Polimeni v The Queen
[2022] VSCA 20
•1 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0079
| GIOVANNI POLIMENI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 February 2022 |
| DATE OF JUDGMENT: | 1 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 20 |
| JUDGMENT APPEALED FROM: | [2021] VSCA 329 (McCann JR) |
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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether applicant has a legitimate forensic purpose in seeking production of documents – Whether it is in interests of justice to order production of documents – Whether request for documents is fishing – Not in the interests of justice to order production of documents – Application refused – Criminal Procedure Act 2009, s 317.
PRACTICE AND PROCEDURE – Review of judicial registrar’s decision refusing application under s 317 of Criminal Procedure Act 2009 – Review/appeal conducted by way of hearing de novo – Extension of time within which to appeal – Supreme Court Act 1986, ss 11 and 113M – Supreme Court (General Civil Procedure) Rules 2015, rr 3.04, 84.03, 84.05, 84.06 and 84.08 – Supreme Court (Criminal Procedure) Rules 2017, rr 1.09 and 1.18 – Application for review refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Mandy QC with Mr J Barreiro | Condello Lawyers |
| For the Respondent | Mr L Crowley QC | Commonwealth Director of Public Prosecutions |
| For the Chief Commissioner of Victoria Police | Ms S Maharaj QC with Mr J Bayly | Victorian Government Solicitor’s Office |
BEACH JA:
On 23 March 2013, following a 13-day trial in the County Court, the applicant was convicted of one charge of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.5(1) of the Criminal Code (Cth). On 15 April 2013, he was sentenced to 18 years’ imprisonment with a non-parole period of 12 years. On 16 April 2014, this Court refused applications for leave to appeal against conviction and sentence.[1]
[1]Polimeni v The Queen [2014] VSCA 72.
On 15 June 2021, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a second application for leave to appeal against conviction. The application contains one proposed ground of appeal as follows:
1.Fresh and compelling evidence establishes there has been a substantial miscarriage of justice.
PARTICULARS
1.1Nicola Gobbo acted, and was encouraged to act, in contravention of her professional duties and obligations.
1.2Information gathered as a consequence of those contraventions informed the investigation of, and subsequent proceedings against, the applicant.
1.3The Commonwealth Director of Public Prosecutions and the Australian Federal Police failed to disclose Ms Gobbo’s involvement to the applicant, subverting his right to a fair trial.
1.4Thus, there was a fundamental irregularity that went to the root of the trial: Wilde v The Queen;[2] OKS v Western Australia.[3]
[2](1988) 164 CLR 365, 373.
[3](2019) 265 CLR 268, 281.
On 9 July 2021, the applicant filed an application under s 317 of the Criminal Procedure Act seeking the production of the following documents by the Chief Commissioner of Victoria Police:
(a) All documents relating to information exchanged between registered police informer, Nicola Gobbo (Human Source 3838) and Victoria Police between 8 October 2006 and 16 December 2008 concerning the drug trafficking for which the Applicant was convicted, namely conspiracy to possess a commercial quantity of a border-controlled drug, namely Cocaine, contrary to subsection 11.5(1) and subsections 307.5(1) of the Criminal Code (Cth).
(b) All documents relating to the dissemination of the information produced under Item 1(a) between 8 October 2006 and 16 December 2008, to other law enforcement agencies, including the Australian Federal Police, the Australian Customs Service (now the Australian Border Force); and the Australian Crimes Commission (now the Australian Criminal Intelligence Commission).
(c)[Deleted]
(d) [Deleted]
(e) All documents relating to information exchanged between Joseph Acquaro (deceased), and Victoria Police concerning the Applicant, shipment of container MEDU1250218 containing tomato tins on board vessel MV Monica from Naples, Italy; or drug trafficking.
(f) All documents relating to information exchanged between Joseph Acquaro (deceased) and Victoria Police concerning the Applicant.
(g) All documents relating to the question of whether the Applicant’s solicitor Joseph Acquaro (deceased) was a police informer, or in the alternative, a statement from Victoria Police setting out whether Joseph Acquaro was ever a police informer (registered or otherwise), and the time period and circumstances of same.[4]
[4]Paragraphs (c) and (d) were deleted as being repetitive of paras (a) and (b). For completeness, I note that paragraph (f) also appears to be repetitive of the first part of the request in paragraph (e). This type of repetition has the capacity to make a request oppressive (a matter which has the capacity to tell against the making of an order under s 317: see generally Commissioner for Railways v Small (1938) 38 SR (NSW) 564).
On 27 October 2021, Maxwell P made an order referring the applicant’s s 317 application to a judicial registrar for hearing and determination. The referral was made pursuant to r 84.03 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the General Civil Rules’), sub-r (1) of which relevantly provides:
If a matter (whether civil or criminal) before a Judge of the Court, which matter would not otherwise be within the authority of a judicial registrar, appears to the Judge to be proper for determination by a judicial registrar, the Judge, by order, may refer the matter to a judicial registrar.[5]
[5]Emphasis added.
The applicant’s s 317 application was heard on 28 October 2021 by McCann JR. On 1 December 2021, the judicial registrar refused the application.[6] With respect to the material sought in paras (a) and (b), the judicial registrar was of the opinion that the material sought ‘cannot be seen to have a reasonable possibility of materially assisting the applicant in the argument he seeks to advance’.[7] In relation to the material sought in paras (e) to (g), the judicial registrar was not satisfied that there was any legitimate forensic purpose which would justify an order for the production of those documents.[8]
[6]Polimeni v The Queen [2021] VSCA 329.
[7]Ibid [42].
[8]Ibid [51].
On 3 January 2022, the applicant filed a document headed ‘Application to review determination of the Court constituted by a judicial registrar’. The document provided:
I WISH TO APPLY to the Court of Appeal under sections 11(5) and 113M of the Supreme Court Act 1986 to review in full, the determination of the Court constituted by Judicial Registrar McCann on 1 December 2021.
IN PLACE OF THAT DECISION an order is sought requiring the production of the documents listed in the application made pursuant to s 317 of the Criminal Procedure Act 2009 dated 9 July 2021.
The right of review
Section 11(5) of the Supreme Court Act provides that this Court ‘may discharge or vary a judgment, order or direction given or made by … a judicial registrar’. Section 113M of the Act contains provisions concerning the making of rules ‘for appeals from or reviews of a determination of the Court constituted by a judicial registrar’. Section 113M(4) provides that, in the absence of a rule providing for such an appeal or review, the judicial registrar’s determination ‘is to be subject to a review or an appeal conducted … by way of hearing de novo’. Section 113M(4) also provides that, where the determination was made by the Court of Appeal constituted by a judicial registrar, the appeal is to be conducted by the Court constituted by a Judge of Appeal.
The first question to be determined is whether there is any Rule of Court[9] which provides for an appeal or review of the judicial registrar’s determination, which thus renders s 113M(4) inoperative in the present case.
[9]See s 113M of the Supreme Court Act; and the definition of ‘the Rules’ in s 3 of that Act, as meaning ‘the Rules of Court made by the Judges of the Court whether under the powers conferred by this Act or otherwise’.
Subject to some exceptions not presently relevant, r 84.05 of the General Civil Rules provides for an appeal from any determination by a judicial registrar, including a determination in a matter (whether civil or criminal) referred to a judicial registrar under r 84.03. Ultimately, there was no dispute before me that the existence of this right of appeal meant that s 113M(4) of the Supreme Court Act does not have any operation in the present case.
Rule 84.05(3) provides that, where the determination of the judicial registrar is a determination of the Court of Appeal (as it is in this case),[10] the appeal is to the Court of Appeal constituted by a Judge of Appeal.[11] Rules 84.05(4) and (5) provide that an appeal under r 84.05 ‘shall be conducted by way of hearing de novo’; ‘shall be … brought by filing a notice of appeal in accordance with this Order’; and otherwise will be ‘in accordance with this Order’.
[10]See s 11(8) of the Supreme Court Act.
[11]See r 84.05(3).
Order 84 of the General Civil Rules does not prescribe the form of the notice of appeal required by its provisions. Rule 84.06 merely provides that a notice of appeal must be filed within 14 days after the determination was given or made by the judicial registrar; and r 84.07 provides that the notice of appeal must state whether the whole or part only of the determination is the subject of appeal, and ‘what determination is sought in place of the determination from which the appeal is brought’. Rule 84.08 requires a person seeking to review the determination of a judicial registrar to serve the notice of appeal within five days of its filing, while r 84.09 provides for extensions of time to be allowed under Order 84 for the filing and service of the notice of appeal.
Rule 84.10 provides that, on an appeal filed under Order 84, each party may (subject to any proper objections as to admissibility) rely upon any affidavit used, or any evidence given orally, before the judicial registrar; and, by leave of the Court, may also rely upon an affidavit or oral evidence not used or given before the judicial registrar.
Notice of appeal
As I have already observed, Order 84 of the General Civil Rules does not prescribe the form of the notice of appeal required by its provisions. Rule 1.18 of the Supreme Court (Criminal Procedure) Rules 2017 (‘the Criminal Rules’) provides:
If a party to a criminal proceeding intends to make an application and there is no form prescribed by any Rules or by or under any Act for such an application, a general application in Form 6-1D may be used with such modification as is necessary.
Relying upon r 1.18 of the Criminal Rules, the applicant filed his application to review the determination of the judicial registrar. While the application to review is not headed ‘Notice of Appeal’, it complies with the necessary requirements of Order 84 of the General Civil Rules, and in particular r 84.07 (the requirement that a notice of appeal must state whether the whole or part only of the determination is the subject of appeal, and the requirement that it also state the determination sought by the applicant in place of the judicial registrar’s determination). While the lack of a prescribed form of notice of appeal in Order 84 did not prevent the applicant from drawing such a document, r 1.18 of the Criminal Rules permitted him to take the alternative course of filing and serving the present application as the notice of appeal required by rr 84.06 and 84.07 of the General Civil Rules.
Extension of time
Pursuant to rr 84.06 and 84.08, the applicant was required to file a notice of appeal on or before 15 December 2021, and then serve a copy of it on the respondent on or before 22 December 2021.[12] The applicant requires extensions of time for the filing and serving of the notice because his application was not filed until 3 January 2022, and a copy was not served on the Chief Commissioner until 19 January 2022.
[12]While the time limit prescribed by r 84.08 of the General Civil Rules is 5 days after service, r 3.01(4) of those rules provides that, where a period of 5 days or less would include a day on which the office of the Court is closed, that day shall be excluded. Thus, in calculating the time for service in this case, the weekend of 18-19 December 2021 must be excluded.
The Chief Commissioner opposes any extension of time being granted under r 84.09. The Chief Commissioner submitted that the relevant principles to be considered when determining the extension of time applications were helpfully summarised by Kaye JA in Song v Commissioner of Australian Federal Police,[13] as follows:
The power to grant an order for an extension of time is discretionary. In determining such an application, the Court takes into account the length of the delay, the reasons for the delay, the extent of any prejudice to the respondent, and the prospects of success of the substantive application for leave to appeal. Ordinarily, it is not appropriate that an appellate court enter into detail on the merits of the proposed appeal, because, at the stage of an application to extend time, it only has limited materials and arguments before it. On the other hand, a Court will refuse leave to extend time, notwithstanding that there has been a satisfactory explanation for the delay, if it concludes that the proposed appeal is so devoid of merit that it would be futile to extend time.[14]
[13][2019] VSCA 206 (‘Song’).
[14]Ibid [20] (citations omitted).
While the Chief Commissioner acknowledged that he would suffer no prejudice if the extensions of time sought by the applicant were granted, he submitted that the Court should not grant the extensions of time because the delays in both filing and service were ‘substantial’; no explanation had been offered by the applicant for the delay; the applicant’s appeal ‘has no merit’; and the applicant’s application for leave to appeal against his conviction, and his written case, fail to disclose any arguable ground of appeal — rendering the making of any order under s 317 of the Criminal Procedure Act futile.
The applicant submitted that extensions of time should be granted because there was ‘some difficulty ascertaining the correct procedure and form for the appeal’; the delay in filing and service was measured in days; and the appeal has merit.
In support of the applicant’s submission that he was only ‘slightly outside’ the permissible time limits, the applicant purported to rely upon r 1.09 of the General Civil Rules — which he said ‘stops time’ over the holiday period between 24 December and 9 January. In truth, the rule the applicant actually wished to rely upon was r 3.04 of the General Civil Rules. His reference to r 1.09 was a reference to the equivalent rule in the Criminal Rules — namely, r 1.09 of those rules (a rule which does not apply to the time limits fixed in Order 84 of the General Civil Rules).
I accept the applicant’s submission that he had some difficulty ascertaining the correct procedure and form for the appeal. The interrelationship between ss 11 and 113M of the Supreme Court Act, the General Civil Rules (which, subject to limited exceptions, apply to every civil proceeding),[15] the provisions of the Criminal Procedure Act and the Criminal Rules is not entirely straightforward. Ordinarily, one might not expect that the provisions governing an appeal from a determination of a judicial registrar in an application brought in relation to an application for leave to appeal against conviction would be found in the General Civil Rules. The more natural place to look might, at least at first blush, be thought to be in the Criminal Rules. While the Criminal Rules contain provisions dealing with the powers of judicial registrars, none of those provisions have any relevance to the present application.
[15]See r 1.05 of the General Civil Rules.
The appeal from the determination of the judicial registrar falls, as I have explained, to be conducted by way of hearing de novo. In my view, the applicant has sufficiently explained the reasons why his notice of appeal was not filed and served within the time limits prescribed in Order 84 and, as the Chief Commissioner has fairly conceded, no prejudice has been suffered by the applicant’s late filing and service of the notice of appeal. The merits of the applicant’s s 317 application will determine the question of whether the applicant should have the extensions of time he seeks and whether any order should be made in his favour under s 317 of the Criminal Procedure Act. Accordingly, I turn now to the substance of the s 317 application.
Applicant’s case on the substantive application for leave to appeal and appeal
In his written case in support of his application for leave to appeal, the applicant asserts that at no time, during his trial and subsequent appeal, did the CDPP or the AFP disclose to him that Ms Gobbo, a criminal defence barrister, ‘was a police informer who played an instrumental role in the investigation that led to his arrest and conviction’. The applicant contends that this information is ‘fresh, compelling and must, in the interests of justice, be considered in an appeal’.
While the applicant concedes in his written case that Ms Gobbo never acted for him, his case is based upon breaches by her of duties of confidence and loyalty to her client in earlier proceedings, Rob Karam.
In that part of his written case dealing specifically with his proposed ground of appeal, the applicant refers to Ms Gobbo’s breach of duty to Mr Karam when she provided to Victoria Police a bill of lading in respect of the importation of a container of tomato tins containing in excess of 1.4 tonnes of the border-controlled drug MDMA. The provision of this bill of lading led to the MDMA being intercepted and seized by Australian Customs some days later in June 2007.
While the applicant had nothing to do with the importation of the tomato tins containing the 1.4 tonnes of pure MDMA, he contends that Ms Gobbo’s conduct in obtaining and providing a bill of lading was the reason why he was charged and prosecuted with the offending that led to his conviction for conspiracy to possess a commercial quantity of cocaine in March 2013. The argument appears to be that, as a result of the provision of the bill of lading by Ms Gobbo, the tomato tins importation was prevented. The individuals involved within the syndicate to import the tomato tins were then required to engage in strategies of ‘damage control’ and ‘debt reduction’ in order to comply with their obligations to make payment for the tomato tins shipment. Individuals in the syndicate, who were already under surveillance, continued to be the subject of surveillance throughout a period during which they engaged in activities of ‘damage control’ and ‘debt reduction’. These activities included the importation of the cocaine the subject of the applicant’s offending, some 13 months later in July 2008.
Put shortly, the applicant’s case appears (from his written case) to be that, but for Ms Gobbo’s breaches of duty to Mr Karam in June 2007, the tomato tins importation would not have been detected and stopped. The detection and termination of the tomato tins importation led to some of its participants committing further serious drug offences, including the offending in July 2008 for which the applicant was subsequently charged and convicted. Because this offending was only engaged in after the detection of the tomato tins offending, and because the ‘losses’ caused to those involved in its offending by the seizure of the tomato tins caused them to engage in the subsequent offending, any evidence obtained by any law enforcement agency in relation to this further offending should have been excluded under s 138 of the Evidence Act. It was thus submitted by the applicant that the prosecution’s failure to disclose the actions of Ms Gobbo constitutes a fundamental irregularity that went to the root of the applicant’s trial.
The ultimate relief sought by the applicant in his proceeding in this Court is an acquittal. In support of the making of that order, the applicant submits:
The misconduct of Gobbo and Victoria Police infects the entire case against the applicant. There is no way to disentangle the impropriety from legitimate or lawful aspects of the investigation and prosecution. The applicant cannot get a fair trial. Any retrial would involve considerable cost to the community, in circumstances where this Court is able to finally determine the issues.
Applicant’s submissions on this application/appeal from the judicial registrar
In oral argument, senior counsel for the applicant made submissions broadening the scope of the proposed appeal from that contained in the written case.
With respect to the documents sought in relation to Ms Gobbo,[16] the applicant submitted that he should have had disclosed to him, prior to his trial, that Ms Gobbo had given information to police about three people for whom she had acted, and who were alleged to be co-conspirators of the applicant: namely, Pasquale Barbaro, Saverio Zirilli and Mr Karam. The applicant submitted that there was a breach of the duty of disclosure at the time of his trial, and that that breach of duty must now be remedied by the provision of the documents sought in the present application. In support of that submission, the applicant relied upon what this Court said about the duty of disclosure in criminal trials in Roberts v The Queen,[17] namely:
It is now accepted that it is a fundamental rule that there must full disclosure in criminal trials. It is a ‘golden rule’. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.[18]
[16]Paragraphs (a) and (b) of the s 317 request.
[17](2020) 60 VR 431 (‘Roberts’).
[18]Ibid 444 [56] (citations omitted).
In oral argument, senior counsel for the applicant conceded that he did not need documents to prove that Ms Gobbo acted in breach of her ethical duties to Mr Barbaro, Mr Zirilli and Mr Karam. He accepted that those breaches of duty by Ms Gobbo were ‘established’ and that there was ‘really no issue about it’. He submitted that documents were required to prove the consequences of Ms Gobbo’s breaches, saying:
What is the consequence of that [Ms Gobbo’s known breaches], and the consequence of that is the impropriety which — if the investigation commenced on the basis of the police being given information which was in breach of her ethical duties, then that’s the foundation — the bedrock for the investigation and for what flowed from it.
The applicant’s argument appeared to be that if any information relating to him (for example, his phone number or location) had been provided by Ms Gobbo to Victoria Police as part of her informing against one of her clients, and any such information led to the applicant being investigated, being made the subject of surveillance, or charged, then the applicant was entitled to the production of documents establishing these consequences, for the purpose of demonstrating a fundamental irregularity, occasioned thereby, which went to the root of the applicant’s subsequent trial.
With respect to the documents sought in relation to Mr Acquaro,[19] the applicant submitted that he was entitled to these documents on the same basis as the applicant in Madafferi v The Queen[20] was found to be so entitled in relation to the same solicitor. In Madafferi, the applicant (Mr Madafferi) wanted to know whether Mr Acquaro (who had been his solicitor) passed on information to police relating to a particular investigation and whether Mr Acquaro passed on any confidential information about him that was adverse to his interests in the context of that proceeding. The Court in Madafferi, ultimately came to the conclusion that the s 317 request made in that case was not fishing. The applicant submitted that, similarly, his request for the documents relating to Mr Acquaro, in the present proceeding, is not fishing.
[19]Paragraphs (e) to (g) of the s 317 request.
[20][2021] VSCA 1 (‘Madafferi’).
Section 317 of the Criminal Procedure Act 2009
Section 317 of the Criminal Procedure Act provides:
For the purposes of this Part [Part 6.3, which contains the provisions dealing with appeals from the County Court and the Trial Division of the Supreme Court to the Court of Appeal], the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if the Court of Appeal considers that it is in the interests of justice to do so.
In looking to see whether it is in the interests of justice to order the production of a document under s 317, the Court primarily looks to see whether an applicant has a legitimate forensic purpose for seeking access to the document.[21] The assessment of whether an applicant has a legitimate forensic purpose for seeking access to a document falls to be considered by reference to the proposed grounds of appeal and the issues in dispute in the proceeding.
[21]Madafferi [2021] VSCA 1, [98]; Zirilli v The Queen [2021] VSCA 2, [77]–[98].
While it has been observed that the process in respect of an order under s 317 of the Criminal Procedure Act is treated as being akin to an order for a subpoena for the production of documents,[22] ultimately the question of whether the production of a document should be ordered under s 317 is governed by whether this Court, to use the language of the statute, ‘considers that it is in the interests of justice to do so’. Thus, for example, while a given application may involve a greater than usual degree of uncertainty about whether it was ‘on the cards’ that the production of the document would materially assist an applicant’s case, the importance of the issue in respect of which the document is sought might be such that, weighing all relevant matters, the Court might conclude that it is nevertheless in the interests of justice to order production of the document.
[22]Zirilli v The Queen [2021] VSCA 174, [42].
On the other hand, a discretionary reason for refusing to order the production of a document under s 317 might be that the proposed ground of appeal to which the document relates is manifestly hopeless. Ordering production of a document relating to a proposed ground of appeal that is manifestly hopeless is a pointless exercise — and one serving no legitimate forensic purpose. Courts do not engage in acts of futility.
This is not to say that this Court, on the hearing of an application under s 317, should lightly conclude that a proposed ground of appeal (or application for leave to appeal) is manifestly hopeless. Generally speaking, an application under s 317 of the Criminal Procedure Act, involving a dispute between the applicant and a party other than the respondent, is not the occasion upon which to give any detailed consideration to the merits of the applicant’s proposed appeal. More often than not, the material before the Court on such an occasion does not permit of anything other than a broad understanding of the competing contentions as to the merits of the proposed appeal.
Paragraphs (a) and (b) of the applicant’s s 317 request: documents relating to Ms Gobbo
The applicant seeks the production of documents relating to information exchanged between Ms Gobbo and Victoria Police between October 2006 and December 2008 (and documents relating to the dissemination of that information), ‘concerning the drug trafficking for which the applicant was convicted’. The following points may be made.
First, the focus of the applicant’s written case is upon the impropriety of Ms Gobbo providing information in relation to her client Mr Karam — and specifically, information relating to the criminal importation of different drugs some 13 months before the applicant’s offending. No part of the applicant’s written case makes any allegation that Ms Gobbo provided Victoria Police with any information concerning the applicant’s offending.
Secondly, there is nothing in the material relied upon by the applicant to suggest that Ms Gobbo gave any information to Victoria Police concerning the drug trafficking for which the applicant was convicted.
Thirdly, the applicant was tried alone in respect of the July 2008 importation of cocaine. While the indictment named a number of co-conspirators, none of them were tried with the applicant. Moreover, there is no suggestion that Ms Gobbo had any involvement whatsoever in the applicant’s trial or his subsequent appeal in 2014.
To the extent that the applicant seeks documents to establish the fact that Ms Gobbo provided information to police (including the provision of the bill of lading) in relation to the tomato tins importation, the applicant has no legitimate need for such documents because there is no dispute about the relevant underlying facts.[23] More significantly, the applicant’s argument that there was a fundamental irregularity that went to the root of his trial because he was not told that Ms Gobbo had provided information which brought the tomato tins importation to an end and thereby caused the applicant to be a party to offending which would not otherwise have occurred is, on its face, not reasonably arguable.
[23]The CDPP will take the same approach to the concession of underlying factual matters as was taken in Visser v DPP (Cth) [2020] VSCA 327 (‘Visser’).
The lack of merit in the argument which the applicant wishes to advance in support of his proposed ground of appeal is exemplified when one examines this Court’s analysis in Visser. The appellant in Visser was one of those convicted in respect of the tomato tins importation. His appeal was based on the impropriety of Ms Gobbo providing the bill of lading to police. In dismissing his appeal, the Court concluded that Ms Gobbo’s provision of the bill of lading to the police was not in breach of legal professional privilege, nor was it in breach of her duties of loyalty and confidence to her client Mr Karam.[24] The Court then said:
Even if the bill of lading attracting legal professional privilege or its provision to Victoria Police infringed a duty of loyalty or confidence owed to Karam, we consider that there was no realistic prospect that the evidence derived from the bill of lading relating to the identification of the tomato tins container and the discovery of its contents would have been excluded under s 138 of the Evidence Act.[25]
[24]Visser [2020] VSCA 327, [114].
[25]Ibid [116].
Having regard to the lack of merit in the argument which the applicant seeks to advance founded upon, and about, the provision of the bill of lading by Ms Gobbo to police in his proposed appeal, I do not consider that it would be in the interests of justice[26] to order the production of any documents sought merely for the purpose of advancing that argument.
[26]See s 317 of the Criminal Procedure Act.
Similarly, and again having regard to this Court’s analysis in Visser, the lack of merit in the applicant’s broader case, that any information about him obtained by police (telephone numbers, locations or the like) during the course of Ms Gobbo’s breaches of duty to the applicant’s co-conspirators would result in any evidence obtained against the applicant as a result thereof being excluded under s 138 of the Evidence Act,[27] leads also to the conclusion that it is not in the interests of justice to order the production of any documents sought merely for the purpose of advancing that argument. In so concluding, I have not overlooked that any s 138 analysis conducted in respect of any such evidence will necessarily not be identical to that conducted with respect to the bill of lading in Visser. However, it is very difficult (if not impossible) to see how any such evidence could be excluded under s 138, in circumstances where the bill of lading would not be so excluded.
[27]Which does not form part of the applicant’s written case in support of his application for leave to appeal, but was first articulated as part of his application under s 317.
The short point is that, in respect of this aspect of the applicant’s s 317 request, even allowing for the fact that the argument sought to be advanced by the applicant forms no part of his written case in support of his application for leave to appeal (and thus putting the issue of fishing, created thereby, to one side), it is not on the cards that the documents sought will materially assist the applicant’s case.[28]
[28] Madafferi [2021] VSCA 1, [98].
Finally, to the extent that the applicant’s s 317 application seeks the production of documents relating to information provided to Victoria Police (or disseminated by them to other law enforcement agencies) about the applicant or his offending (being the offending with which he was charged and convicted), the basis for any belief that any such information or documentation exists appears to be little more than speculative. Having regard to the very significant body of evidence that now exists about Ms Gobbo’s activities as a police informer, the applicant’s inability to point to anything that might suggest that Ms Gobbo provided information to Victoria Police in relation to the applicant’s offending is not without significance.
That said, in oral argument, the applicant pointed to the existence of one document, an Informer Contact Report dated 26 August 2008, which was part of the ‘Tomato Tins package’[29] which records a conversation between Ms Gobbo and one of her handlers that took place on that day, and in which it is stated that, ‘Ms Gobbo referred to “the 15 mill pill import” and to “[o]thers mentioned include … Polemini [sic]”’; and a diary entry of ‘Officer Green’ of the same date, in which the same information is set out. Remembering that the offending with which the applicant was charged had been completed by 26 August 2008, there is nothing in the references to him in these two documents which makes it on the cards that the provision of them to the applicant would assist his case as formulated by him (either in the written case, or more generally on this application).
[29]A package of documents that have been collated and reviewed on behalf of the Chief Commissioner specifically for disclosure to the eight ‘tomato tins conspirators’ (Mr Barbaro, Mr Zirilli, Salvatore Agresta, Carmelo Falanga, Mr Karam, Pasquali Sergi, Jan Visser and John Higgs).
For the above reasons, I have concluded that the material sought in paras (a) and (b) of the s 317 request cannot be seen to have a reasonable possibility of materially assisting the applicant in the appeal he seeks to bring against his conviction. More particularly, I do not consider that it is in the interests of justice to make an order in the applicant’s favour in relation to those paragraphs.
Paragraphs (e) to (g) of the applicant’s s 317 request: documents relating to Mr Acquaro
The applicant seeks the production of documents relating to information exchanged between Mr Acquaro and Victoria Police concerning the applicant, the tomato tins container, ‘or drug trafficking’. He also seeks documents relating to the question of whether Mr Acquaro was a police informer. Immediately one notes the breadth of that part of the request for, ‘All documents relating to information exchanged between Mr Acquaro and Victoria Police concerning … drug trafficking’.
According to the applicant’s solicitor’s affidavit,[30] during the applicant’s trial, Mr Acquaro’s firm acted as an agent for the applicant’s Sydney solicitor, Arthur Aguirre ‘from in or around 2011 for numerous pre-trial directions hearings’. Mr Acquaro also acted as a solicitor for the applicant during his appeal. There is, however, currently no proposed ground of appeal which relates to Mr Acquaro. As to that obvious problem with respect to paras (e) to (g) of the s 317 request, the applicant submitted:
It is true that Mr Acquaro’s status as a police informer was not mentioned within the written case. However, it was always intended to amend the written case to include a separate ground relating to him, in the event that any forthcoming disclosure provided that avenue.
[30]Affidavit of Kayla Balassone sworn 15 June 2021.
The difficulty with this submission is that it demonstrates that the request made for documents relating to Mr Acquaro is no more than fishing. The documents being sought do not relate to any issue currently in dispute on the application for leave to appeal.
Moreover, it is no answer for the applicant to say that documents relating to Mr Acquaro have been given to other applicants for leave to appeal in other cases in which there was no ground of appeal relating to him. Decisions in those cases were no doubt made having regard to their particular circumstances and/or the evidence which was produced in them. It is possible that the setting out of a detailed history of the relationship between Mr Acquaro and one of those other applicants could have justified the making of a s 317 order in the absence of a relevant ground of appeal. It is not, however, necessary to speculate about that matter because in the present case, the applicant has not sought to establish any such evidentiary foundation upon which it would be appropriate to make the orders he seeks.
In the absence of any proposed ground of appeal, it is not possible to conclude that any particular part of the request made in paras (e) to (g) has a legitimate forensic purpose. Additionally, I suspect that even if the applicant had formulated a proposed ground of appeal relating to Mr Acquaro, requests for documents relating to information exchanged between Mr Acquaro and Victoria Police ‘concerning drug trafficking’ would be held to be so wide as to constitute fishing. The very breadth of the requests made in paras (e) to (g) tells against any order being made under s 317 in the terms contained in the current s 317 request.
For the above reasons, I do not consider that it is in the interests of justice to make an order in the applicant’s favour in relation to paras (e) to (g) of the applicant’s s 317 request.
Conclusion
The delay in filing the application to review the determination of the Court constituted by McCann JR on 1 December 2021 was relatively short, and no prejudice to the Chief Commissioner was occasioned by the delay. In the circumstances, the extension of time sought by the applicant should be granted. For the reasons given above, however, the application to review must be refused.
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