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:

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.
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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rob Karam v The Queen [No 2]

Details

AGLC: Rob Karam v The Queen [No 2] [2022] VSCA 163
Case: [2022] VSCA 163
Decision Date: 16 August 2022

CaseChat Overview and Summary

Rob Karam was convicted of multiple offences, including drug trafficking. He sought leave to appeal against his conviction, alleging an abuse of process due to the activities of Lawyer X and failures to disclose such activities, which he claimed resulted in unfair trials. The court was tasked with determining whether these issues warranted leave to appeal. The central legal issue was whether the alleged activities of Lawyer X and the non-disclosure of such activities constituted an abuse of process that rendered Karam's trials unfair. The court needed to evaluate the impact of these allegations on the fairness and integrity of the proceedings, considering the extent of Lawyer X's involvement and the significance of any non-disclosures.

The court carefully examined the allegations of Lawyer X's activities and the potential non-disclosures, assessing whether these factors contributed to an unfair trial. It considered the evidence presented and the arguments from both parties regarding the scope and effect of these issues. The court concluded that the questions raised were complex and required a detailed examination of the facts. It decided to amend the questions previously referred to the Trial Division to ensure a comprehensive review of the matters in question. The decision to amend the referral was made under section 319A of the Criminal Procedure Act 2009, which allows for the amendment of questions referred to the Trial Division for a reference determination. The court's decision to amend the referral was aimed at achieving a just and thorough resolution of the issues at hand.

Orders