Polimeni v The Queen
[2021] VSCA 329
•1 December 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0079
| GIOVANNI POLIMENI | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDICIAL REGISTRAR: | McCANN JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 October 2021 |
DATE OF JUDGMENT: | 1 December 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 329 |
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CRIMINAL LAW – Appeal – Practice and procedure – Production of documents – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether legitimate forensic purpose – Application refused – Criminal Procedure Act 2009, s 317.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Barreiro | Condello Lawyers |
| For the Respondent | Ms C Fitzgerald | 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 |
McCANN JR:
Introduction
On 22 March 2013, following a trial, the applicant, Giovanni Polimeni, was convicted of conspiracy to possess a commercial quantity of cocaine. On 15 April 2013, he was sentenced to 18 years’ imprisonment with a non-parole period of
12 years.
His applications for leave to appeal against conviction and sentence were refused by the Court of Appeal on 16 April 2014.[1]
[1]Polimeni v The Queen [2014] VSCA 72.
The conduct of Victoria Police in the use of legal practitioners — former barrister Nicola Gobbo (‘Ms Gobbo’) and now-deceased solicitor Joseph Acquaro (‘Mr Acquaro’) — as police informants has been revealed over the course of a number of reported decisions of this Court and the High Court.[2] Additionally, it is detailed in the Final Report of the Royal Commission into the Management of Police Informants (‘RCMPI’), established to inquire into, inter alia, ‘the number of, and extent to which, cases may have been affected by the conduct of Ms Gobbo as a human source.’[3]
[2]AB v CD & EF [2019] VSCA 28; AB v CD; EF v CD [2018] HCA 58; Orman v The Queen [2019] VSCA 163; Madafferi v The Queen [2021] VSCA 1.
[3]Royal Commission into the Management of Police Informants (Final Report, 30 November 2020) Final Report Summary, The Commission’s Terms of Reference 1, 7.
The RCMPI Final Report refers to a sequence of criminal conspiracies and the associated investigations by Victoria Police, the Australian Federal Police (‘AFP’) and Australian Border Force (‘ABF’) into the ‘Tomato Tins’ drug syndicate cases. The cases share some participants in common and are linked through what is said to be causal motivation, in that the later conspiracies are said to have been motivated by the need to recoup losses caused by the interception of the original shipment of ecstasy concealed in tomato tins in a container aboard the MV Monica. The cases are linked also by the evidentiary trail followed by investigators. The conspiracy to ship cocaine for which the applicant was convicted was prompted by the interception of the tomato tins shipment and was detected by investigators as a consequence of that interception.
On 23 June 2021, the applicant applied for leave to appeal against his conviction a second time, pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’). His application advances a single ground: that there is fresh and compelling evidence which establishes that there has been a substantive miscarriage of justice.
On 9 July 2021, the applicant made the current application seeking the production of documents by the Chief Commissioner of Victoria Police (‘Chief Commissioner’) pursuant to s 317 of the CPA.
Broadly, the applicant seeks information exchanged between Ms Gobbo and Victoria Police between 8 October 2006 and 16 December 2008 concerning the drug trafficking for which he was convicted.
The applicant also seeks information exchanged between Mr Acquaro and Victoria Police, as well as documents related to whether Mr Acquaro was a police informer.
I note that Ms Gobbo did not act or appear for the applicant in connection with the conspiracy charge. Mr Acquaro’s firm acted as an agent for NSW solicitors during the applicant’s trial. Further, Mr Acquaro acted as his solicitor during his appeal.
I observe that, in the applicant’s notice of application for leave to appeal against conviction and in his written case, there is no complaint regarding the conduct of Victoria Police in the use of Mr Acquaro as an informer. Counsel for the applicant have indicated, both in writing and before the Court, an intention to amend the notice and written case once further information is disclosed.
Given the material before the Court, and for the reasons below, I am unable to find that there is a reasonable possibility that the documents sought would materially assist the applicant in his appeal as articulated. Accordingly, I decline to make the order currently sought by the applicant for production pursuant to s 317 of the CPA.
Background
On 18 August 2008, the applicant was charged with conspiracy to commit an offence of possessing a commercial quantity of a unlawfully imported border controlled drug, namely cocaine, contrary to sub-ss 11.5(1) and 307.5(1) of the Criminal Code (Cth). The indictment alleged that, between 26 June 2008 and 8 August 2008, at Melbourne, the applicant conspired with Pasquale Barbaro, Saverio Zirilli, Rob Karam, Sharon Ropa, Severino Scarponi and others to commit the offence.
The investigation that uncovered the conspiracy was conducted by the AFP and had the title Operation Inca C.
As recorded in the Court of Appeal’s reasons:
The Crown case was that, on 26 June 2008, a cargo ship left port in Colombia with ninety-nine kilograms of cocaine secreted in one of the containers. It arrived in Melbourne on 24 July 2008 and in due course was seized by the authorities. The attempted importation was the subject of the conspiracy alleged.[4]
[4]Polimeni v the Queen [2014] VSCA 72, Schedule A.
The applicant was tried alone. As the Court noted, the bulk of the Crown case consisted of the formal proof of conversations and SMS messages between the alleged co-conspirators.[5] ‘The applicant’s defence, put simply, was that whatever Barbaro, Karam and Zirilli may have done, or conspired to do, the applicant was not a party to it.’[6]
[5]Ibid.
[6]Ibid at [16].
It was said that the cocaine conspiracy was conceived by Pasquale Barbaro to recoup losses incurred due to the interception of a large amount of ecstasy concealed inside the now notorious tomato tins on board the MV Monica which arrived in the Port of Melbourne on 28 June 2007.[7] Victoria Police were provided with the bill of lading relating to the tomato tins shipment by Ms Gobbo.
[7]Royal Commission into the Management of Police Informants (Final Report, 30 November 2020) ch 7 [48]; Submissions of the Chief Commissioner of Police with respect to Making Orders under s 317 of the Criminal Procedure Act 2007, [7.2].
In the Final Report of the RCMPI, police operations Operation Bootham-Moko (relating to the seized importation of ecstasy) and Operation Inca (relating in part to the conspiracy to import cocaine) and the offending they targeted are said to have had various causal and evidentiary connections. They are referred to by counsel assisting and in the Final Report as the ‘Tomato tins’ drug trafficking syndicate cases. The criminal activity the subject of the operations occurred consecutively and was linked by virtue of having some participants in common. Ultimately, however, there were 33 individuals charged with offences across six separate but connected operations.[8]
[8]Submissions of Counsel Assisting RCMPI, Table, pp 676–678.
The applicant was not charged in respect of the tomato tins shipment. He was not charged in respect of any other criminal activity within the ‘Tomato tins’ drug trafficking syndicate cases. As stated above, Ms Gobbo was not his legal practitioner.
Mr Acquaro’s firm, Acquaro & Co, acted as agent for the applicant’s Sydney solicitor from in and around 2011 for numerous pre-trial direction hearings.[9] Further, Mr Acquaro acted as solicitor for the applicant in relation to his appeal against conviction in or around 2014. Mr Acquaro has been revealed to have also been a police informer during a period in 2008 and again in 2014.[10]
[9]Affidavit of Kayla Balassone sworn on 15 June 2021 at para [15].
[10]Madafferi v The Queen [2021] VSCA 1.
Ahead of the hearing, the applicant and Chief Commissioner filed the following documents, which I have taken into consideration in determining this application:
(a)submissions of the Chief Commissioner of Police with respect to the making of orders under s 317 of the Criminal Procedure Act 2009 dated 10 September 2021;
(b)affidavit of Timothy James McKinney affirmed on 10 September 2021; and
(c)applicant’s submissions on s 317 of the Criminal Procedure Act 2009 dated 1 October 2021.
The respondent, the Commonwealth Director of Public Prosecutions, filed no material but was represented at the hearing. Relevantly to the current application, she indicated that requests for disclosure from the applicant had been complied with to date. Further, the Director would revisit her disclosure obligations in response to future correspondence from the applicant.
Applicable statutory provisions and legal principles
As noted earlier, the applicant applies for leave to appeal against his conviction pursuant to s 326A of the CPA, which provides that:
(1)A person convicted of an indictable offence by an originating court who—
(a)has exhausted the person's right to appeal against conviction under Division 1 of Part 6.3; or
(b)has previously appealed under this Part but leave to appeal was not granted or the appeal was dismissed, in whole or in part—
may appeal to the Court of Appeal against the conviction if the Court of Appeal gives the person leave to appeal.
As stated in s 326C(1) of the CPA, ‘the Court of Appeal may grant leave to appeal under s 326A if it is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal’.
Relevant to this application, s 317 of the CPA provides that the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if it considers that it is in the interests of justice to do so.
As outlined in their respective submissions, the following principles with respect to s 317 of the CPA are not in dispute between the applicant and the Chief Commissioner:
(a)the Court’s power under s 317 of the CPA is discretionary;
(b)an order pursuant to s 317 of the CPA is akin to a subpoena for production;[11]
(c)the applicant must identify a legitimate forensic purpose for seeking the documents;
(d)the applicant must then establish that it is ‘on the cards’ that the documents sought would materially assist his/her case.[12]
[11]Zirilli v The Queen [2021] VSCA 174 at [59(d)]; Zirilli v The Queen [2021] VSCA2 at [88]–[98].
[12]Further legal principles relevant to s 317 of the CPA are summarised in Zirilli v The Queen [2021] VSCA 174, [59].
However, the Chief Commissioner asserted both in writing and in oral submissions that the Court ought also consider the likelihood of the success of the substantive appeal in determining whether the materials sought to be produced serve a legitimate forensic purpose. Specifically, it was submitted that ‘the Court ought not to exercise its discretion to order the production [in] such a hopeless case’.[13]
[13]Submissions of the Chief Commissioner at [2.1].
For his part, the applicant resisted this argument.
No specific authority was cited that supported the inclusion of this additional consideration in the exercise of the discretion to order production under s 317 of the CPA or in the analogous issue of a subpoena for production.[14] Nor is any support for that contention to be found in the authorities relied on by the Chief Commissioner, which concern the altogether different issue of ‘circumstances that might make it just’ to deny discretionary relief to a successful applicant in a judicial review proceeding.
[14]The Chief Commissioner cited cases dealing with judicial review and the grant of administrative remedy, namely R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212 at 226 [68].
Clearly whether the items sought to be produced provided material assistance is referable to the case that is advanced. The application of existing principles for the assessment of legitimate forensic purpose precludes the production of material where the case of an applicant will not be advanced by that material. It is sufficient to dispose of this application that no legitimate forensic purpose has been identified.
I now deal with each broad subject area of production sought in turn, commencing with the material relating to Ms Gobbo.
Submissions of the parties and analysis
Categories 1(a) and 1(b)
Firstly, the applicant seeks production of the following categories:
(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 sub-s 11.5(1) and sub-s 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 15 December 2008, to other law enforcement agencies, including the Australian Federal Police, the Australian Customs Service (now Australian Border Force); and the Australian Crimes Commission (now the Australian Criminal Intelligence Commission).
In both his written case and submissions, the applicant asserts that there was a fundamental irregularity in his trial founded not just in the conduct of Ms Gobbo, but the information collected and shared which informed the investigation against him and the prosecution that resulted, as well as the failure to disclose Ms Gobbo’s involvement.
The affidavit of Superintendent McKinney relied upon by the Chief Commissioner shed light on the involvement of Victoria Police in the investigation of the applicant and information collected from Ms Gobbo in relation to him (‘the McKinney affidavit’). Superintendent McKinney’s experience at Victoria Police includes managing the Landow Taskforce between August 2019 and December 2020, being the taskforce in charge of responding to the RCMPI, and the current proceedings before this Court relating to Ms Gobbo. He commenced managing Taskforce Reset at the conclusion of the RCMPI, which is in charge of implementing the RCMPI’s recommendations insofar as they relate to Victoria Police. The matters he deposes to in his affidavit are based on his review of documents contained in Victoria Police information holdings, as well as information provided to him by Victoria Police members and staff.[15]
[15]Affidavit of Timothy James McKinney affirmed on 10 September 2021, [1]–[2].
The period covered by the indictment of which the applicant was convicted was 26 June 2008 and 8 August 2008.
On 28 June 2007, members of the AFP commenced Operation Moko. Operations Bootham and Moko were subsequently merged on 6 July 2007 and became known as Operation Bootham-Moko. Operation Bootham-Moko was only concerned with the investigation of the drug importation by a criminal syndicate allegedly headed by Pasquale Barbaro, the offending period being 13 June to 3 October 2007. For clarity, the tomato tins importation only relates to Operations Bootham and Moko and the merged Operation Bootham-Moko. As noted earlier, the applicant was not charged in relation to this importation.
In late July 2007, members of the AFP and Victoria Police commenced Operation Inca after the seizure of the tomato tins shipping container in late June 2007. In early October 2007, Victoria Police ceased its involvement in Operation Inca. Operation Inca (MDMA offending) was in relation to two shipments of MDMA, one that arrived in February 2008 and another that arrived in May 2008. The applicant was not charged in relation to these importations. Operation Inca also investigated the importation of cocaine between 6 July and 7 August 2008. A container was imported from Columbia containing Columbian coffee beans and block cocaine.
The Operation Inca investigation into the importation of cocaine, which resulted in the charges laid against the applicant, covered the period 6 July 2008 and 7 August 2008. As already noted, Victoria Police ceased involvement in the investigation entitled Operation Inca in early October 2007, well before its focus was the offending with which the applicant was ultimately charged.
The date range for the documents sought by the applicant matches the date range for documents contained in what is referred to by Superintendent McKinney as the Tomato Tins package. Superintendent McKinney deposes that in the event that the Chief Commissioner is required by this Court to produce documents in accordance with paragraphs 1(a) and (b) he will produce the Tomato Tins package. It is further deposed that the single entry in the documents comprising the package that relates to applicant is in a record of a conversation between Ms Gobbo and a handler on a date after his arrest (26 August 2008) and apparently relating to the importation of pills.
The applicant’s ground focusses on the prosecution’s failure to disclose the actions of Ms Gobbo as the primary misconduct said to have caused an irregularity that went to the root of the trial process. That stands in contrast to a ground which asserts that Ms Gobbo’s conduct itself gives rise to the miscarriage of justice.[16]
[16]Applicant’s submissions on s 317 of the Criminal Procedure Act 2009, [6(c)].
In summary, the material sought by the applicant in paragraphs 1(a) and (b) does not, and cannot, relate to the investigation that resulted in his arrest, charge, prosecution and ultimately his conviction. That investigation was not conducted by Victoria Police and it commenced almost nine months after Victoria Police ceased involvement with the operation.
Victoria Police have disclosed in the McKinney affidavit the single Informer Contact Record that contains a mention of the applicant’s name. As already noted, that contact occurred 8 days after his arrest.
Information about the part that Ms Gobbo played in the revelation of the Tomato Tins importation is well known. Superintendent McKinney deposed that it has been conceded by the respondent in other proceedings.[17] The connections between Operation Bootham-Moko and Operation Inca are also well known.[18] In light of the above, I am of the opinion that the material sought in paragraphs 1(a) and (b) cannot be seen to have a reasonable possibility of materially assisting the applicant in the argument he seeks to advance.
[17]Visser v Director of Public Prosecutions (Cth) [2020] VSCA 325; affidavit of Timothy James McKinney affirmed on 10 September 2021, [34].
[18]Described by the Court in Zirilli v The Queen [2020] VSCA 261, [8]-[12] and Zirilli v The Queen [2021] VSCA 2, [14].
Categories 1(e)–(g)
I now turn to paragraphs 1(e), (f) and (g) of the application, which seek:
(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.
The applicant contends that ‘should the documents relating to Mr Acquaro reveal information of the like referred to in Madafferi,[19] it will materially assist the prospects of success of his application for leave to appeal.’[20]
[19][2021] VSCA 1 [104].
[20]Applicant’s submissions on s 317 of the Criminal Procedure Act 2009, [16].
It is a well established principle that orders for production will not be made based on mere speculation. As stated by Kyrou J in State of Victoria v Lane:[21]
This is because mere speculation amounts to a fishing expedition which can never constitute a legitimate forensic purpose. Mere relevance to an issue in the proceeding is also not sufficient to establish a legitimate forensic purpose.[22]
[21][2020] VSC 328.
[22]Ibid at [20].
The applicant concedes that Mr Acquaro’s status as a police informer was not mentioned within the written case. He maintains, ‘however, that it was always intended to amend the written case to include a separate ground relating to Mr Acquaro, in the event that any forthcoming disclosure provided that avenue’.[23]
[23]Applicant’s submissions on s 317 of the Criminal Procedure Act 2009, [14].
With respect, this passage clearly indicates impermissible ‘fishing’ rather than a legitimate forensic purpose. There is nothing in the other material submitted by the applicant that supports a different conclusion.
The material provided by the Chief Commissioner affords a measure of assistance, it would be thought, to the applicant in an assessment of his case in respect of Mr Acquaro.
Taken at its highest, Mr Acquaro acted for the applicant following his arrest in August 2008 and up to the conclusion of his appeal proceedings in 2014.
Victoria Police report only two periods during which they received information from Mr Acquaro. The first was in 2008, concluding on 25 March 2008,[24] well before the applicant was charged. The second was in 2014, from 21 March 2014[25] to 18 August 2014,[26] well after his trial had concluded.
[24]Affidavit of Timothy James McKinney affirmed on 10 September 2021, [41].
[25]Ibid [42].
[26]Madafferi v The Queen [2021] VSCA 1, Appendix.
It remains a matter of pure speculation what grounds of appeal might be advanced by the applicant in respect of the conduct of Mr Aquaro. On the basis of the material before the Court, I cannot be satisfied that there is any legitimate forensic purpose which would justify an order for production of the documents sought.
Conclusion
As the applications for leave to appeal and production of documents are currently framed, I can find no legitimate forensic purpose in the production sought by the applicant from the Chief Commissioner. The application under s 317 of the CPA is therefore refused.
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