
My finding as to breach of the duty of disclosure by the Director after 1 September 2012................................................................................................................................ 435
The duty to make inquiries...................................................................................................... 436
Was the Director’s breach of duty deliberate?...................................................................... 438
The relevance of the 1 June 2012 meeting.............................................................................. 440
Did senior ranking members of Victoria Police breach their duty of disclosure?........... 443
Was the breach deliberate?...................................................................................................... 444
The respondent’s position.............................................................................................. 444
The applicant’s position.................................................................................................. 445
Referral question 17....................................................................................................................... 447
Was the use of Ms Gobbo by Victoria Police against the applicant part of a widespread course or pattern of conduct which jeopardised the integrity of a large number of criminal trials and, in that way, did it go to the heart of the Victorian criminal justice system?.......... 449
Did the use of Ms Gobbo by Victoria Police against the applicant also involve other conduct and practices that were improper?....................................................................................... 452
Referral question 18....................................................................................................................... 455
The nature and extent of the evidentiary disadvantages the applicant suffered............ 456
The nature and extent of the procedural disadvantages the applicant suffered............. 459
Referral question 19....................................................................................................................... 461
A range of imponderables....................................................................................................... 461
The positions of the parties...................................................................................................... 462
The course of the plea negotiations........................................................................................ 466
My findings................................................................................................................................ 469
Referral question 20....................................................................................................................... 472
Annexures........................................................................................................................................ 474
Annexure A: Dramatis personae............................................................................................ 474
Annexure B: List of acronyms................................................................................................. 486
Annexure C: Schedule of information contended by the applicant to be a privileged or confidential communication................................................................................................................ 488
HER HONOUR:
Introduction
On 6 May 2022, the Court of Appeal referred 21 questions to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic).[1]
[1]Mokbel v The Queen [2022] VSCA 83.
On 26 May 2023, the Court of Appeal amended six of those questions and referred two additional questions.[2]
[2]Orders of Beach and McLeish JJA in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 23 May 2023).
On 14 December 2023, the Court of Appeal referred a further two questions (together, “the referral questions”).[3]
[3]Orders of Beach, McLeish and Kennedy JJA in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 14 December 2023).
The referral questions were referred for determination following an application by Antonios Sajih Mokbel (“the applicant”) for leave to commence a second appeal against conviction pursuant to s 326A of the Criminal Procedure Act.[4]
[4]An amended notice of application for leave to bring a second appeal against conviction was filed on 10 September 2021.
They were settled by the Court of Appeal referable to the applicant’s written case filed on 13 September 2021 and the written case of the Director of Public Prosecutions (“the DPP”) filed on 6 December 2021. The DPP is the respondent in this proceeding.
On 24 May 2024, prior to the preparation of closing submissions, the parties were invited to consider a refinement or reframing of certain referral questions, including questions 1, 14 and 14A. On 5 June 2024 the Court of Appeal made orders amending those questions with the agreement of the parties.
The application for leave to appeal pursuant to s 326A of the
The application for leave to appeal is founded upon what the applicant contends is a miscarriage of justice resulting from Nicola Gobbo acting as his legal representative and/or his legal adviser while simultaneously acting as a registered informer for Victoria Police while he was being investigated,[5] extradited,[6] and ultimately prosecuted for the three offences that are the subject of his application for leave to commence a second conviction appeal.[7]
[5]Members of the Source Development Unit (“the SDU”) who “handled” Ms Gobbo while she was registered with Victoria Police used the term “human source” or “registered human source” in reference to Ms Gobbo, seemingly as a matter of police nomenclature. I propose to refer to Ms Gobbo as an “informer” or “agent of police”. These terms more accurately describe the role she performed for Victoria Police during her registration with the SDU from September 2005 to January 2009.
[6]On 20 March 2006 the applicant absconded in breach of a bail undertaking in the course of a criminal trial that was proceeding before Gillard J. He was arrested in Greece on 5 June 2007. On 17 July 2007, the applicant’s extradition hearing in the Court of Appeal of Athens was adjourned to 24 July 2007. At the conclusion of argument on that date, the Court of Appeal reserved its decision until 26 July 2007, on which date the application for extradition was granted. The applicant appealed that decision, filing his statement of appeal on 26 July 2007. The appeal was ultimately unsuccessful, with the Supreme Court of Greece making its decision on 11 March 2008. On 16 May 2008 he was surrendered to the Australian authorities in Greece and extradited to stand trial in Australia on 17 offences and to serve a sentence imposed by Gillard J in his absence. See Exhibit J7/28; agreed facts, [234], [249], [251], [294], [297]–[298].
[7]On 17 May 2013 the Court of Appeal refused leave to appeal the applicant’s convictions on the Quills, Orbital and Magnum offences. See Mokbel v The Queen (2013) 40 VR 625.
In the application for leave to appeal, the applicant’s grounds of appeal are further particularised. In summary, he contends that the investigation into his alleged criminal conduct by Victoria Police, and his subsequent prosecution by the DPP for offences arising from that investigation, were fundamentally flawed on account of a complex set of interlocking facts, including:
(a) the unlawful and improper conduct of Victoria Police in recruiting and registering Ms Gobbo as their agent contrary to his legal rights and interests;
(b) the unlawful and improper conduct of Victoria Police in utilising Ms Gobbo in connection with his extradition proceedings contrary to his legal rights and interests;
(c) Ms Gobbo’s unlawful and improper conduct in acting concurrently as his lawyer and as an agent for Victoria Police in the investigation into his criminal offending, including by providing police with privileged and confidential information in the course of that investigation and during the extradition process;
(d) the unlawful and/or improper conduct by Victoria Police and Ms Gobbo in obtaining evidence from a number of the applicant’s criminal associates who ultimately made statements and gave evidence against him;
(e) the failure of Victoria Police and the DPP to disclose Ms Gobbo’s status as an agent of police to courts in this jurisdiction and to courts in Greece; and,
(f) the failure of Victoria Police and the DPP to disclose Ms Gobbo’s status as an agent of police to the applicant.
An overview of the procedural history of the applicant’s criminal matters in this Court and their provenance
On 18 April 2011 the applicant was arraigned before Whelan J and entered pleas of guilty to two State drug trafficking charges and one Commonwealth charge of incitement to import a prohibited drug on two separate indictments. On the same date, the DPP informed the court that a number of pending trials in which the applicant was accused of additional State offences of drug trafficking and drug manufacturing would be discontinued.[8]
[8]See paragraph 21 below.
The first indictment
Count 1 on the first indictment alleged trafficking in a drug of dependence (a State offence), namely MDMA, in not less than a large commercial quantity, namely in excess of 30 kilograms (“the Quills offence”).[9] The relevant threshold for a large commercial quantity of MDMA at that time was 1 kilogram.[10]
[9]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[10]Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 and sch 11, pt 3, column 1B.
Count 2 on the same indictment alleged an incitement to import a commercial quantity of MDMA (a Commonwealth offence), being 100 kilograms (“the Orbital offence”).[11] The relevant threshold for MDMA under the Customs Act 1901 (Cth) at that time was 0.5 kilograms.[12] Both offences were alleged to have been committed in 2005.
[11]Contrary to s 11.4(1) of the schedule to the Criminal Code Act 1995 (Cth).
[12]Under s 233B(1) and sch 6 of the Customs Act 1901 (Cth).
The applicant had been charged with the Orbital offence but not the Quills offence when he absconded on bail in the course of a criminal trial that was proceeding before Gillard J in March 2006. In that trial, the applicant was alleged to have been knowingly concerned in the importation of a commercial quantity of cocaine (“the Plutonium trial”).
On 28 March 2006, after the jury returned a verdict of guilty Gillard J convicted the applicant in his absence. On 31 March 2006 his Honour imposed a head sentence of 12 years with a non‑parole period of 9 years.[13]
[13]R v Mokbel [2006] VSC 119, [115].
The second indictment
Count 1 on the second indictment alleged trafficking in a drug of dependence (a State offence), namely methamphetamine, in not less than the large commercial quantity of that drug, namely in excess of 41 kilograms (“the Magnum offence”).[14]
[14]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
The Magnum offence was alleged to have been committed on various dates between 2006 and 2007 after the applicant absconded from the jurisdiction and before his arrest in Greece on 5 June 2007. The timeframe comprehended by the Magnum offence included a period of months when the applicant was conducting a drug trafficking enterprise whilst in hiding within the jurisdiction (that is, between March and October 2006) and a further period of months after he left the jurisdiction before his arrest in Greece seven months later.
Each of the State drug trafficking charges (that is, the Magnum and Quills offences) arose out of operations that were conducted by Victoria Police bearing those names. The Commonwealth importation charge (that is, the Orbital offence) arose out of an operation by the Australian Federal Police (“the AFP”) bearing that name.
The applicant was also charged with the following further State drug offences arising out of operations conducted by Victoria Police between 2002 and 2006, being:[15]
[15]Each of the operations have been summarised at paragraphs 101–273 below. For a summary of Operation Posse, see paragraphs 121–131. For a summary of Operation Kayak, see paragraphs 132–145. For a summary of the Plutonium trial, see paragraphs 146–152. For a summary of Operation Landslip, see paragraphs 153–168. For a summary of Operation Landslip Two, see paragraphs 169–172. For a summary of Operation Matchless, see paragraphs 174–189. For a summary of Operation Quills, see paragraphs 190–212. For a summary of Operation Orbital, see paragraphs 213–228. For a summary of Operation Spake, see paragraphs 229–242. For a summary of Operation Magnum, see paragraphs 243–256. For a summary of Operation Macaw, see paragraphs 257–265. For a summary of Operation Gotta, see paragraphs 266–273.
(a) Operation Kayak: trafficking in a drug of dependence (MDMA) in a quantity not less than a commercial quantity; trafficking in a drug of dependence (methylamphetamine and cocaine) (“the Kayak offences”);[16]
[16]Contrary to ss 71AA and 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
(b) Operation Landslip: conspiracy to traffic in a drug of dependence (MDMA) in not less than a commercial quantity (“the Landslip offence”);[17]
(c) Operation Matchless: trafficking in a drug of dependence (methylamphetamine) in not less than a large commercial quantity (“the Matchless offence”);[18] and,
(d) Operation Spake: trafficking in a drug of dependence (methylamphetamine) in not less than a large commercial quantity, and trafficking in a drug of dependence (MDMA) (“the Spake offences”).[19]
[17]Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[18]Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[19]Contrary to ss 71 and 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
The Quills, Orbital and Magnum offences and each of the offences in (a)–(d) above were included in the extradition request presented to Greek authorities by the Australian government on 5 July 2007.[20]
[20]Eighteen offences were included in the extradition request. In Mr O’Brien’s investigator’s affidavit (Exhibit A224) those offences were organized into nine briefs of evidence. The applicant was extradited on 16 of these offences (see later at paragraphs 140, 162–163, 169, 182, 206, 217, 236, 247, 262, 270). A reduced number of offences were ultimately the subject of committal proceedings. In the course of plea negotiations, the applicant pleaded guilty to three of the offences upon which he was extradited, with four further offences being the subject of a nolle prosequi.
On 16 May 2008 the applicant was extradited to Australia to stand trial for each of those offences and to serve the sentence imposed upon him by Gillard J in his absence on 31 March 2006.
He was also extradited on two murder charges: one arising out of Operation Macaw (the murder of Michael Marshall on 25 October 2003) and a second arising out of Operation Gotta (the murder of Lewis Moran on 31 March 2004). In September 2009, the applicant was acquitted by a jury of the murder of Lewis Moran. His trial for the murder of Michael Marshall was discontinued on 3 April 2009.
The sentence on the Quills, Orbital and Magnum offences
On 3 July 2012, the applicant was sentenced by Whelan J to 30 years’ imprisonment, with an effective non‑parole period of 22 years, for the Quills, Orbital and Magnum offences. That sentence took into account the sentence imposed by Gillard J on 31 March 2006.[21] The remaining drug charges itemised in paragraph 17(a)–(d) above were the subject of a nolle prosequi, formally entered on 24 May 2012.
[21]R v Mokbel [2012] VSC 255.
Appellate review
On 17 May 2013, the Court of Appeal refused leave to appeal the applicant’s convictions and sentence on the Quills, Orbital and Magnum offences.[22] On 13 December 2013 an application for special leave to the High Court was refused.[23]
[22]Mokbel v The Queen (2013) 40 VR 625.
[23] Mokbel v The Queen [2013] HCATrans 321.
On 15 December 2020, the applicant’s conviction in the Plutonium trial was quashed after the Commonwealth Director of Public Prosecutions (“the CDPP”) conceded that Ms Gobbo’s conduct at the time of the Plutonium trial, and her status as a registered informer before and at the time of trial, had caused a fundamental irregularity in the trial. That concession was made after orders of the High Court in December 2018 permitted the Commonwealth to disclose Ms Gobbo’s identity as a registered informer for Victoria Police.[24] Gillard J’s sentencing order was also quashed.[25]
[24]AB (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1.
[25]See Mokbel v Director of Public Prosecutions (Cth) [2020] VSCA 325.
On 7 March 2023 the applicant was resentenced by the Court of Appeal to a total effective sentence of 26 years’ imprisonment with a non‑parole period of 20 years.[26] He is currently serving that sentence.
[26]Mokbel v The King [2023] VSCA 40, [79] (Emerton P, Beach and McLeish JJA).
The referral questions in overview
The referral questions are numerous, wide‑ranging and involve a myriad of contested facts.
Although the application for leave to appeal concerns only the Quills, Orbital and Magnum offences (being the only offences to which the applicant entered pleas of guilty on 18 April 2011), the evidence adduced and tendered in the proceeding was not confined to Ms Gobbo’s role as an agent of Victoria Police in the investigation, extradition and prosecution of the applicant for those offences. The breadth of the referral questions, and the evidence tendered in answer to many of them, also inquire into Ms Gobbo’s conduct, and the allied conduct of Victoria Police in the investigation and prosecution of the applicant and the conduct of the DPP as prosecutor for:
(a) the drug offences the subject of a nolle prosequi in May 2012;
(b) the murder of Michael Marshall, a prosecution which was discontinued in April 2009;
(c) the murder of Lewis Moran, as to which the applicant was ultimately acquitted at trial on 25 September 2009; and,
(d) in respect of one of the charge of attempting to pervert the course of justice (“the Landslip 2 offence”) upon which extradition was sought but refused.
Some of the drug offences that were ultimately the subject of the nolle prosequi were investigated by the Major Drug Investigation Division (“the MDID”) between 2000 and 2003 (before Ms Gobbo was recruited and registered as an informer),[27] while others were investigated and reinvestigated by the Purana Taskforce after Ms Gobbo was registered.
[27]Operation Kayak commenced in October 2000 and Operations Matchless and Landslip in January and February 2003 respectively.
The Purana Taskforce (or “Purana”) was a taskforce created by Victoria Police in 2003 dedicated to solving the “gangland wars” following the murder of Mark Moran on 15 June 2000.[28] Police officers within the taskforce were assigned to investigate a range of suspected criminal activity and to target specific individuals generally believed to be involved in the “gangland murders” or “cartels” suspected of the manufacturing and trafficking of drugs. Phase 1 of Purana’s investigative objectives focused on the multiple murders suspected to have been committed by Carl Williams, with each of those operations given a unique identifier. I will refer to those operations in greater detail in the operations chronology below.
[28]The “gangland wars” and Victoria Police’s efforts to “solve” the so-called “wars” is the subject of referral question 17.
At the time Ms Gobbo was recruited by Victoria Police in September 2005, Operation Posse had launched as part of Phase 2 of Purana’s investigative objectives. The applicant was the principal target of Operation Posse. He was believed to be the head of a drug trafficking and supply cartel.
Additionally, given the way referral questions 1B, 9 and 11 are framed, the evidence was also directed to Ms Gobbo’s conduct and the allied conduct of Victoria Police in the investigation and prosecution of those of the applicant’s criminal associates who gave evidence against him in 2006 and 2007. The criminal activities of some of those people dated back to 2002.[29]
[29]Mr Cooper was implicated in Operations Matchless and Landslip in 2003 and Operation Spake in early 2002. Mr Thomas was implicated in the murder of Michael Marshall on 25 October 2003.
Finally, because of the framing of question 17 evidence bearing upon the work done by members of Purana Taskforce in their investigation of “gangland” crime syndicates dating from the early 2000s was also adduced.
The contested facts in overview
The contested facts relevant answering a range of referral questions include the following:
(a) the extent to which Ms Gobbo actually assisted or attempted to assist police in their investigation and prosecution of the applicant as a large‑scale drug manufacturer and trafficker of various drugs of dependence contrary to the Drugs, Poisons and Controlled Substances Act 1981 (Vic) and an importer of prohibited drugs under Commonwealth law, whilst simultaneously acting as his legal advisor;[30]
[30]See referral question 1A.
(b) the extent to which Ms Gobbo actually assisted or attempted to assist police by persuading or encouraging the applicant’s criminal associates to agree to give evidence against him, whilst simultaneously acting as their legal adviser;[31]
[31]See referral questions 1A and 2.
(c) the extent to which Ms Gobbo actually assisted or attempted to assist police in the extradition of the applicant;[32]
[32]See referral question 1B.
(d) the existence and scope of the relationship of lawyer and client between Ms Gobbo and the applicant at various intervals between 2002 and 2011; the identification of the duties she owed the applicant because of that relationship and whether, and when, any of those duties were breached;[33]
[33]See referral questions 2, 3, 6 and 6B. I note that while referral questions 5 and 6A concern the relationship of lawyer/client between Ms Gobbo and various of the people that she represented that also made statements and gave evidence against the applicant, whether she breached her duties to those clients as a result of her status as an informer was not the subject of any significant factual dispute.
(e) the proper characterisation of the existence and scope of any duties representatives of Victoria Police owed to the courts in proceedings involving the applicant or those who became witnesses against him;[34]
[34]See referral questions 2, 3, 6 and 6B.
(f) the proper characterisation of the conduct of Victoria Police in its dealings with Ms Gobbo over the course of the investigation, extradition and prosecution of the applicant; and whether any member of Victoria Police acted illegally, including criminally and, if so, whether they did so in concert with Ms Gobbo;[35]
[35]See referral question 8.
(g) the steps taken by Victoria Police (if any) to ensure that its dealings with Ms Gobbo were neither illegal, improper nor capable of undermining the administration of justice or its appearance;[36]
(h) whether the conduct of Victoria Police in supporting the application by the Australian government to extradite the applicant from Greece in June 2007, without having disclosed Ms Gobbo’s status as a registered informer to: (a) the Melbourne Magistrates’ Court when arrest warrants were applied for; or (b) to the Court of Appeal of Athens and (c) to the Supreme Court of Greece before which the extradition request was heard and determined, was illegal or improper or such as to bring the administration of justice into disrepute;[37] and,
(i) the nature and scope of the prosecutor’s duty of disclosure (including the nature and extent of the general duties owed to the court by prosecutors acting on behalf of the DPP) and whether those duties were breached, including by the DPP, and, if so, whether the breach was deliberate.[38]
[36]See referral question 10.
[37]See referral question 8.
[38]See referral questions 6A, 15 and 16.
Despite the factual complexity in the number and scope of the referral questions, they each relate, either directly or consequentially, to Ms Gobbo’s recruitment as an informer by Victoria Police on 16 September 2005 whilst being simultaneously retained to act as the applicant’s lawyer; her deployment as an agent of Victoria Police in the investigation, extradition and prosecution of the applicant from that date until she was deregistered in January 2009; and the failure of Victoria Police (and possibly the DPP) to disclose that fact to any court or judicial officer exercising jurisdiction over the applicant as a criminal accused (or those of his criminal associates who gave evidence against him) until December 2018 when orders of the High Court permitted disclosure to be made.[39]
[39]AB (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1.
In so far as concerns the duty of disclosure to which all members of Victoria Police were subject,[40] the respondent conceded that any breach of that duty was both improper and deliberate. It was improper in the sense that it was contrary to the obligations of a police officer to take all necessary steps to ensure that appropriate disclosure was made to those whose right to a fair trial was or may be infringed upon. It was deliberate in the sense that it was the result of a strategy in which countless members of Victoria Police were complicit in concealing the fact that Ms Gobbo was providing, or had provided, Victoria Police with intelligence and information about the applicant and his criminal associates.
[40]Further amended joint statement of agreed facts filed on 11 July 2024, [392] (“agreed facts”). I note that the parties filed two previous versions of the joint statement of agreed facts on 20 January 2023 and 8 January 2024 before settling on the final version filed on 11 July 2024. I will use the term “agreed facts” to refer to the agreed facts in their final form.
The respondent also conceded that Victoria Police persistently breached its duty of disclosure to: (a) the succession of courts in this State before which the applicant appeared as a criminal accused following his extradition to Australia in May 2008;[41] (b) on repeated occasions to this Court after he entered pleas of guilty to the Quills, Orbital and Magnum offences in April 2011; (c) before he was sentenced for that offending by Whelan J in July 2012; and (d) thereafter as he sought relief of various kinds following his conviction and sentence.[42]
[41]There were contested committal hearings at the Melbourne Magistrates’ Court in 2009 for a number of offences upon which the applicant was extradited, and upon which he was ultimately committed to stand trial to this Court.
[42]See generally, R v Mokbel [2012] VSC 255, [94] (Whelan J); Mokbel v The Queen [2013] HCATrans 321.
The applicant submitted that the persistent breach of the duty of disclosure by Victoria Police was part of a deliberate deception embraced by investigators and sanctioned by senior command to ensure he was convicted and imprisoned at all costs.[43] The respondent submitted that the evidence did not allow for that finding. She submitted that upon an analysis of all of the evidence, I would be satisfied that the breach of duty was instead the result of Victoria Police having had an honest but mistaken belief that information relating to Ms Gobbo’s status as a registered informer was subject to public interest immunity, and that her role as an informer in the investigation, extradition and prosecution of the applicant could not be disclosed for that reason.[44]
[43]Applicant’s closing submissions filed on 24 June 2024, 166 [658], 174 [701] (“applicant’s closing submissions”).
[44]Respondent’s closing submissions filed on 5 July 2024, 226 [852] (“respondent’s closing submissions”).
The respondent accepted that no member of Victoria Police sought legal advice to support that “belief” either before or during the currency of Ms Gobbo’s registration as an informer (that is, between September 2005 and January 2009), or during the currency of any proceedings involving the applicant before, during or after his extradition and prosecution. The respondent also accepted that no public interest immunity claim was mounted by Victoria Police to allow a court to determine such a claim until June 2016,[45] and only then because in February 2016 the then Director of Public Prosecutions, Mr Champion SC (now the Honourable Justice Champion, hereinafter referred to as “the Director”), informed Graham Ashton of his intention to disclose to the applicant Ms Gobbo’s role as a person who had informed against him.
[45]AB & EF v CD [2017] VSC 350.
The question whether the persistent breach of Victoria Police’s duty of disclosure was conscious and deliberate (the applicant’s submission) or the result of an honest but mistaken belief (the respondent’s submission) provided context for how the parties framed their answers to a number of the referral questions. That included whether the breach of the duty of disclosure by Victoria Police, and the use of Ms Gobbo generally as its agent, involved conduct which was not only improper but also unlawful, or involved conduct that otherwise undermined the administration of justice or its appearance, and whether that conduct was part of a broader pattern of high‑level deliberate and/or systemically improper and/or unlawful practices by Victoria Police in relation to the use of Ms Gobbo as an informer.[46]
[46]See referral questions 8, 9, 10, 11, 15 and 17.
Although this Court has had occasion to consider the impact of the breach of the duty of disclosure by Victoria Police in a number of the so‑called “Lawyer X” cases,[47] the questions of fact embedded in the questions that have been referred to me for determination are simultaneously both far more wide‑ranging and far more specific than the factual findings made in other cases. That said, where the parties have invited reference to the findings of fact concerning the conduct of Victoria Police made in other “Lawyer X” cases, and I am otherwise satisfied that the facts in issue in those proceedings are sufficiently allied with the facts in issue in this proceeding, I will reference those cases and be guided by them.
[47]See later at paragraphs 98–100.
In some ways, the more controversial question referred to me for determination is when the Director knew or ought to have known that either or both the prosecution and extradition of the applicant may have been, or would probably have been, adversely affected by the use of Ms Gobbo as an informer for Victoria Police and, if he knew of that state of affairs, when he acquired that knowledge.[48] That issue has not been the subject of any determination by this Court in any of the Lawyer X cases to date, and was not the subject of any comment by this Court or the High Court in the AB & EF v CD proceeding.[49]
[48]See referral question 15.
[49]It did not arise in Karam v The King [2022] VSC 808 (“Karam reference determination”) as the CDPP was the prosecuting authority. See Kadir v The Queen (2020) 267 CLR 109 (“Kadir”).
The answer to that question informs the further question whether the Director breached his duty of disclosure at any time before December 2013,[50] when the applicant exhausted his rights to appeal his convictions on the Magnum, Orbital and Quills offences, or at any time over the intervening three years until 5 February 2016 when he furnished the Victorian Attorney‑General with a report (“the Champion report”)[51] in which he recommended that the contents of a confidential report published by the Independent Broad‑Based Anti‑Corruption Commission (“IBAC”) in February 2015 prepared by the Honourable Murray Kellam KC as its delegate (“the Kellam report”)[52] be disclosed to the applicant, as one of several people affected, or potentially affected, by Ms Gobbo’s recruitment and deployment as an agent of Victoria Police. As noted above, the practical steps taken by the Director to disclose Ms Gobbo’s role as an informer after providing his report to the Attorney‑General in February 2016 were what prompted the Chief Commissioner of Victoria Police to initiate the AB & EF v CD proceeding in this Court in June 2016.[53] That proceeding ultimately led to the High Court making orders permitting disclosure to be made in December 2018.[54]
[50]See Edwards v The Queen (2021) 273 CLR 585, 600‒601 [48] (Edelman and Steward JJ) (“Edwards”). See also Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327 (“Visser”); Roberts v The Queen (2020) 60 VR 431 (“Roberts”) for the common law approach and ss 110 and 111 of the Criminal Procedure Act 2009 (Vic), which supplemented the position at common law: see Roberts, 444‒445 [58] (Osborn and T Forrest JJA and Taylor AJA).
[51]Exhibit R18.
[52]Exhibit R17.
[53]AB & EF v CD [2017] VSC 350; AB v CD & EF [2017] VSCA 338.
[54]AB (a pseudonym) v CD (a pseudonym) (2018) 362 ALR 1.
The question whether the Director was in breach of his duty of disclosure at any time prior to February 2016 and, if so, whether the breach was deliberate[55] requires resolution of a factual dispute between the parties as to whether the duty of disclosure to which the Director was subject upon taking office on 1 November 2011 was activated in either June or September 2012 when he met with senior representatives of Victoria Police.[56] If the duty of disclosure was activated at that time (as the applicant contended), the scope of the Director’s duty was also in contest. The applicant submitted that in the particular circumstances of this case, the duty encompassed an obligation, at that time and repeatedly, if necessary, over the subsequent three years to make further inquiries of Victoria Police to ensure that all material that may, on a sensible appraisal, raise questions about the integrity of the prosecution and/or extradition of the applicant was disclosed.
[55]See referral question 16.
[56]Exhibit R13, 2 [6].
The respondent submitted that the available evidence does not compel a finding that such information as the Director had either at June or September 2012 was sufficient to require him to take any steps to disclose to this Court or the applicant any information relating to Ms Gobbo’s “relationship” with Victoria Police. The respondent also submitted that it was within the Director’s discretion to await the provision of further information from Victoria Police, when and if it was provided, before further considering whether he should take those steps. The respondent submitted that the Director was as under no legal obligation to undertake further inquiries in the discharge of his duty of disclosure.
Were I to come to the view that the authorities in this State do provide for an extended duty of disclosure requiring a prosecutor, in “an appropriate case”, to make further inquiries,[57] and that this was “an appropriate case” for those inquiries to have been made, it follows that having failed to make those inquiries, the Director was in breach of his duty of disclosure.
[57]Roberts, 444 [56] (Osborn and T Forrest JJA and Taylor AJA).
A number of the referral questions also require me to consider the impact or potential impact of the breach of the duty of disclosure by Victoria Police on the strength of the prosecution cases on any of the drug offences for which the applicant was extradited and ultimately prosecuted.[58]
[58]See referral questions 14, 18 and 20.
Finally, I am asked to assess the impact that full disclosure and/or the exclusion of evidence obtained as a result of improper or unlawful conduct would have had on the strength of the prosecution cases in respect of each of the drug charges that were the subject of the plea negotiations in April 2011, including the impact of full disclosure on the course of those plea negotiations.
An overview of the position of the parties
Throughout the course of the proceeding, and ultimately in final submissions, the parties progressively refined their positions on a range of factual issues arising from the referral questions, including the way they proposed that the referral questions should be answered.[59] Additionally, a comprehensive further amended joint statement of agreed facts was filed in the course of final argument.[60] In the result, a great many facts underlying the answers to several of the referral questions were agreed. This has allowed some questions to be answered with relative brevity.
[59]Applicant’s proposed answers to questions referred filed on 2 June 2023; applicant’s proposed answers to questions referred filed on 12 January 2024; respondent’s answers to the referral questions filed on 14 June 2023; respondent’s revised answers to the referral questions filed on 23 October 2023; respondent’s further revised answers to the referral questions filed on 25 January 2024. See also applicant’s closing submissions; respondent’s closing submissions.
[60]Joint statement of agreed facts filed on 20 January 2023; amended joint statement of agreed facts filed on 8 January 2024; further amended joint statement of agreed facts filed on 11 July 2024. See also Re Mokbel (No 5) [2024] VSC 190.
Although the answers to a number of referral questions, or parts of questions, and the approach I should take to answering them had also been generally agreed, when the evidence closed, by far, the greater number of the referral questions and the facts underlying them remained in contest.
The parties filed extensive written submissions, replete with fully articulated references to the evidence and the relevant case law in support of the findings of fact and propositions of law for which they contended.[61]
[61]The applicant’s closing submissions consisted of 213 pages. The respondent’s closing submissions consisted of 249 pages. Between 9 and 11 July 2024 they addressed their submissions orally and on 11 July 2024 I reserved my judgment.
In oral argument extending over several days in July 2024, senior counsel for each of the parties focused on the more contentious of the referral questions. They also addressed a number of issues I had raised for their consideration after reading their filed submissions.[62]
[62]As raised in my memorandum of 8 July 2024 forwarded to the parties after receipt of submissions on 5 July 2024.
One of the most contentious issues addressed in the course of oral submissions concerned how I should approach answering referral questions 3 and 4 (namely, whether Ms Gobbo was one of the applicant’s lawyers at designated intervals both during and after her registration as an informer), and referral questions 6 and 6B (the nature of the duties she owed the applicant as his lawyer and, if any of those duties were breached, the circumstances in which that occurred).
The parties were agreed that the answers to referral questions 3 and 4 are necessarily foundational to answering the allied referral questions 6 and 6B, the answers to which will, in turn, inform referral questions 8 and 9 which concerned whether Ms Gobbo’s conduct was improper, unlawful or otherwise capable of undermining the administration of justice).
In their filed submissions the parties interpreted referral questions 3 and 4 slightly differently. The applicant focused on the periods of time during which Ms Gobbo was the applicant’s lawyer such that concomitant duties attached, without reference to the specific matters in which she acted during that time.[63] The respondent submitted that because the existence and scope of the lawyer/client relationship between the applicant and Ms Gobbo in the timeframes comprehended by the referral question informed the content of the duties she owed the applicant, whether Ms Gobbo was one of the applicant’s lawyers in those timeframes necessarily involved addressing the question, ‘his lawyer in relation to what?’.[64]
[63]Applicant’s closing submissions, 59 [185].
[64]Respondent’s closing submissions, 59 [230].
The applicant also submitted that whether or not Ms Gobbo owed the applicant duties in equity (an issue comprehended by referral question 6) does not depend on the existence of a contract. A less formal arrangement than a contractual relationship will attract equitable duties if, in substance, it is properly characterised as a relationship between a lawyer and a client.[65] The respondent submitted that whilst the authorities recognise that it is possible for a fiduciary relationship (to which certain fiduciary duties would attach in equity) to be established outside of a contractual lawyer/client relationship,[66] because the applicant failed to undertake the requisite analysis of the evidence in order to demonstrate that a relationship of that kind existed between the applicant and Ms Gobbo at any relevant time, I should refrain from entertaining that aspect of the applicant’s case.
[65]Respondent’s closing submissions, 61 [236]–[237], referring to Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1, 46 [192] (Spigelman CJ, Sheller and Stein JJA) (“Beach Petroleum”).
[66]See Beach Petroleum, 46 [192].
In final argument, it was agreed that the existence and scope of Ms Gobbo’s retainer as the applicant’s lawyer in the periods of time to which referral questions 3 and 4 relate (or putting it another way, the existence and scope of any lawyer/client relationship during those periods) must be decided in accordance with the application of general principles, including those governing contract formation.[67]
[67]Both parties relied upon Braham v ACN 101 482 580 Pty Ltd [2018] VSC 575, [163] (Emerton JA) (“Braham”), although they interpreted the particular passage cited in slightly different ways. A number of other authorities were also relied upon by the parties where the concept of a fiduciary relationship outside a lawyer/client relationship was discussed. These will need to be the subject of closer consideration in the answers to referral questions 3, 4 and 6B.
Whilst that approach was agreed, the parties remained in considerable disagreement as to whether that retainer (or those separate contractual retainers) or a less formal fiduciary relationship, should be found to have been established in circumstances where the scope of the various professional services Ms Gobbo provided to the applicant as his lawyer (and the terms upon which those services were provided) was not formally documented or otherwise supported by any objective evidence. I observe that might be explained by the fact Ms Gobbo apparently paid little regard to her professional obligations under the governing Victorian Bar rules (“the Victorian Bar Rules”)[68] to formalise her relationship with the applicant or, it seems, to maintain proper records of her financial dealings with him. However, I am conscious of not making a positive finding to that effect where none of the solicitors who briefed Ms Gobbo on behalf of the applicant were called in the proceeding and no solicitors’ files (if they existed) were tendered.
[68]At the relevant time, the Victorian Bar Practice Rules 2005 (Vic). Note that when I subsequently use the term “Victorian Bar Rules” I will specifically be referring to the 2005 practice rules.
The only direct evidence of the nature and scope of the lawyer/client relationship between Ms Gobbo and the applicant, including the terms upon which she was engaged and the way their dealings were conducted, was the applicant’s evidence (which was not challenged) that Ms Gobbo asked to be paid in large amounts of cash.[69]
[69]Exhibit A2, 5 [27].
| 7 (2958) | 4/3/08 | No | Ms Gobbo discussed the applicant’s expectations about returning to Australia, when the appeal papers would be ready to be served, and the applicant’s expectations of losing the upcoming hearing. Ms Gobbo reported that the applicant was angry at Witness Q about his statement and that he expressed interest in ‘specific people’ mentioned in the statement, and the discussion of ‘payments’. Ms Gobbo reported that the applicant said he would never ‘sing’, and that they had had a discussion about the Magnum brief. Ms Gobbo advised the applicant that the evidence against him was ‘overwhelming’, which the applicant refused to accept. | The respondent submitted that the information was neither confidential nor privileged. As the record makes clear, Ms Gobbo was acting (or had been acting) for a different person in connection with Operation Magnum (Isser Finn), whilst no legal advice was sought or given to the applicant. Ms Gobbo was also ‘unsure’ what the ‘real nature of the call’ was, but she understood it to contain a ‘veiled threat’. She had ceased giving him advice in connection with the extradition. However, the respondent conceded the fact that the applicant had appeal papers ready to be served was potentially privileged. | Having regard to my findings as to the existence and scope of the extradition retainer and the limited retainer in respect of Magnum, these communications were privileged. |
| 10 (2958) | 19/3/08 | No | Ms Gobbo reported that she was speaking to the applicant regularly, and that he continued to hold the belief that he would go to the European Court of Human Rights. She also reported the applicant’s upcoming court dates. | The respondent submitted that the information was neither confidential nor privileged as the applicant’s desire to appeal to the European Court of Human Rights was in the public domain. | I accept the respondent’s submission. |
| 10 (2958) | 21/3/08 | No (the ICR states ‘not disseminated owing to legal defence strategies’). | Ms Gobbo reported that the applicant told her about his vulnerabilities, mentioning that he was ‘feeling down’, and was ‘not surprised’ with latest the court outcome. Ms Gobbo also discussed the applicant’s belief that there was the potential for some of the charges to be withdrawn, that he was very interested in Witness Q’s statements, and that they discussed sentencing discounts, Mr Thomas and Mr Bickley. Ms Gobbo reported that she advised the applicant that she did not “roll” Mr Thomas, Mr Bickley and Witness Q, and that she considered that their statements were untrue. Ms Gobbo also discussed the applicant’s instruction to her to speak to certain people and obtain statements from them and told her that he wants to go to the European Court of Justice, but that she refused owing to the fact that she had not been paid. | The respondent conceded that the request for Ms Gobbo to arrange statements was a request in connection with legal services and was therefore privileged. | |
| 13 (2958) | 9/4/08 | No | Ms Gobbo reported that the applicant had retained new solicitors for his proceeding in the European Court of Human Rights. | The respondent submitted that it was unclear how the fact that the applicant had retained new lawyers was confidential, nor was there anything to suggest that this was imparted to Ms Gobbo in confidence. While the respondent accepted that the amount of money paid would have been confidential, she submitted that it is unclear that it is privileged. | It is the timing of the relay of this information which is critical. If the retainer for the new solicitors was still under consideration, and all the terms of that retainer were still under consideration, that information would have been imparted to Ms Gobbo in confidence. If the applicant’s new lawyers were a matter of public record, the situation would be different. |
| 14 (2958) | 17/4/08 | No | Ms Gobbo reported that the applicant was complaining about Witness Q and discussed his inability to receive a fair trial in Australia. | The respondent submitted that the information conveyed was not privileged, as the discussion was primarily of a personal nature, and there was no request or provision of legal services. However, she conceded it may have been confidential. | I accept that submission. |
| 16 (2958) | 23/4/08 | No | Ms Gobbo discussed her opinion on the applicant’s legal options in the European Court of Human Rights and details of a loan taken out by the applicant to fund his extradition proceedings. | The respondent submitted that the information was neither confidential nor privileged. How this information came to be in Ms Gobbo’s possession is unclear, so it cannot be concluded it was imparted in confidence or for the dominant purpose of legal advice. | On the assumption that she had discussed with the applicant and his other lawyers the legal options open to him in approaching the European Court of Justice, this was a privileged communication. Similarly, how he was proposing to or might fund the extradition proceedings was also privileged. |
| 16 (2958) | 26/4/08 | No | Ms Gobbo discussed the applicant’s extradition proceedings, and that the matters were not listed again until after Greek Easter. | The respondent submitted that the information was neither confidential nor privileged. That the extradition proceedings would not continue over Greek Easter was in the public domain. There was otherwise no substantive discussion of the extradition proceedings, and therefore the respondent submitted that no confidential or privileged information was conveyed. | I accept the respondent’s admissions. |
| 19 (2958) | 15/5/08 | No (however, the ICR states ‘updated controller’). | Ms Gobbo reported a discussion with Dr Bagaric regarding the date that the applicant would be extradited to Australia and details about legal fees owed by the applicant. Ms Gobbo also reported that the applicant attempted to bribe Lebanese officials in an attempt to resist the extradition. | The respondent conceded that some of the discussion was confidential and privileged, but not to the extent that Ms Gobbo relayed information regarding the applicant’s attempts to bribe the Lebanese Government. | I accept the respondent’s submission. |
| 20 (2958) | 19/5/08 | No | Ms Gobbo reported that she had a discussion with the applicant where she told him that she had “conflicts” and he understood she could not represent him. She reported that she planned to see Mr Grigor the following day and would ensure that Dr Bagaric signed over an authority to act. | The respondent conceded that the information concerning Ms Gobbo’s proposed visit to Mr Grigor was confidential (although it is not clear it was privileged). | It is unclear whether the applicant knew Ms Gobbo was with another person. There is nothing to indicate he did or that he spoke with her knowing that their discussions were not confidential. |
| 20 (2958) | 20/5/08 | No (however, the ICR states that the controller was updated). | Ms Gobbo reported that she had a call with the applicant where they discussed her informing him that she could not act for him and about Mr Cooper having “rolled”. [This is what I referred to in the judgement as the “break-up” call] | The respondent conceded that the conversation with the applicant was confidential. | |
| 20 (2958) | 21/5/08 | No | Ms Gobbo discussed the applicant’s belief that the charge for the murder of Michael Marshall would be withdrawn. | The respondent submitted that the information about the applicant’s belief that the murder charge would be withdrawn was neither confidential nor privileged as there was no information as to how Ms Gobbo came into possession of that information and therefore no basis to conclude it was imparted in confidence. | In my view, the probabilities favour a finding that the applicant’s belief concerning the Michael Marshall murder was privileged. |
| 23 (2958) | 13/6/08 | No | Ms Gobbo reported that she had received the s 56A application from the AFP to be compulsorily examined (in relation to Orbital) and said she would ‘not be cooperating’. Ms Gobbo also discussed the details of the s 56A application. | The respondent submitted that this information was neither confidential nor privileged as it was discussed in court. The respondent also submitted that the information relating to the s 56A application was neither confidential nor privileged as it related to conversations with the AFP, not the applicant. Further, the application was directed to Ms Gobbo as a potential witness in the proceeding. | I accept the respondent’s submission, save to the extent that in discussing the s 56A application with her handlers she was relaying privileged information. That is, information to her client, the applicant, concerning that matter. |
| 24 (2958) | 16/6/08 | No | Ms Gobbo discussed the applicant’s belief that some of the extradition charges were ‘flat out false’ and he had ‘nothing to do with them’. Ms Gobbo also reported that the murder charges were a ‘big sticking point’ for any future negotiations. | The respondent submitted that the information about the applicant’s beliefs was not privileged as it was information from Ms McGuire, who was not her client. The respondent conceded that it may have been imparted by Ms McGuire in confidence, but it could not have met the dominant purpose test, and no advice was sought from Ms Gobbo or given. | I accept the respondent’s concession as to the information having been imparted to Ms McGuire in confidence. |
| 24 (2958) | 17/6/08 | No | Ms Gobbo discussed the s 56A application, including information about the Orbital matter, and the fact that she sent a letter to the applicant indicating she would be asserting privilege. | The respondent submitted that the information was neither confidential nor privileged as it related to Ms Gobbo’s role as a potential witness in Orbital. | Relaying to her handlers advice she had rendered to the applicant concerning the question of privilege was clearly a privileged communication. |
| 25 (2958) | 20/6/08 | No | Ms Gobbo reported that the applicant called her whilst she was with another client to discuss the s 56A application. He expressed the belief that the conversation was a privileged conversation and advised that he would not waive privilege. | The respondent submitted that the information was neither confidential nor privileged as it was about Ms Gobbo’s role as a potential witness in the Orbital prosecution and the conversation occurred while she was with another client. | The applicant’s view as to whether the conversation under discussion was privileged and his attitude to the waiver was a privileged communication. It is unclear whether the applicant knew Ms Gobbo was with another client. There is nothing to indicate he did or that he communicated his views knowing that it was not a confidential communication with her for that reason. |
| 25 (2958) | 22/6/08 | No | Ms Gobbo detailed a discussion she had with Ms McGuire about the Orbital charges and the version of events that the applicant gave in his record of interview. | The respondent submitted that the information was neither confidential nor privileged as the conversation was with Ms McGuire, who as not her client. | On one view, the respondent’s submission is sustainable. On the other hand, it would appear that she may have breached the applicant’s privilege by discussing with Ms McGuire contents of his record of interview and his instructions to her. |
| 27 (2958) | 8/7/08 | No | Ms Gobbo reported a discussion she had with Dr Bagaric regarding the s 56A application in Orbital. | It is unclear whether the conversation with Dr Bagaric and Ms Gobbo was confidential or privileged, as it related to her role as a potential witness. | The lack of clarity as to what was discussed does not allow for the resolution of the question whether the communication was privileged or otherwise confidential. |
| 30 (2958) | 30/7/08 | No | Ms Gobbo discussed the s 56A application and said she would advise the applicant to waive privilege, followed by a general discussion about what evidence she would give in court if privileged was waived. | The respondent submitted that the information was neither confidential nor privileged because it relates to Ms Gobbo’s role as a potential witness, except in relation to her proposal to tell the applicant to waive privilege. | I reject the respondent’s construction of this conversation. In my view, it was clearly a privileged communication. |
| 31 (2958) | 6/8/08 | No | Ms Gobbo discussed the lawyers retained by the applicant in his current matters and issues of conflict. Ms Gobbo reported that the applicant told Ms Gobbo she had ‘nothing to worry about’ as she had not been involved in the process of helping people make statements against him, and he intended file subpoenas soon. | The respondent submitted that it was unclear that this information was imparted in confidence, given that Ms Gobbo construed it as containing a ‘‘veiled threat’’. In any event, it was not privileged as no legal advice was sought from Ms Gobbo or given. | Ms Gobbo’s views are not determinative of the question. I regard the communication of this information as in breach of her duty of confidentiality, in light of my finding that she agreed to continue to provide legal advice to (although not to act for) the applicant after the “break-up call”. |
| 34 (2958) | 21/8/08 | No | Ms Gobbo reported a discussion with the applicant about the strength of the evidence against Mr Karam, his assets and the s 56A application. | The respondent submitted that the information was neither confidential nor privileged (at least in respect of the applicant) as it did not involve the applicant, but Mr Karam. | I accept the respondent’s submission. |
| 36 (2958) | 31/8/08 | No | Ms Gobbo reported that she and the applicant discussed Mr Cooper, Horty Mokbel, his trials, his stay applications and the s 56A application. | The respondent submitted that there was no evidence this information was privileged as it concerned other matters (not the applicant’s). There was no record of the substance of the discussion (the other matters were simply “mentioned”), no legal advice was sought or given and the court dates were already in the public domain. | I accept the respondent’s analysis. |
| 37 (2958) | 1/9/08 | No | Ms Gobbo reported that she had a discussion with the applicant about his court matters. | The respondent submitted that the information was neither confidential nor privileged as it did not follow from a conversation with the applicant. The respondent also submitted that Ms Gobbo was not retained by the applicant in relation to the stay application; and there was no basis to conclude she was expressing her opinion by reference to any information she received from the applicant or anyone else (noting the length of time since she had been engaged to do any substantive legal work). | There is insufficient detail about what was discussed regarding ‘his court matters’ to determine whether the communication was privileged. However, given the basis on which I have resolved that she acted for the applicant in a limited capacity after the “break-up call”, the conversation was at least confidential. |
| 38 (2958) | 10/9/08 | No | Ms Gobbo reported that the applicant asked her questions about Mr Cooper. | The respondent submitted that this information was neither confidential nor privileged, it not being for the dominant purpose of legal advice or services. | Although it is unclear whether the questions about Mr Cooper were in the context of him being a witness against the applicant, the probabilities favour that being the case. To the extent that the applicant was asking questions about the ways of approaching him in cross-examination (which I am again prepared to accept as likely), it was subject to privilege and should not have been relayed to her handlers. |
| 38 (2958) | 11/9/08 | No (the ICR states ‘not disseminated owing to legal professional privilege’). | Ms Gobbo reported that she had a discussion (with the applicant) regarding the murder charge relating to Michael Marshall and the possibility that would call her to give evidence. | The respondent submitted that the possibility of Ms Gobbo being a witness in his then pending criminal trial for murder was neither confidential nor privileged. | I reject that submission. |
| 44 (2958) | 22/10/08 | No | Ms Gobbo reported that she had a discussion with the applicant about VFSC delays and the upcoming Magistrates’ Court matters. | The respondent submitted that the information was neither confidential nor privileged, in so far as it related to her being a potential witness. | There is insufficient detail about what was discussed about ‘the upcoming court matters’ to determine whether the communication was privileged. However, given the basis upon which I have resolved that she acted in a limited capacity after the “break‑up call”, the conversation was at least confidential. |
| 44 (2958) | 28/10/08 | No | Ms Gobbo reported that the applicant informed her that his lawyers were preparing a “raft of subpoenas” to serve on Purana, the AFP and the ACC. | The respondent conceded that this communication was privileged. | |
| 46 (2958) | 18/11/08 | No | Ms Gobbo reported that the applicant asked for her opinion on Terry Forrest KC. | The respondent submitted that this information was not privileged, but accepted it may have been confidential. | That concession was properly made. |
| 47 (2958) | 2/12/08 | No | Ms Gobbo reported that the applicant sought advice from her regarding the order of his upcoming trials, defence barristers and the s 56A application, and also asked her about Mr Bickley. | The respondent conceded that to the extent the applicant was relaying privileged information to Ms Gobbo from other lawyers, the information was privileged. The respondent conceded that the request for advice about the order of the trials was privileged. The respondent did not otherwise accept the information was privileged (but conceded it may have been confidential). |
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See Exhibits A6–8, which are email exchanges between Mr Faris KC and Mr Kidd KC sent between
7–11 April 2011. These emails record the course of the negotiations. See also Grace Morgan’s evidence at T577.
The applicant was committed to stand trial for this offence on 15 February 2005. See paragraphs
137–140 above for more information.
Agreed facts, [324]; Exhibit J5 (Tab 7) 900–10. Mr O’Connell also gave evidence about this at
T2008.3–2012.4.
Exhibit A228 (being Mr Flynn’s diary notes); T4544.14–4546.4; T4525.27–4526.14; T4530.5–11;
T4531.3–20.
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