Visser v DPP (Cth)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0100
S EAPCR 2019 0213

JOHN (JAN) VISSER	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	McLEISH, EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28–29 July 2020
DATE OF JUDGMENT:	18 December 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 327
JUDGMENT APPEALED FROM:	[2014] VSC 306 (King J)

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CRIMINAL LAW – Petition of Mercy – Referral to Court of Appeal – Appellant convicted of conspiracy to possess a commercial quantity of unlawfully imported border controlled drug – Drugs found in tomato tins in shipping container – Appellant’s defence that he believed shipping container contained tobacco – Barrister provided bill of lading for shipping container to police while acting for co-conspirator – Bill of lading facilitated identification of shipping container – Whether failure by prosecuting authorities to disclose to appellant that barrister provided bill of lading to police resulted in substantial miscarriage of justice – Whether evidence of bill of lading inadmissible – Whether conduct of barrister and police required permanent stay of proceeding – Whether prosecution malicious – New affidavits from co-conspirators – Whether fresh or new evidence – Appeal dismissed – R v Farquharson (2009) 26 VR 410, R v Forrest (2016) 125 SASR 319, Roberts v The Queen (2020) 60 VR 431, Roberts v The Queen [2020] VSCA 277, R v Mallard (2005) 224 CLR 125, considered; R v Butler [2010] 1 Qd R 325, followed; Criminal Procedure Act 2009 ss 110, 111, 327, 416; Evidence Act 2008 s 138.

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APPEARANCES:	Counsel	Solicitors
Appellant	In person
Respondent	Ms R Orr QC with Mr M Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

TABLE OF CONTENTS

Introduction...............................................................................................................

1

Statutory context......................................................................................................

9

Grounds of appeal.....................................................................................................

10

Ground 1: Substantial miscarriage of justice.......................................................

11

Appellant’s submissions..................................................................................

14

Respondent’s submissions...............................................................................

23

Was there an obligation to disclose?................................................................

27

Would the appellant have succeeded in excluding evidence at trial?..............

33

Was there impropriety?....................................................................

34

The balancing exercise......................................................................

44

Would evidence obtained from the warrants have been excluded? .................

45

Additional evidence..........................................................................................

47

Would a stay have been granted?....................................................................

48

Would there have been a change to the period of the conspiracy?...................

55

Conclusion on ground 1..................................................................................

55

Ground 2: Malicious prosecution...........................................................................

56

Ground 3: Fresh or new evidence...........................................................................

57

Analysis...........................................................................................................

63

Disposition................................................................................................................

69

Appendix.....................................................................................................................

70

McLEISH JA
EMERTON JA
OSBORN JA:

Introduction

On 9 April 2014, following a trial by jury jointly with his co-accused, Carmelo Falanga, the appellant was convicted of one count of conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug contrary to ss 11.5(1) and 307.5(1) of the Criminal Code (Cth).

The indictment alleged that between 13 June and 3 October 2007, the appellant and Falanga conspired with each other, and with Pasquale Barbaro, Saverio Zirilli, John Higgs, Rob Karam, Salvatore Agresta, Pasquale Sergi, and others, to possess a commercial quantity of an unlawfully imported border controlled drug, namely, MDMA, which was in the form of more than 15 million ecstasy tablets. The tablets contained in excess of 1.4 tonnes of pure MDMA (approximately 2,900 times the commercial quantity for that drug). They were concealed in 3,000 large tins purporting to be ‘peeled tomatoes’ found in a shipping container that had been loaded on board the ‘MV Monica’ in Naples, Italy, in late May 2007.

The MV Monica docked at the Port of Melbourne on 28 June 2007. Between 2 July and 5 July 2007, the conspirators congregated at the Pacific International Hotel in the Melbourne CBD to await the release of the ‘tomato tins’ container. However, the container was identified and searched by the Australian Customs Service (‘Customs’) following information received from Victoria Police, and a ‘controlled operation’ for the delivery of the drugs was organised jointly by Victoria Police and the Australian Federal Police (‘AFP’). The controlled delivery did not bear fruit as the conspirators realised that the ‘tomato tins’ container had been ‘flagged’ by Customs and they abandoned it. Some of the conspirators subsequently became involved in arrangements for further importations in order to recover losses sustained as a result of the abandonment of the ‘tomato tins’ container.

Most of the appellant’s co-conspirators were arrested and charged in August 2008 as part of an operation known as ‘Operation Bootham-Moko’.[1] The appellant was not arrested until 2012, following his release from prison in New South Wales on an unrelated matter. He was tried, along with Falanga, before a jury in the Supreme Court of Victoria over a number of weeks between February and April 2014. The appellant was not represented by counsel, having declined an offer of legal assistance. He conducted his own defence.
[1]A number of the co-conspirators were also charged with offences arising from a subsequent operation known as ‘Operation Inca’, which investigated attempts by certain persons to undertake further importations to make up for the losses incurred by reason of the ‘tomato tins’ seizure. The appellant was not charged with any such offences.

At trial, the Crown relied upon a large body of circumstantial evidence to prove the existence and object of the conspiracy, and the participation of the named conspirators in the plan. The Crown led evidence of covertly recorded meetings, telephone conversations and SMS messages, a number of which involved the use of code. The conspirators were heard to refer to the vast rewards to be gained if the venture succeeded and to the imprisonment that awaited them if they were caught.

The evidence also revealed that a number of the conspirators were well-known to each other prior to the conspiracy. The appellant gave evidence, in his defence, that he understood Barbaro and Zirilli to be connected to the ‘Calabrian Mafia’.[2] It was not alleged that the appellant was a member of that organisation and it was generally acknowledged that he was something of a fringe player in the ‘tomato tins’ conspiracy. However, there was evidence at trial about the appellant’s ongoing involvement with Barbaro and Zirilli after the failure of the ‘tomato tins’ importation. In early October 2007, he drove a car from Sydney to Griffith for delivery to Barbaro. He then flew to Adelaide via Melbourne to collect a payment before travelling to Europe, where he remained until May 2008. While in Europe, in March 2008, at the request of Barbaro, the appellant met with Zirilli in Düsseldorf, attended meetings with him and then drove him to Paris via Brussels.
[2]Also known as the ‘Honoured Society’ or ‘Ndrangheta’.

The appellant did not dispute the Crown’s case except to say that he did not know that the ‘tomato tins’ container contained illegal drugs. His defence was that he believed that the container held a large quantity of illicit tobacco (‘chop-chop’). He said that it had never occurred to him that the container might hold drugs. The Crown bore the onus of proof in rebutting this possibility.

On 9 April 2014, the appellant was convicted of conspiring to possess the MDMA and, on 4 July 2014, he was sentenced to 11 years’ imprisonment, with a non-parole period of eight years.[3]
[3]R v Falanga & Visser [2014] VSC 306.

On 26 June 2015, this Court refused the appellant’s applications for leave to appeal against conviction and sentence.[4] Special leave to appeal to the High Court of Australia was refused on 17 June 2016.[5]
[4]Visser v The Queen [2015] VSCA 168 (‘Appeal Reasons’).
[5]Visser v The Queen [2016] HCASL 139.

Each of the other named conspirators had been convicted and sentenced for his part in the ‘tomato tins’ conspiracy well before the trial of the appellant and Falanga. Barbaro and Zirilli pleaded guilty to conspiring to traffick in a commercial quantity of an unlawfully imported border controlled drug in 2012 and received very long prison sentences. Each of Higgs, Karam, Agresta and Sergi stood trial for conspiracy to possess a commercial quantity of an unlawfully imported border controlled drug in 2012, and also received significant terms of imprisonment.

On 19 September 2016, shortly after his application for leave to appeal to the High Court was refused, the appellant obtained from Barbaro and Zirilli statements concerning the appellant’s alleged lack of knowledge of the contents of the ‘tomato tins’ container.

On 22 September 2016, the appellant lodged a petition for mercy with the Attorney-General of the Commonwealth based on the availability of the statements from Barbaro and Zirilli.

Meanwhile, proceedings were on foot involving, principally, the Victorian Director of Public Prosecutions, Victoria Police and a member of the Victorian Bar, Ms Nicola Gobbo, concerning Ms Gobbo’s exposure as a registered informer for Victoria Police. Known within Victoria Police as ‘HS3838‘ and referred to in the press as ‘Lawyer X’, Ms Gobbo was at once a registered police informer and a practising barrister who was retained by some of the people in respect of whom she provided information to Victoria Police. This conduct, and that of members of Victoria Police, was investigated in 2014 by the Independent Broad-based Anti-corruption Commission (‘IBAC’), which produced a report (the ‘IBAC Report’) that was circulated confidentially to, among others, the Victorian Director of Public Prosecutions. He, in turn, moved to reveal Ms Gobbo’s conduct to certain persons who had been convicted as a result of information provided to police by Ms Gobbo.

Victoria Police strenuously resisted disclosure of any material that might reveal Ms Gobbo’s identity on the ground of public interest immunity, but were unsuccessful, first before a judge in the Trial Division,[6] then in this Court[7] and finally in the High Court of Australia.[8]
[6]AB (a pseudonym) & EF (a pseudonym) v CD(a pseudonym) [2017] VSC 350.
[7]AB (a pseudonym) v CD (a pseudonym) & EF (a pseudonym) [2017] VSCA 338.
[8]AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59; [2018] HCA 58.

In its judgment revoking special leave to appeal, the High Court helpfully described how Ms Gobbo’s exposure as a police informer unfolded from early 2015:

Early in February 2015, the Victorian Independent Broad-based Anti-corruption Commission provided to the Chief Commissioner of Victoria Police (‘AB’), and AB in turn provided to the Victorian Director of Public Prosecutions (‘CD’), a copy of a report (‘the IBAC Report’) concerning the way in which Victoria Police had deployed [Ms Gobbo], a police informer, in obtaining criminal convictions against Antonios (‘Tony’) Mokbel and six of his criminal associates (‘the Convicted Persons’). The Report concluded among other things that [Ms Gobbo], while purporting to act as counsel for the Convicted Persons, provided information to Victoria Police that had the potential to undermine the Convicted Persons’ defences to criminal charges of which they were later convicted and that [Ms Gobbo] also provided information to Victoria Police about other persons for whom EF had acted as counsel and who later made statements against Mokbel and various of the other Convicted Persons. Following a review of the prosecutions of the Convicted Persons, CD concluded that he was under a duty as Director of Public Prosecutions to disclose some of the information from the IBAC Report (‘the information’) to the Convicted Persons.
In the months which followed, Victoria Police undertook an assessment of the risk to [Ms Gobbo] if CD were to disclose the information to the Convicted Persons. The conclusion reached was that, if the information were disclosed, the risk of death to [Ms Gobbo] would become ‘almost certain’. On 10 June 2016, AB instituted proceedings in the Supreme Court of Victoria seeking declarations that the information that CD proposed to disclose and other information in the IBAC Report was subject to public interest immunity and thus that CD is not permitted by law to make the proposed disclosures. On 11 November 2016, [Ms Gobbo] was added as a plaintiff to the proceeding. On 15 November 2016, [Ms Gobbo] instituted a separate proceeding in the Supreme Court of Victoria seeking similar relief on the basis of an equitable obligation of confidence.
Both proceedings were heard together in camera without notice to the Convicted Persons and with publication of the proceedings being suppressed. The Convicted Persons' interests were, however, amply represented throughout the proceedings and subsequently on appeal to the Court of Appeal of the Supreme Court of Victoria, and before this Court, by amici curiae. The Victorian Equal Opportunity and Human Rights Commission intervened in the proceeding instituted by AB and the Commonwealth Director of Public Prosecutions was granted leave in the Court of Appeal to intervene in support of disclosure.
On 19 June 2017, Ginnane J gave judgment in each proceeding dismissing AB’s and [Ms Gobbo’s] claims for relief. Relevantly, his Honour dismissed the claim for public interest immunity on the basis that, although there was a clear public interest in preserving the anonymity of [Ms Gobbo] as a police informer, and thus in keeping her and her children safe from the harm likely to result from disclosure of the information, there was a competing and more powerful public interest in favour of disclosure because of the assistance that the information might afford the Convicted Persons in having their convictions overturned and, more fundamentally, in order to maintain public confidence in the integrity of the criminal justice system.
On 21 November 2017, the Court of Appeal of the Supreme Court of Victoria (Ferguson CJ, Osborn and McLeish JJA) dismissed AB’s and [Ms Gobbo’s] appeals from the orders of Ginnane J. Like Ginnane J, the Court of Appeal held that, despite the risk to [Ms Gobbo] and her children, the very great importance of ensuring that the court’s processes are used fairly and of preserving public confidence in the court meant that the public interest in disclosure outweighed the public interest in immunity.
On 9 May 2018, AB was granted special leave to appeal to this Court on grounds to the effect that the Court of Appeal erred in failing to appreciate that there is a discrete public interest in the State of Victoria adhering to the responsibility which it assumed by reason of the assurances given by Victoria Police to [Ms Gobbo] that her identity as a police informer would not be disclosed. At the same time, [Ms Gobbo] was granted special leave to appeal on grounds to the effect that the Court of Appeal erred by assuming, contrary to the evidence, that [Ms Gobbo] might choose to enter into the witness protection program once it was determined that the information would be disclosed, by finding and taking into account that [Ms Gobbo’s] refusal to enter witness protection may become unreasonable, and by not concluding that the public interest favoured non‑disclosure given the gravity of the consequences of disclosure to [Ms Gobbo] and her children.[9]

[9]Ibid 60–1 [1]–[6] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

The High Court revoked its grant of leave to appeal, stating:

[Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [Ms Gobbo’s] obligations as counsel to her clients and of [Ms Gobbo’s] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will.[10] As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person’s conviction be re-examined in light of the information. The public interest in preserving [Ms Gobbo’s] anonymity must be subordinated to the integrity of the criminal justice system.[11]

[10]See Victoria Police Act 2013, sch 2, and formerly Police Regulation Act 1958, sch 2.

[11]AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59, 62 [10]; [2018] HCA 58 (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

Ms Gobbo’s conduct and her management by Victoria Police has since been the subject of the Royal Commission into the Management of Police Informants (the ‘Royal Commission’).

It is now notorious that Ms Gobbo was the ‘originating source’ who facilitated the identification of the ‘tomato tins’ container.

The circumstances in which Ms Gobbo provided information about the ‘tomato tins’ container and the nature and extent of that information were recently described in detail by this Court in Zirilli v The Queen:[12]
[12][2020] VSCA 261.

In June 2007, Mr Karam was facing trial in the County Court on charges relating to the importation, in 2005, of 1.2 tonnes of MDMA. Ms Gobbo appeared as junior counsel for Mr Karam in that trial, which ran until 10 July 2007, when the jury acquitted him of those charges.
On the morning of 5 June 2007, Mr Karam provided a number of documents to Ms Gobbo for safekeeping. Those documents included a bill of lading containing information regarding a forthcoming shipment to Melbourne of tinned tomatoes from Italy. That bill of lading was in Italian.
On that day, Ms Gobbo photocopied those documents and provided the copies to her handlers at Victoria Police. She informed them that the documents related to a shipment that had been arranged by one of Mr Karam’s associates. Further, she assisted police with translating the bill of lading from Italian to English. She, in effect, provided them with the vessel name, container number, port of origin, and departure date.

On 15, 17, and 18 June 2007, Ms Gobbo’s Victoria Police handlers instructed her to obtain further information from Mr Karam. In particular, they asked her to report on meetings that Mr Karam might hold with associates, and to provide information about those persons. She complied with those requests. On 19 June 2007, Ms Gobbo provided her handlers with further information regarding the movements of the ship holding the container, and precisely when it was expected to arrive in Melbourne.
On 20 June 2007, Ms Gobbo’s handlers informed a member of Australian Customs of the impending arrival of the Tomato Tins shipment. During that conversation, Ms Gobbo’s handlers told Australian Customs that the AFP were not to be told the source of the tip off. It had been agreed that the two agencies would proceed on the false narrative that Australian Customs had, somehow, identified the container by their own means.
We interpolate to note that evidence before the Royal Commission into the Management of Police Informants makes it clear that Ms Gobbo’s handlers had acknowledged that the Tomato Tins shipment would not have come under suspicion had it not been for the information provided to Victoria Police by Ms Gobbo.
On 21 June 2007, Ms Gobbo informed her handlers that Mr Karam had met with ‘some Italians from Griffith’ the previous day. Ms Gobbo said that the purpose of the meeting had been to organise the next importation. …
On 27 June 2007, Ms Gobbo told one of her handlers that she had been informed by Mr Karam that he and Mr Higgs were going to meet ‘the Italian boys from Griffith’ at the Pacific International Apartments. She told her handlers that ‘the Italian boys from Griffith’ were booked to stay there ‘for the week’. That information was shared with members of the Drug Taskforce of Victoria Police. At some stage shortly thereafter, Victoria Police provided that information to the AFP. The following day, the Tomato Tins shipment was intercepted and seized by Australian Customs.
On 30 June 2007, members of the AFP attended the Pacific International Apartments. They did not interact with [Mr Zirilli] and Mr Barbaro, but obtained information from hotel staff to confirm their identities.
On 2 July 2007, the AFP covertly installed a number of listening devices in the room in which [Mr Zirilli] and Mr Barbaro were staying. Those devices captured incriminating conversations and the names of other persons involved in the Tomato Tins importation.[13]

[13]Ibid [14]–[24] (McLeish and Weinberg JJA) (citations omitted).

In summary then, Ms Gobbo was responsible for providing to Victoria Police information that permitted the identification of the ‘tomato tins’ container and identified where persons who might be involved in the importation would be congregating. Ms Gobbo obtained this information largely, if not exclusively, from Karam, for whom she was appearing at the time in unrelated criminal proceedings.

Ms Gobbo did not act for the appellant at any time. It is not alleged that he had any contact with her whatsoever.

In March 2019, having received from the Commonwealth Director of Public Prosecutions (the ‘CDPP’) extracts of the IBAC Report, the appellant expanded his petition to the Attorney-General of the Commonwealth to make allegations about the impact Ms Gobbo’s conduct might have made on his trial, had he known about it at the time.

On 18 April 2019, the appellant received further materials from the CDPP by way of disclosure, comprised mainly of Victoria Police ‘informer contact reports’ recording police contacts with Ms Gobbo in 2006, 2007 and 2008.

On 4 November 2019, by letter to the Chief Justice of Victoria, the Attorney-General of the Commonwealth referred the whole of the appellant’s case to this Court. The Attorney-General of the Commonwealth noted that, in support of his application for referral, the appellant had ‘relied on evidence that on or around 5 June 2007, approximately three weeks prior to the arrival of the consignment of MDMA that he is convicted of conspiring to possess, then lawyer Ms Nicola Gobbo (now also known as Lawyer X), while acting for co-conspirator Rob Karam in an unrelated matter, was provided with the bill of lading for the consignment and without her client’s instruction, copied the bill of lading and provided the copy to Victoria Police’. The decision to refer was expressed to have been made ‘in light of these circumstances’.

On 3 February 2020, an application by the appellant for leave to appeal out of time was adjourned sine die by this Court, as in practical terms it had been overtaken by the referral from the Attorney-General of the Commonwealth.[14] It is that referral which forms the basis of this appeal.
[14]The application for leave to appeal out of time was given proceeding number S APCR 2019 0100. The referral of the petition of mercy was given proceeding number S EAPCR 2019 0213.

The appeal is brought on two principal bases:

(a) the availability of fresh or new evidence in the form of affidavits from two of the appellant’s co-conspirators (Barbaro and Zirilli) attesting to what the appellant was told about the contents of the ‘tomato tins’ container; and

(b) the availability of fresh or new evidence as to the circumstances in which the drugs were detected by the authorities, which included Ms Gobbo’s provision to Victoria Police of copies of the bill of lading for the ‘tomato tins’ consignment.

Statutory context

Pursuant to ss 327(1)(a) and 327(2) of the Criminal Procedure Act2009 (‘CPA’), the matter referred to this Court by the Attorney-General of the Commonwealth is to be heard and determined as if it were an appeal. Section 327 relevantly provides:

(1)If a person convicted on indictment or found unfit to stand trial or found not guilty because of mental impairment petitions for the exercise of Her Majesty’s mercy in relation to the conviction or finding, or the sentence imposed on the person, the Attorney-General—
(a)may refer the whole case to the Court of Appeal;
…

(2)If the Attorney-General refers the whole case to the Court of Appeal, the Court of Appeal must hear and determine the case as if it were an appeal by the person.

In Mallard v The Queen,[15] the High Court observed (in a case of fresh evidence) that the words ‘as if it were an appeal’ in materially similar Western Australian legislation referred to ‘the making of orders, and the following of procedures apposite to the appeal and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso’.[16]
[15](2005) 224 CLR 125; [2005] HCA 68 (‘Mallard’).
[16]Ibid 131 [10].

The Court’s function in this proceeding is therefore to assess whether the appellant by his grounds of appeal has satisfied the Court of one or more of the criteria for the determination of an appeal against conviction in s 276(1) of the CPA. The appellant does not contend that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence, within the meaning of s 276(1)(a). His contention is that there has been a substantial miscarriage of justice for the purposes of sub-ss 276(b) and (c) of the CPA, by reason of the non-disclosure of Ms Gobbo’s conduct and/or having regard to the availability of the affidavits of Barbaro and Zirilli deposing as to the appellant’s knowledge of the contents of the ‘tomato tins’ container.

Grounds of appeal

The appellant has raised three grounds of appeal against his conviction:

(c) The failure by the CDPP and the AFP to comply with their obligations of disclosure resulted in an unfair trial and in a manifest miscarriage of justice.

(d) The appellant’s prosecution (by both the CDPP and the AFP) was malicious.

(e) Fresh evidence of an exculpatory nature became available on 16 September 2016, some two and a half years after the trial, from Barbaro and Zirilli.

Once again, the appellant appeared in person and conducted his own appeal.

Ground 1: Substantial miscarriage of justice

This ground is based on the failure by the prosecuting authorities to make disclosure to the appellant of Ms Gobbo’s role in facilitating the identification of the ‘tomato tins’ container and the conspirators.

It is fundamental that prosecuting authorities must provide full disclosure to defendants in criminal trials. In both the leave and appeal decisions in Roberts v The Queen,[17] this Court recently confirmed that the duty of disclosure is a significant element of a fair trial and a conspicuous aspect of the Crown’s duty to ensure that the case against the accused is presented with fairness.[18] In relation to the content of the obligation and the consequences of non-compliance, the Court said:

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 inquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.[19]

[17]Roberts v The Queen (2020) 60 VR 431; [2020] VSCA 58; Roberts v The Queen [2020] VSCA 277 [127] (T Forrest and Osborn JJA and Taylor AJA).

[18]Roberts v The Queen (2020) 60 VR 431, 446 [64]; [2020] VSCA 58 (T Forrest and Osborn JJA and Taylor AJA).

[19]Ibid 444 [56] (citations omitted).

In Mallard, the plurality of the High Court confirmed that a failure to disclose all relevant evidence to an accused may in some instances require the quashing of a verdict of guilty.[20]
[20](2005) 224 CLR 125, 134 [17]; [2005] HCA 68 (Gummow, Hayne, Callinan and Heydon JJ) discussing Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65.

The underlying rationale for the duty of disclosure is the need to provide a fair trial in circumstances where the resources of the State are generally disproportionately greater than those of the accused, and the State is both the investigating and prosecuting authority. As the High Court has recently emphasised in other circumstances, it is the prosecutor’s function to assist in the attainment of justice between the Crown and the accused.[21]
[21]Nguyen v The Queen (2020) 94 ALJR 686, 695 [37]; [2020] HCA 23 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).

In R v Farquharson,[22] this Court approved the formulation of the common law principles for disclosure articulated in R v Keane[23] and R v Brown[24] and followed in R v Reardon [No 2][25] and R v Spiteri.[26] Subject to any claim of public interest immunity or legal professional privilege or any statutory provisions to the contrary, the prosecution must disclose to the accused any material known to the prosecution which, on sensible appraisal, falls within at least one of three categories: (a) if it is relevant or possibly relevant to an issue in the case; (b) if it raises or possibly raises a new issue whose existence is not apparent from the evidence the prosecution proposes to use; and (c), if it holds out a real (as opposed to a fanciful) prospect of providing a line of enquiry as to evidence that falls within either the first or second categories.[27]
[22](2009) 26 VR 410, 464 [213]; [2009] VSCA 307 (Warren CJ, Nettle and Redlich JJA). The duty is subject to the limitations addressed in 464–5 [214].
[23][1994] 1 WLR 746.
[24][1998] AC 367, discussed by Ormiston JA in R v Garofalo [1999] 2 VR 625, 632 [58], 633 [61]; [1998] VSCA 145.
[25](2004) 60 NSWLR 454, 468 [48]; [2004] NSWCCA 197 (Hodgson JA).
[26](2004) 61 NSWLR 369; [2004] NSWCCA 321.
[27]R v Farquharson (2009) 26 VR 410, 464 [213]; [2009] VSCA 307 (Warren CJ, Nettle and Redlich JJA).

The duty is imposed upon the prosecution in a broad sense. As s 416(1) of the CPA makes clear, the duty is not limited to the terms of ss 110 and 111 of that Act. Nonetheless, we note that s 110(e) at the date of the applicant’s trial relevantly provided that the hand-up brief in matters of this kind must contain:

Any information, document or thing that is in the possession of the prosecution that is relevant to the alleged offence …

Section 111 imposed a continuing obligation of disclosure upon the informant with respect to the same category of information.

The duty of disclosure may extend to material known to investigating police but not known to the prosecutor.[28] In R v Forrest,[29] Kourakis CJ (with whom Kelly and Lovell JJ agreed) observed that the primary determinant of the extent of the prosecution duty to disclose will be the circumstances known, actually or constructively, by the Office of the Director. He said:

[T]he Director cannot, as a general proposition, rely on a distinction between his Office and SA Police. The erection of a bamboo curtain between the two will be conducive to miscarriages of justice. The effect on a trial of material non-disclosure is the same whether the agency responsible is the State’s investigating or prosecuting authority.[30]

[28]See, eg, R v Lucas [1973] VR 693, 696 (Smith ACJ), 705 (Newton J and Norris AJ); R v Ward [1993] 1 WLR 619, 641–3 (Glidewell, Nolan and Steyn LJJ); R v Blackledge [No 2] [1996] 1 Cr App R 326, 337 (Lord Taylor CJ, Macpherson J agreeing); R v Thomas [No 4] (2008) 19 VR 214, 222 [29]; [2008] VSCA 107 (Maxwell ACJ, Buchanan and Vincent JJA) (‘Thomas’); R v Forrest (2016) 125 SASR 319, 331–2 [62]–[65] (Kourakis CJ, Kelly J and Lovell agreeing at 339 [109] and 340 [110]); [2016] SASCFC 76; Roberts v The Queen (2020) 60 VR 431, 444 [56]; [2020] VSCA 58 (Osborn and T Forrest JJA and Taylor AJA); Roberts v The Queen [2020] VSCA 277 [127] (Osborn and T Forrest JJA and Taylor AJA). See further [70] to [86] below.

[29](2016) 125 SASR 319; [2016] SASCFC 76.

[30]Ibid 331 [62]–[63].

These observations were made in the context of South Australian legislation requiring broadly analogous disclosure to the provisions of the CPA to which we have referred.[31] Although there were specific provisions in the South Australian legislation requiring police officers to disclose to the Director all documentary material collected or created in the course of the investigation that might reasonably be expected to assist the case for the prosecution or the case filed for the defence, and there are no equivalent provisions expressly imposing such duties on police officers in the CPA, reliance on a ‘bamboo curtain’ of the kind described by the South Australian Supreme Court would be conducive to the same miscarriage of justice, irrespective of where it occurred.
[31]Director of Public Prosecutions Act 1991 (SA) s 10A.

Appellant’s submissions

The appellant submits that in this case, the prosecuting authorities withheld information that would have assisted him at trial, resulting in a substantial miscarriage of justice within the meaning of sub-ss 276(1)(b) or (c) of the CPA. He says that had there been proper disclosure by the prosecuting authorities, he would have conducted his defence differently: he would have applied to exclude certain evidence, and/or to lead additional evidence at trial, and/or applied for a temporary or a permanent stay of the proceeding. In addition, he would have challenged the validity of the warrants pursuant to which conversations were covertly intercepted and recorded, along with the period of the conspiracy that was alleged.

In his written submissions and in argument, the appellant identified information, all related to Ms Gobbo and her role as a police informer, that he says ought to have been disclosed to him for the purposes of his trial. This can be categorised as information relating to:

(f) Ms Gobbo’s status as a registered informer, and the fact that she had provided information in relation to her clients;

(g) Ms Gobbo’s role in obtaining the shipping documents from Karam, and providing them to Victoria Police;

(h) Victoria Police knowingly encouraging Ms Gobbo to do as she did;

(i) Ms Gobbo’s representation of Karam and Barbaro, including after their arrests, in the course of which Ms Gobbo is alleged to have provided further information about each of them to Victoria Police; and

(j) Ms Gobbo’s provision of information to Victoria Police about Karam’s involvement in previous tobacco importations, which is alleged to have led to authorities seizing at least one container containing illegal tobacco in 2006.

More specifically, the appellant’s written and oral submissions refer to a number of documents, some, if not all of which he contends ought to have been disclosed to him.[32] Most of those documents were available and reproduced in the Appeal Book for the purpose of this appeal. Others were produced following the hearing of the appeal.
[32]Part C of the appellant’s List of Authorities contains a list of 40 items.

The documents in question are an assortment of materials ranging over time and subject matter. They include primary Victoria Police records or summaries of primary records of interactions between Ms Gobbo and her handlers between 2006 and 2008, including discussions about illicit tobacco importations; an AFP case note for Operation Bootham-Moko as at 18 July 2007 regarding the controlled operation; a contemporaneous Customs document describing the ‘tomato tins’ seizure and naming suspects; and some 2008 internal CDPP emails hinting at issues in relation to warrants. Other documents are the product of recent investigations into the conduct of Ms Gobbo and Victoria Police, including police affidavits filed in, and transcripts of hearings from, the Royal Commission; some documents simply record Ms Gobbo attesting to breaching legal professional privilege or express the condemnation by the courts of the whole sorry saga.

The appellant also sought to rely on the submissions of counsel assisting the Royal Commission concerning his case and on the conclusions of the Royal Commission more generally, submitting that the Royal Commission was in a much better position to establish the impropriety and misconduct of both Victoria Police and Ms Gobbo and purporting to rely on its conclusions and findings as well as his own submissions. However, we are bound to decide the contested issues in this appeal on the material that is properly before us and in respect of which both parties have had the opportunity to make submissions. It would be wrong for us to simply adopt the findings of fact and conclusions of the Commissioner, or counsel assisting.

The documents principally referred to by the appellant in his written outline and in oral argument are as follows:

(k) Ms Gobbo’s affidavit made on 21 November 2016 filed in EF & AB v CD;[33]
[33][2017] VSC 350.

(l) Victoria Police informer summary headed ‘Target Rabie KARAM’. It records that the ‘Source’ provided information and documentation relating to MDMA importation involving Karam and provided shipping documents on four occasions. Some information was disseminated to other agencies such as Customs and the AFP and Operation Inca was formed at least partly on the basis of this assistance. Ultimately, 4.5 tonnes of ecstasy was intercepted. The summary continues:

KARAM was one of thirty-three (33) offenders ultimately arrested as part of a network of multi-agency investigations. Whilst the Source is not directly credited with these additional results, it is relevant when considering the value of the Source to enable this outcome.

(m) Summaries of Victoria Police Informer Contact Reports from April and September 2006 reporting the receipt of information in relation to illegal tobacco importations.

One report refers to Karam’s associate meeting with ‘HS’ [presumably Ms Gobbo] and Karam telling ‘HS’ they could get cigarettes for $5 per packet.

There is a further report summary from 28 July 2006 in which it is reported that ‘Horty’ [presumably Horty Mokbel] is involved with Karam regarding a container of tobacco:

Karam told HS that Horty was desperate for money. Wants to steer clear of him. Horty would make between $500,000 and $700,000 from the container of tobacco for his share. Karam would make $500,000 split three ways for his part in it.

(n) Transcripts of audio recordings of discussions between Ms Gobbo and her handlers, again discussing illegal tobacco importations.

Specifically, on 15 June 2007, Ms Gobbo is reported as saying that ‘one morning’, she was told that ‘he’ (we infer, Karam) hadn’t slept because he was surveilling ‘the tobacco container’. She described Karam’s method of using the transport workers at the dock to get containers off the dock, empty them and put them back.

(o) An Informer Contact Report from 30 January 2008 concerning the frequency of contact with Ms Gobbo establishing, the appellant submits, that she was a ‘full time undercover agent of Victoria Police’, who had contact with her handlers as frequently as five times per day.

(p) AFP case note for Operation Bootham-Moko as at 18 July 2007 regarding the controlled operation. Upon discovery of the MDMA by Customs, a controlled operation certificate was issued and AFP Operation Bootham-Moko commenced. The document records the decision on 17 July 2007 that that controlled operation cease. However, investigations into the importation of the MDMA were to continue.

(q) A letter dated 25 November 2016 from Victoria Police (Detective Superintendent Brigham) to the CDPP answering the following two questions:

(1) Did HS3838 [Ms Gobbo] assisted [sic] in identifying containers (holding the 15 million MDMA tablets) to Victoria Police?
(2) If HS3838 did assist Victoria Police with information as described in (1), what did Victoria Police do with that information, including whether Victoria Police provided that information to any other law enforcement agency to further that investigation?

Detective Superintendent Brigham’s response, which has subsequently been found to contain some errors, outlines events resulting in Victoria Police obtaining the shipping documents, the provision of that information to Customs and the seizure of the ‘tomato tins’ container.

The response also outlines a further series of occasions on which Ms Gobbo provided information to Victoria Police in relation to Karam’s activities. These occasions post-date the seizure of the ‘tomato tins’ container (they occurred on 23 August, 2 October, 5 November and 19 December 2007; 7 January, 17 March, 21 August and 13 October 2008).[34] Two of these occasions involved information sharing between Victoria Police and others: first, between Victoria Police and the Australian Crime Commission (the ‘ACC’) on 17 March 2008; and, secondly, between Victoria Police and Customs on 21 August 2008.
[34]Karam was arrested for the ‘tomato tins’ importation as well as several other drug related charges on 8 August 2008.

In relation to the communication with Customs on 21 August 2008, the entry reads:

Records indicate that the parties ensured that there was no reference to Victoria Police in the intelligence, as AFP requested Customs provide all intelligence regarding the container. It appears that this was a strategy in order to aid the protecting of HS3838 identity and the source of the information.

It is tolerably clear that ‘the container’ in this instance is not the ‘tomato tins’ container, which was no longer in play by this time. The previous entry refers to Karam telling Ms Gobbo that he was importing ecstasy tablets with heart logos,[35] but there is no further information about that importation.
[35]The pills in the ‘tomato tins’ container had kangaroo and crown logos, not heart logos.

The letter also details information given by Ms Gobbo in relation to Karam’s activities in 2006, including an illegal importation of 10 million cigarettes.

(r) Customs Information Report dated 13 July 2007 in relation to the ‘tomato tins’ importation. It records that a targeting exercise was carried out by Customs following ‘information received’. It also records that a controlled delivery with the AFP as lead agency was enacted and that ‘Customs, ACC and VICPOL are contributing information and resources’.

The Customs Information Report states that it is suspected that the importation was organised by crime figures based in Italy and Australia. It continues:

It is believed that the syndicate became aware of the detection and seizure of this shipment by LEA’s on 11 JULY 2007 and will not attempt to Customs clear the shipment. It is believed they have now abandoned the container.
The main entities of interest suspected of involvement in the importation of this shipment and MDMA are as follows:
[Barbaro, Zirilli, Falanga, Higgs, Karam and Agresta are named, but not Visser]

The Customs Information Report was provided to the CDPP in April 2017.

(s) Emails exhibited to the affidavit of Krista Breckweg, a lawyer in the Office of the CDPP, made on 23 March 2020 and filed in this proceeding. The emails date from April and June 2008 and contain discussion about ‘Operation Bootham-Moko-Inca warrants’. The April 2008 email refers to advice from Ms Breckweg about warrants addressed to ‘multiple persons or multiple office descriptors’; the June 2008 emails simply refer to ‘issues raised by Sue’, stating, ‘I think these were the Bootham-Moko warrants’. These issues are to be added to the AFP liaison agenda.

Ms Breckweg has deposed that her advice in April 2008 did not relate to the subject matter or targets of the investigation, but simply to a legal issue concerning the form of the warrant that was to be sought. As for the June 2008 emails, although she was copied in on them, she has no recollection of receiving them.

(t) Transcript of a meeting on 24 August 2011 between officers of the CDPP, Victoria Police and Ms Gobbo to discuss her evidence in the prosecution of Mr Paul Dale for making false or misleading statements to the ACC (the ‘Dale prosecution’). The appellant drew the Court’s attention to Ms Gobbo saying, ‘there’s an enormous amount of material that could be subpoenaed that will cause me irreparable damage of which I am very scared of coming out’ and ‘I’m not going to put myself in a position where I have even a half per cent chance of that stuff coming out’.

(u) Minutes of a meeting on 3 November 2011 of Victoria Police taskforce ‘Driver’ concerning Ms Gobbo giving evidence in the Dale prosecution.[36]
[36]Taskforce Driver was responsible for the Dale prosecution.

The minutes refer to advice given by barrister Mr Gerard Maguire to the Victorian Government Solicitor’s Office (‘VGSO’) concerning ‘the issue of governance of Human Sources when the HS is a legal practitioner’ (the ‘Maguire advice’). They record the following:

Graham Ashton concerns around Inca a pending AFP matter for large scale drug importation after a joint operations. Nicola Gobbo was the originating human source. Australian Federal Police, although aware of the importance of the human source, are not aware that it was Gobbo. Some concerns that Gobbo was acting as legal adviser to one of the accused at the time. Consequently, a requirement to disclose or at least make the prosecution aware of Gobbo’s involvement and the potential that she was a legal adviser. Action: Fin to consider the requirements.

Then Assistant Commissioner Graham Ashton was cross-examined at the Royal Commission about what steps he took to ensure the Commonwealth authorities (the CDPP and the AFP) were made aware of Ms Gobbo’s role and the appellant relies on the transcript of that cross-examination.

(v) Parts of the affidavit of Paul Anthony Sheridan filed in the Royal Commission, which relates principally to events in 2011 and the Driver taskforce. Detective Superintendent Sheridan deposed that he met with barrister Gerard Maguire on 23 and 28 September 2011 and on 4 October 2011 regarding Maguire’s advice of that same day. He was informed on 3 October 2011 that there would be a meeting with the CDPP to discuss the Dale charges not proceeding. In early November 2011, he attended a number of meetings and discussions regarding the potential disclosure of material relating to Ms Gobbo and the Dale prosecution.

It will be observed that a number of these documents have little or nothing to do with the ‘tomato tins’ importation. In particular, many of the documents disclose Victoria Police knowledge of unrelated illegal importations of tobacco in 2006 and 2008. Dealing with importations of this kind was conventionally the responsibility of Customs. Other documents relied on by the appellant go to discussions about Ms Gobbo giving evidence in the Dale prosecution. The emails exhibited to the affidavit of Ms Breckweg concerning the warrants contain nothing suggesting that the appellant could have used them to challenge the warrants issued in the ‘tomato tins’ investigation. There is no indication that the emails raised anything to do with the conduct of Ms Gobbo or Victoria Police. Moreover, it is apparent that many of the documents identified were not in existence at the time of the appellant’s trial and could not have been disclosed to the appellant for the purposes of his trial.

The appellant’s reliance on such a varied range of materials obscures the question of fundamental unfairness that the appellant seeks to establish.

Nonetheless, we must consider, in particular, whether Ms Gobbo’s role in the provision of the bill of lading and information concerning the ‘Italian boys from Griffith’ to Victoria Police should have been disclosed to the appellant by the prosecuting authorities and, if so, what the consequences of non-disclosure were for the appellant’s trial in 2014.

By way of overarching submission, the appellant says he would have subpoenaed Ms Gobbo to explain to the jury the role she played in relation to the ‘tomato tins’ count and confirm the information that she had supplied to the police including in relation to the continued illegal tobacco importations the syndicate was involved in from 2005 onwards.

The appellant submits that had the undisclosed information been known to him, he would have asserted that Ms Gobbo had breached legal professional privilege and had a conflict of interest in relation to the bill of lading, enabling him to contend for the exclusion of the improperly or illegally obtained evidence. He emphasised that the High Court had described Ms Gobbo’s actions in purporting to act as counsel for the named convicted persons while covertly informing against them as fundamental and appalling breaches of both her obligations to her clients and her duties to the Court. Ms Gobbo herself had relevantly said:

Repeatedly I’ve chucked ethics out the window, I’ve chucked legal professional privilege out the window, I’ve chucked my career out the window if any of this ever came out. Forget about — I wouldn’t even be covered by insurance. I would be so fucked it’s not funny.

The appellant further submits that in furtherance of his defence, he would have introduced undisclosed information relating to illegal tobacco importations, which he contends would have assisted to explain that this particular ‘gang’ — also referred to by the appellant as the ‘Barbaro/Karam syndicate’ — were importing illegal tobacco and had lost two such containers in August and December 2006. The documents in relation to tobacco that were not disclosed would have corroborated, strengthened and supported his defence that he believed the contents of the ‘tomato tins’ container to be, in fact, illicit tobacco. More particularly, they provide a circumstantial context rendering it more probable that Barbaro spoke to him in the terms which he alleges. The appellant says that he would also have introduced the undisclosed information in the Customs Information Report as to the main persons suspected of involvement in the importation (bearing in mind that the appellant was not named as a suspect). Furthermore, one of the Informer Contact Report summaries records that there was a meeting of ‘the syndicate’, the purpose of which was to work out specific roles in the importation and who was to be paid what for their roles. The appellant was not at that meeting and had left the syndicate by 7 am on 6 June 2007. He says that that was the end of his involvement in the alleged conspiracy.

The appellant says that he would have challenged the period of the conspiracy based on information recorded in the Customs Information Report and the AFP case note. He contends that these documents show the period of the conspiracy to have been substantially less than the 112 days alleged.

The appellant submits further that he would have challenged the validity of the warrants authorising surveillance, listening devices and telephone intercepts, as the precondition to the issue of valid warrants (presumably, full disclosure of Ms Gobbo’s role in obtaining the bill of lading and identifying the whereabouts of the conspirators) was not satisfied. It was not disclosed that the information came from a practising defence lawyer who was a registered police informer. Furthermore, in his written outline (but not in his oral submissions), the appellant submitted that he would have challenged the authority for the ‘controlled operation’ for the delivery of the container, as the issuing authority was not told that information was improperly received from a practising lawyer who was playing a dual role as a registered police informer at the time.

Finally, the appellant says that, after challenging all of the above, he would have made an application for a permanent stay of his trial and would have challenged his prosecution as an abuse of process, as the AFP and the CDPP knew that Ms Gobbo was informing on her clients and was a registered police informer. The appellant alleges that the CDPP and others in the Office of the CDPP became aware in 2010 that Ms Gobbo was a registered police informer.

By reason of not having received the disclosure to enable him to do these things, the appellant submits that he did not receive a fair trial.

Respondent’s submissions

The respondent has made a number of factual concessions for the purposes of this appeal in relation to the conduct of Ms Gobbo and her relationship with Victoria Police, relevantly:

(w) From September 2005 to January 2009, Ms Gobbo was a registered informer with Victoria Police;

(x) Ms Gobbo was assigned informer registration numbers 21803838 (commonly referred to as HS3838) and 11792958 (commonly referred to as HS2958);

(y) Between 21 May 2007 and 10 July 2007, Ms Gobbo appeared for Karam as junior counsel to David Grace QC in the County Court of Victoria in a trial prosecuted by the CDPP;

(z) On 18 August 2008, Ms Gobbo appeared for Karam in the Melbourne Magistrates’ Court at a special mention hearing relating to a prison transfer application;

(aa) On 27 October 2008, Ms Gobbo appeared for Karam in the Melbourne Magistrates’ Court on an application to vary his bail and, on 18 December 2008, she appeared for Karam in the Melbourne Magistrates’ Court on a further application to vary his bail;

(bb) On 18 and 19 September 2008, Ms Gobbo appeared for Barbaro as junior counsel to Robert Richter QC in the Melbourne Magistrates’ Court on a bail application. On 18 and 19 December 2008, Ms Gobbo appeared for Barbaro as junior counsel to Con Heliotis QC in the Melbourne Magistrates’ Court on a bail application, and on 27 January 2009, she appeared for Barbaro, again as junior counsel to Con Heliotis QC, in the Supreme Court of Victoria on the Director of Public Prosecutions’ appeal against the grant of bail;

(cc) On 6 February 2009 Ms Gobbo appeared on behalf of Barbaro in the Supreme Court of Victoria to take judgment on the Director of Public Prosecutions’ appeal against the grant of bail;

(dd) On 5 June 2007, Ms Gobbo provided her Victoria Police handlers with the ‘tomato tins’ shipping documents. She told her handlers that Karam had given the documents to her in an envelope to hold on to before Court that morning. She said she had copied the documents before returning them in the envelope to Karam after Court. Ms Gobbo assisted the handlers to translate the documents. She told the handlers that the documents appeared to be shipping documents and emails relating to a pending importation of tomato products from Italy. Ms Gobbo did not have Karam’s permission to copy the ‘tomato tins’ shipping documents or to provide them to Victoria Police; and

(ee) On or about 20 June 2007, two of Ms Gobbo’s Victoria Police handlers met with an operational commander at Customs in Melbourne and gave him information from Ms Gobbo regarding the pending importation. That information led to the detection of the container in which the 1.4 tonnes of MDMA was later found.

However, notwithstanding these concessions, the respondent’s position is that ground 1 must fail, principally because there was no failure by either the CDPP or the AFP to comply with their disclosure obligations at trial. The respondent contends that the unchallenged affidavit evidence from CDPP officers and the AFP informant establishes that there was no failure by either the AFP or the CDPP to disclose to the appellant any disclosable facts or information in their possession or control. The vast majority of the information identified by the appellant as disclosable was not known to either the CDPP or the AFP prior to, or at the time of, the appellant’s trial, and therefore was not capable of being disclosed by them.

In this regard, the respondent relies on the following affidavits filed in the appeal:

(ff) Affidavit of David Paul Herman dated 18 March 2020;

(gg) Affidavit of Vicky Argitis dated 18 March 2020;

(hh) Affidavit of Shane Patrick Kirne dated 18 March 2020;

(ii) Affidavit of Krista Breckweg dated 23 March 2020; and

(jj) Affidavits of Andrea Pavleka dated 23 March 2020 and 2 April 2020.

Each was involved, either directly or indirectly, in the prosecution of the appellant. Each deposes to his or her state of knowledge of the activities of Ms Gobbo at the time of the appellant’s trial and following.

The relevant evidence is summarised in the Appendix to this judgment. In summary, the respondent says that with the exception of the email chain exhibited to Ms Breckweg’s affidavit referred to in [4643(i)] above, none of the documents referred to by the appellant were in the possession of the CDPP or the AFP at the time of the appellant’s trial. The Customs Information Report in [46(h)] would have been in existence, but it was not provided to the CDPP, who then provided it to the AFP, until April 2017. Moreover, none of the relevant persons knew about Ms Gobbo passing on information to police about her own clients.

As for Ms Gobbo’s representation of Karam and Barbaro and the information that she provided to Victoria Police about each of them, the respondent concedes that Ms Gobbo’s representation of Karam in his (unrelated) County Court trial in 2007, and in his 2008 bail and prison transfer applications, and her representation of Barbaro in his 2008 and 2009 bail applications, would have been known by some officers within the CDPP and the AFP at the time of the appellant’s trial in 2014. However, the respondent submits that this was not a matter that the CDPP was under any obligation to disclose to the appellant, because it could not have been understood by the CDPP to be something that could reasonably have assisted the appellant at trial.

The respondent does not dispute that some of the documents on which the appellant relies show that Ms Gobbo provided information to Victoria Police about Karam after 5 June 2007. These documents include Victoria Police Informer Contact Reports, Victoria Police summaries of informer contacts, extracts from a handler’s diary, and transcripts or extracts of transcripts from audio recordings of conversations between Ms Gobbo and her handlers. However, none of that information was known to the CDPP or the AFP at the time of the appellant’s trial in 2014. The respondent says that there is no evidence that Ms Gobbo provided information about either Barbaro or Karam after their arrests in 2008.

The respondent does not dispute that the documents reveal that Ms Gobbo provided information to Victoria Police in relation to at least one previous tobacco importation. The letter from Detective Superintendent Brigham records that in August 2006, Ms Gobbo provided documents to Victoria Police in relation to an importation and told Victoria Police that Karam had told her that it was a tobacco importation. That occurred a few days prior to 8 August 2006, when Customs seized an importation of cigarettes in Sydney. However, there was nothing in the information provided by Ms Gobbo that linked that importation to Barbaro, nor any involvement by the AFP or the CDPP.

The respondent concedes that there is a record of Ms Gobbo providing details of a particular consignment of tobacco to her Victoria Police handler in March 2006. In July 2006, Ms Gobbo also provided limited information about a pending importation. On 28 July 2006, Ms Gobbo advised her handler that Horty Mokbel and Karam were expecting a tobacco container in a few weeks; on 4 August 2006, she provided additional shipping documents; and by 9 August 2006, Customs had seized a container containing 10 million cigarettes — not ‘chop-chop’ — with a value of $2.5 million.

However, the respondent submits that because the issue that was raised by the appellant at trial was his belief in 2007 about the contents of the ‘tomato tins’ container, the fact that another container was seized in 2006, that it contained cigarettes and that Ms Gobbo provided information about the importation and connected it to Karam, could not rationally bear on the appellant’s belief at the time of the ‘tomato tins’ seizure, because he was unaware of those matters in 2007. He was unaware both of the tobacco seizure, and Karam’s alleged involvement in it.

More generally, the respondent submits that the appellant had ample opportunity at trial to explore with the Customs witnesses whether there was any connection between Barbaro or Karam and the seizures of illegal tobacco by Customs. There was quite involved evidence at trial about Customs seizures, including a spreadsheet that was tendered in evidence listing every seizure of tobacco made by Customs in 2007.

The respondent further submits that the information identified by the appellant that was known by the CDPP or the AFP at the time of his trial was not disclosable, because it could not reasonably have assisted him at trial.

Finally, so the respondent submits, even if the Court were to take the view that there was material that the CDPP or the AFP ought to have disclosed to the appellant for the purposes of his trial, that material would not have led to evidence being excluded at trial, and any additional evidence that the appellant could have adduced in relation to such material would not have been probative, and would not have led to a different result. Furthermore, the additional information would certainly not have led to a permanent stay of the proceeding.

Was there an obligation to disclose?

According to the respondent, Ms Gobbo’s unchallenged affidavit evidence establishes that neither her status as a Victoria Police informer nor the fact that she had been informing on her clients was known to the AFP or to any of the officers at the CDPP (or counsel briefed by the CDPP) who were responsible for prosecuting the appellant at the time of the appellant’s trial and those matters were therefore not capable of being disclosed to the appellant at that time.

While the appellant’s case, as initially articulated in his written case and oral submissions, was that the CDPP and the AFP had actual knowledge of the relevant information, in a supplementary submission filed after the hearing of the appeal the appellant submitted that Victoria Police must be viewed as part of the prosecution and that ‘the total apparatus of the prosecution’ had failed to carry out its duty to bring all material evidence before the Court at the appellant’s trial. The appellant refers to a Joint Agency Agreement between the AFP, the ACC, Customs and Victoria Police which was signed on 29 June 2007 and submits that those organisations, along with the CDPP, were all part of the prosecution directly or indirectly, and were under an obligation to give full disclosure to the appellant.

According to the appellant, at a meeting for the taskforce managing the Dale prosecution (Taskforce Driver) on 3 November 2011, it was fully exposed that senior Victoria Police officers — Assistant Commissioner Graham Ashton, Deputy Commissioner Tim Cartwright, Superintendent Doug Fryer and Senior Legal Advisor Findlay McRae — were aware of the misconduct of some members of Victoria Police and the recruitment and use of a practising criminal lawyer as a human source. They were also aware of the requirement to disclose this matter to the CDPP, the appellant and the Court prior to the appellant’s trial, but this was not done. He further submits that officers of the CDPP were placed on notice of the need to make further enquiries about Ms Gobbo’s role as an informer when, at a meeting with Ms Gobbo and the informant in the Dale prosecution on 24 August 2011, Ms Gobbo said, ‘I don’t want to talk cryptically but it’s maybe a conversation for another day. But it affects matters that are being prosecuted by your office at the moment … very significant matters’.

The appellant submits that it does not matter if the CDPP and the AFP were unaware of the relevant information. Evidence relied upon by the prosecution may have been obtained in consequence of an impropriety or illegally in connection with the use of Ms Gobbo as a human source by Victoria Police. If the courts were prepared to overlook the non-disclosure of such significant material by the prosecution on the basis that the police did not make the prosecution lawyers aware that it existed, it would not encourage a climate of candour and transparency in criminal proceedings, and would undermine the modern insistence on the frank disclosure of the prosecution case.

There is force to this submission.

In the present case, the evidence discloses that, at least for the period of time commencing in July 2007 and continuing to early October 2007, the AFP and Victoria Police participated in a joint operation founded upon the information obtained from the bill of lading provided by Ms Gobbo to her Victoria Police handlers.[37] The AFP received the information contained in the bill of lading knowing that it came from an undisclosed human source. A deliberate choice appears to have been made as part of the joint operation for the AFP to proceed on the basis of the information without evaluating its origins further. More significantly, at the same time, Victoria Police participated in the ongoing joint operation based on that information and did so until early October 2007.
[37]The Court was informed, largely from the bar table, that Operation Bootham was an AFP operation commenced on 6 March 2007 and targeted a planned drug importation from Europe by Barbaro and Zirilli. When, on 28 June 2007, the ‘tomato tins’ container was intercepted by Customs, Operation Moko was commenced by the AFP. On 6 July 2007, Operations Bootham and Moko were formally merged to become Operation Bootham-Moko as a result of intelligence analysis identifying that the Operation Moko importation was most likely arranged by the targets of Operation Bootham, the earlier operation in time. Victoria Police became involved (along with the ACC) at the time of the controlled delivery and remained involved in the investigation until October 2007.
Operation Inca was a subsequent investigation by the AFP which commenced on 31 July 2007 and led to charges of trafficking commercial quantities of drugs and conspiring to possess commercial quantities of drugs.

The informant, Senior Constable Herman, has deposed that he was unaware until well after the appellant’s trial of Ms Gobbo’s role as the source of the bill of lading or, more generally, that she was providing information to police contrary to the interests of her own clients. Senior Constable Herman was therefore not in a position to inform anyone of those facts. However, while the informant and the prosecutor were not apprised of the relevant information until after the appellant’s trial, members of one of the two investigating law enforcement agencies (the AFP and Victoria Police) had knowledge at the time of the trial of both Ms Gobbo’s conduct as a police informer and her role in facilitating the identification of the ‘tomato tins’ container.

There has been no curial determination of whether, in the context of the appellant’s particular circumstances, the information about Ms Gobbo and her role in exposing the ‘tomato tins’ importation would be protected from disclosure by public interest immunity. However, in our view, the objectives of a fair trial would be fundamentally eroded if the requirement to provide relevant information to a defendant was strictly limited to material about which the prosecution had actual knowledge. The underlying concept of fairness supports the view that it is the net effect of the conduct of those engaged in the investigation and prosecution of an offence which may ultimately be critical. If police investigators withhold exculpatory evidence from the prosecution, plainly the prosecution will not be in a position to disclose that material to the defendant. However, the integrity of the trial process will be fatally compromised. The trial will not be fair.

In R v Lucas,[38] the appellant had been convicted of culpable driving and successfully challenged his conviction on the ground that the prosecution had been conducted unfairly by reason of the failure to call a particular witness. Smith ACJ said:

For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him.[39]

[38][1973] VR 693.

[39]Ibid 696.

The same principle applies in the present circumstances by analogy.

The problem with fragmenting the disclosure obligations of agencies involved in a joint operation is illustrated by the case of R v Ward.[40] There, three governmental scientists deliberately withheld material experimental data from evidence given at a trial concerning bombs allegedly exploded by the accused. The scientific evidence was relied on to demonstrate that traces of nitro glycerine had been found on the accused’s person, on articles belonging to her and in the caravan in which she had been staying. Further, whilst relying on confessions and admissions made by the accused, the prosecution did not disclose a series of statements made by her bearing on her mental state and the question of whether she suffered from a mental disorder so severe that none of the admissions she had made could be relied upon as being true. The English Court of Appeal held in part:

We have spoken of ‘the prosecution.’ In this term we include four categories of individuals and organisations, namely (1) the three police forces — West Yorkshire, Thames Valley and Metropolitan — which carried out the relevant investigations, (though we say at once that the failures to disclose were limited to the West Yorkshire Police: there was no such failure by the Thames Valley or Metropolitan Police); (2) the staff of the Director of Public Prosecutions and counsel who advised them; (3) the psychiatrists who prepared medical reports on the appellant at the request of the prosecution; and (4) the forensic scientists who gave evidence for the prosecution at the trial. The responsibilities of the individuals involved in each of these four categories must be considered separately.[41]

[40][1993] 1 WLR 619.

[41]Ibid 643 (Glidewell, Nolan and Steyn LJJ).

Ultimately, the Court found that there had been a material non-disclosure with respect to both scientific evidence and evidence going to the accused’s mental stability, including records of police interviews which were not disclosed to the accused. In consequence, a grave miscarriage of justice resulted.

The unfairness that may attend the non-disclosure of relevant information in circumstances where one law enforcement agency fails to provide it to an agency with joint responsibilities was also emphasised by this Court in Thomas[42] when discussing the facts in the English case of R v Blackledge [No 2]:[43]

[T]he relevant law enforcement activity — of ensuring that exporters held export licences as required — was the joint responsibility of the inter-departmental committee, all the members of which had dealt with the defendants or had knowledge of their activities. It was therefore unfair for the defendants to be denied access to exculpatory information in the possession of those departments.[44]

[42](2008) 19 VR 214; [2008] VSCA 107.

[43][1996] 1 Cr App R 326.

[44]Thomas (2008) 19 VR 214, 222 [29]; [2008] VSCA 107 (Maxwell ACJ, Buchanan and Vincent JJA).

Conversely, however, a distinction is to be drawn with cases like that of Thomas,[45] where the Australian Security Intelligence Organisation (‘ASIO’) and police carried out parallel but not joint investigations. The police investigation was carried out by a joint counter-terrorism team comprising representatives of the AFP and State police. To that extent, the present case is similar, but the joint knowledge of the police forces was not in issue in Thomas. The position of ASIO, which was in issue, was different to that of the investigating police officers. ASIO was not involved in the joint police investigation and fulfilled an independent statutory role.
[45]Ibid.

In an appropriate case, there may be an obligation to make enquiries.[46] As the Court observed in Eastman v DPP (ACT) [No 13],[47] however, putting the question of prior convictions to one side, the common law rules are generally concerned with the disclosure of information which has been gathered by police and the prosecution in the course of the investigation process.
[46]AJ v The Queen (2011) 32 VR 614, 620 [22]; [2011] VSCA 215 (Weinberg and Bongiorno JJA); R v Garofalo [1999] 2 VR 625, 637; [1998] VSCA 145 (Ormiston JA).
[47][2016] ACTCA 65, [346] (Osborn, Whelan and Priest AJJ) (‘Eastman’).

The respondent submitted that the Court should exercise caution in creating new law that extends the prosecutorial duty of disclosure to a duty to disclose information that is not known to the prosecuting agency. The fact that the appellant elected to appear unrepresented did not assist the Court in the resolution of this issue. Although it is unnecessary in this case to form a concluded view on the extent of the prosecutorial duty of disclosure, in the circumstances of a joint operation of the type here in issue, we consider the better view to be that the information known to Victoria Police concerning the manner in which the bill of lading was obtained is to be regarded as having been constructively known by the AFP and, in turn, by the CDPP.

For the reasons which follow, however, our ultimate conclusions do not turn on this point.

Would the appellant have succeeded in excluding evidence at trial?

We move to consider whether the appellant would or could have been successful in excluding evidence of the bill of lading, or more broadly the evidence of detection of the ‘tomato tins’ container, as a result of the information that Ms Gobbo provided to Victoria Police. In what follows in respect of this issue and ground 1 in general, we assume in the appellant’s favour that any issues of public interest immunity would have been resolved or dealt with in such a way that the appellant, or at least a lawyer acting on his behalf, would have had the information in question and known that Ms Gobbo was its source.[48]
[48]AB v CD & EF [2017] VSCA 338 [65]–[72] (Ferguson CJ, Osborn and McLeish JJA). See also R v Ward [1993] 1 WLR 619, 646–8, 680–1 (Glidewell, Nolan and Steyn LJJ).

Evidence that has been obtained improperly may be excluded under s 138 of the Evidence Act 2008. Section 138(1) provides:

(1) Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

The appellant bears the onus of establishing that the evidence was improperly obtained, or obtained in contravention of an Australian law. If that burden is discharged, the respondent must satisfy the Court that the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained. The second question is to be answered by reference to the factors in s 138(3), which include the seriousness of the offending that is charged and the seriousness of the impropriety attaching to the evidence.

Was there impropriety?

The first question is whether the evidence that enabled detection of the drugs (the bill of lading) and the whereabouts of some of the conspirators was improperly obtained by Victoria Police.

The bill of lading copied by Ms Gobbo was not put in evidence in the appellant’s trial. A copy or counterpart was apparently obtained from elsewhere, presumably from the shipping agent, and was an exhibit in the trial. Its importance as evidence in the trial has to be seen in the context that there was evidence of the drugs that were actually found and seized. However, its provision to Victoria Police enabled the identification and seizure of the ‘tomato tins’ container by Customs and led to the subsequent arrest of the conspirators by the AFP and their successful prosecution by the CDPP.

The provenance of the bill of lading does not raise obvious problems of conflict of interest vis a vis the appellant of the kind condemned in AB & EF v CD,[49] because the appellant was never Ms Gobbo’s client. However, if it was obtained improperly, this might call into question all of the evidence relating to the identification of the container.
[49](2018) 93 ALJR 59; [2018] HCA 58.

The appellant submits that the bill of lading was obtained improperly because Ms Gobbo breached legal professional privilege and/or a duty of loyalty or confidentiality to one or more of her clients.

In fact, it appears that any privilege would belong to, and any duty would be owed only to, Karam, for whom Ms Gobbo was acting at the time in an unrelated matter.

Although, for the reasons that follow, our ultimate conclusions do not turn on this point, we consider that the better view is that Ms Gobbo’s provision of the bill of lading to Victoria Police did not involve a breach of legal professional privilege.

Legal professional privilege protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provision of legal services, including representation in proceedings in a court.[50] The rationale for the rule was explained by Deane J in Baker v Campbell,[51] being that

a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purposes of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication.[52]

[50]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49, 64-65 [35]; [1999] HCA 67 (Gleeson CJ, Gaudron and Gummow JJ).

The respondent submits that as the affidavits on which the appellant wishes to rely are not fresh evidence, in assessing whether there has been a substantial miscarriage of justice as a result of that evidence not being adduced at trial, the test in relation to new evidence applies, that is, in the light of the new evidence the Court must be positively satisfied of the appellant’s innocence, or at least entertain a reasonable doubt as to his guilt. However, whether the evidence in the affidavits is fresh or new, there has been no substantial miscarriage of justice as a result of it not being adduced because, when considered in light of the other evidence at trial, the evidence is not cogent and does not give rise to a significant possibility that the jury, acting reasonably, would have proceeded to acquit the appellant.

Analysis

We accept the submission that, although the course was not without forensic risk, the appellant could have subpoenaed Barbaro and Zirilli to give evidence about the alleged conversation on which his defence rested but he chose not to do so. The evidence upon which the appellant now seeks to rely was available at the time of his trial, but he did not to seek to adduce it. This makes the evidence of Barbaro and Zirilli ‘new’ evidence rather than ‘fresh’ evidence.

Appellate courts have long distinguished between ‘fresh’ evidence and ‘new’ evidence. New evidence is evidence which was available at the trial or which could, with reasonable diligence, have been discovered at that time. Fresh evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered.[107]
[107]Bowden v The Queen (2017) 54 VR 135, 143 [34]; [2017] VSCA 46 (Priest JA), quoting Mallard (2003) 28 WAR 1, 6 [11]; [2003] WASCA 296 (Parker, Wheeler and Roberts-Smith JJ).

In Bowden (a pseudonym) v The Queen,[108] Priest JA reviewed the authorities and confirmed that cases involving fresh evidence will involve a miscarriage of justice where there is a significant possibility that the evidence would have led the jury, acting reasonably, to acquit. The threshold for admitting new evidence is higher: it is where the new evidence shows that the convicted person is innocent or raises such a doubt about guilt that the verdict should not be allowed to stand.[109] Priest JA said:

Given the adversarial nature of a criminal trial, the distinction between fresh and new evidence remains important. Without being overly prescriptive, it generally will be difficult to conclude that there has been a substantial miscarriage of justice where – after a trial free from error or irregularity – conviction has resulted, there having been a failure to adduce relevant evidence which, had reasonable diligence been employed, would have been available at trial.[110]

[108](2017) 54 VR 135; [2017] VSCA 46.

[109]Ibid 144–5 [36] (Priest JA) quoting Lawless v The Queen (1979) 142 CLR 659, 675–6; [1979] HCA 49 (Mason J).

[110]Ibid 143 [35].

As Mason J said in Lawless v The Queen:[111]

an accused person if convicted generally cannot complain of a miscarriage of justice if he deliberately chooses not to call material evidence, it being actually available to him at the time of the trial, or if he fails to exercise reasonable diligence in seeking out material evidence.[112]

[111](1979) 142 CLR 659; [1979] HCA 49.

[112]Ibid 675.

In R v Butler,[113] the Queensland Court of Appeal considered the referral of a whole case under s 672A of the Criminal Code 1899 (Qld), which is in substantially the same terms as s 327(1)(a) of the CPA. In his judgment, Keane JA (as he then was) rejected the proposition that the concepts of fresh and new evidence had been subsumed into the question of miscarriage of justice in light of Mallard. He found that the additional DNA evidence, which was the focus of the petition, was new rather than fresh evidence, because it could have been obtained for use at trial, and held that the question for the Court was therefore whether, on the totality of the evidence before it, the Court was led to entertain a reasonable doubt as to the petitioner’s guilt.[114] His Honour proceeded to consider the whole of the case on the basis that the higher threshold applicable to new evidence applied to the question of assessing whether there had been a miscarriage of justice.
[113][2010] 1 Qd R 325; [2009] QCA 111 (‘Butler’).
[114]Ibid 336 [48].

The respondent urged the Court to follow the approach in Butler, unless convinced that it is plainly wrong.

We accept that the analysis of Keane JA in Butler is based on well-established principles concerning the importance of assessing whether the evidence sought to be relied on is fresh or new. Nothing in Mallard requires that on a referral, the Court must give the same weight to, or intervene on the same basis in relation to, new evidence as for fresh evidence. Accordingly, the question for us is whether the new evidence of Barbaro and Zirilli, in the context of all of the evidence led at the appellant’s trial, shows him to be innocent or raises a reasonable doubt about his guilt such that the verdict should not be allowed to stand.

We turn to consider whether the new evidence is credible and reliable and whether, when considered in the context of the evidence as a whole, it raises such doubt about the appellant’s guilt that the verdict of guilty should not be allowed to stand.

Barbaro does not depose that he told the appellant that the contents of the ‘tomato tins’ container were tobacco. He makes no reference to the conversation at the Pacific International Hotel on 27 June 2007 that was at the heart of the appellant’s defence. Nor does he make any reference to any other conversation in which he told the appellant or led him to believe that the contents of the container were tobacco. His silence in relation to the 27 June conversation, and to any other relevant conversation, is telling, and not inconsistent with the appellant’s decision to abandon his strategy of calling Barbaro to give evidence at his trial.

The centrepiece of Barbaro’s new evidence is the statement that he ‘never stated to [the appellant] that the container content was drugs’. At paragraph 12 of the affidavit, Barbaro deposes that he himself was unaware the container contained drugs until he went to Italy on 21 July 2007 and returned to Australia on 16 August 2007. In other words, Barbaro says that at the time the conspirators were waiting at the Pacific International Hotel for the release of the container, he did not know that the container was full of drugs. However, Barbaro pleaded guilty to conspiring to traffic drugs from 13 June 2007, and was sentenced on the agreed basis that he became involved in the conspiracy one to two weeks before the container arrived in Melbourne on 28 June. He was also sentenced on the agreed basis that he was ‘aware of both the narcotic nature and quantity of the tablets to be dealt with’. The cogency of Barbaro’s position in his affidavit is seriously undermined by the fact that in the affidavit, Barbaro traverses his own plea of guilty.

Further, as the respondent submits, the cogency of the Barbaro affidavit is also called into question by the evidence as to Barbaro’s bad character and the appellant’s evidence at trial that Barbaro deceived him by failing to tell him that the container in fact contained MDMA as opposed to tobacco. The appellant asks this Court to accept assertions from a criminally concerned witness of bad character who, on the appellant’s own case, deceived him.

In his affidavit, Zirilli deposed that he was present during a conversation on 27 June 2007 between the appellant and Barbaro and that in that conversation, the appellant was asked if he could be on standby to help with a shipping container full of ‘chop‑chop’, worth about four to five million dollars, arriving the following day. This is consistent with the account of the conversation given by the appellant.

The respondent points out, however, that Zirilli does not depose that he heard Barbaro tell the appellant that the contents of the container were tobacco. Zirilli’s evidence does not support the critical point in the appellant’s defence at trial, which is that he believed the container contained tobacco because Barbaro told him so. The appellant was very clear at trial that it was Barbaro who had made this statement to him.

On one view, Zirilli’s use of the passive voice — the appellant ‘was asked’ —may just be a matter of personal style. There is no suggestion that there was anyone in the hotel room at the time of the conversation other than the appellant, Barbaro and Zirilli, so it may be inferred that Zirilli is reporting a statement made by Barbaro to the appellant. Although the commonality of expression in Barbaro’s and Zirilli’s affidavits suggests that they may have been drafted by the same person — and most likely not by Zirilli himself — his failure to refer expressly to the fact that Barbaro made the statement to the appellant may be of little consequence.

However, Zirilli’s evidence must be assessed in light of the whole of the evidence, including the fact that Barbaro’s affidavit, which is specifically directed to the appellant’s knowledge of the contents of the container, makes no reference to any conversation with the appellant about tobacco. This critical omission by Barbaro undermines Zirilli’s evidence that such a conversation occurred. Moreover, on the appellant’s own evidence, Zirilli is not a credible or reliable witness because he too is of bad character and deceived the appellant by failing to tell him that the container contained MDMA. Once again, the appellant asks the Court to accept assertions from a criminally concerned witness of bad character, who he says deceived him.

Furthermore, as this Court observed in the Appeal Reasons,[115] the alleged tobacco conversation is inconsistent with the absence of any reference to tobacco in the surveillance device and telephone intercept evidence throughout the whole period that the conspirators were at the hotel. A belief that the ‘tomato tins’ container contained nothing more than illegal tobacco is also inconsistent with the expressions of concern that were picked up by the surveillance device about the numbers of police that might become involved and the likelihood of long gaol terms if the conspirators were caught. The appellant’s evidence was far from compelling and both his truthfulness and reliability were squarely in issue. He failed to credibly explain away a complex of circumstantial matters put to him in cross-examination and admitted to misleading a Supreme Court judge in a bail application.
[115]Appeal Reasons [43].

We do not consider that Barbaro’s affidavit advances the appellant’s case in any way. It contains nothing of importance because it says nothing about tobacco. While Zirilli’s evidence can be construed as supporting the appellant’s description of his conversation with Barbaro on 27 June 2007, Zirilli is neither a credible nor a reliable witness. He is a convicted criminal, identified by the appellant as a member of the Calabrian Mafia, who belatedly agreed to provide a statement based on his recollection nine years after the relevant events of a fragment of a conversation between two (of seven) conspirators who were in each other’s company for a number of days.

More significantly, however, when viewed in the context of the evidence at trial as a whole, Zirilli’s evidence is not persuasive.

The issue at trial was not merely what the appellant was told on 27 June 2007, but his knowledge or belief as to the contents of the ‘tomato tins’ container throughout the period in which he was actively participating in the conspiracy. The Crown case was circumstantial and, as this Court noted,[116] the inferences that the jury were invited to draw by the Crown were inferences that were well open. The inference that the appellant knew or believed that the ‘tomato tins’ container held a commercial quantity of a border controlled drug could be drawn from a very large body of circumstantial evidence. The inference of knowledge drawn from the body of circumstantial evidence, as this Court has also observed,[117] was not refuted by the appellant’s selective reference to a handful of comments that he made to his co-conspirator, Sergi, that he claimed showed his belief about the value of the contents of the container.
[116]Ibid [55].
[117]Ibid.

Furthermore, the inference that the appellant well knew what was in the container is supported by the evidence about the ongoing association between the appellant and Barbaro and Zirilli after the period of the conspiracy. There was evidence that the appellant had significant ongoing contact with Barbaro and Zirilli in both Australia and Europe in late 2007 and 2008. As this Court observed,[118] the jury would have been well entitled to treat that evidence as supporting the Crown case and as inconsistent with any notion that the appellant had been transiently involved in nothing more than an agreement to take possession of some illicit tobacco.
[118]Ibid [56].

We consider that even if we were to accept that Zirilli’s evidence was capable of establishing that Barbaro told the appellant on 27 June 2007 that the ‘tomato tins’ container contained tobacco, it does not give rise to a reasonable doubt about the appellant’s guilt. Indeed, even applying the test for fresh (as opposed to new) evidence, we consider that there is no significant possibility that the jury, acting reasonably, would have acquitted the appellant, had it heard the evidence of Barbaro and Zirilli.

Ground 3 must fail.

Disposition

None of the grounds is made out. The appeal in proceeding S EAPCR 2019 0213 (based on the petition of mercy) will be dismissed.

In proceeding S APCR 2019 0100, the application for an extension of time in which to apply for leave to appeal will be refused.

APPENDIX
Affidavits filed by the respondent

These affidavits go to the knowledge of the AFP and the CDPP about Ms Gobbo’s status as a registered informer.

David Paul Herman

Senior Constable Herman was the AFP informant in the prosecution of the appellant. He deposed that he first learnt that Ms Gobbo may have been an informer for Victoria Police in around April 2014. He first learnt that Ms Gobbo may have provided information to Victoria Police in relation to Operation Bootham-Moko on 21 January 2015 in a conversation with officers of the CDPP. He has not identified any document or record held by the AFP prior to January 2015 indicating that Ms Gobbo had or may have provided any information to Victoria Police about any of the targets of Operation Bootham-Moko. Based on his enquiries of the case officers and supervisors involved in Operation Bootham-Moko and Operation Inca, he does not believe that any other member of the AFP was aware that Ms Gobbo might have been the source of any information provided by Victoria Police during Operation Bootham-Moko. He believes the AFP first became aware that Ms Gobbo may have provided information to Victoria Police on 21 January 2015, which is the date on which he was contacted by the CDPP for the first time about these matters.

Andrea Simone Pavleka

Between 2004 and 2016, Ms Pavleka was a Branch Head (also known as Senior Assistant Director) in the Melbourne office of the CDPP. She deposed that when she signed the indictment in the appellant’s matter on 4 February 2014 and throughout the course of the trial, she was unaware that Ms Gobbo had been a registered police informer or that she had provided information to Victoria Police about her clients. She first became aware of these matters in around April 2017, in the context of proceedings brought by Karam in this Court. Ms Pavleka deposed that she had made enquiries of each of the CDPP officers involved in the operation Bootham-Moko prosecutions, and of prosecuting counsel, and the earliest that any of them became aware that Ms Gobbo had been a police informer was January 2015, when Ms Bryant, one of the case officers at the CDPP, was given information about this for the first time by Victoria Police. This led to the conversation in January 2015 with the informant, Senior Constable Herman, to which he deposed in his affidavit.

Krista Breckweg

Between 2009 and 2012, Ms Breckweg was a senior solicitor in the General Prosecutions Branch of the CDPP. She was the CDPP case officer in the prosecution of Mr Dale for offences against the Australian Crime Commission Act 2002 (Cth) (the ‘Dale prosecution’). She reported to Ms Argitis.

Ms Breckweg deposed that she had a number of interactions with Victoria Police in relation to whether Ms Gobbo would give evidence in the Dale prosecution. One of those communications referred to a police officer who was ‘the allocated Handler/Liaison point for witness H5’, which Ms Breckweg took to mean that the police member was the person through whom other police members were to communicate with Ms Gobbo. She also communicated with Boris Buick, the informant in the Dale prosecution, who told Ms Breckweg there might be ‘issues’ in relation to Ms Gobbo being a witness and asked her to inform Ms Gobbo of the AFP witness protection program. Ms Breckweg understood that witness protection was being considered because of the risk to Ms Gobbo arising from her involvement in the Dale prosecution. No-one told her that Ms Gobbo had been a registered informer or had provided information to Victoria Police about her clients.

Ms Breckweg deposed that she attended a meeting with Ms Gobbo and Mr Buick on 24 August 2011. Mr Kirne and Ms Argitis were also present. Mr Buick (secretly) recorded the meeting and the recording has been transcribed. The transcript records Ms Gobbo saying a number of things of which Ms Breckweg has no memory, including that there were former clients ‘and people who, whether it’s true or not, suspected [her] of assisting police’. Ms Gobbo spoke of ‘stuff coming out’ if she were cross-examined at the Dale committal and that it affected ‘matters that are being prosecuted by your office at the moment … very significant matters’. Ms Breckweg is recorded as saying, ‘I think I know what you’re talking about, but just a rough guess. Yeah, okay, so – yeah, I understand what you’re saying. So it’s just – it’s not just – your view is it’s not just the threat from Dale … It’s the threat from other people’.

Ms Breckweg deposed that she does not recall what she understood Ms Gobbo was referring to, other than that she was acknowledging that Ms Gobbo had a general fear of being threatened if she gave evidence against Dale.

Ms Breckweg deposed that on 6 September 2011, the Victoria Police informant in the Dale prosecution sent her an email, to which he attached a Victoria Police ‘issue coversheet’ referring to Ms Gobbo as having formerly been a registered human source for Victoria Police and stating that she had provided ‘information over a number of years against a number of high level criminals’. This was when Ms Breckweg first became aware that Ms Gobbo had been a registered human source and had provided information to Victoria Police in relation to people other than Dale. The issue coversheet did not cause her to think that Ms Gobbo had informed on her own clients, or that any person Ms Gobbo had informed on was being prosecuted by the CDPP. Although she would have told her superior, Ms Argitis, about the issue coversheet, she has no recollection of doing so.[119]
[119]Ms Argitis' evidence is that she believed she did not see that Victoria Police issue coversheet until 2020, when preparing her affidavit.

Ms Breckweg also deposed that on 3 November 2011, she received a copy of an advice that had been prepared for Victoria Police by Mr Gerard Maguire of the Victorian Bar, which was dated 4 October 2011 (‘Maguire advice’). The Maguire advice referred to Ms Gobbo as having informed on Tony Mokbel while she was representing him. Ms Breckweg deposed that she has no recollection of seeing that part of the advice, and that she was not aware that Ms Gobbo had informed on her clients until years later. Ms Breckweg deposed that had she seen the part of the Maguire advice referring to Ms Gobbo informing on Mr Mokbel, she would have raised it with Ms Argitis and Mr Kirne, who was then the deputy director of the Melbourne office. She has no recollection of doing so.

Ms Breckweg also deposed that she was not actively involved in the Bootham-Moko investigation or prosecution. She had only a limited role during the pre-arrest phase, including in relation to a legal issue as to the form of a warrant. She had no involvement with the targets or subject matter of the investigation.

Shane Patrick Kirne

At the relevant time, Mr Kirne was the Acting Deputy Director of the Melbourne office of the CDPP. He attended the 24 August 2011 meeting with Ms Gobbo, Mr Buick and other officers of the CDPP. He deposed that he was aware that Ms Gobbo was concerned for her safety as a result of it being known or suspected that she was assisting police in the Dale prosecution. He does not recall the discussion about ‘stuff coming out’ and Ms Breckweg saying she thought she knew what Ms Gobbo was talking about. He did not interpret anything that Ms Gobbo said at this meeting as indicating that she had provided information to Victoria Police about anyone other than Dale or in relation to any other matters being prosecuted by the CDPP or that she had informed on her own clients.

Mr Kirne deposed that although he sent an email to the then Director in relation to Ms Gobbo’s position on witness protection that referred to Ms Gobbo’s ‘handler’, he was referring to Mr Buick, who he did not understand to be a handler in the sense used in relation to registered informers.

Mr Kirne deposed that he was not aware that Ms Gobbo may have acted as an informer other than in relation to Mr Dale until January 2015, when he was told about the IBAC Report by Victoria Police. He received a copy of the IBAC Report and made inquiries of the Operation Bootham-Moko case officer and counsel to satisfy himself that they did not know of Ms Gobbo’s status or that she had provided information to Victoria Police about her clients.

Mr Kirne did not see the Maguire advice until 2019. He was only shown the issue coversheet for the purpose of preparing his affidavit.

Vicky Argitis

Ms Argitis was Acting Senior Assistant Manager, General Prosecutions Branch in the Melbourne office of the CDPP between June 2007 and August 2012. She supervised Ms Breckweg in the Dale prosecution. Although she had limited involvement in the prosecution, Ms Breckweg raised issues with her from time to time. Ms Argitis deposed that at no time during the Dale prosecution was she aware that Ms Gobbo had provided information to Victoria Police about her clients.

Ms Argitis deposed that while she was present at the meeting with Ms Gobbo on 24 August 2011, she was not aware that Ms Gobbo was informing on her clients. She understood from comments made by Ms Gobbo that she feared her clients may have assumed that she had provided assistance to Victoria Police beyond the assistance that she had provided in relation to Mr Dale. Ms Argitis did not recall a discussion in relation to ‘very significant matters’ coming out if Ms Gobbo was cross-examined at the Dale committal. As for the Maguire advice, she did not see it until 2019, although it was on the Dale prosecution file.

Ms Argitis deposed that she did not see the Victoria Police issue coversheet in 2011 and was only shown it for the purpose of preparing her affidavit.

*Introduction*...............................................................................................................	1
*Statutory context*......................................................................................................	9
*Grounds of appeal*.....................................................................................................	10
*Ground 1: Substantial miscarriage of justice*.......................................................	11
Appellant’s submissions..................................................................................	14
Respondent’s submissions...............................................................................	23
Was there an obligation to disclose?................................................................	27
Would the appellant have succeeded in excluding evidence at trial?..............	33
Was there impropriety?....................................................................	34
The balancing exercise......................................................................	44
Would evidence obtained from the warrants have been excluded? .................	45
Additional evidence..........................................................................................	47
Would a stay have been granted?....................................................................	48
Would there have been a change to the period of the conspiracy?...................	55
Conclusion on ground 1..................................................................................	55
*Ground 2: Malicious prosecution*...........................................................................	56
*Ground 3: Fresh or new evidence*...........................................................................	57
Analysis...........................................................................................................	63
*Disposition*................................................................................................................	69
*Appendix*.....................................................................................................................	70

[2020] VSCA 327

18 December 2020