Rob Karam v The Queen [No 2]

[2022] VSCA 163

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0142
S EAPCR 2020 0211

ROB KARAM	Applicant
v
THE QUEEN [NO 2]	Respondent

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JUDGES:	BEACH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2022
DATE OF JUDGMENT:	16 August 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 163

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CRIMINAL LAW – Conviction – Applications for leave to appeal against conviction – Abuse of process – Whether activities or involvement of Lawyer X and/or failures to disclose such activities and involvement resulted in unfair trials – Multiple factual disputes in issue between parties – Referral of factual issues and matters to Trial Division for reference determination previously made – Application to amend questions referred – Questions amended – Criminal Procedure Act 2009, s 319A.

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Counsel
Applicant:		Dr T Alexander
Respondent:		Ms R Sharp with Mr T Wood
Solicitors
Applicant:	Garde-Wilson Lawyers
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

BEACH JA
KENNEDY JA:

1. On 2 March 2022, this Court referred 12 issues and matters (questions) to the Trial Division constituted by a judge, for the making of a reference determination within the meaning of s 319A of the Criminal Procedure Act 2009.[1] The referral hearing is currently being conducted by Osborn JA sitting in the Trial Division. During the course of the referral hearing, issues have arisen in relation to the formulation of referred questions (b), (f) and (g). Those questions provide:

   (b)Who was provided with the information that Ms Gobbo provided to Victoria Police?

   (f)What was Ms Gobbo’s involvement in the applicant’s trials? What was Ms Gobbo’s involvement in the conduct of the applicant’s defences in the Inca and tomato tins trials (if any)?

   (g)Did the AFP, Victoria Police and/or the respondent know that Ms Gobbo was an informant and when did they know this?

   [1]Karam v The Queen [2022] VSCA 23.

2. The form of these questions was the subject of some debate before Osborn JA at the conclusion of evidence adduced during the referral hearing. Following that debate, the respondent issued an application in this Court seeking orders to amend the terms of questions (b), (f) and (g) as follows:

   (b)Who was provided with the information about the applicant that Ms Gobbo provided to Victoria Police? What use (if any) was made of such information by the AFP or the respondent?

   (f)What was Ms Gobbo’s involvement in the applicant’s trials? What was Ms Gobbo’s involvement in the conduct of the applicant’s defences in the Inca and tomato tins trials (if any)? Did Ms Gobbo’s conduct deprive the applicant of independent representation at the Inca or tomato tins trials or materially affect the course of the Inca and tomato tins trials?

   (g)Did the AFP, Victoria Police and/or the respondent know (and if so, when) that Ms Gobbo was an informant and when did they know this? :

   (i) was a registered police informer?

   (ii) had informed on Paul Dale?

   (iii) had informed on her clients other than Paul Dale?

   (iv) had informed on the applicant?

3. In relation to question (b), the applicant takes no issue with the insertion of the words ‘about the applicant’, provided those words are understood to include information provided by Ms Gobbo that related to the applicant — such as information about the applicant’s co-accused. An example of this type of information was said to be a phone number that Ms Gobbo allegedly provided to Victoria Police, which was then used to make an application for a telephone intercept in respect of a co-accused, and which then resulted in evidence being obtained which formed part of the brief of evidence against the applicant.

4. In relation to the balance of the addition to question (b) sought by the respondent, the applicant ‘took no issue’ provided that, after the words ‘such information by’ the words ‘Victoria Police, Customs, the Australian Crime Commission,’ were inserted. The applicant contends that these words are necessary having regard to the terms of proposed grounds 1 and 2 of his application for leave to appeal.

5. The applicant opposes the respondent’s proposed amendment to question (f). The applicant contends that the proposed amendment ‘travers[es] into questions that would be relevant for the Court of Appeal to determine, in deciding whether or not to uphold any of the grounds of appeal on the basis that there has been a substantial miscarriage of justice’. The applicant also submits that the respondent’s proposed amendment to question (f) ‘traverses into issues of whether or not leave should be granted in the tomato tins appeal (on the basis of an unfair trial)’. The applicant proposes that question (f) be amended by, instead of the respondent’s proposed addition, adding at the end of question (f):

   What was the practical effect of Ms Gobbo’s involvement on the conduct of the trials?

6. In relation to the proposed amendment to question (g), the applicant has no objection provided that the new (iv) is replaced with:

   (iv)had informed on the applicant and/or provided information about or relating to the applicant?

   The applicant’s proposed amendment to (iv) was to ensure that the word ‘informed’ was not interpreted as merely referring to the period of Ms Gobbo’s ‘formal’ registration as a police informant. The respondent did not oppose this reformulation of (iv).

Resolution of this application

1. We will make an order amending question (b) in the form sought by the respondent, with the addition of the words sought by the applicant. To the extent that there is evidence about relevant use of relevant information being made by Victoria Police, Customs or the Australian Crime Commission, which is the subject of a factual dispute between the parties, this is a matter that should be determined as part of the referral hearing.

2. So far as the construction of the words ‘about the applicant’ is concerned, we would simply observe that those words are of wide import and are intended to allow the judge making the reference determination (Osborn JA) to consider all of the relevant information that is the subject of factual dispute between the parties in these proceedings.

3. In relation to question (f), we do not accept the applicant’s submissions that the respondent’s formulation somehow involve the referral judge traversing matters which properly fall to be determined by this Court.[2] In our view, the respondent’s proposed amendment to question (f) appropriately raises for determination the facts in dispute between the parties relevant to his proposed grounds of appeal (and with specific relevance to proposed ground 3). Moreover, we think that there is an unacceptable width in the applicant’s proposed alternative to the amendment sought by the respondent.

   [2]See Mokbel v The Queen [2022] VSCA 83, [24]-[25].

4. In relation to question (g), we are content to make the amendments sought by the respondent. In our view, however, there is force in the applicant’s assertion that the question, so far as it relates to Ms Gobbo’s informing, should not be limited so as to relate only to periods of formal registration. We would thus add the words the applicant seeks to have added into (iv) and which the respondent did not oppose.

Orders

1. We will make orders amending questions (b), (f) and (g) as follows:

   (b)Who was provided with the information about the applicant that Ms Gobbo provided to Victoria Police? What use (if any) was made of such information by Victoria Police, Customs, the Australian Crime Commission, the AFP or the respondent?

   (f)What was Ms Gobbo’s involvement in the applicant’s trials? What was Ms Gobbo’s involvement in the conduct of the applicant’s defences in the Inca and tomato tins trials (if any)? Did Ms Gobbo’s conduct deprive the applicant of independent representation at the Inca or tomato tins trials or materially affect the course of the Inca and tomato tins trials?

   (g)Did the AFP, Victoria Police and/or the respondent know (and if so, when) that Ms Gobbo:

   (i) was a registered police informer?

   (ii) had informed on Paul Dale?

   (iii) had informed on her clients other than Paul Dale?

   (iv) had informed on the applicant and/or provided information about or relating to the applicant?