Applicant v Respondent

150 These ICRs demonstrate further matters which potentially created a conflict of interest for Ms Gobbo for the reasons I have identified with respect to informing during the 2007 MDMA importation trial. In summary, there were:

• Karam's telephone numbers;
• Karam's alleged knowledge of drug importations;
• details of Karam's movements potentially relevant to surveillance;
• measures undertaken by Karam to avoid surveillance;
• matters bearing on Karam's financial situation.

151 There is some controversy between the parties as to the relevance of the ongoing provision of Karam's telephone numbers. In my view, it was not only the first provision of such numbers which was relevant but the ongoing updating of such numbers as current.

Informing after Victoria Police ceased direct involvement in Operation Bootham-Moko and Operation Inca

152 On or around 4 October 2007, Victoria Police and ACC ceased their direct involvement in Operation Bootham-Moko and Operation Inca.229F[230]

153 Nonetheless, Annexure A to the Respondent's Confidential Submissions on the Section 319A Referral Questions, dated 24 June 2022, further summarises ICR records in which Ms Gobbo provided Victoria Police with information about Karam between 1 January 2008 and 7 August 2008, as follows:230F[231]

1. The applicant asked Ms Gobbo to go away with him interstate and overseas (provided on 2 and 6 January 2008).231F[232]
2. Information about the applicant's movements locally, interstate and overseas, including in relation to suspected drug importations (on 1, 2, 24, 25, 26 January 2008 and 1 February 2008).232F[233]
3. Information about the applicant's alleged involvement in cocaine and ecstasy importations in South Australia (provided on 4 January 2008).233F[234]
4. The applicant was speculating as to why the 15 million pill container from last year was not in the news (provided on 6 January 2008).234F[235]
5. The applicant will see Mr Higgs on Wednesday or Thursday night, Higgs giving the applicant a large amount of money (provided on 7 January 2008).235F[236]
6. Various phone numbers used by the applicant (provided on 10 January 2008, 17 March 2008, 17 May 2008 and 11 June 2008).236F[237]
7. The applicant was driving to Shepparton to meet some people from Griffith, had two "bodgy" phones and was making arrangements about Shepparton by text (provided on 24 January 2008).237F[238]
8. Ms Gobbo provided a copy of the AFP search warrant dated 13 November 2007 relating to defrauding creditors and bankruptcy offences, listing persons of interest as Renee Karam, Brian Taylor, Greg Zarra, Romi Karam and the applicant (provided on 30 January 2008).238F[239]
9. The applicant was chasing Mr Higgs over money Mr Higgs owed (provided on 29 February 2008 and 4 August 2008).239F[240]
10. The applicant wanted to have dinner with her and wanted bankruptcy advice (provided on 5 March 2008).240F[241]
11. The applicant had purchased two racehorses (provided on 3 April 2008).241F[242]
12. The applicant had called in to see Ms Gobbo and handed over charges relating to Amren Joskun, who had been intercepted by Seymour police on 6 February 2008 on the Hume Highway with $119,950 cash hidden under the back seat of his vehicle; the applicant was suspicious as to why Mr Joskun had been pulled over and why police had decided to search under the back seat; the applicant was not convinced it was a routine intercept, and wanted Ms Gobbo to take on the case and get to the bottom of it; Mr Joskun was apparently driving back home via Griffith, and Ms Gobbo speculated that this was so that he could convey the cash to Griffith contacts; the applicant was putting scenarios to her which could legitimise the money and was talking about generating false invoices to show that the money was cash for fruit and vegetable transactions; she advised the applicant against doing this because the applicant did not know how much the police knew (provided on 21 March 2008).242F[243]
13. The applicant had invited Ms Gobbo to go to Hong Kong with him (provided on 14 April 2008).243F[244]
14. That the applicant met with Jim Valos with her, that Mr Valos asked the applicant about money laundering, indicating his Romanian clients have $60 million in Malaysia they want to launder and that the applicant said "no problems" (provided on 18 April 2008).244F[245]
15. Information about the applicant's alleged involvement in distributing ecstasy pills from a recent importation, and his alleged methods of importing containers (provided on 3 May 2008).245F[246]
16. The applicant was carrying multiple phones, and had asked her if that was an offence, to which she had said that it was not, unless the phones were stolen (provided on 3 May 2008).246F[247]
17. Ms Gobbo had met with the applicant and "Baldy Rob" and the applicant had told "Baldy Rob" that he had to organise the furniture shop email for the new import (provided on 6 June 2008).247F[248]
18. Ms Gobbo had invoiced the applicant for a plea she had done for his younger brother (provided on 21 July 2008).248F[249]

154 These matters also had the potential to create a conflict of interest with respect to the Tomato Tins and Inca proceedings. They involved matters potentially relevant to the prosecution cases:

• phone numbers used by Karam;
• Karam's movements potentially relevant to surveillance;
• Karam's knowledge of the Tomato Tins importation;
• Karam's involvement in drug distribution;
• measures taken by Karam to avoid surveillance;
• matters relating to Karam financial position.

155 Whether these matters were the subject of advice by Victoria Police to AFP or not, Ms Gobbo had provided information which potentially further compromised Karam.

156 Karam was arrested and charged with respect to involvement in the Tomato Tins offending on 8 August 2008. It will be recalled that the period the subject of the Inca charges extended up to this date.

157 As the evidence summarised above indicates, prior to Karam's arrest on 8 August 2008:

(a) Ms Gobbo had provided general intelligence concerning Karam's activities prior to the Tomato Tins offending;

(b) Ms Gobbo provided seminal evidence by way of the bill of lading in relation to the investigation of the Tomato Tins offending;

(c) Ms Gobbo provided further information relating to significant elements of the Crown case with respect to the Tomato Tins offending namely:

(1) information indicating meetings of the conspirators at the Pacific International Apartments; and

(2) details of phone numbers used by the conspirators;

(d) Ms Gobbo provided specific intelligence relating to Karam's alleged statements concerning the attempted importation of illicit drugs:

(2) after the 2007 MDMA importation trial up until Karam's arrest in 2008.

(e) Ms Gobbo provided intelligence as to Karam's activities generally which may reasonably be regarded as having informed or potentially informed surveillance both of Karam and his fellow conspirators (eg, the cars Karam used, trips he undertook, meetings he attended);

(f) Ms Gobbo provided incidental intelligence concerning measures taken by Karam to avoid surveillance;

(g) Ms Gobbo provided information as to Karam's financial position which was a matter which might be regarded as going to motive.

Ms Gobbo's conduct after Karam's arrest on 8 August 2008

158 Karam was arrested and taken into custody on 8 August 2008.

159 Following Karam's arrest, Ms Gobbo continued to inform on him to Victoria Police. Each of the reports was given in circumstances where she was at the same time acting for Karam in an ongoing way in respect of preliminary issues in the Tomato Tins and Inca proceedings, by advising him and by representing him at preliminary hearings relating to custody issues.

160 It is common ground that Ms Gobbo took the following steps as his legal representative:

• On 8 August 2008, Ms Gobbo saw Karam at the Melbourne Custody Centre following his arrest. She had been contacted by his family about the arrest.
• On 18 August 2008, Ms Gobbo appeared for Karam in the Melbourne Magistrates' Court at a special mention relating to a prisoner transfer application.
• On 31 August 2008, Ms Gobbo arranged a bail application hearing for Karam. On the bail application, Karam was represented by Mr Grace KC and obtained bail.249F[250]
• On 27 October 2008, Ms Gobbo appeared for Karam in the Melbourne Magistrates' Court on an application to vary bail.
• On 18 December 2008, Ms Gobbo appeared for Karam in the Melbourne Magistrates' Court on a further application to vary bail.

161 Because each report made by Ms Gobbo as a RHS after Karam's arrest was on the face of it a gross breach of duty of loyalty to a client, it is necessary to set out these reports in some detail. I shall adopt the respondent's summary in Annexure A to Respondent's Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022.250F[251]

8 AUGUST 2008

1. Ms Gobbo was asked to attend Melbourne Custody Centre to help the applicant and Antonio Di Pietro.251F[252]

2. Ms Gobbo saw the applicant, Mr Di Pietro, Mr Higgs, Pasquale Sergi, Mr (Tony) Sergi and Pasquale Barbaro at the Melbourne Custody Centre.252F[253]

3. The applicant asked Ms Gobbo to pass a message to his brother and Fadl Maroun to advise the Asian connection to change numbers and postpone the next shipment. The applicant said that he wanted the message to be passed to his brother because he (the applicant) was worried what text might arrive in the meantime on a phone seized by the AFP. Ms Gobbo advised the applicant to pass the message on to his brother himself, when his brother visited him.253F[254]

4. The applicant told her that the AFP had missed a 'crucial laptop' that was at his sister's place.254F[255]

5. The applicant's wife was leaving him and has $94,000 in travel expenses on her cards and has no cash. The applicant will have cash once out on bail.255F[256]

AFTER 8 AUGUST 2008

1. The AFP wanted to interview the applicant further (provided on 9 August 2008).256F[257]
2. Mr Higgs owes the applicant $80,000 (provided on 11 August 2008).257F[258]
3. The applicant was charged with [1]50kg coke, 15 million pill importation, two conspiracies to import, one of which is with an undercover and that Fadl Maroun [sold] 11,000 pills and 0.5kg of MDMA powder to an undercover (provided on 13 August 2008).258F[259]
4. Mr Valos got a confusing message from the applicant to contact Mike (the Hong Kong Under Cover) (provided on 14 August 2008).259F[260]
5. The applicant's wife had left him and that the applicant believed he was really in trouble this time, and that he had gambled with his life over this import and that he still had money stashed away somewhere (provided on 14 August 2008).260F[261]
6. The applicant has read the [AFP] summary and is devastated (provided on 18 August 2008).261F[262]
7. The applicant was still at the Custody Centre (provided on 19 August 2008).262F[263]
8. The applicant's brother, Bill Karam, asked Ms Gobbo for the low down of the charges against the applicant and Ms Gobbo told the truth - 20 years gaol. Ms Gobbo intended to visit the applicant's sister over the weekend and explain the situation (provided on 22 August 2008).263F[264]
9. The applicant may get bail one day and has been moved to a gaol now with phone access which relieves pressure on Ms Gobbo from family members (provided on 23 August 2008).264F[265]
10. The applicant was focused on how the police discovered the container (provided on 25 August 2008).265F[266]
11. The applicant was deluded re bail and his family still think he is innocent. The applicant wants to cause more trouble with the AFP (provided on 30 August 2008).266F[267]
12. Ms Gobbo has booked a bail application for the applicant for 10 September 2008 (provided on 31 August 2008).267F[268]
13. Ms Gobbo spoke generally about how hard the applicant is doing it in gaol and his wife Renee has left him for good this time (provided on 1 September 2008).268F[269]
14. The applicant got bail but would not be released for another hour (provided on 8 September 2008).269F[270]
15. Ms Gobbo provided her opinion about why the applicant got bail and that it was because there was a poor witness the AFP put in the witness box who did not have a full grasp of the case and the evidence he gave was not compelling (provided on 12 September 2008).270F[271]
16. The applicant's mobile telephone number (provided on 16 September 2008).271F[272]
17. The applicant came to see Ms Gobbo that day for coffee (provided on 17 September 2008).272F[273]
18. The applicant met with Ms Gobbo who 'made it clear to Karam re no meeting for dinners any more after hours. Talk about his case in her chamber or during business hours for coffee.' The applicant accepted this (provided on 20 September 2008).273F[274]
19. The applicant had admitted to organising another import and said 'how else am I going to pay for all the legal fees' (provided on 20 September 2008).274F[275]
20. The applicant was working for ACG Security. The applicant was full of questions about himself and what chance he has of getting off. The applicant was speculating on who may have rolled already, who made statements and who may be informers (provided on 23 September 2008).275F[276]
21. The applicant had a cup of tea with Ms Gobbo at Wheat. He asked about 'who has rolled. Are there any more to be charged. How does [Ms Gobbo] think the AFP found out about the import. What chances has he got of getting off? Etc etc' (provided on 30 September 2008).276F[277]
22. The applicant was continuing with 'business as usual' to fund his defence (provided on 14 October 2008).277F[278]
23. The applicant was still regularly texting Ms Gobbo and believes she will be representing him. The applicant's surety was $1 million and his wife Renee put up their house which she owned because of a previous marriage (provided on 12 November 2008).278F[279]
24. Last year 'the Feds' executed warrants at the applicant's parents' house in relation to documents and assets, and today they did another search warrant and found $200,000+ in cash (provided on 11 December 2008).279F[280]
25. Ms Gobbo had a copy of the federal search warrants in relation to the applicant's recent searches. The applicant was also served with an exclusion order for the Sydney casino (provided on 13 December 2008).280F[281]
26. The applicant has had his bail varied to allow him to travel to South Australia to see family between 25 December 2008 and 2 January 2009 (provided on 18 December 2008).281F[282]
27. The applicant is only talking about and is fully consumed with his pending AFP case. The brief service date is next month and 'they are at the stage of blaming each other for how it came undone.' The applicant has $150,000 seized by the AFP a few weeks ago which has severely depleted his fighting fund. He is having difficulty paying his legal fees. Ms Gobbo believes the applicant will be actively sourcing a new import to make up the shortfall (provided on 10 January 2009).282F[283]
28. Ms Gobbo and the applicant were just talking about his briefs; the applicant was 'worried about the fact he's currently under surveillance' and 'worried about whether the feds or anybody could've got on to those two people that he's concerned about, his wharf contact and his customs man'; the applicant was worried about his customs man and his wharf man that 'they might come unstuck and he's perplexed at why they're still following him'; Ms Gobbo told the applicant his case was going to cost a fortune; the applicant had come to see her that day for an hour or so and asked her questions about the evidence against him (on 12 January 2009).283F[284]

162 On or about 13 January 2009, Ms Gobbo ceased to be a RHS and there are no further ICRs.

163 There are four aspects of this material which are contextually relevant to the assessment of the probable role Ms Gobbo played after she ceased to be an RHS and prior to the committal in the Tomato Tins and Inca proceedings:

• Ms Gobbo's reports extended to criticising the conduct of the case by the AFP, and in particular, the reasons Karam got bail on 8 September 2008 (12 September 2008).
• The ICR of 20 September 2008 shows it was contemplated Ms Gobbo would act in an ongoing way for Karam as a formal client.
• Karam believed that Ms Gobbo would represent him (12 November 2008).
• There was recurrent discussion of Karam's case between Ms Gobbo and Karam. As at 10 January 2009, Karam was not talking about anything else.

164 Despite being deregistered as an informer in January 2009, Ms Gobbo continued to have contact with Victoria Police as a prospective prosecution witness in relation to murder charges brought against former Victoria Police member Paul Dale and consequential proceedings.284F[285] In this regard, she dealt with liaison officers of Victoria Police Petra Taskforce.285F[286]

165 She also had contact with Jason Kelly, a member of the Purana Taskforce leading Operation Kennels, an investigation into an alleged conspiracy to murder a number of targets including Fedele D'Amico.

166 At the committal, Karam was represented by Mr Shirreffs QC together with Ms Ristivojevic, instructed by Mr Valos. Mr Shirreffs is now deceased and no evidence was adduced from his instructor or his junior.

167 Karam's evidence is that Ms Gobbo advised him before, during and after the committal. The respondent takes issue with this evidence. It is convenient to deal with each period separately. It is more probable than not that the committal itself was conducted without any material input from Ms Gobbo:

• She did not appear at or attend it.
• The evidence was complex and detailed and did not lend itself to remote input.
• There is no evidence from those who participated in the committal other than Karam that Ms Gobbo played any role.

168 Conversely, however, I accept that prior to the committal, Ms Gobbo did advise Karam:

• The ICRs describing the relationship prior to the delivery of the combined brief make it clear that it was anticipated Ms Gobbo would play this role.
• There is evidence that she did obtain and read the brief utilising a computer.286F[287]
• It is inherently unlikely that she did not discuss the results of her reading with Karam.
• She prepared documents which involved implicit advice as to relevant evidence at the committal namely a Form 10A in November 2009 (nominating witnesses whom Karam sought leave to cross-examine at the committal hearing) and draft summons to produce documents in around January 2011 concluding with the provision of the summons to Valos on 31 January 2011.287F[288]
• There is text message evidence of exchanges concerning the case between Ms Gobbo and Karam in January and February 2011.288F[289]
• There is evidence Ms Gobbo spoke with Mr Shirreffs prior to the committal. In a text message to Karam on 10 February 2011, she said:289F[290]

Got some REALLY good news for you. Spoke to QC who praised me for documents drafted and says my 2 main problems I say the AFP has are spot on and that my thinking is VERY clever. Explain in person as will not discuss on this phone. It was nice to have my thinking & all that reading of all those folders of crap praised and appreciated by him. As I feel so low and unloved at present it was nice to get a bit of praise & a huge compliment! I almost can't wait to share it all with you.290F[291]

• Karam gave evidence that was not challenged in cross-examination that he paid Ms Gobbo $5,000 for legal work related to the Tomato Tins and Inca proceedings on or around 14 February 2011 and two or three weeks later paid Ms Gobbo a further $15,000. There are no records of these cash payments.291F[292]

169 More particularly, however, I accept that before the committal Ms Gobbo developed a case concept in discussion with Karam, namely the pretext conspiracy defence and advised Karam XXXXXXX XXXXX XXXXXX XXXXXXXXXXXXX XXXXXXXXXXX X X XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX:

• XXXXXXXXXXXXXXXXXXXXXXXXXXX;
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

170 In the course of Operation Inca, AFP officers involved in that operation came across telephone intercept information that there was a plan to kill Fedele D'Amico. Jason Kelly of the Purana Taskforce was notified of this information and Operation Kennels commenced.292F[293]

171 On 19 June 2008, the AFP provided Jason Kelly with information relating to the conspiracy to murder.293F[294]

172 On 20 June 2008, Jason Kelly attended a briefing with AFP officers at which further information was provided.294F[295]

173 Additional information was provided by the AFP on 21, 24 and 26 June 2008.295F[296]

174 On 10 March 2009, the Victoria Police Petra Spreadsheet296F[297] records that Ms Gobbo said '...as I understand from Jason, there's 8 or 9 of them that are you [sic] going to be arrested for conspiracy to murder and Rob Karam is one of them.'297F[298] In evidence, Supt Kelly said it was his understanding that Ms Gobbo learned this information when she attended XXXXXXXXXXXXXXXXXXXXXXXX and the information was discussed XX XXXXXXXXX.298F[299] He denied telling Ms Gobbo that Karam was going to be arrested on 25 March 2009.299F[300]

175 On 11 March 2009, the Victoria Police Petra Spreadsheet records Ms Gobbo said:300F[301]

(a) until the importation 'some people were trying to kill other people'; the AFP 'panicked' and called Purana. Now Purana, specifically Jason Kelly's 'crew', are investigating conspiracy to murder a number of people.

(c) '...at the time that Rob Karam and others were actually planning to kill these people, Rob was telling me about the plans day by day.'

176 There is a dispute as to whether Ms Gobbo told Karam prior to his arrest that he would be arrested.301F[302] The point turns on Karam's uncorroborated evidence and I am not satisfied that she did.

177 As the respondent points out, the allegation is recent and contrary to Karam's written case filed in respect of leave to appeal which submitted:

Gobbo had a duty to disclose [to Karam] that police were about to arrest him for a conspiracy to murder ... Gobbo did not disclose to [Karam] her discussion with police about his imminent arrest. She had such a duty.302F[303]

178 Further, the unchallenged evidence of Supt Kelly was that he did not tell Ms Gobbo that Karam was about to be arrested.303F[304]

179 I am satisfied however, for reasons which I shall explain, that Ms Gobbo advised Karam to cooperate with police investigating the conspiracy to murder in what was known as Operation Kennels.

180 On 25 March 2009, Karam attended court in relation to the Inca proceedings. After the hearing, he was arrested by DSC Baulch in relation to the alleged conspiracy to murder.

181 Karam was taken to St Kilda Police Station and interviewed by DSC Baulch and DSC Locke. There is a transcript of the record of interview304F[305] and transcripts of recordings made by CCTV of discussion between Karam and Victoria Police members, including DSC Baulch and Jason Kelly, prior to and during breaks in the interview.305F[306]

182 Karam was offered the opportunity to speak with a lawyer. There is a dispute as to the terms in which this occurred to which I will return when addressing the issue of Karam's credit.

183 Initially Karam sought unsuccessfully to speak with Mr Valos, his solicitor,306F[307] and the interview was suspended for about two hours.307F[308]

184 Both Mr Valos and Mr Grace rang the police station.308F[309] Karam rang Mr Valos back (but not Mr Grace) and said:

Yeah, Jim, you know what I'm like. I - as I said, I've got nothing to hide and I don't give a shit. You know what I mean? So what's the purpose of you coming here if you come here? It's just to shake my hand and say g'day...309F[310]

185 Also during this period, Ms Gobbo made a phone call to Karam and spoke with him. Karam told Ms Gobbo:

Nic, I haven't done the interview but I've told them in a casual chat exactly where I stand. Now, should I go ahead with an interview or not?310F[311]

The applicant went on to discuss his situation with Ms Gobbo. He then said:

I'm happy to make a statement but what am I going to say, that I helped save people and not kill anyone? That's what I did.311F[312]

186 Just prior to this exchange, Karam had asked if Ms Gobbo wanted to speak with Jason Kelly. Not long after it, she did so. After speaking with Ms Gobbo, Kelly returned to the room and handed the phone to Karam. After greeting her, the first words spoken by Karam were:

MR KARAM: Not really. Yeah.

MR KARAM: So the record or statement or does it have to be both?

MR KARAM: Mm, mm, O.K. And does that follow an interview or is that - what about both? What about both, an interview then a statement? Mm'hm, yep, yeah. True, it is. It's incredible. It was hot too and .......... no. He didn't have a chance to tell me anything ...312F[313]

187 When the interview commenced, Karam agreed that he had spoken to a legal practitioner.313F[314] He was asked to whom he had spoken and answered 'Umm Nicola'.314F[315]

188 He was asked whether he was happy with the advice he got and he answered 'Ahh yes'.315F[316]

189 Not surprisingly, Jason Kelly understood that Ms Gobbo (together with Mr Valos and Mr Grace) was part of Karam's legal team at this point in time.316F[317]

190 Karam states that Ms Gobbo told him to 'tell them everything'.317F[318] These words are disputed, I am not satisfied that these words were used, but again for reasons I shall explain, I am satisfied Ms Gobbo advised Karam to XXXXXXXXXXXXXXXXXXXX give his explanation for ongoing contact with Barbaro.

191 During a pause in the interview, Jason Kelly and DSC Baulch had a conversation with Karam as to the potential sentencing discount Karam would receive if he pleaded guilty to both the drug charges he faced and the conspiracy to murder. Jason Kelly hypothesised Karam might receive a 50 per cent discount if he cooperated with police.318F[319]

192 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.319F[320] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX.'320F[321]

D/S KELLY: You're going to make a decision with David Grace, probably. If you're going to - which you've already talked about, you made a statement about conspiracy to murder. If you roll over on the drugs side of it, what you know, you're going to maximise your - the benefit you're going to get back .......... 'cause if you're gunna do it for half - - -

MR KARAM: I understand where you're coming from, yeah.

D/S KELLY: - - - you might as well do the fuckin' lot and - and - - -

D/S/C LOCKE: Help yourself out more.

D/S KELLY: - - - and then you're going to max - you're going to get a 50 per cent discount on your sentence. You might even get more because you were - you know, you'll have to be looked after ..........321F[322]

194 It is more probable than not that Ms Gobbo advised Karam to participate in the record of interview having regard to the following circumstances.

• It is most unlikely that a person of Karam's experience in the criminal law (including the successful defence of two serious drug prosecutions with the assistance of counsel) would have participated in the record of interview without advice.
• Both the history of Ms Gobbo's involvement in Karam's defence up to that point and the terms of the ICRs relating to that involvement support the view that it is likely Karam turned to her for advice.
• Karam had received an AFP summary (in August 2008) and an initial version of the combined GEMS brief served on 13 February 2009. It is probable that Ms Gobbo discussed these with him.
• There is no doubt Ms Gobbo rang Karam during the course of discussions prior to the interview and the recorded terms of his conversation with Ms Gobbo support the inference that she did advise him XXXXXXXXXXXXX.
• In a statement to Victoria Police made on 27 September 2016, Ms Gobbo said:

So I remember saying to [Karam] based upon the evidence I understand the police have - and I've got no reason to think because I've known Jason Kelly for a long time he's not a person that exaggerates or doesn't tell you factually what it is, my advice is that if you have an explanation consistent with innocence then talk in your record of interview because if you can provide one you won't be able to be charged. Not rocket science.322F[323]

• The record of interview enabled Karam to assist Victoria Police to make out a conspiracy to murder by others which, if established, would underpin the pretext conspiracy defence. The evidence of Judge Marich establishes that this defence was Ms Gobbo's preferred case concept.
• As the record of interview itself XXXXXXXXXXXXXXXXXXXX demonstrate, Karam was an intelligent and accomplished narrator.
• The record of interview enabled Karam to elaborate and articulate aspects of his defence. As Karam said in his first affidavit: 'The interview was recorded. In the interview I set out what was effectively, my defence.'323F[324] In essence, that defence was that Karam told others that the Tomato Tins importation was hopeless, that he did not actively cooperate with Barbaro in relation to the Tomato Tins importation or thereafter, and that he only went along with Barbaro to the extent that he did because of fear that others (and in particular D'Amico) would be killed if he did not.
• It was unnecessary for Karam to make inculpatory admissions concerning the offending forming the basis of the Tomato Tins and Inca proceedings for the purpose of the record of interview.
• After the record of interview, Ms Gobbo actively participated in the preparation of a draft witness statement elaborating and clarifying the matters Karam put forward in his record of interview. Both the record of interview and the draft statement reflect a consistent strategy.
• When the draft statement was not signed, Ms Gobbo advised Karam XX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Again, this reflects a consistent strategy.

195 The possibility of Karam making a police statement was raised at the time of the record of interview both in the discussion with Ms Gobbo and in discussion with various police officers.

196 At the conclusion of the record of interview Karam was asked the following questions:

Q 525: Do you wish to say anything in answer to the charge?

A: Umm only that obviously I didn't commit an offence.

Q 526: Ah... do you wish to make a further statement in relation to the matter?

A: Umm... .

Q 527: Would you be happy to make a statement on the matter...

A: Yes.324F[325]

197 As the respondent's final submissions confirm, it is not in dispute that between May 2009 and March 2011, Karam met with members of the Purana Taskforce on numerous occasions.325F[326] Jason Kelly and Ms Gobbo attended most, but not all, of those meetings.326F[327] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.327F[328]

198 On or about 9 September 2009, Ms Gobbo advised police officers involved in Operation Kennels that she had received a copy of the combined GEMS brief relating to the Tomato Tins, Inca and Hong Kong offending.328F[329] The brief ran to approximately 102,000 pages. Other evidence indicates that Ms Gobbo provided a copy to the Purana officers.329F[330] The respondent does not dispute this occurred.330F[331]

199 Incidental records of Ms Gobbo's involvement in the drafting of the statement include:

• On 8 May 2009, the Petra Spreadsheet recorded conversation between Ms Gobbo and Victoria Police in which she said: 'Suffice to say that it's not gonna be able to be finalised or anything else added to it until there's been a, kind of, joint discussion which Jason apparently has said to Rob he has no difficulty with and I think that's also what he'd said to Shane.'331F[332]
• On 11 May 2009, the Petra Spreadsheet recorded conversation between Ms Gobbo and Victoria Police in which they discussed Karam asking her to listen to the tape of the record of interview 'And he - in order to ensure that what he's saying in a statement is, XXX, XXXXXXXXXXX XXXXXX, consistent with that tape...' and to do so before they have their 'little sit down'.332F[333]
• On 14 May 2009, the Petra Spreadsheet recorded conversation between Ms Gobbo and Victoria Police in which they discussed Karam telling Ms Gobbo '...he didn't want to progress it any further until he had a chance for the three of you to meet in the room.'; Ms Gobbo's view that '...it's not in my interest for him to making any statements at all, it's just - this is just gonna lead to a shit - a huge volume of people blaming me the same as what they've done with every other person who's [sic] made statements...'; and setting up a time to meet with Jason Kelly on Monday.333F[334]
• On 18 May 2009, Jason Kelly's diary recorded at 10.00 am 'Rob KARAM attended premises. Statement continued ... Legal rep334F[335] later attended Re: statement'.335F[336] At 8.00 pm it recorded that he spoke to Ms Gobbo 'regarding statement eta' and that an appointment had been made for 20 May 2009.336F[337] On the same date, the Petra Spreadsheet recorded '1148hrs Dropped [Ms Gobbo] in South Yarra. Meeting with D/Sgt Kelly and Rob Karam re statement'.337F[338]
• On 8 October 2009, Jason Kelly's diary recorded: 'Rec Txt message from Nicola GOBBO. Currently reviewing statement / ROI. Req. access to ROI. (tape) ... s/t D/S/C Baulch via phone. Advised to be collect ROI/Statement from Nicola GOBBO regarding Op. Kennels. To be collected at 2100hrs (approx.)'.338F[339] On the same date, the Petra Spreadsheet recorded two witness contact sheets with Ms Gobbo. Under the column 'Relevant Excerpt' it recorded 'Currently re drafting the RK statement.'339F[340]
• On 19 October 2009, the Petra Spreadsheet recorded a conversation between Ms Gobbo and Victoria Police in which Ms Gobbo said 'Cocksucker from ESD that I put in to his Inspec bossing the Karam statement which has just been collected by Purana. Now it's ready for a full day meeting for Rob to adopt lengthy ROI & sign (??) it.'340F[341]
• On 3 November 2009, the Petra Spreadsheet recorded Ms Gobbo sent a text message: 'JK dropping off stuff for me to amend for Rob on Thurs or Fri this week.'341F[342]
• On 7 November 2009, the Petra Spreadsheet recorded Ms Gobbo sent a text message: '...need to read Rob's stuff for Monday...'.342F[343]
• On 9 November 2009, the Petra Spreadsheet recorded that Ms Gobbo sent a text message: 'Sitting at hotel reading folders Rob dropped off y'day that AFP served on Fri night; very pertinent to his draft statement but I have another 890 pages to go.'343F[344]
• On 18 November 2009, the Petra Spreadsheet records witness contact sheets with Ms Gobbo annotated 'XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXX'.344F[345]
• On 19 November 2009, the Petra Spreadsheet recorded Ms Gobbo sent a text message: 'Just checking in. Still amending Rob's statement.'345F[346] A further text message from Ms Gobbo on this date recorded: 'Have done a massive amount of work but we'll need a day with Rob to confirm it all and to listen to or watch his ROI. Statement is about 43 pages. XXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.346F[347]
• On 20 November 2009, the Petra Spreadsheet recorded Ms Gobbo sent a text message which included: 'Am near hotel with Rob getting details to finish his statement...'.347F[348] On the same date, it also recorded part of an audio transcript between Ms Gobbo and Victoria Police in which she said '...I sent Rob a text message yesterday saying I need 10 minutes with him, because there's three things I need to clarify with him' before she handed it back.348F[349]
• On 21 November 2009, the Petra Spreadsheet recorded that Ms Gobbo sent a text message: 'At hotel - spent all day finishing the Karam statement which has just been collected by Purana. Now it's ready for a full day meeting for Rob to adopt lengthy ROI & sign (??) it.'349F[350]
• On 21 April 2010, in an email from Jason Kelly to Steve Smith and others providing an update on interactions with Ms Gobbo, Jason Kelly advised 'As you are aware and approved I have been communicating with [Ms Gobbo] regarding the arrangement of a statement for Operation Kennels (Purana taskforce conspiracy to murder investigation). [Ms Gobbo] has been / is XXXXXXXXXXXXXXXX obtaining a statement from a client.'350F[351]
• On 5 May 2010, a direction was made by Victoria Police's Senior Executive that there be no contact with Ms Gobbo except through Detective Inspector Smith.351F[352] Jason Kelly received approval to contact Ms Gobbo on 24 May 2010.352F[353]
• At about this time Jason Kelly sought clarification from Ms Gobbo as to the capacity in which she was acting. Jason Kelly recorded that he had confirmed with Ms Gobbo that she was acting as Karam's 'independent person/support.'353F[354]
• On 28 June 2010, Jason Kelly emailed senior police advising that he had met with Ms Gobbo and Karam on 25 June and they 'successfully completed 70% of the statement review and progressed the statement significantly'. Karam had been provided with a copy of his record of interview and unedited transcript for review, and Karam and Ms Gobbo would review the record of interview and transcript prior to the next scheduled meeting on 13 July 2010, with the purpose of incorporating the ROI into the statement.354F[355]
• On 15 July 2010, Jason Kelly emailed other Victoria Police members about the statement and wrote:

The on going [sic] statement taking process is due to take place next Wednesday (21st of July) between [Karam], myself and Sgt Daniel BAULCH. [Ms Gobbo] will also be attending. As previously detailed the process should be completed on Wednesday.

From there we will request that [Karam] signs the statement - this will be a drawn out process as detailed in the previous email. [Karam] will not [sic]355F[356] doubt be influenced by [Ms Gobbo] which is an issue we will work thru.356F[357]

When cross-examined about this email, Supt Kelly agreed that he was aware at the time that Ms Gobbo exercised some type of influence over Karam.357F[358] At one point, Supt Kelly said:

Ms Gobbo had a writ issued against Victoria Police, she had mental health and health issues, family related issues, and her whole situation as being a prosecution witness had effectively fallen apart, and what I'm saying there is at that stage XXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, her personal situation had drastically changed.358F[359]

• In evidence, Supt Kelly said that he was aware Ms Gobbo no longer had a practising certificate at this time,359F[360] but Karam was adamant he wanted her present at meetings.360F[361] Ms Gobbo's situation was 'unique having also been a practising solicitor'.361F[362]
• On about 27 August 2010, Chief Commissioner Overland issued a direction that Victoria Police were not to receive intelligence from Ms Gobbo.362F[363]
• Between August and December 2010, AFP surveillance showed meetings between Karam and Ms Gobbo on eight occasions.363F[364]
• On 31 October 2010, 1, 2 and 3 November 2010, Ms Gobbo and Karam exchanged text messages about Ms Gobbo picking up the brief from Karam.364F[365] On 5 November 2010, it was recorded that 'KARAM and GOBBO appeared to be reading some papers'.365F[366] On 21 November 2010, Ms Gobbo and Karam exchanged a text message about Karam's court proceeding.366F[367]

200 A number of the drafts of the statement have been produced in evidence since the initial hearing before me.367F[368] These illustrate a process of editing by way of additions and deletions. In part, this was the product of material handwritten changes by Ms Gobbo. The changes included deletion of potentially incriminating details. The respondent points to368F[369] the deletion of the line 'I was performing the role of a freight forwarder in relation to this importation' and the deletion of other information.

201 The thrust of the statement insofar as it dealt with the Tomato Tins and Inca offending as background to alleged conspiracies to murder was materially elaborated by Ms Gobbo and was as follows:

1. Prior to working for MANNELLA in 2007 I had not previously known HIGGS, BARBARO or any of the other Italians from Griffith. It is my understanding that MANNELLA was if not one of the organisers of, he was at least deeply involved in the arrangements and paperwork required for the 17 million odd importation. When it looked like he as [sic] going to be convicted by a jury (over his own MDMA importation) he sought the assistance of others, including myself to try to ensure the successful importation of the 17 off [sic] million pills and at least one massive shipment of cocaine.
2. I informed MANNELLA that I simply could not assist him, not just because I was in the middle of my own trial, but because his importation (which he was a party to with the Italians) had no prospect of being able to be imported without the detection of law enforcement and I did not have any intention of getting involved in a mess that I did not organise, held no financial stake in or know the details of, however, I found myself being introduced to BARBARO who made it clear that he believed I not only could assist, but that I would do so willingly.
3. There after, I became embroiled in countless meetings, phone calls, texts and discussions, many of which I now understand the AFP have recordings of in which BARBARO was increasingly desperate to try to obtain the 17 million odd pills. He made it clear that killing anyone necessary to do so was perfectly acceptable and he did not attempt to hide his threats to kill or actual plans to murder certain individuals form [sic] me or others.

...

1. As I will not go into further detail about, I found myself in a sitatuion [sic] wherein I was increasingly concerned about my own safety as well as that of others, in particular Fred. I continued to acquire information as to BARBARO's attempts to locate, follow and/or track down Fred in order to have him murdered. At no time was I prepared to support BARBARO in his plans to kill Fred and others. Behind his back, I passed on messages to BARBARO's intended victims and particularly in relation to Fred, I took risks in lying outright to BARBARO many times and warned those in danger of BARBARO's plans. In doing so I have I broken a "rule" and endangered my own life further.
2. From the first time I was introduced to BARBARO, when he was openly referring to his intention to murder an innocent warehouse owner, I learned that it was not in my interests to try to talk him out of murdering people nor to voice my opposition to his plans. I did tell BARBARO at an early meeting with him, in the presence of a number of other Italians that he could not kill an innocent person simply to prove to overseas connections that his shipment of drugs had not been stolen by other criminals. The response from BARBARO and other Italian made it clear that anyone who spoke out "against" BARBARO was risking his life.
3. There are many examples of telephone intercepted calls and SMS messages between BARBARO and myself (contained in each of the three versions of the AFP served to date) in which I lie to BARBARO as to where I am, where I am going (e.g. overseas destination) and when I'll be back (to meet him). The primary reason for this is that I was not interested in becoming involved in any of his plans to kidnap innocent people or murder them so he could "prove" to overseas suppliers that the MDMA importation hasn't been stolen by other criminals. Neither was I interested in BARBARO's desperate and hair-brained ideas to try to access or obtain the container he believed held his MDMA importation. My continued non-compliance with his requests and demands is evidenced in the brief. However what is also evident is that I maintain contact at times with a view to keeping myself appraised of what his next insane plane [sic] was which was, quite often, along with POTTER/DEVIL, open discussions about murder or killing various individuals.369F[370]

202 Karam places some weight upon a recorded statement by Ms Gobbo made during the process of revision of the statement that 'You know the 32 page statement that Rob Karram's [sic] written, it's now about 36 pages, 'cos I've added lots to it, to make it better for the police, of course'.370F[371] I take this to mean better for the case with respect to conspiracy to murder. No material adverse to Karam's defence in the Tomato Tins or Inca offending has been identified.

203 In the course of the Tomato Tins trial, Mr Dane QC advised the informant, FA Herman, that Karam had participated in the preparation of a draft statement relating to the alleged conspiracy to murder and sought to adduce evidence of this fact from the informant before the jury.371F[372] King J excluded such evidence on the basis that it was irrelevant to the time period of the Tomato Tins offending.372F[373]

204 It can be inferred that senior counsel for Karam did not regard the draft statement as adverse to his client's interests.

205 Karam did not sign the draft statement. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

206 I am satisfied having regard to Ms Gobbo's repeated involvement in the production of the draft statement that she consistently advised Karam to make a statement.

207 Once again, the statement was consistent with the pretext conspiracy defence and carried with it the prospect of bolstering that defence XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Subsequent written advice given by Ms Gobbo confirms that she understood the defence was an affirmative defence and that its basis should desirably be bolstered.373F[374]

208 As a result of Karam's ongoing refusal to sign a police statement, XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.374F[375]

209 On 30 November 2010, Jason Kelly contacted Ms Gobbo regarding options for signing a statement XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.375F[376]

210 On 1 December 2010, Jason Kelly spoke with the OPP 're: op Kennels. XXXXXXXX XXXXXXXXXXXXXXXXXXXX'.376F[377]

211 In December 2010 and January 2011, Ms Gobbo and Karam exchanged text messages about meeting Mr Valos (who Ms Gobbo refers to as 'Souvlaki').377F[378]

212 On 16 December 2010,378F[379] Jason Kelly met with FAs Wiggett and Erdmann who were involved with Operations Bootham-Moko, Inca and Cardinia.379F[380] Jason Kelly's diary note includes:

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.380F[381]

213 On 27 December 2010, Jason Kelly's diary recorded Ms Gobbo telephoned him requesting an update on Karam. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.381F[382]

214 In early 2011, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.382F[383] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX:

• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.383F[384]

215 On 16 March 2011, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXX.384F[385] Jason Kelly contacted Ms Gobbo to arrange a meeting with Ms Gobbo and Karam for 18 March.385F[386]

216 On 18 March 2011, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX.386F[387] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXX.387F[388] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.388F[389] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX'389F[390] XXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX[391]

217 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.391F[392]

218 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX[393] XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.393F[394]

219 On 19 April 2011, Karam was committed to stand trial on each of the five charges he then faced.394F[395]

220 On 20 April 2011, Jason Kelly's diary recorded that he gave Ms Gobbo the draft witness statement and arrangements were made for Karam to return the statement to Jason Kelly the following day.395F[396] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.396F[397]

221 On 21 April 2011, XXXXXXXXXXXXXXXXX.397F[398] XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.398F[399]

222 XXXXXXXXXXXXXXXXXXXXXXXXXX[400] XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.400F[401]

223 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.401F[402]

224 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX[403] XXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.403F[404]

226 On 9 June 2011, Jason Kelly contacted Ms Gobbo XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX404F[405] On the following day, Ms Gobbo texted Jason Kelly XXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX.405F[406] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXX.406F[407]

227 On 14 June 2011, Jason Kelly had received a text from Ms Gobbo informing him XX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.407F[408]

228 On 22 June 2011, Jason Kelly emailed Michael Roberts (Inspector in charge of Purana Taskforce at the time) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.408F[409]

229 On 23 June 2011, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX.409F[410] XXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXX .410F[411] XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX411F[412] XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXX[413] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.413F[414] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.414F[415]

230 On 15 July 2011, XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.415F[416] XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXX.416F[417]

231 I am satisfied on the balance of probabilities that Ms Gobbo advised Karam XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX:

• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
• The discussions between Jason Kelly and Ms Gobbo included advice from Ms Gobbo that she would be in contact with Karam XXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• There is incidental evidence that Ms Gobbo did not hold Mr Valos in high regard including the nickname she applied to him.
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
• Jason Kelly's contemporaneous characterisation of Ms Gobbo's role in June 2011 was as 'legal adviser' to Karam.

232 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

233 In his first affidavit, Karam says that Dr Marich's firm took over his defence from the start of 2012 and that Ms Gobbo attended numerous conferences with her.417F[418] Karam says that Ms Gobbo advised him to change solicitors.418F[419] Judge Marich's evidence is that Mr Grace (who had an adjoining office) introduced Karam to her as a new client.419F[420] Nothing much turns on this point. Nonetheless, I accept that Karam probably discussed the change with Ms Gobbo and that she advised him with respect to it.

234 The evidence shows that Dr Marich replaced Valos in October 2011,420F[421] and that in the first instance, Ms Gobbo was involved in a series of conferences directed to obtaining legal aid and selecting and retaining counsel for the Tomato Tins trial.421F[422] In his first affidavit (affirmed 30 June 2016), Karam describes Ms Gobbo's involvement in the preparation of the defence as follows:

1. Over a period of time from the charge date of August 2008, Lawyer X compiled and held all the notes about my defence. That included the versions of each defendant that she obtained through the many conferences that were held jointly, and included what each defendant was relying on, how their defence would be run and various bits of information that she collected which she said would be useful for my defence. She explained that what she put together represented my case strategy and set out way what the forward [sic] should be. She said that I needed to be brutally honest in order for her to help. She became the central person who took over ownership of the preparation of the defence for each co-accused, in the sense that she put it all together and met with the lawyers for the co-accused and liaised with them to better prepare my case, including Mr Heliotis of Her Majesty's Counsel and the late Mr Acquaro, a solicitor. She appeared for Zirrili at his bail application. She also appeared for Barbaro at his bail application. There were conferences at Dr Marich's office and meetings with defence barristers, both with and without me, for various trials. She often arranged and attended them without my presence.422F[423]

235 I accept that prior to the trial, Ms Gobbo discussed the prosecution brief with Karam and formulated a case strategy. There is limited circumstantial evidence of extensive liaison with solicitors for co-accused prior to January 2012, but it is clear that Ms Gobbo was involved in preparation for the trial during this period.

236 On 11 October 2011, Ms Gobbo sent an email to Dr Marich and Mr Grace subject 'Rob Karam' attaching two documents: 'Karam's role.doc' and 'Rob's Brief Defence Response.doc'.423F[424] The covering email stated in part:

Please find attached two documents that I drafted for Rob which might assist you.

The document called "Rob's role" is my summary based upon a 90 odd page Crown opening served a couple of months ago.

The Brief Defence Response was drafted on Rob's instructions but sadly, it has not been filed with the Supreme Court nor has it been served on the Crown.424F[425]

I look forward to seeing you later this week.425F[426]

238 The summary of the prosecution opening was of potential help to Dr Marich as the newly retained solicitor for Karam and to new defence counsel as an introduction to a complex circumstantial case founded in extensive objective evidence of surveillance and covert recordings which could not readily be disputed. In oral evidence, Judge Marich agreed these documents were read and were an easy way to get a handle on the matter.426F[427]

239 The summary appears to be careful and competent. It was however necessarily a preliminary document. Mr Papas said the Crown Opening went through a process of ongoing refinement on a daily basis as the hearing approached.427F[428] The trial itself progressed over four months. The summary incidentally confirms that Ms Gobbo must have understood that the prosecution case rested centrally on objective evidence of surveillance, telephone intercepts and covert recordings. Ms Gobbo's choice to continue to participate in the preparation of the defence was made in these circumstances.

240 On 12 October 2011, Ms Gobbo emailed Dr Marich a copy of a summons to produce directed to the ACC which had previously been sent to Mr Valos in July 2011.428F[429]

241 On the same day, she forwarded to Dr Marich a copy of the Form 10A she had drafted prior to the committal.429F[430] The covering note incidentally confirms that Ms Gobbo had read the depositions.

Please find enclosed Rob's original Form 10A which I drafted and I understand was filed by the first Committal Mention date.

I believe what then occurred is that the AFP served a second version of the brief and this lead to a costs order in Rob's favour and the need for a supplementary Form 10A (now a 32A) being drafted for filing & service. This is also attached for your reference.

Both 10A's cover ALL Rob's charges as the hand-up brief is NOT charge-specific and the Committal was conducted before Mr. Garnett M in relation to all the charges.

I have reviewed the transcript from the Committal although I have not been given a copy of the depositions from Jim Valos; I have a hard copy of the Committal that I got from Alex Lewenberg a couple of months ago.430F[431]

242 Further on the same day, Ms Gobbo forwarded to Dr Marich a copy of a draft summons directed to the AFP previously prepared by her.431F[432]

243 Each of these documents involved implicit legal advice as to the content of relevant evidence.

244 In oral evidence, Judge Marich said that Ms Gobbo provided her with 'a volume of instructions and a chronology and the work she'd done previously on the file.'432F[433]

[M]y memory is that the evidence at that stage had not been disaggregated into the various trials, so it was a significant process just to get started. The material that she provided was very helpful chronologically and also it did contain instructions that she gathered in representing Mr Karam earlier, yes.433F[434]

245 Judge Marich also said 'in all of those volumes of material that she provided the chronologies were most helpful ... and his instructions, I needed his instructions.'434F[435]

246 Judge Marich further described Ms Gobbo's involvement in obtaining legal aid and in the retention of counsel. She described Ms Gobbo as 'vetting' who was to be appointed.435F[436]

247 Judge Marich described Karam as being close to Ms Gobbo.

... it's fair to say that she was very close to Mr Karam and it was difficult to separate her from the process. ... My observations were that she was extremely keen to remain in the frame and Mr Karam had a closeness to her certainly.436F[437]

248 Judge Marich found Ms Gobbo 'strange', 'overly familiar' and 'just really peculiar'.437F[438] Ms Gobbo '... wanted always to be there in those early months.'438F[439]

249 Judge Marich said that she 'observed from their relationship that [Ms Gobbo] created that appearance, that she was acting as [Karam's] lawyer, or had acted as his lawyer earlier' but Judge Marich understood at the time that 'that had all come to an end because [Ms Gobbo] had no practising certificate'.439F[440]

250 Judge Marich said of Ms Gobbo's advice generally:

I believe [Karam] was deriving comfort from her legal advice ... and she was very keen to express a view as to strategy ... He certainly would like to accept the advice that she gave him because it was always this just almost pie in the sky, these strategies that would never land in a court and so if any - if she, if he had listened to her, firstly, it would have led to his being found not guilty. It would probably not go to trial. She would explain these strategies that were unanchored to principles of law.440F[441]

251 Judge Marich believes that Mr Dane had conversations with Ms Gobbo, 'especially while he was familiarising himself with the material because empanelment was hurtling'.441F[442] I accept this is probable. This context led Mr Dane to tell Dr Marich that 'he considered [Ms Gobbo] to be trouble because she had a certain approach to the way that she wanted to run the trial and he considered that she was being subversive'.442F[443]

252 In January 2012, Dr Marich and Karam exchanged emails about Dr Marich obtaining instructions as to detailed admissions.443F[444] The emails from Karam refer to Ms Gobbo as a potential source of input but also make clear Dr Marich received detailed instructions from Karam. On 4 January 2012, Dr Marich wrote concerning a proposed meeting with Karam later that week:

Excellent. 10:30 or so? I will also need to run thru your admissions which is quite a long doc. Let me know if you are running late as I'm drafting the shirrefs submissions for Chris so I have plenty to go on with.

Can you also please chase the record of interview from Nic.444F[445]

253 As Judge Marich explained, the question of admissions needed resolution for the purpose of preparation of the jury books.445F[446]

254 Karam also expressed a wish that Dr Marich and Mr Dane read XXXXXXXXXXXX.446F[447] In my view, this tends to confirm that Ms Gobbo was giving Karam ongoing advice as to the pretext conspiracy defence.

255 A significant event occurred shortly after Mr Dane was retained to appear. In an affidavit sworn on 9 September 2016, Mr Dane says:

1. At the commencement of my brief I attended in conference with the Applicant, Dr. Marich, and Lawyer X at the Melbourne office of Lewenberg & Lewenberg. I believe also present was the Applicant's co-accused, John Higgs and his counsel Nicholas Papas QC and possibly Mr. Alex Lewenberg.
2. A legal conference was held which detailed the history of the matter and defence strategy. I would not have engaged in this conference had I known Lawyer X was at any time a registered police informer.447F[448]

256 Other evidence shows that on 24 January 2012, a joint conference was arranged between the legal representatives acting for Higgs and those acting for Karam.448F[449] Two conferences then took place on 30 and 31 January 2012.449F[450]

257 In his third affidavit, Karam described what happened as follows:

I recall one of the first meetings I had with Dane, if not the first, was a legal conference also attended by Marich, Gobbo, John Higgs (Higgs), Nic Papas QC (acting for Higgs) (Papas), Paul Maron (acting for Higgs), Jacqui Quest and Alex Lewenberg (Lewenberg). The conference was at Lewenberg's office. It involved open and frank discussions about our case strategy. There was a big oval table and Gobbo sat in the middle. Marich was next to Gobbo, and Dane was next to Marich. Gobbo effectively 'held' the meeting. She directed the conversation with Dane and Papas. She briefed the barristers about what the cases were against Higgs and me. She stated what my defence was, and her understanding of Higgs' defence. At that meeting, Dane listened more than he spoke. Gobbo had done most of the preparation work up until that point. Both Marich and Dane were new to the matter and so they were relying on Gobbo to tell them the state of the case. There was an argument at that meeting about a separate trial application. Lewenberg' s view was that we should each should seek a separate trial because of the XXXXXX records of interview. Gobbo said it was a bad idea and we should not make the application. Despite Lewenberg's advice, Higgs and I acted on Gobbo's advice and did not seek separate trials. We had at least one other conference like this where both legal teams were present, including Gobbo, and discussed strategy. 450F[451]

258 Judge Marich and Mr Papas gave oral evidence on the referral hearing as to what occurred in conference. Judge Marich's recollection was materially assisted by notes made at the time.451F[452] Although Judge Marich said that the notetaking system she utilised was 'dreadful'452F[453] and that the initial version of her notes was subsequently amplified,453F[454] I prefer the evidence based on the contemporaneous notes to Karam's recollection. I am satisfied the account given by Karam which is set out above is materially misleading. First, there were two conferences at the time in question. One at 1:00 pm on 30 January 2012 which finished at 3:15 pm454F[455] and one on 31 January 2012 at 12:20 pm prior to a mention hearing at 2:15 pm.455F[456] Ms Gobbo attended only the second conference456F[457] and it is apparent that she was not party to strategic discussions which occurred at the first meeting and which were led by senior counsel, to which I shall return.

259 Second, Ms Gobbo did not advise against Karam making a separate trial application.

260 Dr Marich's notes indicate that the question of separate trials was raised at the first meeting on 30 January 2012 by Mr Lewenberg as a 'devil's advocate', and that Ms Gobbo did not attend that meeting. Conversely, there is no note of this topic being raised at the second meeting which Ms Gobbo attended.

261 Moreover, as the respondent submits, other evidence supports the conclusion that Ms Gobbo held the opposite view:

• the defence response Ms Gobbo drafted and emailed to Dr Marich on 11 October 2011 included at paragraph 24 a statement that the accused will apply for a separate trial;457F[458] and
• in an Arunta458F[459] call with the applicant on 6 July 2012, Ms Gobbo stated '...see that was my biggest issue. You and John should have had a separate trial.'459F[460]

262 Dr Marich's file note bears a date by way of heading '31 January 2012 at 13:18'. It was cumulatively updated.460F[461] It reads as follows:

Karam 30/1

Meeting at Alex Lewenbergs 1pm

CDQC, RK, NPSC, JC, JH

CD: introduce Nicola - have a role in it. Avoid her getting461F[462] a second opinion.

NP: avoid Nicola advising in contradiction with counsel. Not interfering, helping.

CD: what then is she doing? - her agrt as to what she is willing to do.

JH's def - sits in hands of rob.

While we were recruited by JH - we had no agrt; JH - leave me out of it, whether you've made an agrt or not.

Actus reus of agrt can be heard - "yeah, yeah" - did his mind go with the yeah?

MR - inference? By failing to do it. If I was in agrt, I'd be running around

Jury - why were you there and why we're [sic] you saying yeah? Why not go to police?

Evidence = being falsely accused of stealing substance, barbaro had a contract - not an invention. Vicpol have recordings of Pat threatening to kill. Video of gun being loaded at Palmerston cres

NP: need a continuum.

RK: yes, and in balance of material.

NP: I have another 27 boxes.

RK has volumes in his car that he got from Jim's office

Discussion re separate trials - AL of view application should be made; discussion re law and tactics.

JH: 27/1 Giuseppe locked up - take rob to meet them - he goes there, six or seven there. JH talks to visser, barbaro talking to RK about killing Fred D'Amico over another failed importation.

Vince manella -

Discussion to and fro

CD: pre trial apps - preserve warrants - vicpol warrants duly sworn?

Warrant re container second time - handwriting all over it. Executed by a surveillance officer whose made no stts

Don't think case been sufficiently cleansed of his trial.

CD: big app - severance.

AL: I'm being devil's advocate.

NP: I think we're advantaged by joint trial - Higgs can't give evidence.

CD: give NG the jobs of preparing xn and xxn

Discussion re potential conflict - king's step son works with Higgs' son.

RK to testify? Will make decision a second before he is called but will prepare him anyway.

CD: don't rely on XXXXXXX as a substitute for sworn evidence. RK accepted.

Finished 3.15pm.

Conference at Lewenbergs 12:20pm

NP, JC, JH, Nicola Gobbo, CD, RK, MM

discussion settling admissions.

Issue with some Italian translations.

Issues with surveillance? Ok

Issues with transcription. Admd transcription, enhancements, but not Young's interpretation of words

CD: No reference to court

NP: 3 convos re manella - refs to the plea.

Out at present, then can be in at another time as we need.

NG: discussion re bill of lading - manella had, then he went to jail, and police had bill of lading in the meantime.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

22 dec - court of appeal - manella

XXXXXXXXXXXXXXXXXXXXXXXXXXX

Subpoena jail records? Client went to visit manella

CD: even if it's established XXXXXXXXXXXXXXXXXXXXXXX, it doesn't get you anywhere

Barbaro's killed brother and father, he's got bill of lading

CD: pantomime of involvement, as a result of fear.

Save life of FJ tidaly

NP: in cth matters need an overt act. Who has done one?

...462F[463]

RK - to find esculpatory material in black box463F[464]

263 I accept that these notes are substantially accurate and that insofar as Karam directly disputed aspects of them which are inconvenient to his case, Karam's evidence should be rejected.464F[465]

264 As I have noted, in his affidavit Mr Dane said that a legal conference was held which Ms Gobbo attended and 'which detailed the history of the matter and defence strategy'. I accept that at the second conference Ms Gobbo detailed the history of the matter and expressed her views on strategy. Judge Marich said Gobbo 'was allowed to run her mouth and she did direct the conversation'.465F[466]

265 Mr Papas said his best recollection of the meeting was that it was convened by the solicitors acting on behalf of each of the accused 'for the purpose of speaking with Ms Gobbo who apparently had some knowledge of the case'.466F[467]

266 Although Mr Papas was not assisted by Ms Gobbo's input, both Karam and Higgs were keen that he receive it.467F[468] Mr Papas was sceptical of Ms Gobbo's assistance because he had seen her meeting at Wheat Café with alleged conspirators in covert video surveillance recordings contained in the brief. Further, by that point in time, he had been acquainting himself with the brief since October the previous year and the prosecution case had been refined since the delivery of the initial GEMS brief by way of a series of communications from the prosecutor.468F[469]

267 Dr Marich's note of the second conference on 31 January indicates that the topics of discussion included admissions, the bill of lading, XXXXXXXXXXXXXXXXXX, subpoenas and the potential defence strategy.

268 I am not satisfied that substantial decisions were made at the conference which Ms Gobbo attended. The question of admissions potentially involved both the strategic decision as to whether the trials would proceed with express admissions that the principal conspirators were guilty (as they ultimately did469F[470]) and very extended questions of detail relating to surveillance and other objective evidence in respect of which Dr Marich had previously obtained instructions. I am not satisfied that these matters were materially resolved at the conference. There is no direct evidence that they were. It is likely Mr Dane would have identified input by Ms Gobbo into any decision of significance to his conduct of the case.

269 For the same reasons, it is likely that the other matters noted by Dr Marich were also mentioned by way of preliminary discussion but did not crystallise in material outcomes. In the course of her evidence, Dr Marich made clear that as a matter of general approach, the question of subpoenas was one on which she and Ms Gobbo held different views.470F[471] There is no evidence that as a result of the conference, Ms Gobbo's view prevailed or produced particular outcomes.

270 The question of defence strategy raised the case concept Ms Gobbo preferred, namely the affirmative pretext conspiracy defence. The notes of the two conferences confirm that the pretext conspiracy defence was discussed. The notes of the first conference include:

Jury - why were you there and why we're [sic] you saying yeah? Why not go to police.

Evidence = being falsely accused of stealing substance, barbaro had a contract - not an invention. Vicpol have recordings of Pat threatening to kill. Video of gun being loaded at Palmerston cres

The notes of the second conference include reference to Mr Dane saying 'pantomime of involvement as a result of fear.'

271 As Judge Marich made clear, Mr Dane did not accept this concept. His position was that he would not form a committed view as to whether Karam should be called as a witness until the conclusion of the Crown case. His case concept in the first instance was simply to require the Crown to demonstrate on the evidence that Karam actually joined in the conspiracy charged. This involved accepting that there was a conspiracy between Barbaro and his close allies but attempting to paint Karam as an outlier who did not participate in the conspiracy.471F[472]

272 At the first conference on 30 January 2012, there had been direct discussion of the role Ms Gobbo should play. Dr Marich's note included the following:

CD: give NG the jobs of preparing xn and xxn

...

RK to testify? Will make decision a second before he is called but will prepare him anyway.

CD: don't rely on XXXXXXXX as a substitute for sworn evidence. RK accepted.

273 In oral evidence, Judge Marich confirmed that there was agreement that Ms Gobbo would be tasked with the job of preparing Karam for evidence and that Ms Gobbo was in fact given this specific subsidiary role.472F[473] It can hardly be doubted that in these circumstances Karam regarded Ms Gobbo as part of his 'legal team'.

274 Judge Marich's evidence was that the decision to give Ms Gobbo this role was taken in part because Mr Dane did not want Ms Gobbo to interfere with the ongoing performance of his own role.473F[474]

275 It may also be observed that preparation of Karam to give evidence was necessary to Ms Gobbo's preferred case concept of an affirmative defence but not to a case concept which simply put the Crown to proof of positive participation by Karam in the conspiracy.

276 Judge Marich said that there was still some tension over Ms Gobbo's role after the conference at the end of January. Mr Dane told her that he had told Ms Gobbo that she had two choices, either to get a practising certificate and become his junior or to get out of the case.474F[475] Nonetheless, Ms Gobbo ultimately claimed to have done tens of hours of preparation with respect to the task that she had been given.475F[476]

277 Karam gave unchallenged evidence that Ms Gobbo arranged for herself, Higgs and Karam to attend at Lewenberg's office prior to the trial to listen to the GEMS brief recordings. Neither Mr Dane nor Dr Marich were present.476F[477] This is consistent with the role Mr Dane had assigned to her and I accept that the conduct described is probable having regard to this role.

278 Karam also said that in preparing for the trial Ms Gobbo's role was as 'the intermediary' between himself and Mr Dane.477F[478] Judge Marich said '... it wouldn't surprise me that Gobbo spoke to Dane directly without Mr Karam being present because she tried to speak to everyone all of the time. Fortunately not me.'478F[479]

279 Nonetheless, any such conversation was not significant enough for Mr Dane to recall it at the time of swearing his affidavit. More particularly, there is no evidence that Ms Gobbo communicated in a way which actually affected the course of the trial. In the event, Judge Marich says Mr Dane's cross-examination was limited and focussed particularly on the steps which would be involved in successfully obtaining Customs clearance and possession of the container.479F[480]

280 In his third affidavit, Karam characterises Ms Gobbo as playing the role of an instructing solicitor in the leadup to the Tomato Tins trial.480F[481] Judge Marich gave evidence that:

... [Gobbo] wasn't playing the role of an instructing solicitor but I would have seen her if anything as a de facto junior counsel, one who carried something between no influence and a steering role. It was difficult to say with both Ms Gobbo and Mr Dane.481F[482]

I would prefer to characterise Ms Gobbo's role as a subsidiary collateral role. More particularly, as Judge Marich emphasised, Ms Gobbo was given the specific task of preparing Karam to give evidence.482F[483]

281 Pretrial argument commenced in the Tomato Tins trial on 1 February 2012.

282 On 10 February 2012, Ms Gobbo sent an email to Dr Marich and Mr Dane relating to a pretrial publicity issue.483F[484] The email seems to have been volunteered. Judge Marich accepted that the email raised a valid point.484F[485] On no view was it adverse to Karam's case.

283 On 14 February 2012, Ms Gobbo produced a set of notes entitled 'For discussion' concerning the conduct of the Tomato Tins trial.485F[486] Judge Marich expressed the opinion that these notes dovetailed with the task Mr Dane had given Ms Gobbo.486F[487] The second page of the document is annotated 'For Chris Dane'487F[488] and in Judge Marich's opinion provided the 'breadcrumbs of her pretext conspiracy defence'.488F[489]

284 Judge Marich said it is likely that the notes were provided to Mr Dane directly and then returned to her office at a later date.489F[490] I accept this evidence. The notes include practical suggestions:

• highlighting the importance of the question whether Karam should be called;
• raising the need to clarify Customs procedure;
• questioning whether the fact Karam gave evidence for the Crown in the New South Wales Supreme Court should be raised;
• detailing steps that Karam needed to take by way of preparation.

285 The notes went on to summarise threats of violence relevant to the pretext conspiracy defence and actions of Karam taken in response to such threats.

286 The notes set out instructions about an initial meeting between Barbaro and Karam. They further addressed Karam's relationship with Falanga.

287 The notes highlighted items to look at in the prosecution brief.

288 The notes suggested points for cross-examination and set out details of Customs procedure which it was Karam's case were not implemented.

289 On 15 February 2012 (two days after the first jury empanelment commenced), Ms Gobbo sent an email to Dr Marich and Mr Dane entitled 'Re: Rob Karam - To be read with material to be delivered to Martine today'.490F[491]

Having now spent approximately 30 hours with Rob, focusing solely on the issue of locating any "evidence" that lends support to Rob's proposition that he ONLY continued to meet with Pat and co. in order to try to save the lives of others, principally Fred/Hair, I do not share the same degree of confidence or enthusiasm as Rob does for using the "trying to save Fred's life" explanation as a reason capable of explaining Rob's continued association with Pat & others. I am not trying to be cryptic but Rob & I disagree as to what material is available that may assist in this regard.491F[492]

291 The email is properly characterised as advice on evidence relevant to the pretext conspiracy defence. It emphasises aspects of Karam's instructions bearing on this defence.

292 It also incidentally illustrates the fact that Ms Gobbo regarded the evidence of Jason Kelly as critical to this defence.

293 Because it demonstrates the involvement of Ms Gobbo in Karam's defence at the time prior of jury empanelment I have attached the email as Appendix B to this judgment.

For your information, I have agreed to assist Rob on a limited basis. I have serious medical issues that necessitate various appointments on a weekly basis but I can try to assist him as much as I can.

See you tomorrow,

Nic.492F[493]

295 On 20 February 2012 (during the empanelment of a second jury), Ms Gobbo sent an email to Dr Marich and Mr Dane which further canvassed matters relevant to the pretext conspiracy defence.493F[494] It also confirmed that Ms Gobbo was unable to have more than limited contact with Karam at this time. Omitting formal parts, the email reads:

As per our conversation last Friday, I think it's very helpful that Rob has effectively got an extra week to search for material that can back up his affirmative defence.

...

I am concerned that actual "evidence" that supports the "I had to keep seeing Pat in order to save Fred's life (and others) and because I could not escape/he would not leave me or my family alone" remains very thin on the ground. We have exhausted going through the brief of evidence for the conspiracy to murder (8 Volumes) and we have looked through the additional material that Rob has so far managed to collect from Jim (about one third of what Jim has in total). I have gone through GEMS.

...

The biggest outstanding matter as far as Rob is concerned is the need to look through the balance of at least his (if not Pat's as well) telephone intercepted conversations to look for exculpatory and/or supporting material. Rob lead me to understand that you were going to speak to the Crown about access to Rob's Call summaries. I have repeatedly reminded him about the need to do this (and offered to go with him) but I don't think anything has happened in terms of him asking you to action it.

The other outstanding matter is Rob wishing to access Fred's intercepted calls. ... To this end I have asked Rob to obtain the relevant details from Fred so that I can prepare a schedule for a Subpoena. I am waiting on the dates during which Fred's mobile was the subject of a Warrant and for the Warrant number. I have reminded Rob of this. Obviously any subpoena will need to be limited to Rob/Fred conversations only.

As I said to you on Friday, I am free to assist in preparation subject to my agreement with Rob. I am having surgery this morning but expect to be allowed home early this afternoon. Tomorrow morning I have to attend a place I can't talk about for an hour or so to drop off documents relating to a hearing. Otherwise I deferred a course in order to keep myself free for Rob so I'm keen to find any actual evidence that is capable of supporting his theory as we are currently very low on actual evidence that Brent Young cannot argue with!

I have tried contacting Rob countless times since last Thursday but he must be otherwise occupied.

Would you please stress the urgency of him going through GEMS, getting the balance of files from Jim (please note I took Rob into Meldrum's and explained that as Chris has the same clerk, they could collect material from Jim for him) and most importantly, meeting me so that I can go through a long list of questions & topics requiring instructions for Chris?

My admission to hospital is not until 10am so feel free to call me prior to that if you wish to discuss further, otherwise I'll be home resting by lunchtime (I hope!)494F[495]

296 Once again, the email is properly characterised as an advice on evidence. And once again, the focus of the advice is the pretext conspiracy defence. As Judge Marich put it, the email reflected an 'information gathering exercise that may or may not have borne fruit in a defence.'495F[496]

297 I should add that nothing has been identified in either of the two documents which I have characterised as advices on evidence, which suggests that they are other than objective advice from counsel with expertise in the criminal law. In particular, they identified and detailed problems with the evidence in respect of the pretext conspiracy defence and potential sources of further evidence.496F[497] Nothing has been identified which would suggest that the advices somehow prejudiced Karam's subsequent defence.

298 Judge Marich said in evidence that the task which Mr Dane gave to Ms Gobbo 'became a side project because [Mr Dane] didn't use it'.497F[498] Judge Marich said Mr Dane wanted Ms Gobbo to be engaged but out of his presence, so Ms Gobbo would not continually contact him.498F[499] I accept that this accurately describes Ms Gobbo's ongoing interaction with Mr Dane.

299 A little later on 20 February 2012, Ms Gobbo sent an email to Dr Marich requesting a meeting because she believed Karam's email was being monitored by the AFP.499F[500] She also said:

I have made clear to Rob the detail & specifics we need to find. I have been waiting for him since last Thursday. In fact I'm pretty annoyed that he can't be bothered calling me back. Anyway, let's try to meet (first us and then with him) ... perhaps you could arrange a time that suits you & Chris to meet me and then Rob can come along a half hour later?500F[501]

300 There is no satisfactory evidence that a further pretrial meeting in fact took place between Mr Dane, Dr Marich and Ms Gobbo.501F[502]

301 In addition to the notes and emails to which I have referred, Mr Papas recalls that he received a document prepared by Ms Gobbo which may have been in multiple folders, before the commencement of the Tomato Tins trial. He said:

Potentially it was a set [sic] of hand-up brief or an analysis of the hand-up brief. It was in my chambers for a short time. It had annotations on it of some sort, it may have even had analysis on it ... I have memory of there being something produced that was said to be in support of the case that would be [for] the benefit of myself, for Higgs and for Mr Dane for Karam.502F[503]

302 He gave the document at least a cursory glance to see if there was anything of value.503F[504] This evidence does not take the matter much further but is consistent with the evidence as to notes produced for the assistance of Mr Dane.

303 Ms Gobbo did not appear at or attend the Tomato Tins trial.504F[505] There is no direct circumstantial evidence of input by Ms Gobbo into Karam's defence after 20 February 2012. Further, Judge Marich does not recollect contact with Ms Gobbo after this date.505F[506] At [101] of his first affidavit affirmed 30 June 2016, Karam asserts that Ms Gobbo carried out a whole series of tasks at the first trial.

The trial lasted for about four months. I was tried with Higgs, Aggresta [sic] and Sergei [sic]. I was represented by Mr Dane. There was a rotation of various employees at this trial. During the trial, Lawyer X did many things. She was with me in discussions with Mr Dane. She was present when we discussed trial strategies including which witnesses to call and about the strategies of other accused. She provided instructions to Mr Dane on my behalf.506F[507]

304 Judge Marich said that she would be surprised if this account of Ms Gobbo's role was accurate but she could not exclude it.507F[508] I do not accept Karam's uncorroborated evidence in this regard.

305 Karam's evidence is that he spoke with Ms Gobbo 'all the time'.508F[509] He also says that he gave instructions to Ms Gobbo and that his understanding was that Ms Gobbo would provide his instructions to Mr Dane.509F[510]

306 Karam further describes a meeting late in the prosecution case with Ms Gobbo and Mr Dane in a coffee shop. In his third affidavit, Karam deposes:

I remember requesting that meeting to make sure that Dane and I were on the same page about the defence strategy that Gobbo had come up with.510F[511]

307 In his affidavit Mr Dane says that he cannot recall any specific conferences or discussions with Ms Gobbo other than the joint conference to which I have referred but goes on to say 'nevertheless there may have been'.511F[512] He further states:

I do recall during the trial that it was my understanding that the Applicant was obtaining frequent legal advice from Lawyer X and that at one point I had a disagreement with the Applicant over that issue.512F[513]

308 Whilst I accept that Mr Dane had a coffee with Ms Gobbo and Karam on one occasion during the trial, I do not accept that Mr Dane received instructions from Ms Gobbo during the trial. If that were the case, he would have said so. Likewise, if he had ongoing conferences with Ms Gobbo and Karam during the trial, he would have said so. The tenor of his affidavit is clear. He recalls one specific conference which was of significance to the preparation of the defence. He had further discussions with Karam and was aware that Ms Gobbo was giving Karam advice. At one point this produced a disagreement between himself and Karam. Moreover, Judge Marich's evidence is that Karam gave her instructions directly although she does not know how they were prepared.513F[514] She viewed Ms Gobbo as Karam's 'confidant' and had no doubt Ms Gobbo gave Karam 'broad multi-facetted counsel'.514F[515]

309 I should add for completeness that Karam's account in cross-examination of his belief that Ms Gobbo was giving Mr Dane ongoing instructions was not persuasive.515F[516] Despite the attempt to rationalise this scenario on the basis that Karam did not wish to disclose the full circumstances of his duress defence to anyone other than Ms Gobbo,516F[517] the belief is improbable. Karam had discussions with Mr Dane after court every day517F[518] as the matter evolved over four months.

310 Whilst the evidence does not support the proposition that Ms Gobbo gave instructions to Mr Dane during the trial, the question remains whether Ms Gobbo nonetheless gave Karam collateral legal advice during this period.

311 The task Ms Gobbo was given of preparing Karam for evidence logically extended into the trial. It could not sensibly be completed without regard to the evidence actually called at the trial.

312 I should interpolate that although Ms Gobbo was tasked to prepare Karam for examination and cross-examination, I am not satisfied Ms Gobbo ever proofed Karam to give evidence by way of a comprehensive written document or documents. I am not satisfied that she produced further documents of significance beyond the notes and emails which have been produced in evidence.

313 If Ms Gobbo had produced something in the nature of a proof of evidence I would have expected such document to have been provided to Dr Marich and to have been referred to by Mr Dane in his affidavit.

314 Despite the evidence as to tasking, the respondent submits that there is no satisfactory evidence that Ms Gobbo gave Karam legal advice during the course of the trial.

315 There are some contextual matters which should be noted:

• The pretrial emails to which I have referred foreshadow a preparedness on Ms Gobbo's part to assist Karam only on a limited basis because of health issues.
• These emails also indicate that prior to the trial commencing Karam was not contacting Ms Gobbo to the extent she believed necessary if she was to assist him. By 20 February 2012, Ms Gobbo was as a result 'pretty annoyed'.
• The relationship, which gave rise to this annoyance, was close.
• The trial ran for four months. There are a series of recorded Arunta telephone calls following the trial which support the conclusion Ms Gobbo did not have ongoing input into the defence at trial.
• Karam accepted in cross-examination that he spoke with Mr Dane on a daily basis throughout the Tomato Tins trial as it evolved.518F[519]

316 A recorded telephone call of 6 July 2012 between Karam and Ms Gobbo reflects the fact that she did not play a role of any ongoing significance in the actual conduct of the defence at trial (although its tone suggests it may reflect a degree of post-conviction rationalisation).

NICOLA: Because if he's - if he's - you see the way he deals with the jury. He's a very, very good trial lawyer, but he just needs someone to do the work for him.

ROB KARAM: So, Nic, the time that we had coffee with him around the corner from the courts near Café Love or Avalanche's old place - - -

NICOLA: Yeah.

ROB KARAM: - - - like he only had an hour for us - - -

NICOLA: Yeah.

ROB KARAM: - - - and in that hour we - we were lucky to tell him, you know, five minutes' worth because you just don't think that he gets it.

NICOLA: No. And then I wrote a whole lot of stuff out for him and when he used that, he was pretty good.

ROB KARAM: Yeah.

NICOLA: But, um - but the, um, Martine ignored my messages and my emails and Dane did and you did, so I thought, "Okay. Well, obviously they don't want me."519F[520]

317 On 10 July 2012, Ms Gobbo again complained that Karam ignored her during the course of the trial.

NICOLA: I think he's right, but I - I haven't read, um - look, I read a lot of the transcript at the beginning, uh, look like almost - almost every day I was getting it and reading it and then I sent you about 400 text messages that you ignored, so after about the 400th message, begging you to contact me, um, I decided it wasn't really that important to be reading something when no one gave a fuck what I thought, so the last - say the last sort of two weeks, um - - -

ROB KARAM: Yeah.

NICOLA: - - - I only read off and on. I didn't get every day, so there's bits that I've missed, but - - -

ROB KARAM: Okay.

NICOLA: - - - someone - I guess, um, at some point there's got to be, um, a draft set of, um, appeal grounds and the relevant evidence, um, summarised, whether it's done by a junior or done by a QC. At some point someone has got to prepare it. So my starting point would be to look at that.520F[521]

318 On 13 July 2013, Ms Gobbo referred to a conference she had with Mr Dane before the trial and the fact that Karam had chosen not to attend that conference.

ROB KARAM: I just wasn't impressed and it felt like he had the case handed to him on a silver platter and ignored it. Like you'd done three and a half years' worth of work on that case and I think he was - he just lacked confidence or was insecure to say, "Okay. I'll take instructions from Nic."

NICOLA: Oh, look, in fairness to him, I had that conference with him the week before your second jury was empanelled. Um, they said to you, "You were told about the conference but you didn't come because you didn't want to speak to me," well, what were they going to do where I was concerned after that?

ROB KARAM: He never told me about a conference.

NICOLA: I did. I sent the text message.

ROB KARAM: Oh, okay.

NICOLA: Um, and after that they never - they never called me again and I figured, "Well, you weren't contacting me. They weren't. End of my involvement." Um, so - but regardless of that, um, I - I - my personal view is that he didn't do enough work.521F[522]

319 Despite the fact that this evidence supports the conclusion Ms Gobbo was distanced from the direct conduct of the defence during the trial, the following matters support the conclusion that she continued to give Karam collateral legal advice during the Tomato Tins trial.

• There is no evidence that the role which Ms Gobbo was assigned to perform was ever revoked. This role elevated Ms Gobbo's ongoing involvement in the defence to the performance of a specific task and cloaked her participation in the defence with legitimacy.
• Consistently with this role, the Arunta recordings show that Ms Gobbo received and read trial transcript to some substantial extent during the trial, and in particular, up until approximately two weeks before its conclusion at about the point in time when the decision must have been made not to call Karam to give evidence.
• The relationship between Ms Gobbo and Karam was one in which Ms Gobbo had obtained longstanding knowledge of Karam's case both in the sense that she had lived through the initial events in issue and advised him over an extended period of time with respect to the combined prosecution brief and the way the Crown put its case. It was not unreasonable for Karam to seek Ms Gobbo's opinion in these circumstances.
• Mr Dane's affidavit, and in particular, his recollection of disagreement with Karam over Ms Gobbo's advice to Karam confirms that Ms Gobbo continued to give advice. Mr Dane deposes not just to an 'understanding' on his part but to a specific disagreement with Karam over this issue. I accept that such disagreement is something which Mr Dane is likely to have remembered and that it occurred in fact. Disagreement was probable because, as Judge Marich made clear, Mr Dane and Ms Gobbo held different case concepts as to the best way to advance Karam's defence. In turn, once accepted, Mr Dane's evidence effectively compels the conclusion that Ms Gobbo did advise Karam during the trial.

320 Judge Marich's evidence also tends to support the same conclusion. When asked what she thought about the fact Ms Gobbo did not attend the trial, Judge Marich said:

It confirmed my thought, which was that her role was as Mr Karam's associate, counsel if you will but counsel is used in those two senses, it's more like his confidante ...522F[523]

321 In my view, the evidence as a whole favours the conclusion that Karam sought and obtained Ms Gobbo's advice both in a personal and legal capacity. Thus, as Judge Marich said, Ms Gobbo counselled Karam in two senses. It is sufficient for the purposes of my task however, that in part she counselled him by way of advice which was legal advice as to the conduct of his trial. I am satisfied that she did.

322 Moreover, the overwhelming probability is that this advice related to the ongoing prospect of raising the pretext conspiracy defence which would involve Karam giving evidence.

323 The Arunta calls demonstrate that after Karam's conviction Ms Gobbo was critical of the strategy adopted by Mr Dane at trial.

324 In the course of an early phone call of 6 July 2012, Ms Gobbo said:

I didn't read the transcript every single day (indistinct) because I didn't get sent it every day, but when I got it, um, yeah, a few days (indistinct) I thought, "Oh, my god. What is he doing?"523F[524]

325 Subsequently, on the same day after a series of further calls, Ms Gobbo and Karam discussed the evidence that might have been called in respect of the pretext conspiracy defence.

NICOLA: It's mind boggling to think that somebody - I can't understand why nobody called me. I just can't comprehend that.

ROB KARAM: Mm.

NICOLA: I can understand not calling an accused. There's various reasons for not doing that and I probably would make the same decision, but if you've got an independent person who you know is going to help and can't be tarnished.524F[525]

ROB KARAM: Yeah

NICOLA: There was no way for me to be tarnished.

ROB KARAM: Well, what was wrong with calling me, then calling you, then calling Jason?

NICOLA: Nothing. Well, what was wrong with just calling me and Jason? Forget about you.525F[526]

326 It may be inferred from the evidence of Mr Dane and Judge Marich coupled with the records of communications involving Ms Gobbo, that insofar as Ms Gobbo advised Karam during the Tomato Tins trial, the focus of that advice was her preferred pretext conspiracy case concept and that she may have been critical of the way in which Mr Dane conducted the case. In any event, Ms Gobbo's advice did not affect Mr Dane's presentation of the defence case. He persisted in his own case concept.

Between about June and August 2012, I prepared for the next trial, being the India and South American conspiracy to import. Lawyer X continued in basically the same way that she had been involved to date, but even more so because I was now in prison and not able to attend to conferences or other matters. She came to visit me and I had many calls with her. She had full control of my legal affairs. I continued to keep her in my confidences.526F[527]

328 Karam was remanded in custody on 4 May 2012. There was no contact between Karam and Ms Gobbo until 6 July 2012.527F[528]

329 Between 6 July 2012 and the verdict in the first Inca trial on 19 December 2012, Ms Gobbo visited Karam on three occasions (on 14 July 2012, 21 July 2012 and 23 August 2012) as a 'normal' personal visitor.528F[529]

• On 12 June 2012, Karam requested Ms Gobbo's telephone number be included in his prison phone list. Under the heading 'Relationship' on the relevant form he described her as a 'friend'.529F[530]
• Between 6 July 2012 and 22 August 2013, Karam made a total of 134 phone calls to Ms Gobbo.530F[531] Sixty phone calls were made prior to 22 August 2012,531F[532] and then no further calls were made until 16 January 2013.532F[533]
• In a number of calls made in July 2012, Ms Gobbo and Karam discussed the manner in which the defence of the Tomato Tins trial had been conducted and Karam's appeal.533F[534]
• In telephone calls on 6, 13, 19 and 28 July 2012, Ms Gobbo and Karam discussed the defence of the Inca prosecutions, the utility of the draft statement prepared by Jason Kelly, and the preparation of documentation for the purposes of the defence.534F[535]

331 On 30 July 2012, Ms Gobbo called Jason Kelly and told him Karam wanted to sign his statement.535F[536]

332 On 6 August 2012, Jason Kelly met with Dr Marich who told him Karam was interested in signing the statement.536F[537]

333 In early August 2012, Ms Gobbo and Karam had a series of telephone conversations which were recorded in which potential counsel and other aspects of Karam's ongoing proceedings were discussed.537F[538]

334 On 14 August 2012, Ms Gobbo and Karam had telephone conversations which were recorded in which they discussed the summaries for the upcoming first Inca trial. Karam confirmed that he had retained Mr Brustman. Ms Gobbo advised Karam about defence strategy and also discussed the appeal process with him.538F[539]

335 On 21 August 2012, Ms Gobbo and Karam had telephone conversations which were recorded in which she expressed opinions about trial counsel, Karam's police statement, Karam's appeal and the necessity to call evidence which explained Karam's involvement in the events forming the basis of the charges of conspiracy.539F[540]

336 On 22 August 2012, Jason Kelly attended the MAP with another police officer and spoke with Karam about obtaining further statements from him.540F[541]

337 In the days that followed, correspondence and discussions took place between Victoria Police and the AFP about the potential of Karam providing a statement.

338 On 23 August 2012, Ms Gobbo visited Karam at the MAP.541F[542] On the same day, police emails note Karam XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.'542F[543] It may be inferred from this record and Ms Gobbo's action on 30 July 2012 that Ms Gobbo had again advised Karam to sign a police statement.

339 On 24 August 2012, Jason Kelly spoke with Federal Agent Josephine Accetta from the AFP in order to get all the information he could about the charges Karam faced.543F[544] In cross-examination, Supt Kelly said he may have told her about the statement process.544F[545]

340 On the same day, Jason Kelly also met with Superintendent Ryan, Sergeant Cooper of the Purana Taskforce, and Des Appleby from the AFP.545F[546] Jason Kelly advised them that it was proposed Karam would make a statement.546F[547] The AFP made clear that they were not interested in any statement from Karam.547F[548] They further said that they were confident of the brief which they had.548F[549] I accept this evidence as probable in the context of a conspiracy case against multiple accused founded upon direct circumstantial evidence. Moreover, no statement was subsequently supplied.

341 There were no telephone calls between Ms Gobbo and Karam from their final call on 22 August 2012 until 16 January 2013,549F[550] and no further visits after her visit on 23 August 2013 until 25 January 2013. 550F[551]

342 On 6 September 2012, Jason Kelly attended the MAP to visit Karam who wanted to make some revisions to his draft statement.551F[552]

343 In the same period of August and September 2012, Jason Kelly discussed with Dr Marich the proposed signing of the statement.552F[553]

344 On 13 September 2012, Victoria Police arranged for Dr Marich to attend the MAP.553F[554] She was told they had received advice Karam wanted to sign the statement. After speaking with Dr Marich, Karam refused to sign the statement. Judge Marich's recollection is that Karam told her Ms Gobbo had been involved.554F[555]

345 The first Inca trial commenced on 15 October 2012, approximately seven weeks after Ms Gobbo's last contact with Karam. When the evidence is considered as a whole, I am satisfied that between the completion of the Tomato Tins trial and the commencement of the first Inca trial, Ms Gobbo advised Karam to adopt the pretext conspiracy case concept and that she advised him to make a police statement to advance that defence.

346 Conversely, I am satisfied that, as Karam agreed in cross-examination, the first Inca trial was run on the basis of instructions given by Karam to Mr Brustman and Dr Fitzgerald of Marich Legal.555F[556] Between 4 May 2012 and 19 December 2012, when the jury was discharged without verdict, Karam received 26 'professional' prison visits from lawyers.556F[557]

347 I am not satisfied that Ms Gobbo materially contributed to preparation for the first Inca trial. The issue falls to be determined in circumstances where no evidence was called from counsel who appeared on the first Inca trial or from Dr Fitzgerald. Further, no direct evidence of the course of the trial is before me. Whilst I accept that in the broad sense the work done by Ms Gobbo prior to the Tomato Tins trial foreshadowed the strategy adopted in the first Inca proceeding, I am not satisfied that it did so in any substantial detail. The probability is that Ms Gobbo's work was overtaken by detailed instructions to Karam's independent counsel and solicitors. Satisfactory evidence could not have been called on behalf of the defence without such instructions.

348 At the conclusion of the first Inca trial on 19 December 2012, the jury was discharged.

349 On 16 January 2013, Karam again nominated Ms Gobbo as a 'friend' for the purpose of his prison telephone list557F[558] and had a number of calls on that day.558F[559]

350 During January, February, March and April 2013, Ms Gobbo and Karam had a series of telephone conversations which were recorded.559F[560] During some of these calls they discussed aspects of Karam's trial and appeal proceedings including the choice of new counsel.560F[561]

351 In addition, Ms Gobbo visited Karam at the MAP on 25 and 28 January, 11 February, and 7, 14 and 21 March, and 22 April 2013 each time as a 'normal' visitor.561F[562]

352 On 30 April 2013, Karam was sentenced by King J to 19 years' imprisonment with a 15 year non-parole period for the Tomato Tins offending.562F[563]

353 During May and June 2013, Ms Gobbo and Karam had further telephone conversations which were recorded in which they discussed aspects of his proceedings.563F[564]

354 On 13 May 2013, Ms Gobbo visited Karam.564F[565] It appears that between 13 May 2013 and 23 June 2015 Ms Gobbo did not visit Karam.565F[566]

355 On 27 May 2013, Ms Gobbo obtained an employee solicitor's practising certificate with Lewenberg & Lewenberg.566F[567]

356 On 14 March 2014, Judge Montgomery granted leave to the CDPP to file a combined indictment for the Inca number 1 charge relating to MDMA trafficking, the Inca number 2 charge relating to the Colombia cocaine, and the Inca number 3 charge relating to the Indian precursor.567F[568] Karam was represented by Dr Gideon Boas, instructed by Marich Legal.

357 Between 14 March 2014 and 2 May 2014 pretrial argument was held in relation to the Hong Kong charges.568F[569] Karam was represented by Mr Georgiou SC instructed by Marich Legal. On 1 May 2014, Karam pleaded guilty to the Hong Kong MDMA trafficking charge.569F[570] There was further pretrial argument on 2 May 2014. There is no evidence Ms Gobbo had any input into this aspect of the proceedings.

358 On 10 June 2014, Karam requested that Ms Gobbo's telephone number be added to his prison telephone list as an exempt person using the form 'Request for exempt (including legal) telephone numbers to be added or varied'.570F[571] Between 11 June 2014 and 30 June 2015, Karam made 110 exempt calls to Ms Gobbo which were not recorded.571F[572]

• on 11 dates between 11 June 2014 and 3 August 2014 for a total of approximately two hours and 40 minutes;572F[573]
• on 14 dates during the second Inca trial between 28 August 2014 and 17 November 2014 for a total of approximately three hours and 30 minutes;573F[574] and
• on 59 dates between 18 November 2014 and 23 June 2015 (including on Christmas Day) for a total of approximately 14 hours and 10 minutes.574F[575]

359 I accept that the probability is that in these telephone calls Ms Gobbo and Karam discussed legal matters including the second Inca trial. I further accept that in the course of these discussions, the probability is that Ms Gobbo gave Karam legal advice including both as to incidental practical considerations affecting Karam's appeal and trial together with continuing endorsement of the pretext conspiracy defence. An example of the first type of advice was advice that Karam should prepare a written statement as to the course of events.575F[576] The probability that Ms Gobbo endorsed the pretext conspiracy defence derives from the evidence as a whole showing her prior support for this concept.

360 Between 1 June 2014 and 28 August 2014, Karam spoke with Dr Marich or an employee solicitor on 27 days for a total of six hours and 30 minutes.576F[577]

361 Between June 2014 and October 2014, Karam received eight visits from five lawyers including Mr Papas and Dr Fitzgerald.577F[578]

362 Between 25 and 27 August 2014, there was further pretrial argument at which Karam was represented by Mr Papas with Dr Fitzgerald now acting as junior counsel, instructed by Marich Legal.578F[579] There is no evidence Ms Gobbo had any direct input into this aspect of the proceeding.

363 On 28 August 2014, Karam stood trial before Judge Montgomery and a jury in respect of the MDMA trafficking charge, the Colombian cocaine charge and the Indian precursor charge (the second Inca trial).579F[580]

364 During the second Inca trial, Karam saw and spoke with his lawyers every day. In addition, during the trial Karam spoke with Dr Marich or an employee solicitor by telephone on 17 days for approximately three hours and 24 minutes.580F[581]

365 Mr Papas gave evidence that at the second Inca trial he was substantially guided by the evidence which Karam had given at the first Inca trial. Mr Papas said that the strategy he adopted was 'obviously guided by what had happened in the first trial' and that once Karam had given evidence in the first trial the Crown had the option to call that evidence in any event.581F[582] Karam was 'locked into what his version was from the first trial to the second trial'.582F[583] Mr Papas said '... I discussed the case with him, gave him advice, told him I thought he'd need to give evidence again. He had no difficulty with that. And we sought to, as a strategy, put an innocent explanation for all of the material that was problematic and Rob explained it all.'583F[584] Furthermore, as Mr Papas said '[i]t turned out to be not much of a strategy because he was convicted but that's all he had.'584F[585]

366 Nonetheless, Mr Papas said he assumed he must have read XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX.585F[586] He also believes he read Karam's record of interview and his unsigned statement.586F[587] Mr Papas agreed in cross-examination that he thought he read these documents to understand the contours of the pretext conspiracy defence.587F[588] Presumably it was also necessary to read these documents in order to clarify what evidence might be called from police involved in Operation Kennels to assist the defence. In the event, evidence was called from DSC Baulch.

367 Mr Papas did not have a clear recollection of the statements Karam had made for the purposes of Operation Kennels or whether he first heard of them in the Tomato Tins trial or subsequently.588F[589] Despite this, I accept it is probable that he looked at each of the records of interview, XXXXXXXXXXXXX and draft statement in the course of preparation for the second Inca trial.

368 This said, it is apparent that Mr Papas exercised his own judgment in advising Karam and in running the pretext conspiracy defence. None of the Operation Kennels documents can sensibly have been a substitute for proofing Karam as a witness. Conversely, the transcript of the first Inca trial plainly provided a detailed guide to much of the evidence Karam could give in the second Inca trial.

369 In terms of his instructions, Mr Papas said that '... Dr Fitzgerald was very well organised and I had a lot of material in proper folders and I was able to go to material. I'm sure I saw Mr Karam on multiple occasions ... I know that I spoke to him sufficiently to be instructed. But I had written instructions I believe, and indeed I called him and we made that decision before the case was run, and in retrospect I boldly told the jury I was going to call him in my opening. So it's not like I was uninstructed_._'.589F[590] It may have been that the decision was made at this stage '... because I had a transcript and I was able to go through that with him and make sure it was consistent.'590F[591] Karam agreed in cross-examination that Mr Papas and Dr Fitzgerald conducted the case in accordance with his instructions.591F[592]

370 There is no evidence Ms Gobbo was directly involved in the second Inca trial although it appears she came into the court hearing on one occasion.592F[593] Mr Papas said:

... Mr Karam certainly mentioned her as being someone who had knowledge of aspects of the case. He mentioned her on occasions. At one point he ... wanted me to talk to Ms Gobbo and I think the subject matter was he was keen on her to give evidence or at least to help me in the preparation of the case because she had knowledge that she could explain to me might explain some of the issues in the case.593F[594]

371 Mr Papas said that he agreed to talk to Ms Gobbo and did so although he could not recall whether it was before or during the trial.594F[595] He recalled that '[t]he conversation was relatively brief and polite' and '[t]he topic of whether she was going to give evidence or not may or may not have been raised ...'.595F[596]

372 Mr Papas says he 'took the view that there was no evidence that [Ms Gobbo] could give that would have assisted'.596F[597] He told Karam that he would not be calling Ms Gobbo.597F[598] He said at that stage he knew she was not a practising lawyer.598F[599]

My impression was, if you want my impression, that she was in the background. I have to say that was my impression. Now what can I point to? I just don't have, I didn't take notes of saying to myself, 'Goodness, Nicola must be behind this' or something along those lines. But my strong impression was that Mr Karam did believe in Nicola Gobbo, strong impression. That might be from what I'd heard in tomato tins as well and the fact that he still wanted me to talk to her during Inca, number two, left me with that impression. But whether - I can't tell you how often he was talking to her. I certainly wasn't getting instructions from her. I didn't speak to her again during the trial and, again, I make the point I was - there's enough material to worry about without talking to Nicola Gobbo.599F[600]

374 Conversely, it might be said that if Ms Gobbo's involvement was more than one of background discussion then Mr Papas might be expected to recall that. There was no specific input by Ms Gobbo into the trial identified either by Mr Karam or Mr Papas.

375 Once again, whilst I accept that in the second Inca trial the defence adopted the general case concept Ms Gobbo had argued for prior to the Tomato Tins trial, there is no evidence that she had input into the detailed evidence called at the second Inca trial or that the evidence which was called was adduced other than on the direct instructions of Karam.

376 Karam was found guilty of the MDMA trafficking charge and the Indian precursor charge on 14 November 2014, and of the Colombia cocaine charge on 17 November 2014.600F[601]

377 On 31 March 2015, leave to appeal the Tomato Tins conviction was refused by the Court of Appeal.601F[602]

378 A series of plea hearings were held on 19 January, 29 April, 5 May and 15 May 2015.602F[603] On 23 June 2015, Judge Montgomery sentenced Karam to 27 years' imprisonment in respect of the Inca and Hong Kong MDMA trafficking offending.603F[604]

379 Having set out the sequence of events, I return to the question of Karam's credit. I do not accept Karam was a witness of truth and reliability by reason of the combination of a number of factors.

• His evidence is plainly self-serving.
• He is properly regarded as being a person of bad character.
• In cross-examination, his affidavits were demonstrated to be materially false.
• Insofar as his evidence was directly inconsistent with other witnesses called to give oral evidence under cross-examination, I prefer the evidence of those witnesses, and in particular, that of Judge Marich and Supt Kelly.
• I did not find convincing Karam's comprehensive denial of the making of statements concerning the Tomato Tins importation which are recorded in the ICRs.
• Karam's evidence under cross-examination in this proceeding demonstrated a considerable capacity for evasion in respect of any question tending to demonstrate involvement in criminal activity on his part.

380 I will say something further about each of these factors. As to the first, Karam is serving a prison sentence of 35 years. He has a powerful inducement to present evidence which maximises the chance of materially reducing this sentence. Such inducement may have influenced him either consciously or unconsciously to exaggerate or confabulate evidence which supports his case.

381 The common law has always distinguished between the probable reliability of admissions against interest and self-serving statements. In the present case, the distinction goes to credit and weight.

382 Secondly, Karam comes before this Court as a person of established bad character. Most significantly, there is no application for leave to appeal his conviction with respect to the Hong Kong MDMA trafficking charge.

383 In addition and although not strictly necessary to this conclusion with respect to bad character, I note that none of the fresh evidence (in the strict sense)604F[605] relied on by Karam in the present proceedings casts any material doubt on his guilt of the offences in issue. Indeed, if the ICRs were regarded as prima facie evidence of his conduct they are substantially inculpatory. Even stripped of hearsay admissions (as they must be) they are in many respects adverse to a defence on the merits because they amplify the evidence as to the extent and closeness of Karam's relationship with his alleged co-conspirators and as to his links with persons involved with organised crime. In this specific sense, I accept that the respondent is entitled to rely upon the jury verdicts in both the Tomato Tins and Inca proceedings. Conversely, I reject the respondent's submission that acceptance of the applicant's case would 'undermine' the jury verdicts. The point is simply that in addition to the serious drug trafficking conviction in respect of which the applicant pleaded guilty, the fresh evidence provides no basis for doubting the correctness of the jury verdicts as distinct from the fairness of the applicant's trials.

384 Thirdly, I accept the applicant's affidavits were prepared when he was in custody and that initially he had limited records to assist him. I also accept that the passage of time means that some incidental errors in recollection were inevitable. Nonetheless, the applicant's affidavits filed and served in support of this application were demonstrated to be materially false. Moreover, the falsity consistently tended to exaggerate and favour his case. Some examples are as follows:

(a) The applicant gave false and misleading evidence as to the sequence of events leading up to and surrounding his first meeting with Pasquale Barbaro at Curly Joe's restaurant. I accept the respondent's submissions:605F[606]

1. The applicant stated in his first affidavit that he can 'specifically recall that on 4 July 2007' Ms Gobbo met with the applicant outside the Magistrates' Court during his 2007 trial and told him about an AFP officer who told her 'there is something big at the docks'. After that discussion, Ms Gobbo and the applicant walked down to the Wheat café and met with John Higgs. Mr Higgs told the applicant that Pasquale Barbaro wanted to speak to him about the location of the bill of lading [for what became known as the Tomato Tins importation] because it had previously been provided to Mr Mannella. The applicant stated that, at this time: he had never previously met Mr Barbaro and did not know anything about the bill of lading. The applicant deposed to this specific memory in two detailed paragraphs of his first affidavit. Later in that affidavit the applicant stated that he had first met Mr Barbaro in mid-July 2007.606F[607]
2. The applicant's evidence as to this timeline is false and potentially misleading.
3. That evidence is inconsistent with the admissions the applicant made during his Tomato Tins trial, and the evidence he gave at both Inca trials, that he met with Mr Barbaro and others on 27 June 2007 at Curly Joe's in Maribyrnong, one week prior to the meeting with Mr Higgs and one day prior to the Tomato Tins container arriving at the docks in Melbourne.607F[608]
4. It is also inconsistent with the evidence the applicant gave in the second Inca trial, that he met Mr Higgs at Romantica Café when they discussed the documents in Mr Mannella's possession, but that he could not recall how he was told that Mr Barbaro wanted to meet him, whether it was over the phone or in person.608F[609]
5. When presented with this objective evidence, the applicant accepted in cross examination that he had met Mr Barbaro on 27 June 2007.609F[610]

The timing, manner and extent of the applicant's involvement with Barbaro were critical to the applicant's defences in both the Tomato Tins and Inca proceedings. The defence in the Tomato Tins proceeding was conducted on the basis of express admissions that Barbaro, Zirilli and Falanga were guilty of the conspiracy charge.610F[611] The essence of the defence was that the applicant did not join with them. The Inca proceedings were conducted on the basis that the applicant pretended to go along with Barbaro by reason of fear that his friend D'Amico would otherwise be killed. The applicant was present in court when admissions were made in the Tomato Tins case concerning his first meeting with Barbaro and the sequence of his interaction with Barbaro was the subject of detailed analysis by the Crown. He himself gave evidence in the Inca proceedings about the sequence of events.

In my view the applicant's affidavits deliberately exaggerated the role of Ms Gobbo and misstated the sequence of events by which the applicant came to be associated with Barbaro, and in particular, how he came to be involved in attempts to obtain the Tomato Tins container.

(b) In addition to the specific misstatement concerning the first date on which Karam met Barbaro, the affidavit is also misleading as to the general sequence of events. By 4 July 2007, Karam had had a series of meetings with Higgs and Barbaro and in addition (as he said in evidence before me) had visited Manella at least twice in prison. The 4 July 2007 date was not the first occasion on which the Tomato Tins container was discussed with him. Karam's account of Ms Gobbo telling him that an AFP officer had said there was 'something big' at the docks is misleading. The impression given in Karam's first affidavit is that Ms Gobbo's statement was the first time he had heard of the Tomato Tins container.

(c) The statement attributed to Ms Gobbo concerning an event on the docks is not particularly probable. It is unlikely that an AFP officer would refer to the Tomato Tins container when it was potentially subject to a controlled delivery. More particularly, however, I do not accept Karam's evidence in cross-examination as to his response:

I said to Gobbo that, when she made that comment I said I don't care, I've got nothing to do with it. That was my response to her.611F[612]

In evidence, Karam said he sought Ms Gobbo's advice about the communications he had received from Barbaro, Higgs and Manella.

How is she going to vouch for you?---Well my actions. I'm discussing with her that I'm going to meetings, I have no choice. I'm not going to be held responsible so I've got to go and say, meet with these people and just clarify that even though my name's been thrown in as a friend of Joe's, as a person who is likely to know all about this, that I've had no idea about it and it's all new to me. I'm finding out as I go. So I'm trying to help. I'm giving the impression that I'm trying to help but at the same time I've got to stall because I don't want to be part of what's going on and I'm between a rock and a hard place. I'm getting advice from Nicola, I have to act in a certain way, do certain things, try and manage it all not knowing how it's going to end.

Who was she going to vouch for you to?---Maybe the authorities if it got to that.

And then you say that she said, 'I had nothing to worry about from a legal perspective'?---That's - that's my point.

Are you saying that she told you, you had nothing to worry about being involved with chasing up this documentation for this import?---And that there's nothing wrong with being a pre-text conspirator. That's where the whole idea was born.

The whole idea of a pre-text conspirator came about in this part you talk about in paragraph 50?---Well, and progressed from there but that was the initial basis of it.612F[613]

... every occasion where there was something put to me I would run that by Gobbo because I knew I was on the edge. I said, "listen, I don't want to get involved", and the advice was ongoing, "you're not going to get in trouble for talking. You're not going to get in trouble for this", so when the shit hit the fan, so to speak, she was the one that knew everything from day one, since - and this goes back to the 05 charge, right through.613F[614]

Yes, I told her what was going on, I told her what the requests were and she was the only person that I spoke to and she gave me advice on it. And every time I'd say to her there's - I'd say, 'you know, there's nothing I can do. People are making these requests. I can't help them. What do I do?' And what was supposed to occur, according to Joe Manella, way back when I saw him, obviously hadn't occurred yet and we're still buying time, we're still in limbo, nothing's happened. We know certain things, events are expected, or at that stage, it just went on forever. So this buy me six or eight weeks or whatever is going to happen, just didn't happen.614F[615]

By 4 July, Karam was involved with the alleged conspirators having met a number of times with Higgs, Barbaro and Manella. If, as he says, Karam told Ms Gobbo of his interactions with the conspirators on a continuing basis and sought her advice with respect to their requests, then the alleged terms of the exchange with Ms Gobbo on 4 July 2007 which Karam describes are improbable. He would not have said 'I don't care. I've got nothing to do with it.' if he had had the previous discussions with Gobbo concerning the container elaborated elsewhere in his evidence. Alternatively, if Karam's account of the exchange on 4 July 2007 is accepted then his account of prior discussions with Gobbo is improbable.

(d) Karam's account of the terms in which he was offered the opportunity to seek legal advice prior to and during his record of interview with respect to alleged conspiracies to murder is plainly incorrect. In his first affidavit Mr Karam said:615F[616]

1. In June 2009, I was arrested and interviewed in relation to an alleged conspiracy with Pasquale Barbaro and Graeme Gene Potter to murder Michelli Barbaro ('M Barbaro') and Fred D'Amico ('D'Amico').
2. When at the police station, DSC Jason Kelly asked me if I wanted a lawyer. I told him that I wanted to call either Mr Valos, Mr Grace or Lawyer X. He advised me that Lawyer X would be the best option. He said 'we get along well with [her first name].' He intimated to me that things would be better for me if she was involved. I now believe that DSC Kelly suggested I call Lawyer X because he was her handler and he knew that she would provide me with advice which he wanted her to provide to me to achieve the result that he wanted. I believe that the advice she gave was compromised and for an ulterior motive, unrelated to my best interests.
3. However, because I did not know this at the time, I decided to call Lawyer X. She knew everything intimately and I thought could give me the best advice as to what to do.
4. When I spoke with her I told her what happened with the arrest. I told her what the matter was about. She knew the background to the people involved in the charges. I asked her what to do. She said to me that I should 'tell them everything' that I knew. I was surprised by the advice and was worried about the implications. However, because it came from my lawyer, and a lawyer who clearly understood my circumstances and had been there for me time and time again, I accepted it. So, I told them everything. I was interviewed by DSC Kelly and DSC Boulch. They asked questions about much more than just murder allegations. They asked about matters relating to drug importation. These matters seem to relate to some of the indictments with which I had been charged on 8 August 2008. The interview went for at least two and half-hours. During the interview they would stop and say they wanted verification. They left the room and when they came back said that they had verified the information. I do not know how or what they did. The interview was recorded. In the interview I set out what was effectively, my defence.

This is not what occurred. In particular, the applicant was not invited to contact Ms Gobbo in the terms alleged. There is a transcript of initial discussion between Karam and police taken from CCTV and a further transcript of the record of interview itself. I accept the respondent's summary of the course of events:616F[617]

1. While he was being held in the interview room, prior to and in the breaks of the formal interview, the applicant's interactions with Victoria Police and others were captured on CCTV and transcribed.617F[618]
2. During those discussions, the applicant was asked several times whether he wanted to contact a legal representative. In response, the transcript reveals that the applicant was nonchalant about his access to legal representation. The applicant told his wife shortly after his arrival at the station that:618F[619]

Jim [Valos] will know and he'll probably come, but I don't really care whether he comes or not.

1. Later, in response to DSC Johns' question as to whether he wanted to speak to Mr Valos, the applicant stated:619F[620]

Oh, if he rings, I'll speak to him. I - look, I mean, like, having 'em here or not having 'em, sometimes it's a pain in the arse having 'em here 'cause all they do is say, 'say nothing' and, you know, I've got things I want to get off my chest.

1. At that point in time the applicant appears to have already decided to provide Victoria Police with his version of events.

2. DSC Baulch later asked the applicant whether he wished to call Mr Valos. The applicant replied:620F[621]

Can I do that and just get it out of the way? What - what do I say to him, just where I am?

1. The applicant then attempted to call Mr Valos, who did not answer.621F[622]

2. DCS Johns informed the applicant that both Mr David Grace QC and Mr Valos had telephoned.622F[623]

3. The applicant called Mr Valos again and spoke with him. During that conversation the applicant stated:623F[624]

Yeah, Jim, you know what I'm like. I - as I said, I've got nothing to hide and I don't give a shit. You know what I mean? So what's the purpose of you coming here if you come here? It's just to shake my hand and say g'day.

627. Mr Valos did not attend the police station.

1. The applicant did not return the call to Mr Grace QC. The applicant did not ask to, or attempt to, contact Ms Gobbo at this time.624F[625]

2. After some initial discussion of personal matters, the applicant proceeded to discuss the allegations Victoria Police was investigating, his relationships, conversations and dealings with the various individuals, many of whom would become his co-accused.625F[626]

3. At p 89, Sept [sic] Kelly entered the room. The applicant continued to discuss the matters that were being investigated.

4. Up to p 148, the applicant provided Victoria Police a significant amount of information.

5. At p 148, the transcript records that a telephone is ringing. It is clear from the ensuing conversation that Ms Gobbo telephoned the applicant.626F[627]

633. The applicant told Ms Gobbo:627F[628]

Nic, I haven't done the interview but I've told them in a casual chat exactly where I stand. Now, should I go ahead with an interview or not?

1. The applicant goes on to explain the situation to Ms Gobbo, including his role and what he had already told police.628F[629]

635. He then said to Ms Gobbo:629F[630]

I'm happy to make a statement but what am I going to say, that I helped save people and not kill anyone? That's what I did.

1. Prior to the record of interview, the applicant was also cautioned on a number of occasions.630F[631]

Further, whilst I accept Ms Gobbo advised Karam to participate in the record of interview, I do not accept Karam was surprised by Ms Gobbo's advice to do so. The recorded conversations demonstrate a consistent intention on the part of Karam to tell his side of the story, and as I have indicated, it was on one view desirable to do so to progress the pretext conspiracy defence. Moreover, the evidence as a whole favours the conclusion that Ms Gobbo consistently advised Karam to pursue the pretext conspiracy defence and to cooperate with the Operation Kennels investigation for this purpose.

(e) In his third affidavit, Karam did not refer to the initial joint meeting with counsel at which Ms Gobbo's role in the defence was discussed in her absence. In oral evidence, he disputed that the discussion Judge Marich described concerning Ms Gobbo's role took place.631F[632] He further deposed that he did not seek a separate trial in the Tomato Tins case because Ms Gobbo advised him not to follow that course.

There was an argument at that meeting about a separate trial application. Lewenberg's view was that we should each seek a separate trial because of the XXXXXX records of interview. Gobbo said it was a bad idea and we should not make the application. Despite Lewenberg's advice, Higgs and I acted on Gobbo's advice and did not seek separate trials.632F[633]

This evidence should be rejected for the reasons I have already addressed.

385 Fourthly, there were some direct conflicts between the evidence of Karam and that of other witnesses. I prefer the evidence of Judge Marich to that of Karam with respect to the initial joint meeting with counsel. I also prefer the evidence of Supt Kelly to that of Karam. In particular, I reject Karam's evidence that at the time of the record of interview Supt Kelly told him:

Yes, we get along well with Nicola ...633F[634]

and said that of Mr Grace, Ms Gobbo and Mr Velos, Ms Gobbo would be the best option.634F[635] Superintendent Kelly's evidence was careful and substantially corroborated by contemporaneous recordings.

386 Fifthly, the respondent also directs attention to Karam's denial of reports in the ICRs of statements indicating that he was involved in or knew of any of the criminal activity reported by Ms Gobbo to her handlers between 2005 and 2009 and submits further that this evidence is not credible and should be rejected. Karam submits that the only admissible evidence on this issue is the evidence of the Karam himself. This is not strictly correct. The ICRs are evidence of the making of statements as distinct from their truth. Nonetheless, the absence of evidence from Ms Gobbo and the application of s 60(3) of the Evidence Act makes the assessment of this issue difficult.

387 I have been troubled by this aspect of the evidence. The applicant's defences to both the Tomato Tins and Inca cases and his plea to the Hong Kong MDMA trafficking charge involved admissions as to extended contact by way of meetings, texts and telephone conversations with persons involved in the importation and trafficking of illicit drugs. Further admissions were made in answers to cross-examination before me.635F[636] In this context and looked at in the broad, the cumulative denials by Karam of the fact of the recorded statements to Ms Gobbo put to him in cross-examination concerning knowledge of the Tomato Tins importation is improbable. In particular, I regard it as improbable that Ms Gobbo invented all the statements she attributed to Karam prior to and immediately after the importation in which the importation was discussed. The most relevant statements were those which I have summarised at [118]-[119] above. The relevant denials include the following (noting that the extracts I quote are illustrative and not comprehensive as the evidence in this regard was very extensive):

• When questioned with respect to the statement contained in an ICR of 17 June 2007 in which Karam described the new container coming to Melbourne as 'three times' as big as his current trial, he responded:

_I don't remember ever having that conversation with her._636F[637]

_Wouldn't have even had that conversation with her._637F[638]

• When questioned with respect to a report in an ICR of 19 June 2007 that the container is on a ship that has either just left Singapore or is still in Singapore, and Karam's contact has therefore not confirmed where it is exactly, Karam responded:

_I never received any information. Never spoke to anyone about it. Never received any information._638F[639]

• In response to a record from the same ICR stating that Karam cannot get it off in Sydney therefore it will definitely be in Melbourne, Karam said:

_Never had this conversation with her. I didn't have that detail._639F[640]

• When questioned with respect to an ICR of 21 June 2007 concerning a meeting at Curly Joe's the previous night with some unknown Italians from Griffith:

_It's just made up garbage. What can I say?_640F[641]

• In response to a further record in the same ICR that '[t]here are 13 million pills, not 15. This info is a result of last night's meet with the Italians.'

_Well it's incorrect, isn't it._641F[642]

• In response to a further record from the same ICR about a proposed meeting on 24 June 2007:

_I don't remember these conversations with her at all. She's obviously getting the information from somewhere._642F[643]

• When questioned with respect to an ICR of 25 June 2007 recording that 'Karam has said that he's prepared to dump the imports if he thinks they are off':

_I don't remember speaking to her about it._643F[644]

• When questioned with respect to an ICR of 27 June 2007 stating Karam proposed going out to dinner with the crew as an alibi for the container:

_Why would I need an alibi? Am I supposed to be captaining the ship or something? It's crazy._644F[645]

• In response to an ICR of 28 June 2007 recording that Karam and Higgs had met and were going to the Pacific International Apartments in Little Bourke and Queen Streets, Karam said:

I don't think I ever went to the Pacific International.645F[646]

• In response to the same ICR stating that Karam and Higgs were going to meet 'the Italian boys from Griffith' who were booked in there for the week, Karam said:

_I wouldn't have known. ... Higgs may have known those details about the Italian boys but I would have had no idea._646F[647]

• In relation to the same report and a record that Karam said he was still waiting on confirmation that everything was 'still O.K.' as the container should have been 'stolen' by then, Karam said:

Chances are if it had arrived recently it may not even be off the ship, so it just sounds like made up rubbish.647F[648]

• In relation to repeated status updates about the new container, on 29 June 2007, Karam said:

I doubt it very much. ... I wouldn't have had that information to tell her.648F[649]

• In relation to a status update on 4 July 2007, Karam said:

_Sounds like some movie she's watching. This is crazy. It's made up._649F[650]

• In relation to a status update of 5 July 2007 recording 'Rob Karam explained that this is a salvage operation he got approached to fix up (after Manella was arrested). The money offered to him was too good to refuse.'

_There's no salvage operation, it's just made up._650F[651]

• In relation to a status update on 10 July 2007, Karam said:

No, she's just making it up.651F[652]

• In relation to an ICR of 11 July 2007 stating 'He has been told that the AFP raid on the Freight Forwarder was in relation to their container and not the cocaine bust as originally thought. Karam now convinced that police are onto the container.' And in respect of a further statement that '[a]ll the meetings today have been passing on the word for no-one to go near the container as it is off.'

... _I don't recall any of the conversations that you just brought up with Gobbo._652F[653]

_That [the container was 'off' and no-one was to go near it] was my position from the start, that's not something that was said on that day. I was never going to go near it so I don't recall this conversation with Gobbo nonetheless._653F[654]

• In respect of a further statement in the same ICR 'Rob confirms that the $13 million pills are now just going to sit there - shame really he says.'

• In relation to a record in the same ICR that Karam was convinced the police were onto the container and confirmed the $13 million pills will now just sit there, Karam said:

No I didn't [tell Ms Gobbo that]. It's just made up.655F[656]

• In relation to an ICR of 14 August 2007 concerning the Hong Kong offending which stated 'Late 07 XXXXXXXXXX gave him a list of names of people who owe him money. 10 of the 11 names told Rob KARAM that they did not owe money the 11th was in Malaysia Rob KARAM went to see him and he introduced him to Mike from Hong Kong Mike could do anything Rob KARAM wanted. Talked of a 20 ton MDMA import and settled on 6 ton.' Karam agreed that the initial statements were correct and then said with respect to speaking about the 20 tonne MDMA import:

Yes, I did, but the details incorrect. We did talk about 20 tonne but nobody ever settled on anything. We didn't settle on 6. All I asked him to do was - he was obviously trying to, he was throwing options at me and we spoke about sending something to Mexico and it was a throw off. Like they said, 'How much?' I said, '20 tonne'. Like I didn't know. It was just a figure that was said, a stupid figure obviously, but we didn't settle on anything because he was going to provide a small sample first and until that was provided nothing was meant to happen.656F[657]

• In respect of an ICR of 1 November 2007 recording 'On Tuesday night Rob and Tony Sergi had dinner with the Griffiths people in Lygon Street Brunswick. This was for a crisis meeting because of the possible stuff up of the latest container import.'

_Look it's possible we had a meeting, I can't remember it._657F[658]

• In relation to a further record in the same ICR 'They also think that their 1000kg of cocaine (2nd import) has also been intercepted by authorities. They do not know where it is and more probably that one to [sic].'

_It's just absolute - it sounds like, just sounds like rubbish._658F[659]

• In relation to an ICR of 17 March 2008 stating that 'KARAM had done an import of XTC and that they were "heart logos" and were in.'

_I don't ever remember talking to her about that._659F[660]

_... so she's reporting things that I've discussed with her and attributing them to me as though I'm the organiser of it, which we all know I'm not._660F[661]

These reports must be viewed in the context of the meetings summarised by King J which were the subject of specific admissions by Karam at the Tomato Tins trial661F[662] and evidence at the Inca trials.662F[663] These were explored in cross-examination before me. Karam had a series of meetings and communications with Higgs, Barbaro and Manella. In turn, Karam gave evidence that he spoke with Ms Gobbo on a daily basis during this period and that he discussed what he had been told with her.663F[664] In particular, he discussed what he was told about the proposed importation with Ms Gobbo and was advised that he could not be convicted of a criminal offence if all he did was pretend to go along with the conspirators.664F[665] Taken together these matters give rise to a cumulative probability in respect of the separate statements made in the ICRs which Karam denies were made. It is more probable than not that they reflect aspects of discussion by the applicant of the importation of the Tomato Tins container. Nonetheless, the extent to which they do so cannot be confidently determined and accordingly I have ultimately placed little weight on this factor. My view as to Karam's credit is not dependent upon this consideration.

388 Lastly, my cumulative impression of Karam as a witness was that he was persistently evasive when pressed on matters tending to demonstrate involvement in criminal activity. Whilst he was asked direct questions about events at times which are now a number of years past, there were a number of 'I don't recall' answers which did not sit comfortably with his detailed recollection of other matters. I will give some examples.

• The terms of a number of the denials I have quoted above relating to alleged statements about the Tomato Tins and other importations.
• Karam's evidence that he did not recall speaking to Gobbo about obtaining an apartment in Port Melbourne on a series of occasions.665F[666]
• The transcript of the hearing before me at page 349 records answers concerning an ICR with the date range 8 to 14 August 2008:
  1. Then it goes on, 'The seized phone held by AFP. Advised the Asian connection to change numbers and postpone next shipment.' Now these were things you spoke to Miss Gobbo about when she came to see you, weren't they?
  2. Well I don't remember saying that to her. I asked her to let my brother know and to Fadl know. She was the first person to see me. I hadn't spoken to anyone. And from memory I don't remember saying anything to her about a phone. I did say something to her about a computer, not a phone.
  3. So what you've spoken to her about is the overseas trip that you did with Fadl Maroun when you met with Michael over in Hong Kong?

A Yes that's right, I spoke to her about that.

1. And what you're asking her to do was whether she could pass on a message to advise the Asian connection to change numbers and postpone the next shipment?

2. I don't, I don't recall that. I remember talking to her about a computer. I don't recall what's written there.

3. What about the next part, 'Rob Karam worried about what text might arrive on phone meantime'? You spoke to her about that, didn't you, that you were concerned that a text message might come if the Asian connection wasn't told?

A I don't recall it, sorry. My only memory is about the laptop.

389 Having regard to the above matters taken together, I am not persuaded Karam should be accepted as a witness of truth and reliability. Accordingly, I do not accept Karam's evidence except where it is corroborated by other direct or circumstantial evidence. Nonetheless, as will already be apparent, this leaves a substantial substratum of evidence as to his interactions with Ms Gobbo including in particular evidence that she gave preliminary and collateral advice with respect to the defence of his trials.

390 A number of other matters were agitated on behalf of the respondent as bearing on the applicant's credit. In the circumstances it is unnecessary to consider them further.

391 I will now turn to consider each of the referred questions.

Question A: When and about what did Nicola Gobbo inform on the applicant to Victoria Police or assist Victoria Police in respect of the applicant?

392 Ms Gobbo informed on Karam to Victoria Police with respect to the matters referred to in the ICRs and audio recordings which record such informing. I have sought to summarise that material in describing the course of events but ultimately the ICRs and audio recordings speak for themselves.

393 Whilst the ICRs are summary documents, on the balance of probabilities they are substantially correct records of Ms Gobbo's informing.

394 Ms Gobbo informed on Karam to Victoria Police with respect to material matters:

• prior to and during the course of the Tomato Tins and Inca offending; and
• during the preliminary stages of the Tomato Tins proceeding.

395 The information supplied prior to Karam's arrest was significant in the respects I have summarised at [157] above.

396 Ms Gobbo further informed after Karam's arrest with respect to the matters I have summarised at [161] above.

397 For the reasons I have expressed, I am satisfied Ms Gobbo also gave Karam advice with respect to XXXXXXXXXXX Operation Kennels, the investigation into alleged conspiracy to murder arising out of the conduct of the offenders involved in the Tomato Tins and Inca offending. Ms Gobbo also assisted Karam in the preparation of a draft police statement. This advice and assistance had the effect of assisting Victoria Police in respect of that investigation but I am not satisfied that the advice and statement preparation were provided primarily for that purpose.666F[667] Rather, having regard to the evidence as a whole, the probability is the advice and statement preparation were given in pursuance of the pretext conspiracy defence which reflected Karam's instructions.

398 Ms Gobbo also assisted Victoria Police by providing them with a copy of the GEMS brief prepared by the AFP for the purpose of the Tomato Tins, Inca and Hong Kong proceedings. Once again, I take the view that the probability is that this was done in order to advance the pretext conspiracy defence.

399 The respondent submits that the ICRs on which Karam relies include information as to Ms Gobbo's activities which do not fall within the description of informing on the applicant.667F[668] Whilst as a matter of strict language this may be correct, they involved informing with respect to matters relevant to the applicant and, in this sense, potentially assisted police. Information that Ms Gobbo was working on Karam's brief or taking other action on his behalf falls within this category. As the respondent accepts, such information is relevant contextually,668F[669] it may also directly evidence conduct which was undertaken when Ms Gobbo was subject to conflict of interest.

400 Similarly, the respondent submits that advice to Jason Kelly that Karam wanted to sign a statement was not strictly informing. It constituted an action taken on instructions.669F[670] Nonetheless, it is relevant to an understanding of the course of events and as evidence of an action taken on behalf of Karam at a time when there is controversy whether or to what extent Karam received and acted on advice from Ms Gobbo.

401 Insofar as the question raises the issue of the extent of assistance derived from Ms Gobbo's informing, the respondent contends that there is no direct evidence from Victoria Police that they were relevantly assisted by any of the information Ms Gobbo produced. Thus, the fact of assistance is a matter of inference.670F[671] I accept this submission, but it may be inferred that:

• the bill of lading was foundational to the Tomato Tins investigation;
• the telephone numbers supplied to Victoria Police assisted in the Tomato Tins investigation (although it cannot be determined to what extent that assistance was material);
• information as to Karam's alleged statements concerning drug importations helped make him a person of interest to police; and
• information as to Karam's activities generally potentially assisted police in ongoing surveillance.

402 The respondent further submits that there is no evidence that the provision of the GEMS brief to Victoria Police assisted them.671F[672] It may be inferred that the brief was of some assistance to the Operation Kennels investigation but there is no evidence that it assisted Victoria Police with respect to any aspect of investigation which contributed to or affected the evidence in the cases forming the subject of the present proceedings.

403 The respondent also submits that insofar as the record of interview is concerned there is no evidence it assisted either investigating police or the respondent in respect of the proceedings forming the subject of the present case.672F[673] I accept these submissions. Likewise the draft statement was never signed and had little value.673F[674]

404 There is no evidence that the record of interview or the draft statement were utilised by either investigating police or the respondent for the purposes of the Tomato Tins or Inca trials.

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

405 Information provided by Ms Gobbo to her handlers with respect to the bill of lading was passed on to customs officers and, in turn, to the AFP.

406 Further information that Ms Gobbo provided to Victoria Police concerning Karam became input into investigations undertaken by Victoria Police as part of joint operations undertaken with the AFP and other agencies. The use which Victoria Police made of the information was not the subject of detailed evidence.674F[675]

407 Karam submits that the answer to Question B must be considered in this context: he draws attention to the following matters:675F[676]

(e) On 29 June 2007, a joint agency agreement was signed by the AFP, ACC, Victoria Police and Customs for Operation Moko. The purpose of the agreement was to provide a framework for the controlled operation, including streamlining information sharing obtained in the course of individual investigations. The agreement identified the Applicant as a target. The agreement included the Joint Management Group '[maintaining] coordination and enhance cooperation regarding information sharing between the participating agencies'. Victoria Police's role included collecting and disseminating information, including providing support for covert surveillance. The AFP's focus was on Barbaro, Zirilli and a person against whom charges were never laid. Victoria Police and the ACC's focus was the Applicant, Falanga and Higgs. Victoria Police shared information with the other agencies in respect of the Applicant as part of the joint agency agreement. There was co-operation between the agencies;676F[677]

(f) On 6 July 2007, Operations Bootham and Moko merged into Operation Bootham-Moko, Operation Bootham-Moko relied on some telephone interception and surveillance material from both the ACC and Victoria Police;677F[678]

(g) On 30 July 2007, the AFP commenced Operation Inca, which involved the participation of Victoria Police, the ACC, Customs and the Australian Tax Office. Each agency focused on its own targets, with Victoria Police targeting the Applicant. Victoria Police would share information with the AFP about the Applicant;678F[679]

...

(o) There were 184 statements of Victoria Police officers on the Tomato Tins and Inca brief.679F[680]

408 Whilst I accept that this context is relevant, specific information which was obtained directly from Ms Gobbo and can be shown to have been passed on by Victoria Police to other agencies is relatively limited. This does not mean that the information coming from Ms Gobbo which I have identified as potentially significant to the investigation did not in fact contribute to the investigation. To take an obvious example, if Ms Gobbo supplied information which provided part of the basis for surveillance of the conspirators, it was the actual results of the surveillance undertaken which were ultimately of significance to the investigation and contributed to the prosecution brief in the Tomato Tins and Inca proceedings.

409 Furthermore, the structure of the joint investigation channelled and limited information sharing. Federal Agent Wiggett explained that Operation Inca did not commence or ever operate as a joint investigation in the usual sense. It was not a collective investigation of all targets across agencies. Instead, each agency focussed on targets whom the agency had previously identified in its own investigations.680F[681]

410 The evidence ultimately provided by Victoria Police was principally evidence of physical surveillance. Federal Agent Brener stated that the combined brief of evidence clearly identified which telecommunications interceptions, surveillance device material and physical surveillance evidence came from Victoria Police or another agency.681F[682] Senior Constable Herman explained that the combined brief of evidence for Operations Inca, Bootham-Moko and Cardinia ultimately comprised approximately 3,800 witness statements.682F[683] Of the 184 Victoria Police witness statements, 176 related to physical surveillance conducted between May and September 2007 in the course of Operations Bootham-Moko and Inca.683F[684] The remaining eight witness statements did not relate to Karam but related to:

• the seizure of an item during the search in September 2007 of a hotel room occupied by Barbaro and others; and
• the arrests respectively of Amren Joskun, John Visser and Antonio Sergi.684F[685]

411 There is a contest between the parties as to the adequacy of records in regard to the dissemination of information by Victoria Police.685F[686] In this respect, I accept the respondent's submission that there are a series of relevant records.686F[687]

172.1. Ms Gobbo's handlers frequently recorded in the ICRs whether certain information was or was not disseminated and, if it was disseminated, to whom. The respondent accepts that it is not always identifiable precisely what was disseminated,687F[688] but the recipient of the information is clear. As to the content of the dissemination, the respondent accepts that this Court may take a broad approach to the information that was disseminated.688F[689]

172.2. Information reports (IRs) were created when information was to be disseminated in a formal (but de-identified) manner.689F[690] The respondent accepts that it not possible to establish who received those IRs within Victoria Police, but accepts the possibility of IRs being disseminated within Victoria Police.

172.3. Diary notes of handlers, for example around the time the bill of lading was provided by Ms Gobbo, recording meetings with the ACC and Customs.690F[691]

172.4. Diary notes and evidence from Supt Kelly in relation to information he provided to the AFP in the context of the Victoria Police Operation Kennels investigation.691F[692]

172.5. Diary notes and evidence from Federal Agents Wiggett and Erdmann in relation to information provided to them from Victoria Police, including by DSS Kelly, in the context of Operations Bootham-Moko and Inca.692F[693]

172.6. Evidence from Federal Agent (FA) Herman showing the searches he undertook to establish whether any of the information AFP received from Victoria Police was sourced from Ms Gobbo.693F[694]

172.7. Evidence and correspondence from FA Brener showing the searches she undertook to establish whether any of the information AFP received from Victoria Police was sourced from Ms Gobbo.694F[695]

412 I further accept that the AFP has undertaken comprehensive searches for relevant material and that:695F[696]

There is evidence that the AFP continued to interrogate its records in a proactive way, for example by conducting a further review of its telephone intercept holdings based on allegations made in the closing submissions of Counsel Assisting the Royal Commission,696F[697] and expanding on previous searches that were conducted.697F[698] A significant number of the matters now relied on by the applicant to show that Ms Gobbo's information formed part of either Operation Inca or Operation Bootham-Moko were those identified by the searches and inquiries conducted by the AFP.698F[699]

413 Despite the extent of the searches however, I also accept that, as Karam submits,699F[700] it is possible that information which is not recorded was informally communicated between officers of the agencies involved in joint investigations.

414 Ultimately, the evidence demonstrates Ms Gobbo provided the following information which was passed on by her handlers to the AFP and other agencies.

(a) On 29 June 2006, Jason Kelly told the AFP that Victoria Police had received information from a human source that Karam was using a particular phone number. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.

(b) On 20 September 2006, information in relation to a large importation of cigarettes that the applicant was alleged to have been involved in, was provided to the AFP. I accept Ms Gobbo was the probable source of this information. There is no evidence as to the use (if any) that the AFP made of the information.

(c) On 21 September 2006, an AFP case note recorded information received about an anticipated MDMA importation with which Karam was allegedly involved. I accept that the source of this information was probably Ms Gobbo. There is no satisfactory evidence as to the use (if any) that the AFP made of the information.

(d) In June 2007, Ms Gobbo provided the bill of lading and passed on information as to its source. The bill of lading was the fount and origin of the subsequent Tomato Tins investigation. Information was passed on by Victoria Police first to Customs on or about 19 June 2007 and then to the ACC and AFP on about 20 June 2007.

(e) Early on 29 June 2007, Ms Gobbo provided Higgs' mobile telephone number to her handlers and this number was supplied to the ACC. Later on 29 June 2007, the ACC applied for and obtained authority to conduct a telephone intercept on Higgs' phone. The respondent submits that the extent to which this phone number was used in the subsequent investigation was limited.700F[701] This may be so, but the telephone intercept evidence as a whole was critical to the prosecution case in the Tomato Tins proceeding and any contribution to that evidence must be regarded to have had some significance.

(f) The AFP records indicate that on an unidentified date, Victoria Police advised the AFP that Karam's nickname was 'Rockstar'. The informant, Mr Herman, gave evidence that this nickname was not used in the Bootham-Moko investigation.701F[702] There is no evidence that it was of forensic significance.

(g) On 8 January 2008, one of Ms Gobbo's handlers met with officers of the ACC and advised that Higgs was alleged to be paying a large sum of money to Karam.702F[703] There is no record of dissemination of this information and the respondent submits that Victoria Police and the ACC were no longer involved in Operation Inca at this time.703F[704] The respondent further submits that it is unlikely in these circumstances that the information was informally disseminated.704F[705] I am unable to conclude one way or another whether the information was passed on to the AFP.

(h) On 17 March 2008, Ms Gobbo provided Victoria Police with Karam's phone number.705F[706] This was provided to the ACC on the same day.706F[707] For reasons I have previously stated, I accept that the updating of this number was relevant information. Nonetheless, there is no evidence that the updating of the number was passed on to the AFP.

(i) On or about 19 June 2008, the Source Development Unit of Victoria Police provided information to Jason Kelly that the applicant was involved in money laundering with Jim Mavridis, Jim Valos and Fedele D'Amico.707F[708] An ICR supports the conclusion that this information came from Ms Gobbo.708F[709] Karam submits that the Court should conclude that this information was further discussed by Jason Kelly with FA Corey Wiggett on the same day.709F[710] As the respondent submits, Jason Kelly's diary record does not support this conclusion.710F[711] I am not satisfied that the speculation made on behalf of Karam is justified. The evidence is that the discussion involved the AFP updating Jason Kelly as to the state of proceedings against Karam.711F[712]

(j) On 29 February 2012, during the course of the Tomato Tins trial, the AFP uploaded into 'PROMIS',712F[713] an intelligence report from Victoria Police (Victoria Police Information Report INT12IR479433) which included the following:

Subject: DRUG IMPORT - Frank D'AMICO involved in a pending drug importation

Information: Frank D'AMICO is involved in a pending large drug importation

Frank D'AMICO has a brother Fred D'AMICO whos [sic] is also involved in the importation

John HIGGS and Shane BUDGEJA [sic] are also involved in the importation

The drug importation is believed to be worth $15 million dollars

Comments: Information identifies a further two players, Frank D'AMICO and HIGGS, to information INT12IR478646 (23/02/2012) where KARAM, BUGEJA and Fred D'AMICO are believed to be involved in a drug importation for $15m arriving early to mid March 2012. (IR associated) ... Further investigation and enquires [sic] being made to identify current associations to Frank D'AMICO.713F[714]

It is probable that this information derived from Ms Gobbo.714F[715] The evidence of the informant, Mr Herman, is that this information related to a separate operation known as Operation Trudere and did not relate to Operation Bootham-Moko or Inca.715F[716]

415 In his final written submission, Karam refers to two other specific matters:

• A meeting of 15 January 2008 between three of Ms Gobbo's handlers (Officers Smith, White and Fox) and the ACC.716F[717] The evidence does not establish that any relevant material obtained from Ms Gobbo was communicated at this meeting.
• The passing by Jason Kelly to the ACC on 7 May 2009 of information obtained from Karam direct as to the anticipated arrival of members of the Barbaro family from Italy.717F[718] This incident did not involve Ms Gobbo.718F[719]

Question C: Was there a strategy by Ms Gobbo and Victoria Police to conceal Ms Gobbo's role as a police informer?

416 A deliberate strategy was adopted by Victoria Police to conceal the identity of Ms Gobbo as an informer.

417 Insofar as the matters in issue in this case are concerned this extended to concealing the origin of information relating to the bill of lading from the AFP. The information was first conveyed to Customs and then by Customs to the AFP.

418 This course was adopted because there was a belief that there was a security leak in the Melbourne office of the AFP.

419 Likewise, Ms Gobbo was withdrawn as a witness in proceedings against Paul Dale in order to protect her anonymity as an informer in circumstances which I shall address in more detail below.

420 More generally, Victoria Police sought to conceal Ms Gobbo's identity as an informer on an ongoing basis for the reasons canvassed by the Court of Appeal in AB v CD & EF.719F[720]

421 There is a general public interest in the protection of the identity of police informers and in the present case there were specific concerns as to the ongoing personal safety of Ms Gobbo. These latter fears are reflected in the terms of recorded discussions between Ms Gobbo and her handlers.

422 The respondent does not dispute720F[721] that a series of steps were taken by Victoria Police to conceal:

• the source of information provided by Ms Gobbo to them; and
• Ms Gobbo's role as an informer generally, and more particularly, with respect to Karam.

The evidence before me does not permit detailed findings in respect of these steps but in any event, they are unnecessary for the purpose of answering the questions.

423 In his submissions,721F[722] Karam draws attention to an ICR of 15 August 2008 recording discussion between Ms Gobbo and her handlers a week after Karam's arrest and before the custodial hearings which took place in, and between, August and December 2008.722F[723] Karam submits that the ICR demonstrates that in order to protect Ms Gobbo's identity as an informer, Ms Gobbo's handlers agreed with her that she would not take a courtroom role in his defence but would coordinate and organise the defence.723F[724]

Called source 2958 received a summary for Michael DI PIETRO little discussed re same to reduce information regarding AFP pending matters.

Discussed conflict issues

Source plans to coordinate the cases and organise the defence team rather than participate in court matters to avoid these issues.

Wants a job away from Melbourne investigations. Would like help to find this job

Stress at Low levels this day.724F[725]

Subsequent ICRs from the same date record:

21 page summary now Peno ACQUARO has hold of a 100 page work in progress from 'his man in the AFP'. ACQUARO stated that Rob KARAM had a barrister with him during some of the AFP surveillance physical and electronic.

...

Got to get out of this trial. No way can I get involved with the Rob KARAM matter725F[726]

425 It will be recalled that initially Ms Gobbo saw a number of the co-accused following their arrest.726F[727] I take the reference to 'the cases' to be a reference to the co-accused generally. The evidence as a whole does not support an ongoing agreement to the effect Karam submits. First, Ms Gobbo in fact appeared on a series of bail related hearings after this discussion. Second, the ICR does no more than state Ms Gobbo's intention at that point in time. Third, Ms Gobbo's ongoing relationship with her handlers fundamentally changed when she ceased to be a RHS in January 2009. Further, Ms Gobbo's capacity to be involved in Karam's defence again changed when she ceased to hold a practising certificate on 30 June 2009. I am not persuaded that there was a continuing agreement between Victoria Police and Ms Gobbo as to the role she would play with respect to Karam's defence after these events.

426 Despite these matters, the ICR does however demonstrate an awareness of the sensitivity of Ms Gobbo's position and, in particular, the potential for conflict.

Question D: Was there a lawyer/client relationship in existence between the applicant and Ms Gobbo? What legal work did Ms Gobbo perform for the applicant and when? What was the nature of the applicant's relationship with Ms Gobbo between 1 June 2007 and 23 June 2015?

427 The parties agree that the existence of a lawyer/client relationship depends on whether Karam retained Ms Gobbo to perform legal services on his behalf.727F[728]

428 They further agree that the question of whether Karam retained Ms Gobbo is to be resolved by reference to the objective circumstances of the ongoing relationship between them.728F[729]

429 In Braham v ACN 101 482 580 Pty Ltd, Emerton J (as her Honour then was) observed:

A retainer must be established like any other contract. The retainer may arise as a matter of inference from objective facts, where the facts are sufficient to establish a tacit agreement to provide legal services. In determining whether a retainer existed, the solicitor's file, including letters or file notes which identify how the solicitor dealt with the plaintiff, are relevant. Factors such as the party who provided the instructions and who became liable to pay the solicitors' fees are also relevant. Post-contractual conduct is admissible to determine the existence and formation of the contract. In some circumstances, post-contractual conduct has been used to determine who the parties to the retainer were. The question is what a reasonable person, with knowledge of the words and actions of the parties, and knowledge of the surrounding circumstances, would conclude.729F[730]

430 Karam's case is that Ms Gobbo was retained as, and acted as, his legal advisor on a recurrent basis in respect of particular tasks from a time prior to the alleged Tomato Tins offending until his ultimate convictions.730F[731] In addition, Ms Gobbo prepared legal documentation for him and, when licensed as a legal practitioner, appeared for him as counsel on incidental occasions.

431 The respondent accepts that Karam and Ms Gobbo were in a 'formal lawyer/client relationship' during the following periods:731F[732]

• In relation to the 2005 MDMA importation charge and the 2007 MDMA importation trial: from at least 19 October 2005,732F[733] until 10 July 2007 ('the MDMA retainer').733F[734]
• In relation to Karam's bankruptcy: at discrete times between early 2006 and May 2008 ('the Bankruptcy retainer').734F[735]
• In relation to the Tomato Tins and Inca charges: between 8 August 2008 and 18 December 2008, when Ms Gobbo saw Karam at the Melbourne Custody Centre following his arrest, and appeared for him in the Melbourne Magistrates' Court in three custody related hearings ('the post-arrest retainer').735F[736]
• In relation to Operation Kennels: between 25 March 2009 until on or around 21 November 2009 Ms Gobbo advised Karam ('the Op-Kennels retainer').736F[737]
• On or around 9 November 2009, Ms Gobbo drafted a Form 10A that was used to seek leave to cross-examine witnesses at the committal for the Tomato Tins and Inca charges ('the Form 10A retainer').
• For a limited period in and around January 2011 concluding with the provision of the summons to Mr Valos on 31 January 2011, Ms Gobbo drafted a summons to produce documents which was filed in the Magistrates' Court by Mr Valos ('the summons retainer').
• Ms Gobbo was retained to attend the joint meeting of legal representatives on 30 January 2012 (which I have found occurred on 31 January 2012) and (as tasked during the meeting) to prepare Karam for examination and cross-examination in case he was called as a witness at the Tomato Tins trial. Work was done pursuant to this retainer up until about 20 February 2012 ('the meeting retainer').737F[738]

432 The respondent further submits that the evidence demonstrates that during the period prior to and after the conclusion of the 2007 importation MDMA trial up until the conclusion of the Inca proceedings, Karam's relationship with Ms Gobbo was primarily a personal and social one.738F[739]

433 The respondent points to a series of detailed, incidental matters arising in the course of the relationship as supporting this contention including:

(a) the personal nature of the exchanges between Karam and Ms Gobbo recorded in the ICRs prior to the 2007 MDMA importation trial (Karam says he had 'no romantic interest in [Ms Gobbo] whatsoever' 739F[740]);

(b) the extent to which the ICR evidence describes Karam socialising with Ms Gobbo including, in particular, night-time dinners;

(c) the undertaking of personal tasks by Karam for Ms Gobbo, such as driving Ms Gobbo to and from hospital in December 2005;

(d) the giving of gifts such as perfume to Ms Gobbo;

(e) recorded requests that Ms Gobbo find Karam an apartment in Port Melbourne to live in (which Karam could not recall in cross-examination740F[741]);

(f) an ICR records a Victoria Police surveillance report that Ms Gobbo and Karam were observed kissing and cuddling on departure from a restaurant in the early hours of the morning of 25 January 2006741F[742] (Karam disputes there was kissing and hugging742F[743]);

(g) the fact that ICRs record Karam as using Ms Gobbo's phone for his own purposes743F[744] and using her chambers as a base from which to meet organised crime figures744F[745] (these allegations were also substantially denied by Karam745F[746]);

(h) the fact that ICRs record Karam discussing illegal activity with Ms Gobbo (Karam again substantially denies these discussions took place746F[747]);

(i) the content of the communications between Ms Gobbo and Karam recorded in the GEMS brief747F[748] and the content of the Arunta calls.748F[749]

434 These matters are supplemented by the simple fact that Karam said in cross-examination that from the time he was charged with the 2005 MDMA importation charge until it went to trial in 2007, he saw Ms Gobbo 'at least two to three times per week'.749F[750]

435 The respondent further points to the following contextual circumstances relating to the period after the 2007 MDMA importation trial:

(a) Ms Gobbo held a practising certificate only from 9 April 1997 until 30 June 2009, and again from 27 May 2013 until 30 June 2014;750F[751]

(b) Karam knew from at least June 2011 that Ms Gobbo did not hold a practising certificate;751F[752]

(c) Karam retained solicitors on an ongoing basis and counsel other than Ms Gobbo to appear for him at the committal proceeding and in each of the trials leading to convictions which are the subject of this proceeding;752F[753]

(d) Karam had experience of two prior serious criminal prosecutions and it may be inferred that he knew the value of independent counsel;753F[754]

(e) records of payment to Ms Gobbo's clerk show that she was paid only as follows:754F[755]

274.1. In relation to the brief to appear on the 2005 MDMA charge committal between 7-17 November 2005: one cash payment of $5,000 on 21 November 2005 followed by 23 cash payments of amounts varying between $150 and $1,400, commencing 3 July 2006 with a final payment on 19 March 2007. It took the applicant 16 months to pay Ms Gobbo her fee of $12,000 to appear at his committal hearing.

274.2. In relation to the brief to draft the defence response for the 2005 MDMA charge and appear on 31 January 2006: cash payments of $650 on 3 July 2006 and $250 on 11 August 2006.

274.3. In relation to the brief to appear at five directions hearings and a subpoena hearing between 7 December 2006 and 15 May 2007 in relation to the 2007 trial: cash payment of $5,000 on 2 July 2007.

274.4. In relation to the brief to appear at the 2007 trial between 21 May 2007 and 6 July 2007: cash payments made between 2-18 July 2007 amounting to $47,700.755F[756]

(f) Karam claims that he made cash payments directly to Ms Gobbo of $5,000 and $15,000 in early 2011 but there is no record of such payments.756F[757] I interpolate that as Ms Gobbo did not hold a practising certificate at this time she did not have a barrister's clerk for work done in this period.

(g) Karam's evidence generally tended to exaggerate the importance of Ms Gobbo's role in his legal proceedings;757F[758]

436 There are complicating considerations. An aspect of an ICR description of Ms Gobbo's personal relationship with Karam was characterised in cross-examination by Karam as 'inflating her own ego'.758F[759] There is a sense in reading a number of the ICRs that they are as much a story about Ms Gobbo as Karam. Ms Gobbo has not been cross-examined and there is a real possibility that her account of her relationship with Karam involves elements of exaggeration and embroidery. Further, as Karam submits, the extent of the ongoing social contact between Ms Gobbo and Karam occurred in the context of her fulfilling the role of an informer.

437 Viewed in the broad, the evidence nonetheless shows both that Ms Gobbo and Karam had a close personal relationship and that Ms Gobbo performed a recurrent role as Karam's legal representative and advisor.

438 Ultimately, the work that Ms Gobbo undertook for Karam pursuant to retainers prior to the completion of the 2007 MDMA importation trial is of contextual relevance only to the basis of Karam's application for leave to appeal.

439 Likewise, legal advice given with respect to matters such as his bankruptcy and a casino ban have no direct bearing on the present case.

440 The critical question is whether Ms Gobbo advised or otherwise acted for Karam in respect of the Tomato Tins, Inca and Hong Kong prosecutions.

441 For the reasons I have stated in setting out the course of events, I am satisfied Ms Gobbo acted for and advised Karam sequentially as follows:

(a) Ms Gobbo represented Karam with respect to custodial bail and related matters as set out at [160] above. It may be inferred that in the course of doing so, Ms Gobbo gave Karam some incidental legal advice as to his position ('the custodial hearing representation').

(b) Prior to the committal, Karam obtained first a summary of the Crown case (August 2008), an initial version of the combined GEMS brief (February 2009) and then the combined GEMS brief (September 2009). Gobbo obtained a copy of the combined GEMS brief and discussed it with Karam. It may be inferred she discussed potential defences with him (see [168]-[169] above) ('the preliminary case concept advice').

(c) Prior to the committal, Ms Gobbo advised Karam XXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. This advice included advice that Karam should participate in a record of interview (see [194] above), participate in the preparation and review of a draft police statement (see [206] above), XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXX XXXXXXX ('the Operation Kennels advice').

(d) Ms Gobbo also directly participated in and facilitated meetings for the purpose of preparation of the draft statement (see [197] above) and actively drafted suggested amendments to the statement (see [200]-[201] above) ('the statement preparation').

(e) Ms Gobbo prepared documentation directed to the production of relevant evidence at the committal (see [168] above) and also prepared a draft Defence Response which was never served ('preparation of documentation for the committal').

(f) Prior to the committal, Ms Gobbo expressed an opinion to Mr Shirreffs as to strategic considerations affecting Karam's defence (see [168] above) ('the pre-committal opinion').

(g) Prior to the Tomato Tins trial, Ms Gobbo assisted Karam to obtain legal aid and advised him as to the choice of counsel (see [234] above) ('the representation assistance').

(h) Ms Gobbo provided Dr Marich with copies of documentation which she had previously prepared, including a summary of the prosecution case and a chronology (see [236] and [244] above) ('the summary advices').

(i) Ms Gobbo expressed opinion to Mr Dane as to the appropriate defence strategy (see [251] above). This opinion reflected advice she continued to give to Karam (see [254] above) ('the pretrial defence concept advice').

(j) Ms Gobbo attended a joint conference of Karam's legal representatives with the legal representatives of Higgs on 31 January 2012 and expressed advisory opinions on the conduct of the case (see [258]-[270] above) ('the case conduct advice').

(k) Ms Gobbo was given the specific role of preparing Karam for examination and cross-examination. She prepared notes for counsel in performance of this role which were provided to Mr Dane (see [283]-[284] above) ('provision of notes for Mr Dane').

(l) Ms Gobbo also attended the offices of Higgs' solicitor with Karam and Higgs to listen to the GEMS brief recordings. This may also be regarded as performing the role she had been assigned (see [277] above) ('preparation of the case with respect to covert recordings').

(m) On 15 February 2012, Ms Gobbo gave an email advice on evidence relating to aspects of the pretext conspiracy defence (see [289]-[293] above) ('the first advice on evidence').

(n) On 20 February 2012, Ms Gobbo gave a second email advice on evidence (see [295] above) ('the second advice on evidence').

(o) During the Tomato Tins trial, Ms Gobbo gave Karam collateral oral advice independently of the advice that he received from the solicitors and counsel representing him (see [319]-[321] above) ('the Tomato Tins trial collateral advice').

(p) In July 2012, Ms Gobbo communicated with Jason Kelly again concerning Karam's proposed police statement. This, and other circumstantial evidence, supports the conclusion Ms Gobbo again advised Karam to sign a police statement (see [331] and [333] above) ('the further statement advice').

(q) In July and August 2012, Ms Gobbo gave Karam general litigation advice concerning Karam's ongoing proceedings including advice with respect to the choice of counsel. Ms Gobbo also advised Karam as to defence strategy (see [345] above) ('the general pretrial Inca advice'). This advice was independent of the preparation for the first Inca trial undertaken by Mr Brustman and Dr Fitzgerald (see [346] above).

(r) After the first Inca trial, Ms Gobbo gave Karam advice both in the course of prison visits and telephone calls. In particular, it is probable that Ms Gobbo gave ongoing counsel as to defence strategy in the course of 110 exempt telephone calls between June 2014 and June 2015 (see [359] above). This advice was independent of the preparation for the second Inca trial undertaken by Karam's solicitors and counsel, Dr Fitzgerald and Mr Papas. It is probable that it related to aspects of Ms Gobbo's preferred case concept ('the second Inca trial advice') (see [365]-[375] above).

442 I have not included one item of the work done by Ms Gobbo in connection with the Tomato Tins trial. This was a volunteering of advice concerning pre-trial publicity. I am not satisfied this was done in pursuance of the role Ms Gobbo had been assigned as part of the defence team or pursuant to any request from Karam.

443 Karam contends Ms Gobbo did more work than I have itemised above but I am not persuaded his descriptions of these matters should be accepted save where they are corroborated by circumstantial evidence. Further, there were a number of instances in which I am satisfied that Karam overstated the extent of legal work done by Ms Gobbo and, in particular, work allegedly done by way of instructions to counsel.

444 Conversely, the respondent disputes some items of the work I have summarised and, in particular, disputes the fact that collateral advice was given during the Tomato Tins trial. I have dealt with disputes as to the facts of these matters when addressing the course of events. There is an incidental dispute as to whether what I have called the representation advice constituted legal advice or administrative assistance. In my view, it did constitute legal advice as to how best present Karam's case. But ultimately little turns on this point.

445 I am further satisfied that at the time Ms Gobbo acted for and advised Karam in the ways that I have listed, Ms Gobbo knew that Karam was seeking independent advice and representation from her (albeit he was independently represented both at committal and trial). The advice extended to advice about the way in which the trial and appeal system worked in practice and was not limited to aspects of Karam's defence. During the course of cross-examination, Karam explained his reliance on Ms Gobbo for 'knowledge' with respect to the appeal system and associated matters as follows:

... if you go over the page you'll see she's expressing some further views down to about line 11. Now, this wasn't legal advice that you were getting, this type of discussion that she's having with you, is it? - - - Well we're not talking about the football with all due respect.

Sure. But you're not talking, you're not contending, are you, that this is what you mean by legal advice that she is giving? - - - Well it is to me because this is knowledge. I need this information. I've never been in this position and this is all information that I'm gathering because I'm exploring my options and I'm talking to Nicola about those options.759F[760]

446 I have reached this conclusion despite the fact that:

• Ms Gobbo was not registered to practice during much of the relevant period;
• the evidence of payment for services is limited;
• the legal advice and representation was given and performed within the context of a close, personal relationship;
• to the extent that they are admitted, the ICRs show that Karam took advantage of this close relationship from time to time by using Ms Gobbo's phone and office for the purpose of communications which would otherwise have breached his bail conditions or not be permitted with persons in custody.

447 The fact that Karam sought and obtained advice from Ms Gobbo as a legal practitioner is supported both by the surrounding circumstances of each action which I have described in setting out the course of events and the following underlying contextual matters.

• Ms Gobbo had previously successfully represented Karam.
• Ms Gobbo made some initial appearances on behalf of Karam and it may be inferred that she discussed his legal position when she did so.
• Ms Gobbo obtained and viewed the combined prosecution brief for the Tomato Tins, Inca and Hong Kong charges.
• The combined brief was very substantial. Ms Gobbo subsequently produced summaries and a chronology demonstrating that she had considered and analysed the brief and prosecution case summaries.
• It is probable Ms Gobbo discussed the brief with Karam and advised him in general terms with respect to his position both prior to the committal and the trial proceedings. Because she had been through the events in issue with Karam and had read the brief and engaged in discussion with him over time, Ms Gobbo was in a special position as a legal advisor from his point of view. Further, Ms Gobbo was in a position to give advice as to the combined brief and not simply a particular trial.
• The evidence of Judge Marich shows Ms Gobbo developed a coherent case concept and was in a position to give ongoing advice by reference to this case concept.
• Ms Gobbo advised Karam consistently with this case concept in respect of Operation Kennels.
• Ms Gobbo provided a potential source of continuing collateral advice in circumstances where Karam's solicitors and counsel changed.
• The fact that Karam obtained other independent legal advice and ultimately acted upon it does not mean he did not request and obtain collateral advice from Ms Gobbo.
• Ms Gobbo prepared incidental documentation in anticipation of the committal and the trial. The preparation of these documents involved judgment by way of implied advice.
• Ms Gobbo gave Karam written advices prior to the Tomato Tins trial.
• Ms Gobbo attended a pretrial conference with counsel prior to the Tomato Tins trial and was assigned a specific role in the preparation of the defence case.
• Ms Gobbo prepared notes for the assistance of counsel in the presentation of the defence case.
• After Karam's first conviction, Ms Gobbo visited him in jail and ultimately became listed as a legal practitioner for the purposes of telephone contact after an initial period in which she did not have that status.
• Ms Gobbo gave advice to Karam while he was in custody prior to the completion of the Inca trials in circumstances where he again sought collateral strategic advice with respect to his legal position.
• The advices Ms Gobbo gave over time were given in accordance with a consistent case concept. Reference back to this case concept was a logical matter for Karam to seek advice about. It is probable that over time he had had extended discussions with Ms Gobbo about the facts forming its basis.

448 In turn, I am satisfied that there was a lawyer/client relationship at the time of the provision of each of the services which I have specifically identified.

Question E: Was Ms Gobbo in conflict in her role as the applicant's current or former lawyer and a current or former registered police informer?

449 Karam does not submit that there was a perpetual retainer between himself and Ms Gobbo but that there was a series of individual retainers to undertake particular tasks and that these retainers overlapped in time and substance, and cumulatively involved retainers over a significant period of time.760F[761]

450 The respondent submits that Question E should be understood as being directed to whether and when there was a 'conflict' between Ms Gobbo's two roles as the applicant's lawyer and as a registered police informer.761F[762]

451 In my view, the question does not presuppose that the two roles be contemporaneous. Accordingly, it is not restricted to situations in which Ms Gobbo was both a registered informer and at the same time acted as Karam's lawyer.

452 Prior to final address, the respondent submitted:762F[763]

1. The respondent accepts that for the periods when Ms Gobbo was simultaneously:

397.1. retained by the applicant as a lawyer in relation to his criminal charges;763F[764] and

397.2. registered as an informer with Victoria Police;

she was "in conflict". During those periods, Ms Gobbo's relationship with the applicant was fiduciary. That relationship precluded her from putting herself in a position where there existed a conflict, or a real or substantial possibility of a conflict, between her own interests (or the interests of a third party) and the interests of the applicant.764F[765]

1. The respondent accepts that, as a result of Ms Gobbo's role as an informer, which involved her providing information to Victoria Police about the applicant, such a conflict existed for the periods she was retained by him in relation to his criminal matters.

2. Ms Gobbo was in conflict in her role as the applicant's current lawyer and current registered police informer at the following times:

399.1. between October 2005 and 10 July 2007, in relation to the MDMA retainer;765F[766] and

399.2. between 8 August 2008 and 18 December 2008, in relation to the post-arrest retainer.766F[767]

400. That is the respondent's answer to Question (e).

453 In the course of final address, the respondent accepted Ms Gobbo was in conflict in relation to the following further matters:

• the Operation Kennels retainer between 25 March 2009 until on or around 21 November 2009;
• the Form 10A retainer on or around November 2009;
• the summons retainer in and around January 2011;
• the meeting retainer from about 30 January 2012 until about 20 February 2012.

454 I accept that Ms Gobbo was in a position of conflict at the times identified by the respondent but I have concluded that she was also in a position of conflict with respect to Karam at the time she undertook further legal work in connection with the prosecution of the offences giving rise to the convictions which it is sought to appeal.

455 Before addressing the facts, it is necessary to say something about the concept of conflict. The respondent summarises the relevant principles as follows:767F[768]

1. The respondent understands this question as being directed to whether and when there existed a "conflict" between Ms Gobbo's two roles: as the applicant's lawyer and as a registered police informer.
2. The starting point is to recognise that the lawyer / client relationship is fiduciary. That relationship imposes upon the fiduciary (ie, the lawyer) certain obligations. Those obligations include the "no conflict" rule, which precludes a person from placing themselves in a position where "there is a conflict or a real or substantial possibility of a conflict between his personal interests and those of the persons whom he [or she] is bound to protect".768F[769] A "conflict" arises if there is a "real and sensible possibility" that the personal interests of the fiduciary divide the loyalty of the fiduciary with the result that he or she could not properly discharge their duties to the beneficiary.769F[770]
3. Whether a conflict arises is an objective question.770F[771] It requires the identification of the "conflicting duty or interests".771F[772]

390. That identification must be done with some specificity.772F[773]

456 In the course of final submissions, the respondent referred to the following passage from Dal Pont _Lawyers' Professional Responsibility_773F[774] which elaborates the relevant fiduciary duty:

In circumstances where the relationship between persons can be characterised as fiduciary,774F[775] equity mandates a demanding level of propriety of conduct exceeding the tortious standard of care775F[776] and usually also the standards imposed by contracts.776F[777] Although it is common to speak of fiduciary relationships, the relationship between two persons is simply the vehicle that attracts and defines the scope of fiduciary duties owed by one person to the other. Fiduciary duties are imposed where the nature of the relationship justifies the imposition of the fiduciary standard. The phrase 'fiduciary relationship' is, in any case, misleading in that not all duties owed by a 'fiduciary' are necessarily fiduciary duties.777F[778] So focus on fiduciary duties avoids perpetuating the incorrect impression that 'fiduciary' status infuses every aspect of the parties' relationship.

The central fiduciary duty is one of loyalty 'unequalled elsewhere in the law'.778F[779] Importantly, a duty is fiduciary only if it is one of loyalty. If no element of disloyalty is involved, a breach of duty is actionable through the primary bodies of law that govern the incidents of the relationship in question.779F[780] The High Court in _Breen v Williams_780F[781] interpreted the fiduciary element of loyalty as imposing proscriptive (negative) as opposed to prescriptive (positive) duties, Gaudron and McHugh JJ remarking that 'the law of this country does not ... impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed'. In so doing, the court rejected the use of fiduciary law as a vehicle to sustain an independent source of positive duties supporting a new civil wrong. It feared that to impose prescriptive duties via fiduciary law would lead equity to encroach upon and displace the role played by contract or tort law.

Two principal fiduciary duties exemplify, and arguably exhaust, the requisite standard of undivided loyalty.781F[782] The first is that a person must not, except with the informed consent of the person to whom he or she owes fiduciary duties (the 'principal'), place herself or himself in a position where there is or may be a conflict between:

• the duty as a fiduciary and her or his own interest or a duty to a third party; or

• the duty as a fiduciary to two or more persons;

in the same transaction or matter (the 'no-conflict' duty). The second, which some view as a subset of the first, is the prohibition on a person profiting from a relationship giving rise to fiduciary duties, except with the informed consent of the principal (the 'no-profit' duty).

457 Reference was also made to the decision of Macaulay J in _Break Fast Investments Pty Ltd v Rigby Cooke Lawyers (a firm),_782F[783] affirmed on appeal by Kyrou, McLeish and Walker JJA,783F[784] including the following passage:

to find a real and sensible possibility of conflict requires being able to identify, in a practical way, the potential for a real conflict to arise. A merely theoretical or remote possibility of an ill-defined conflict will not suffice;784F[785]

458 In the present case, the fact that Ms Gobbo was or had acted as a registered informer,785F[786] both generally and more particularly with respect to Karam, gave rise to the following personal interests on the part of Ms Gobbo.

459 First, Ms Gobbo had an ongoing personal interest in the concealment of her personal knowledge of the Tomato Tins, Inca and Hong Kong investigations, including in particular, background matters relating to the way in which evidence had been obtained. The way in which the bill of lading was provided to police is the most obvious example (whatever be the fact of the manner in which Ms Gobbo obtained the bill of lading).

460 This interest arose first because disclosure of her personal knowledge of these matters exposed both herself and her family to the risk of retribution from persons associated with the criminal conspiracies which were uncovered. The risk of retribution extended to a risk of physical harm. The material filed in support of closed court hearings in the current proceeding amply demonstrates a basis for fear of this risk.

461 Secondly, Ms Gobbo had an interest in concealing her identity and role as an informer because her ongoing anonymity was supported by financial payments made by Victoria Police.

462 Thirdly, Ms Gobbo had an interest in maintaining her anonymity in order to enable her to continue working as a lawyer for Karam and potentially other persons. This interest continued whether or not Ms Gobbo was registered to practice as a lawyer. Provided she was able to maintain a plausible denial that the only person upon whom she had informed was Paul Dale, the practical possibility of further legal work continued.

463 Fourthly, Ms Gobbo had a potential personal interest in retaining a close, personal relationship with Karam. The genuineness of that relationship is very difficult to evaluate. But the ICRs include records of statements demonstrating some closeness to Karam and Judge Marich observed an appearance of closeness. Maintenance of anonymity allowed Ms Gobbo the personal satisfaction of a continuing relationship in which she was trusted and in which she could offer ongoing advice. Partly because the advice given with respect to the pretext conspiracy defence has not been shown to be fanciful or deliberately false, I do not discount this possibility. Put another way, maintenance of Ms Gobbo's anonymity allowed her to continue to play a role which it appears she found psychologically fulfilling.

464 The matters I have referred to give rise to the real and sensible possibility of the following consequential conflicts:

• Ms Gobbo placed herself in a situation where she was acting or had acted both for and against Karam's interests in respect of the same subject matter. This gave rise to a necessary perception of conflict of interest. Ms Gobbo acted both for and against Karam during what the respondent calls the post-arrest retainer and did so in circumstances where she had acted against his interests at the time of the alleged offending.786F[787] Subsequently, she acted for Karam in circumstances where she had previously acted against his interests in respect of the same subject matter. Each such situation gave rise to the real and sensible possibility of conflict.
• Ms Gobbo placed herself in a continuing position where she did not fully disclose to Karam facts known to her which were relevant to the evidence in the proceedings against him. This non-disclosure involved the real and sensible possibility of conflict.
• Ms Gobbo placed herself in a situation where a reasonable observer would suspect that the advice she gave to Karam concerning evidence was or may be affected by a personal interest in concealing her role as an informer. Ms Gobbo had informed with respect to alleged circumstances relevant to the Tomato Tins offending, the Inca offending and the alleged conspiracies to murder forming the subject of Operation Kennels. Ms Gobbo's evidentiary advice was necessarily tainted by the real and sensible possibility of conflict.
• Ms Gobbo placed herself in a position where a reasonable observer would suspect that the advice she gave Karam with respect to strategy may be affected by her personal interest in concealing her role as an informer and may favour outcomes which maintained concealment of that role. Most obviously, as discussions recorded in the ICRs reflect, Ms Gobbo had an inducement to encourage Karam to make a plea deal and to adopt courses of action conducive to such a deal.787F[788] Ms Gobbo's strategic advice was necessarily tainted by the real and sensible possibility of conflict.
• Ms Gobbo placed herself in a position where she was a potential witness and had a personal interest in avoiding exposure by way of giving evidence. Ms Gobbo's procedural advice was necessarily tainted by the real and sensible possibility of conflict.

465 It follows that, in addition to the periods of conflict which are admitted by the respondent during which Ms Gobbo was in conflict both as Karam's current lawyer and as a currently registered police informer (between October 2005 and 10 July 2007; and between 8 August 2008 and 18 December 2008), Ms Gobbo was also in a position of conflict when carrying out the legal work relating to the Tomato Tins, Inca and Hong Kong proceedings which I have identified in describing the course of events and summarised in my answer to Question D.

Question F: What was Ms Gobbo's involvement in the applicant's trials? What was Ms Gobbo's involvement in the conduct of the applicant's defences in the Inca and Tomato Tins trials (if any)? Did Ms Gobbo's conduct deprive the applicant of independent representation at the Inca or Tomato Tins trials or materially affect the course of the Inca and Tomato Tins trials?

466 Ms Gobbo's involvement in Karam's trials was as I have previously summarised it.

467 It is necessary to further address the question whether such involvement deprived Karam of independent representation or materially affected the course of the Tomato Tins and Inca trials.

468 I will deal with each of Ms Gobbo's actions to which I have previously referred in chronological order.

469 The custodial hearing representation (see [441(a)] above) neither deprived Karam of independent representation upon his trials nor had any material effect upon their course.

470 The preliminary case concept advice (see [441(b)] above) was overtaken by the advice subsequently given by independent counsel and did not materially affect the course of Karam's trials.

471 I accept Karam's submission that the record of interview, draft statement XXXXXX XXXXXXX traversed facts which were incidental to the prosecution case against him in the Tomato Tins and Inca trials. I will return to this aspect of the matter when answering Question J below. Karam participated in these events pursuant to Ms Gobbo's advice because the Operation Kennels investigation arose out of these circumstances but simultaneously had the potential to support the pretext conspiracy defence. The Operation Kennels advice (see [441(c)] above) did not result in the production of either a record of interview, statement XXXXXXXXXXXXXXXX that were provided to either the AFP or the respondent. Nor has it been demonstrated in any event that their contents prejudiced Karam's defence in any way. Karam's evidence did not identify statements which are said to have prejudiced him but rather asserted that the statements he made set out his defence. Further, the evidence shows Ms Gobbo amended the draft statement to delete potentially damaging admissions and to elaborate matters explaining Karam's actions. No reference was made before me to the trial transcripts to demonstrate any material inconsistency between his statements and his subsequent evidence. The production of the record of interview, draft statements XXXXXXXXXXXXXXXX did not materially affect the course of the Tomato Tins or Inca trials. It is probable that the documents were of some preliminary assistance to counsel who prepared Karam's defence in each trial for the purpose of considering what evidence Karam, DSC Baulch or other police involved in Operation Kennels might give. Mr Dane sought to tender evidence of the draft police statement and Mr Papas said he would have read the record of interview, draft statement XXX XXXXXXXX in the course of his preparation. There is no evidence that counsel's preparation for any trial was prejudiced or embarrassed by these documents. The same analysis applies to the statement preparation (see [441(d)] above) undertaken by Ms Gobbo.

472 The preparation of documentation for the committal (see [441(e)] above) did not deprive Karam of independent representation. He was represented at the committal by Mr Shirreffs and his junior. Karam gave instructions direct to Mr Shirreffs at[789]urt.788F789 The documentation which Ms Gobbo prepared was reviewed by counsel and subsequently amended. There is no suggestion that the documents somehow prejudiced Karam's case. Moreover, it has not been shown that the preparation of the documents had any material effect on his trials.

473 The pre-committal opinion (see [441(f)] above) was expressed to independent counsel who appeared for Karam at the committal. It has not been suggested that it was prejudicial to Karam in any way and there is no evidence supporting the conclusion that it materially affected the course of his trials.

474 The representation assistance (see [441(g)] above) helped Karam to obtain independent representation upon his trial and that representation materially benefitted the proper conduct of his cases on his behalf.

475 The summary advices (see [441(h)] above) helped Karam's independent trial solicitors and counsel to understand the prosecution case in the Tomato Tins trial. They did not deprive Karam of independent advice or materially affect the course of the subsequent trial.

476 The giving of the pretrial defence concept advice (see [441(i)] above) to Mr Dane did not deprive Karam of independent advice. Mr Dane subsequently adopted a different case concept to that which Ms Gobbo preferred. The opinion expressed by Ms Gobbo had no material effect on the course of the Tomato Tins trial.

477 The case conduct advice (see [441(j)] above) involved the attendance at the joint pretrial conference and expression of opinion on the part of Ms Gobbo to Karam's independent solicitor and counsel. It did not deprive Karam of independent representation or deprive Karam of independent decision-making with respect to the way in which his defence would be conducted. At the joint pre-trial conference, Ms Gobbo was given a specific subsidiary role in the defence. As Judge Marich emphasised, this became a side project because Karam was not called to give evidence. The case conduct advice has not been shown to have had any material affect upon the course of the Tomato Tins trial.

478 Similarly, the provision of notes for Mr Dane (see [441(k)] above) did not deprive Karam of independent representation but emphasised that he had senior counsel leading his defence. Once again, the notes cannot have made a material contribution to the defence because Mr Dane did not advance the pretext conspiracy defence. Moreover, nothing has been identified in the notes which was adverse to Karam's case at the Tomato Tins trial. (I will refer further to the contribution (if any) of the notes to preparation for the Inca trials below.)

479 Judge Marich described the work done by Ms Gobbo in preparing Karam to give evidence as a 'side project'.

Well it's a[t] best ex post facto because it became a side project because he didn't use it. At the time he wanted her to be engaged and out of his presence on a project that was hugely consumptive of time. So the side is that he wouldn't continually contact - she wouldn't continually contact him. He knew that she was energetic, she wanted to keep playing a very active role in the defence and he wasn't hugely comfortable with the task of preparing for trial as well as catering to her demands. So whether he used all, some or none of that material that she provided him I don't know, but I think his primary case concept was a simple one and that was the one that he eventually executed because this project didn't give him anything that in that trial could have been used, but it did lay the footprint of his fact that - of Mr Karam's factual defence in later trials.789F[790]

480 The preparation of the case with respect to covert recordings (see [441(l)] above) assisted Karam's defence. It did not deprive Karam of independent representation and has not been shown to have had any material effect upon the course of his trials. Insofar as it had any effect, it was part of a cumulative process which acquainted Karam with the case against him. It presumably assisted Karam to give instructions to Dr Marich and Mr Dane in the Tomato Tins trial, to give instructions to his legal representatives in the first and second Inca trials, and ultimately, to give evidence in the first and second Inca trials.

481 The first and second advices on evidence (see [441(m)&(n)] above) did not deprive Karam of independent representation. It is not suggested that they prejudiced the preparation of his defence in any way. Further, because Mr Dane did not adopt the pretext conspiracy defence, they cannot to be said to have had any effect on the course of the Tomato Tins trial.

482 The Tomato Tins trial collateral advice (see [441(o)] above) given by Ms Gobbo to Karam during the Tomato Tins trial has not been shown to have crystallised in any specific instruction to Dr Marich or Mr Dane. Nor has it been shown to have contributed to the course which the defence took at trial. Indeed, I have not been referred to the trial transcript in any comprehensive way in an attempt to identify any such impact or potential impact.

483 At one point in cross-examination Karam said that his instructions to his lawyers were 'based on my discussions with Gobbo and this was over a ... three year period.'790F[791] It may be accepted that Karam's understanding of the case was contributed to by the discussions he had with Gobbo over time. However no aspect of that understanding has been identified as relevant to the course taken at the Tomato Tins trial or as having somehow misled Karam. The evidence is that at trial it was Mr Dane's advice that determined the course which the defence took as the four month trial unfolded.791F[792]

484 Further, Judge Marich's evidence makes clear Mr Dane did not accept Ms Gobbo's case concept and Mr Dane's view as to the strategy which should be adopted prevailed. Judge Marich gave evidence that this resulted in Mr Dane undertaking only limited cross-examination.792F[793] Once again, however, I have not been taken to that cross-examination. Karam accepted Mr Dane's independent advice as to the course which should be followed at the trial and the case proceeded without running the pretext conspiracy defence which Ms Gobbo favoured, and which it may be inferred, framed the collateral advice which she gave Karam during the trial. In essence, Karam sought a second opinion from a legal advisor in whom he had some confidence. There is no evidence however that he followed this opinion or that the giving of that opinion affected the course of the trial. Indeed, no specific potential effect has been identified by reference to the record of the trial.

485 The further statement advice (see [441(p)] above) given by Ms Gobbo to Karam after his first conviction did not result in Karam signing a statement. He refused to do so after receiving a visit from Dr Marich at the MAP. The further statement advice had no material effect on the course of the Inca trials.

486 Both the general pretrial Inca advice and the second Inca trial advice (see [441(q)&(r)] above) did not deprive Karam of independent representation. No evidence was called from Mr Brustman or Dr Fitzgerald. There is no reason to doubt that they independently confirmed their instructions and advised Karam as to the course taken at the first Inca trial.

487 It is true that the documents reflecting the case concept Ms Gobbo preferred which were provided prior to the Tomato Tins trial (and in particular the notes provided to Mr Dane and the first and second advices on evidence) may be regarded, as Judge Marich said, as containing the 'breadcrumbs' of the pretext conspiracy defence which was advanced at the Inca trials.793F[794] Evidence could not however have been called from Karam or DSC Baulch without significantly more detailed instructions than 'breadcrumbs'.

488 Likewise, although it is probable that the defence run at the first Inca trial reflected a case concept which Ms Gobbo had continued to propound in advice to Karam after the Tomato Tins trial conviction, it cannot be said that that advice affected either the detailed evidentiary instructions which he gave for the purpose of the Inca trials or the strategic decisions made by counsel independently after they were brought into the matter.

489 Further and insofar as it is relevant, there is no evidentiary basis on which to suggest that Ms Gobbo's advice prejudiced the preparation of the defence of the first Inca trial in any way. Accordingly, if it is assumed that Ms Gobbo's advice may have had some underlying effect upon Karam's instructions with respect to defence strategy, that effect was qualified by the independent advice of trial counsel and solicitors, and perhaps more significantly, has not been demonstrated to have had any adverse effect on Karam's defence in the first Inca trial.

490 The same analysis holds true with respect to advice given to Karam in respect of the second Inca trial. Whilst it can be inferred that Ms Gobbo did continue to advise Karam to conduct his defence in accordance with her preferred case concept (particularly because that concept had produced a trial in which there was a hung jury when it was first advanced), the evidence of Mr Papas makes clear that he obtained direct instructions from Karam and gave independent advice in respect of the course adopted by the defence at the second Inca trial. Any advice given by Ms Gobbo in respect of the two Inca trials did not deprive Karam of independent representation, nor has it been shown to have materially affected the course of the second Inca trial. Further, it is again true that there is no evidence supporting the view that the case concept which Ms Gobbo advanced somehow prejudiced Karam's defence. The basis of that defence was ultimately Karam's own evidence as to the facts adduced in accordance with independent advice from successive senior counsel. Mr Papas expressed the opinion it was the only defence that he had.794F[795]

491 Lastly, in final address with respect to this question, counsel for Karam submitted that the combination of Ms Gobbo's conduct and the failure to disclose that conduct at trial had deprived Karam of the opportunity:

• to seek the exclusion of evidence on the basis that it was improperly obtained; and/or
• to obtain a stay of the proceeding if public interest immunity had successfully been claimed with respect to evidence of Ms Gobbo's conduct.795F[796]

492 Karam submitted such a stay might be granted because disclosure of Ms Gobbo's identity was necessary to ventilate challenges under s 138 of the Evidence Act to the admissibility of evidence and more generally on the basis that the use of Ms Gobbo in the investigation constituted an abuse of process by Victoria Police.796F[797]

493 These possibilities are essentially speculative and have not been shown to have a realistic evidentiary basis.

494 First, the grounds of appeal do not raise a direct challenge to the admissibility of the evidence adduced at trial. In consequence, the evidence adduced by the parties has not facilitated the evaluation of such a challenge. Most obviously, the evidence at trial has not been tendered before me (save for limited parts of the transcript). Further, no specific items of evidence have been identified by Karam as the putative subject of exclusionary challenge.

• supplied the bill of lading to Ms Gobbo;
• advised Ms Gobbo of a meeting at the Pacific International Apartments; and
• advised Ms Gobbo of knowledge of the ongoing status of the Tomato Tins importation.

496 It follows that a substantial body of material contained in the ICRs is contested by Karam himself as to its truth. It is difficult in these circumstances to see how, for example, a challenge could be brought by Karam on the basis that he supplied the bill of lading to Ms Gobbo.

497 Thirdly, it is apparent that the bulk of the information which Ms Gobbo passed on to her handlers was obtained on social occasions and was not provided to her either for the purpose of obtaining professional legal advice or for the purposes of litigation. Thus Mr Higgs' telephone number was obtained when Ms Gobbo overheard it at the dinner table and the meetings between Karam and other alleged conspirators which Ms Gobbo described to her handlers were on the face of it social in nature. No piece of information was specifically identified as having a character which cloaked it with legal professional privilege.797F[798]

498 Fourthly, the informing potentially bearing on evidence adduced against Karam related to continuing offending. The informing occurred during the actual course of the offences subsequently charged. As such, disclosure of its subject matter was on the face of it not protected by duties of confidence and loyalty owed by a legal adviser.798F[799]

499 Fifthly, the information Ms Gobbo supplied was essentially preliminary in nature. The evidence which was adduced at the trials was objective evidence obtained subsequent to the informing. The reliability and probative force of the evidence was in no way diminished by the fact that it flowed from antecedent informing. Thus, as I understand it, the copy of the bill of lading provided by Ms Gobbo to her handlers was not itself in evidence but the fact of the importation and contents of the Tomato Tins container were. The surveillance, telephone intercept and covert recording evidence spoke for itself. Its force did not turn upon the nature of any antecedent tip-offs. It is, in my view, unrealistic to suggest that evidence of this nature would readily be excluded pursuant to s 138 of the Evidence Act.

500 Sixthly, the offending was very serious and it is improbable if the above problems could be overcome that the direct evidence of such offending would be excluded in the balancing exercise required by s 138.799F[800]

501 Insofar as the possibility of a stay is concerned, the real relevance of Ms Gobbo's identity as the source of the bill of lading or other background information relating to the evidence is equally problematic. The evidence before me does not provide a satisfactory basis for concluding that there is a realistic possibility that the prosecutions of Karam would have been stayed if a public interest immunity claim had been made with respect to Ms Gobbo's identity prior to trial.800F[801]

502 In September 2013, the Court of Appeal dismissed an interlocutory appeal by Karam with respect to a decision by Judge Montgomery upholding public interest immunity with respect to matters relating to the Hong Kong offending. Priest JA (with whom Osborn JA relevantly agreed) said:

In my opinion, the contention that the trial judge failed to give sufficient weight to the applicant's right to a fair trial cannot be sustained. In his initial ruling - which was the root of subsequent rulings - the trial judge made it clear that, by reference to the confidential material which bore on 'police methodology', the claim for public interest immunity had to be upheld, he having 'balanced that against the public interest in an accused person having every opportunity to test a Crown case and defend himself against a criminal charge'. Having performed the balancing exercise required of him, the judge arrived at the view 'that the balance of the public interest lies in upholding the claim for public interest immunity'.

A soundly based claim for public interest immunity is not necessarily antagonistic to the 'right' to a fair trial and the 'right' to have adequate facilities to prepare a defence. Underpinning the applicant's submissions under cover of this ground - at least tacitly - are the assumptions that disclosure of the material for which the immunity is claimed will go some way to revealing that there has been some police impropriety or illegality which might enliven the powers in s 138 of the Evidence Act 2008; and that, in any event, a fair trial of the applicant is not possible without disclosure of the documents and information for which the immunity from disclosure is claimed. Neither assumption can validly be made.801F[802]

503 The public interest in prosecuting both the Tomato Tins offending and the Inca offending was overwhelming. A stay could only be granted if there were no procedural measures which would enable the trial to proceed fairly.802F[803] Karam's case as to the possibility of a stay remains entirely speculative and is founded upon unverified assumptions.

504 Finally, if a stay of the prosecutions had been granted, it seems inevitable that such stay would have been lifted when Ms Gobbo's identity as a police informer became publicly known.

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

(i) was a registered policer informer?

(ii) had informed on Paul Dale?

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

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

505 From the time of the commencement of the offending onwards, Victoria Police knew that Ms Gobbo was or had been a registered informer and that she had informed with respect to Karam's activity and against Karam's interests. Victoria Police were also aware at all relevant times that Ms Gobbo had informed with respect to Paul Dale and on clients other than Paul Dale.

506 Insofar as officers of the AFP and the respondent are concerned, Karam submits in the first instance:803F[804]

1. In respect of the AFP, Senior Constable David Herman, the informant in respect of the Tomato Tins and Inca trials, suspected that Ms Gobbo was a registered huma[n] source and informer from about March or April 2014, through newspaper articles.804F[805] Despite this suspicion, Mr Herman did not make any further enquiries, saying it was a matter for the 'appropriate authorities' and not for him.805F[806]
2. In respect of the Respondent, various officers knew that Ms Gobbo was a registered human source and informer as follows:

(a) Ms Breckweg knew that Ms Gobbo was a registered informant from at least 6 September 2011;806F[807]

(b) Ms Argitis knew that Ms Gobbo was a registered informant from at least 21 September 2011;807F[808]

(c) Mr Kirne knew that Ms Gobbo was a registered informant in January 2015.808F[809]

THE AUSTRALIAN FEDERAL POLICE

1. The AFP, in the form of FA Herman, suspected Ms Gobbo had been an informer for Victoria Police following media publications in about April 2014.810F[811]

2. The first occasion the AFP became aware that Ms Gobbo may have provided information to Victoria Police about any of the targets of Operation Bootham-Moko or Operation Inca (which targets included the applicant) was 21 January 2015.811F[812]584. In July 2016, when the applicant filed his application for leave to appeal and asserted he was aware of Lawyer X's identity,812F[813] the AFP became aware Ms Gobbo had informed on the applicant.

THE RESPONDENT

1. The respondent, as an institution, knew Ms Gobbo was a registered informer who informed on her clients, and on the applicant, from 21 January 2015.813F[814]
2. One individual officer of the respondent, Ms Breckweg, knew Ms Gobbo had been a registered informer for Victoria Police from 6 September 2011.814F[815]

508 I accept FA Herman's evidence is to the effect summarised by the respondent.815F[816] At the time of the media publication in April 2014, no reference was made to Karam and it has been five or six years since Ms Gobbo had appeared for him.816F[817] Superintendent Kelly had not advised FA Herman of Ms Gobbo's involvement in 2012.817F[818] Federal Agent Herman assumed that the appropriate authorities would follow up the media reporting in April 2014.818F[819] There is no evidence that any other officer of the AFP was aware of Ms Gobbo's status prior to FA Herman.

509 Insofar as the respondent is concerned, the evidence is more complex but I should say at the outset that it is not suggested that prosecuting counsel or officers of the respondent involved in the Tomato Tins and Inca trials knew at the time of the trials that Ms Gobbo had informed on Karam.

510 In January 2011, the respondent laid charges in the Magistrates' Court against Paul Dale for offences under the then Australian Crime Commission Act 2002 (Cth) ('the ACC prosecution'). It was alleged Mr Dale made false and misleading statements during an ACC examination. Ms Gobbo initially made a statement in relation to Mr Dale in respect of his prosecution for the murders of the Hodsons. This murder prosecution collapsed after the murder of Carl Williams, whom it was proposed to call as a prosecution witness. The murder charges against Mr Dale were withdrawn but Ms Gobbo's earlier statement was then used in the ACC prosecution. Ms Gobbo was said to have acted as a go-between or conduit between Dale and Williams.819F[820]

511 Ms Breckweg was the respondent's case officer with day to day carriage of the ACC prosecution. She was supervised by Ms Argitis and, in turn, by Mr Kirne, who was the head of the respondent's Melbourne office. In addition, the respondent retained Mr Beale SC to appear and advise in the matter. Shortly prior to the commencement of the ACC prosecution proceedings, Ms Breckweg had been advised by Victoria Police that Ms Gobbo needed to be handled with particular care because she had sued Victoria Police.820F[821] Members of Victoria Police then raised issues about witness protection considerations with Ms Breckweg during early 2011.821F[822] In May 2011, the respondent consented to the cross-examination of Ms Gobbo at the committal hearing. Ms Breckweg's understanding at that time was that Ms Gobbo was willing to give evidence.822F[823] The committal was then listed for hearing in November 2011.

512 On 24 August 2011, Ms Breckweg attended a meeting with Detective Senior Sergeant Boris Buick, the informant in the Dale matter, Ms Gobbo, Mr Kirne and Ms Argitis. DSS Buick covertly recorded what was said.823F[824] At that meeting Ms Gobbo elaborated the fear she had for her personal safety if her former clients suspected her of assisting police. At one point Ms Gobbo said with respect to 'stuff coming out'824F[825]:

MS GOBBO: 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.

KRISTA: O.K.

MS GOBBO: Very significant matters.825F[826]

KRISTA: I think - I think I know what you're talking about, just a rough guess. Yeah, O.K. So - yeah. I understand what you're saying. So it's - it's not just - your view is it's not just the threat from Dale - - -

UNKNOWN FEMALE 3826F[827]: No.

KRISTA: - - - it's the threat from other people?

UNKNOWN FEMALE 3: Other people.

MS GOBBO: Yeah.

KRISTA: Yeah, yeah, all right.

MS GOBBO: Yeah. And - - -

KRISTA: Well, that's something we have to take very seriously.827F[828]

514 Ms Breckweg, Mr Kirne and Ms Argitis were cross-examined about these matters.828F[829] They denied that the discussion at the meeting alerted them to the fact Ms Gobbo had informed on persons other than Mr Dale. The discussion occurred in the context of the upcoming Dale prosecution and I accept that it did not alert Ms Breckweg, Mr Kirne or Ms Argitis to the fact that Ms Gobbo had informed on persons other than Dale and, in particular, on Karam. What Ms Gobbo made clear was that if the fact of her informing on Dale was explored in evidence, she feared for her safety from a number of persons, not just Dale. More particularly, as Ms Argitis put it, 'Ms Gobbo feared her clients may have assumed that she had provided assistance to Victoria Police beyond that of the assistance that she had provided to Victoria Police in relation to Mr Dale.'829F[830]

515 On 1 September 2011, after a special mention in the ACC prosecution, Ms Breckweg had a telephone conversation with Ms Gobbo of which she took a file note. The note recorded that Ms Gobbo told Ms Breckweg that:

Overland said would be protected

Very worried about questions that will be put to her

2,500 - 5,000 hours of info related to DALE from 2004 → all contacted

I will not say I provided info to police

The Bootham/Moko committals would not have occurred

...

VicPol have assessed her as in serious threat in risk assessment

Wants protection.

...

I can't do it if I'm put in a position of safety being risked830F[831]

516 In evidence, Ms Breckweg said that she knew about the Bootham-Moko cases which the respondent was prosecuting, although she had no involvement with them at the time.831F[832] She did not recall discussing this aspect of the matter with Ms Gobbo.832F[833] Ms Breckweg said Ms Gobbo was beside herself with worry that she might be killed.833F[834] Ms Breckweg did not understand Ms Gobbo to be saying that she had informed against any of her other clients.834F[835]

517 Later that day, Ms Breckweg emailed Mr Buick with a question relating to witness protection. She advised Mr Buick that she had had a conversation with Ms Gobbo stating among other things:

Again, she stressed that she was extremely concerned for her safety should she be required to give evidence in court that would reveal her previous dealings with Victoria Police. She said she would refuse to answer any questions about this due to her fear that her life would be in danger.835F[836]

518 On 6 September 2011, DSS Buick replied to Ms Breckweg's email attaching an 'Issue Cover Sheet'.836F[837] The Issue Cover Sheet included the following statements:

Background:

J Doe* is a prosecution witness in a pending criminal trial of "the accused".

J Doe was formally [sic] a registered human source of Victoria Police. As a registered human source J Doe provided Victoria Police with valuable and investigatively fruitful information over a number of years against a number of high level criminals.

Pursuant to the pending criminal trial, J Doe provided Victoria Police investigators with a statement against "the accused".

Prosecutors intend to call J Doe in the pending criminal trial.

...

It is anticipated that when called as a witness in the pending criminal trial, J Doe will be cross-examined as to how he/she came to be engaged by Victoria Police as witness against "the accused". Unchallenged, such cross examination is likely to lead to disclosure as to how J Doe came to be engaged and managed by Victoria Police as a human source.

Such disclosures would lead to the revealing of Victoria Police protected investigative methodologies and place J Doe's safety at risk_._

Comment:

Whilst investigators propose to mount public interest immunity claims against such cross examination, advice is sought as to ...837F[838]

519 Ms Breckweg understood the reference to 'J Doe' was a reference to Ms Gobbo.838F[839] In evidence, she did not recall if she told Mr Kirne or Ms Argitis about the coversheet but said it would have been unusual if she did not.839F[840] Mr Kirne and Ms Argitis say they did not see the coversheet and do not recall being advised of the coversheet contents.840F[841]

520 It is clear however that by this point in time at least one officer of the respondent knew Ms Gobbo, acting as a RHS, had informed with respect to a number of high-level criminals and not just Paul Dale (although, as Ms Breckweg said, such persons were not at that time identified as Ms Gobbo's clients).841F[842]

521 On 19 September 2011, Mr Gerard Maguire of counsel, who was retained by Victoria Police regarding subpoena compliance issues in the Paul Dale matter, sent an email to Ms Breckweg and others requesting information as to documents already provided to the Dale defence and noting that a meeting was being set up for the coming Wednesday.842F[843]

522 On 21 September 2011, a conference took place in the chambers of Mr Maguire attended by Mr Maguire; officers of Victoria Police - Detective Senior Sergeant Boris Buick, Officer Sandy White, Detective Inspector Michael Frewen and Findlay McRae, Director Legal Services; members of the Victorian Government Solicitor's Office - Greg Elms and Louise Jarrett; and from the respondent - Ms Breckweg and Ms Argitis. Sandy White was introduced as Ms Gobbo's handler.843F[844] Two file notes were made of the meeting by the representatives from the Victorian Government Solicitor's Office.844F[845] One note recorded that Ms Breckweg said about Ms Gobbo:

• Informer & liar

• all issues to credit845F[846]

serial liar, dobber

dobbed on clients

this will be there [sic] tactic846F[847]

524 Ms Breckweg's evidence, which I accept, is that these notes summarised the approach she said she anticipated the defence would take at trial.847F[848] Ms Argitis does not recall these things being said.848F[849]

525 The first note also records that in the course of the conference, Sandy White stated Victoria Police went to great pains to ensure they never got information from Ms Gobbo concerning people she represented.849F[850] Findlay McRae agreed with this.850F[851] These statements were presumably intended to reassure the respondent's officers.

526 The second file note also recorded 'HSU has chronology - log Gerard wants this'.851F[852] Further notes record that:

Contact w [Sandy White] extensive. Every day. 4/5 yrs up to 12 convos a day.

...

Will log say who ppl were being investigated & whether they were represented by [Ms Gobbo]? KB - At least one.'852F[853]

527 This discussion pointed the way to the significance of Victoria Police records in resolving disclosure issues.853F[854]

528 On 25 September 2011, Detective Inspector Michael Frewen of Victoria Police sent an email to Assistant Commissioner Graham Ashton, Doug Fryer and Findlay McRae of Victoria Police summarising a meeting he had with Ms Breckweg. In the email he wrote that he spoke with Ms Breckweg about:

Progressing as planned but vigorously running all PII arguments with the view to winning them, however if it appeared that there may be a loss in an argument on this point that then exposed either [Ms Gobbo], other high risk individuals or methodologies then we would [be] looking at withdrawing as the risk factor was too great.854F[855]

529 Following this discussion, Ms Breckweg pursued production of the Victoria Police HSU records.855F[856] Amongst other things, in an email to the Victorian Government Solicitor's Office and to DSS Buick of 19 October 2011, Ms Breckweg specifically sought:

• documents that informed the defence of the prosecution case against him/her;
• any information affecting the credibility of any prosecution witnesses;
• any 'unused' material (material not used in the prosecution case but which may run counter to the prosecution case or may assist the accused in advancing a defence).856F[857]

530 Ms Breckweg also emphasised that the disclosure obligation was ongoing and enclosed a copy of the respondent's disclosure policy.857F[858]

531 On 24 October 2011, DSS Buick emailed Ms Breckweg and referred to a phone conversation in which Ms Gobbo was reported to have said that she was:

Perhaps more relevantly from Friday's meeting - Nicola is adamant and will say that she has never breached a client's privilege, vis-a-vis DALE or any other client - any admissions made to her about criminal offending were not made in the context of providing legal advise [sic] about that offending.

Finally, while Nicola appears resigned and ready to give evidence, she repeatedly asks about what security provisions will be put in place once she is called and especially should be she [sic] asked/exposed for her historical relationships with Victoria Police. As (relatively) smoothly as thing [sic] are progressing at present, this is likely to become a sticking point as we get closer to the Committal, for your information.858F[859]

532 Advice was sought from Mr Beale with respect to the disclosure issue and after other communications, Ms Breckweg on 2 November 2011, confirmed an arrangement for Mr Beale and herself to inspect documents held by Victoria Police.859F[860]

533 On 3 November 2011, Ms Breckweg received a copy of a memorandum of advice from Mr Maguire dated 4 October 2011.860F[861]

534 The advice identified the fact that the information received from Ms Gobbo had been disseminated by way of information reports. A log was kept which recorded in a summary way, details of contacts between the source and handlers, some of the instructions given and other matters.

535 Ms Breckweg understood that she would be given access to the relevant logs.861F[862]

On 21 September 2005, the confidential source was debriefed by members of the Unit in respect of criminal activity being undertaken by Mokbel and his associates. At this time the source was acting in a legal capacity in relation both the Mokbel [sic] and other of his associates. There was a follow up debrief on 24 October 2005 in relation to the same targets.

Throughout late 2005 and 2006 there was extensive and continuing contact between the source and unit handlers during which information was provided in respect of various targets and persons of interest in relation to drug investigations. Often these contacts were several times each week. The source continued to act as part of the legal team in respect of a number of the targets of investigation. It is also apparent from the log that the source was tasked from time to time in relation to other investigative targets as well as the Mokbel syndicate.

The information provided by the source was of very high value. Thus, identification of the source would have led to severe retribution.

...

It may also have been the case that during 2006 the sources' [sic] handlers were also receiving and passing on information not only in relation to ongoing criminal activity by Mokbel and others but also as to the manner in which their respective defences were being conducted. ...862F[863]

537 Ms Breckweg made a note on the last page of the Maguire advice. She wrote:

She was leading him to believe she was his legal adviser. Other info may reveal she was doing this with others + it wd suggest she has a tendency to do it.863F[864]

538 In evidence, Ms Breckweg said that this question of tendency was a matter which Mr Beale had advised her was potentially relevant to the defence in the Dale prosecution and the note records discussion with Mr Beale.864F[865] As Mr Kirne confirmed, it was anticipated Dale would argue that communications between Ms Gobbo and himself were the subject of legal professional privilege.865F[866]

539 Neither Ms Argitis nor Mr Kirne read the Maguire advice.866F[867]

540 On the same day as the Maguire advice was received, at around 2:30 pm, Ms Breckweg and Mr Beale attended Victoria Police offices in the CBD and were shown source management log documents.867F[868] They were dissatisfied with the extent of the documentation shown to them which was heavily redacted.868F[869]

541 There were incidental references to Karam in the heavily redacted material but they did not alert Ms Breckweg to an issue with respect to Ms Gobbo's role relating to him. Ms Breckweg does not recall seeing these references.869F[870]

542 On 4 November 2011, Ms Breckweg emailed various Victoria Police members and Mr Kirne elaborating a list of the types of documents which the prosecution considered should be disclosed to the defence in accordance with respondent's prosecution disclosure policy.870F[871] The list had regard to Dale's likely defence and the likely attack on Ms Gobbo's credit.871F[872]

543 On the same day, Assistant Commissioner Ashton had a teleconference with Mr Kirne and Ms Breckweg which resulted in an agreement with Victoria Police that Victoria Police would attempt to prepare a list of documents.872F[873] Subsequently, on the same day, Assistant Commissioner Ashton advised that such a list would take some days to complete properly.873F[874] Thereafter, senior police officers expressed concern to the respondent's officers about the risk to Ms Gobbo if her position as a registered source was exposed. These concerns were elaborated at a meeting on 8 November 2011.874F[875]

544 The discussion at the meeting did not alert Mr Kirne or Ms Argitis to the fact that apart from Mr Dale, Ms Gobbo had provided information against her own clients.875F[876]

545 Subsequently, on 8 November 2011, Assistant Commissioner Ashton wrote a letter to Mr Kirne formalising the discussion and requesting Ms Gobbo not be called as a witness.876F[877] In the letter he stated, amongst other things:

Whilst I was generally aware of the circumstances around [Ms Gobbo] it was not until yesterday that I became fully aware of the potential risk to [Ms Gobbo] if they were to continue as a prosecution witness.877F[878]

546 Mr Kirne (in the presence of Ms Argitis, Ms Breckweg and Mr Beale) then had a discussion with Mr Thornton, the CDPP Deputy Director in Canberra, in which Mr Kirne said it was intended to call Ms Gobbo as a witness.878F[879] Shortly afterwards, Mr Chris Craigie (the then CDPP) called Mr Kirne by telephone and instructed Mr Kirne (in the presence of Ms Argitis, Ms Breckweg and Mr Beale) that the CDPP would not call Ms Gobbo as a witness because the risk to her was too great.

547 Ms Breckweg's evidence, which I accept, is that she queried this decision and the Director emphasised its finality.879F[880]

It's over a decade ago, Dr Alexander, but to the best of my recollection I initially made the decision, and I believe Ms Breckweg and Mr Beale were present in my office when I made the decision, that I would not accede to the Victoria Police request because my view was let's hear what the public interest immunity argument is and let a Court make that determination, and then make the decision as to whether to pursue calling Ms Gobbo or not. So I remember agonising about that because it's not every day that you make a decision to, not disregard but go against a police recommendation when the life of a witness is under threat. As I said before, I couldn't really understand why the mere adopting of a statement at a committal hearing would significantly increase the risk. But I thought let's hear what the PII argument's about and then we'll make a decision. I think it was only a matter of ten minutes or something from recollection before Mr Craigie rang me. I think Ms Breckweg and Mr Beale were still in my office from recollection and Mr Craigie made it - in a very polite way made it clear that he'd had regard to the police concerns about safety and wasn't prepared to take that risk of a threat of her being harmed.880F[881]

549 Counsel for Karam cross-examined Ms Breckweg, Mr Kirne and Ms Argitis with respect to this history.

550 Ultimately, whilst it can be concluded that at least one of the respondent's officers knew Ms Gobbo was a registered informer prior to the Tomato Tins trial and that she had informed both against Paul Dale and in 2005-6 against Tony Mokbel and his associates and others. There is no evidence that the respondent's officers were aware Ms Gobbo had informed against Karam.

551 Karam submits that the respondent's officers were in effect put on constructive notice that Ms Gobbo may have informed against clients other than those identified in Mr Maguire's advice. In this regard, Karam draws attention to the reference to Bootham-Moko in the conversation of 1 September 2011. I take the question which I am required to answer to be directed to the actual knowledge of the respondent. Moreover, the history I have been through shows the respondent's officers were squarely focussed on the Dale proceeding and that their expectation was that issues relating to Ms Gobbo's role as a witness would be resolved when Victoria Police provided disclosure on an ongoing basis enabling the respondent to comply with the respondent's disclosure policy. Karam's submission reflects the benefit of hindsight which the respondent's officers did not have at the time in question. As Mr Kirne said '...with hindsight comes great wisdom.'881F[882]

552 Not only does the evidence not establish that any of the respondent's officers knew that Ms Gobbo had informed against Karam at the time of the proceedings against him but the evidence further fails to demonstrate that they in fact suspected Ms Gobbo may have informed against Karam at this time.

Question H: Did Ms Gobbo influence the applicant regarding the record of interview / witness statement XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX?

553 Ms Gobbo advised Karam to participate in the Operation Kennels investigation and in particular:

• in the record of interview;
• in the drafting of a police statement over sequential meetings; XXX
• XXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

554 It may also be inferred this advice influenced Karam in taking the procedural steps in issue.

555 The advices on evidence and notes produced by Judge Marich demonstrate that Ms Gobbo was aware that the evidentiary basis for the pretext conspiracy defence was thin.

556 The obvious purpose of assisting the Operation Kennels investigation was to provide self-serving evidence which supported the conclusions that Karam only participated in events involved in the Tomato Tins and Inca offending because of fear that third parties would be killed if he did not. Likewise, it was in Karam's interests to assist the police investigation directed to proving the reality of such death threats. Such assistance may potentially have been obtained directly by the way of the provision of evidence against the conspirators and indirectly by way of assisting police to obtain statements from other persons. It follows that the advice given was entirely consistent with the pretext conspiracy case concept.

557 I further accept the view of Judge Marich and Mr Papas that this case concept was arguable. This view is implicit in the strategy adopted by Mr Brustman on the first Inca trial at which affirmative evidence was adduced in support of this concept.

558 Ms Gobbo's advice influenced Karam as to the practical steps which he should take having regard to the pretext conspiracy case concept.

Question I: Was the applicant compelled to give evidence at XXXXX in relation to matters that were relevant to his trials?

559 Karam was compelled to give evidence at XXXXXX in relation to matters which were relevant to his trials.

560 It does not follow however that such evidence was made available to the prosecution upon his trials. Nor does it follow that such evidence offered any material assistance to the prosecution on such trials in any event. The evidence is that the XXXXXXXX was not provided to the prosecution.

Question J: Did the applicant's participation in the Victoria Police investigation Operation Kennels by way of a record of interview XXXXXXXXXXXXXXXXXXXX and/or the provision of a draft witness statement, relate to the subject matter of either the Inca or Tomato Tins charges?

561 Karam's participation in the Operation Kennels investigation did relate incidentally to the subject matter of the Tomato Tins and Inca charges.

562 The motive for the alleged conspiracy to murder was the failure of the Tomato Tins importation. More specifically, as Karam submits882F[883] Pasquale Barbaro believed Fedele D'Amico and Michael Barbaro were responsible for the loss of the importation and that their execution would appease the members of the organisation who had exported the container. In his final written submissions, Karam identified the following examples of matters common to the record of interview/draft witness statementXXXXXXXXXXXXXX relevant to both the alleged conspiracy to murder and the Tomato Tins and Inca charges:883F[884]

- The circumstances in which Karam came to know Joe Mannella and be employed by Joe Mannella in Logistics Solutions;

- The identities of Pat Barbaro, Sam Zirilli, Pat Sergei, Graham Potter, Carmelo Falanga, Tony Sergei, Fred D'Amico, Michael Barbaro and the circumstances in which he became acquainted with each of them;

- The role that Karam played in freight forwarding and customs clearance;

- The role that Pat Barbaro, Sam Zirilli, Pat Sergei, Graham Potter, Carmelo Falanga, Tony Sergei, Fred D'Amico, Michael Barbaro played in arranging the Tomato tins shipment;

- The details of, and circumstances in which, the Tomato Tins shipment was arranged;

- The consequence of the failed Tomato Tins importation, including why Fred D'Amico and Michael Barbaro were targeted in the conspiracy to murder;

- The reason for, and circumstances in which, the Inca importations were necessary, being to recover the loss incurred and the debt owed to the Italian mafia;

- What occurred generally between the co-conspirators from 2005 to 2009.

Question K: Was there any dissemination of the applicant's Operation Kennels record of interview****X XXXXXXXXXXXXXXXXXXXXXX or draft witness statement to the Australian Federal Police or the Commonwealth Director of Public Prosecutions?

563 There is no evidence that a copy of the Operation Kennels record of interview, any version of Karam's draft witness statement XXXXXXXXXXXXX was provided to any AFP member or the respondent.884F[885]

564 There is no evidence that anything derived from these documents was utilised by the prosecution at trial.

565 There is no evidence of the communication of any relevant information derived from these processes to any member of the AFP or officer of the respondent.

566 Moreover, each of these documents was in fact substantially exculpatory of Karam. In particular, he did not admit positively assisting Barbaro. In turn, on the Tomato Tins trial the defence sought to adduce evidence that Karam had cooperated in preparing a statement with respect to the conspiracy to murder. Such evidence was excluded by King J on the basis that it related to matters post-dating the offending in issue.885F[886]

567 On the Inca trials, Karam's evidence is that the defence cases were consistent with his record of interview, the draft statement provided for the purpose of Operation Kennels XXXXXXXXXXXXXXXXXX.886F[887]

568 There is thus no basis for assuming that the documents were of any obvious use or interest to the AFP.

569 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXX.887F[888]

570 The applicant points to three pieces of evidence as supporting the conclusion that information derived from the record of interview and draft statements was disseminated:

• evidence of the meeting between Jason Kelly, FA Wiggett and FA Erdmann on 16 December 2010;
• evidence of the discussion between Jason Kelly and FA Accetta on 24 August 2012; and
• evidence of the discussion Jason Kelly had with other members of the AFP in the days following 24 August 2012.888F[889]

571 As I have noted,889F[890] there is evidence that Jason Kelly communicated the fact that it was proposed Karam would sign a statement to FAs Erdmann and Wiggett.

I advised them that I had prepared a draft statement with Mr Karam that was awaiting signature. I gave the Federal Agents a general overview of the conspiracy to murder aspects set out in the draft statement. XXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X XXXXXXXXXXXXXXXXXXXXXXX.890F[891]

573 Superintendent Kelly also said that he did not provide or show FAs Wiggett or Erdmann a copy of the draft statement XXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.[892]

574 Superintendent Kelly's oral evidence was that Federal Agents Wiggett and Erdmann already knew about Operation Kennels because the AFP provided Victoria Police with the information that led to the investigation. Superintendent Kelly said that he advised the Federal Agents that Victoria Police had been taking a statement for a considerable period of time. He told the Federal Agents that if Karam signed the statement they would need to work with each other 'in terms of logistically how we work through that'.892F[893] Federal Agents Wiggett and Erdmann do not recall any discussion of the contents of the statement.893F[894]

575 Superintendent Kelly's diary also recorded speaking with FA Accetta on 24 August 2012 about the persons involved in Operations Inca, Moko and Cardinia, including Karam.894F[895] In cross-examination, Supt Kelly was asked whether he told FA Accetta about the statement and said:

I believe - well I don't - I may have, in the sense that I think I contacted her because we needed to get all the information in terms of what Mr Karam had been convicted of, what matters were - and I think we were trying to work out, because we, because I didn't have a great understanding of all the matters because there was multiple matters, that's what it related to ...895F[896]

He further said:

My memory of this is the executive of Crime Command wanted to understand exactly what the situation was with Mr Karam. So I was trying to get an understanding of all the different matters he had been charged with.896F[897]

576 The conversation occurred at the time at which Victoria Police records show XXXXXX XXXXXXXXXXXXXXXXXXXXXX.897F[898]

577 There is no basis for concluding that Jason Kelly relevantly advised FA Accetta of the substance of the statement.

578 Superintendent Kelly's evidence and diary notes indicate that he had further contact with the AFP in the following days and stated that Karam 'had indicated he was ready to open up'. The AFP response was that they were not interested and were very cautious about dealing with Karam.898F[899]

579 Searches undertaken of AFP records do not disclose any record of receipt of the statement or information derived from the statement.899F[900]

580 In turn, there is no suggestion that the combined AFP brief was ever in fact amplified as a result of information obtained from Karam.

581 Taken as a whole, the evidence shows that the AFP were told that Karam had prepared a draft statement in connection with Operation Kennels, but it does not show that the AFP were advised of the statement's contents or of any detail adding to the prosecution brief in the Tomato Tins or Inca proceedings.

Question L: Did Ms Gobbo profit to any and what extent from disclosing information about the applicant to Victoria Police?

582 Karam submits that Ms Gobbo did receive financial remuneration as set out in [103] of the submission filed on behalf of Karam.900F[901]

1. In relation to financial benefits (comprising of gifts, tickets, flowers etc) she received $18,151.99 in benefits between 20 September 2005 and 22 January 2009901F[902] and $228,621.92 in benefits between 4 March 2009 and 10 March 2019.902F[903]

1. Between 20 September 2005 and 22 January 2009, Ms Gobbo received compensation by way of reimbursement for expenses relating to her status as a registered human source amounting to $3,559.70. The expenses included prepaid sim cards, data recharge, phones, taxi fares, and parking fees.904F[905]
2. On five occasions during that period, Victoria Police made 'motivational payments' to her in the form of:905F[906]

827.1 a Borders bookstore voucher worth $100 on 26 July 2007;

827.2 flowers worth $75 on 16 September 2007;

827.3 perfume for her birthday worth $105 on 16 November 2007;

827.4 concert tickets worth $1,055.50 on 15 August 2008; and

827.5 an item worth $15.50 from a newsagent on 23 December 2008.

1. In addition, on 26 April 2006, Ms Gobbo was reimbursed for a penalty notice which was in the form of a 'reward', in the sum of $341.906F[907]

584 The respondent further submits the total value of these sums is $1,692 over three and a half years.907F[908] The $18,151.99 to which Karam refers is the total of disbursements paid by Victoria Police which includes the reimbursements set out above but mostly comprises motel room hire and refreshments, presumably associated with meeting Ms Gobbo in secure locations.908F[909]

585 It is further submitted Ms Gobbo also received financial benefits from Victoria Police between 4 March 2009 and 19 July 2010 and a one-off payment on 10 March 2019.909F[910] These totalled $228,621.92 and were received by Ms Gobbo at a time when she was no longer a registered police informer but was a witness in criminal proceedings against Paul Dale.910F[911] There is no evidence supporting the conclusion that these benefits related to any information provided about Karam.911F[912]

586 I accept the respondent's submissions subject to the following significant qualifications. The evidence relating to the interaction between Ms Gobbo, Victoria Police and officers of the respondent in relation to preparation for prosecutions against Paul Dale makes clear that the context in which moneys were paid to Ms Gobbo during this period was one in which there was a fear that her role as a registered police informer generally (and not simply with respect to Dale) would be uncovered and communicated to former clients with consequential grave risk to Ms Gobbo's safety.

587 Karam fell within the broad class of clients whose existence motivated the payments of $228,621.92. The fact that Ms Gobbo had informed about Karam had consequences not only for Karam but also for others. In turn, Ms Gobbo's informing about Karam was an element of the basis for the payments made to her.

588 This conclusion does not turn on the fact that the 'Petra spreadsheet', to which argument was first relevantly addressed in the written reply,912F[913] identifies four items of information about Karam. It turns on the fact that the payments were made as part of a scheme to protect Ms Gobbo's anonymity as an informer generally with respect to persons involved in serious crime.

589 Conversely, the payments made between 4 March 2009 and 19 July 2010 form part of the matrix of fact giving rise to the conflicts which I have identified in the answer to Question E.

590 Lastly, in respect of Question L, Karam submits that the notion of 'profit' extends to the psychological satisfaction Ms Gobbo obtained from being a successful informer as evidenced in a number of the ICRs.

591 I do not accept that the ordinary meaning of 'profit' extends this far. Further, it is unnecessary to make findings in this respect in order to resolve the answer to Question E.

Excerpt from Annexure A to the Respondent's Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022, 7-11 [49]-[73] (citations in original).

21 MAY 2007 - 10 JULY 2007: THE 2007 TRIAL

1. The applicant's trial was starting on 21 May 2007 (provided on 21 May 2007).913F[914]

2. A new phone number for the consignee for an importation, obtained by Ms Gobbo when she saw it written on the back of the phone the applicant had left in her office (provided on 24 May 2007).914F[915]

3. A list of phone numbers Ms Gobbo had copied from the applicant's mobile telephone while he had left it in her office the day before (provided on 25 May 2007).915F[916]

4. Ms Gobbo's concerns about potential plans to kill one of the applicant's co-accused (provided on 24-25 May 2007).916F[917]

5. Conversations Ms Gobbo is having with the applicant and Mr Mannella and their attempts to have their trials adjourned; all co-accused against Mr Mannella and the applicant will not consider rolling against each other; at present time AFP can't prove that they all had knowledge of the contents of the container; all offenders, especially the applicant's crew are prepared to run the risk of a trial rather than admitting knowledge of contents of container (provided on 25 May 2007).917F[918]

6. The applicant had discussed the defence of Mr Claite and Mr Straveff, that they thought they were unloading containers of tobacco. The applicant wanted the trial to commence and required both Mr Claite and Mr Straveff there (provided on 28 May 2007).918F[919]

7. The applicant and his co-accused had a conference with Ms Gobbo that day, the purpose of which was to have Mr Claite assist the Mr Sergi defence. Mobile phone numbers for the applicant and Mr Mannella (provided on 29 May 2007).919F[920]

8. The applicant provided Ms Gobbo with $20,000 in cash. Brian Amatruda gave evidence that was favourable to the applicant and AFP wanted to have his evidence excluded (provided on 30 May 2007).920F[921]

5 June 2007

1. Ms Gobbo left a message for one of her handlers indicating that she had been asked to hold some documents on behalf of the applicant, which she believed related to the new importation (provided at 10.09am on 5 June 2007).921F[922]

2. The applicant gave Ms Gobbo the envelope from Mr Mannella to hold just in case Mr Mannella got locked up; the documents relate to shipping containers being imported by Mr Mannella; the applicant returned at 1pm and collected the envelope to return; the documents are in Italian (provided at 1.42pm on 5 June 2007).922F[923]

3. Ms Gobbo provided Victoria Police with a copy of documents which were a bill of lading and emails, all in the Italian language. Ms Gobbo assisted Victoria Police by translating the documents to English, and explained they appeared to be shipping documents relating to a container of tomato products, possibly in tins.923F[924] She also gave the following information (provided after 6pm on 5 June 2007):

59.1. Mr Mannella left to go to court and the applicant ask her to hold onto the envelope. Ms Gobbo asked the applicant, "It's not gunna get me in trouble, is it?" He goes "Oh your fingerprints are already on the outside of it, so thank you, thanks." Ms Gobbo said "What's this one in relation to good quality importation, it's ecstasy, cocaine? Not tobacco, is it?" He goes, "Bit of this, bit of that." And then he said, "No, I got to hold on to them because in case Mr Mannella goes... in case he gets locked up."924F[925]

59.2. At lunchtime, the applicant told Ms Gobbo he needed to come and get the documents and he came to her office with his brother, Bill, who took the documents away.925F[926]

59.3. The applicant was spooked about the current container and is not going near it now. Unknown why spooked. The applicant left a whole container of MDMA late last year which was imported through Customs via a connection. It did not get checked. The container then went missing three days later, turning up on the side of the road empty.926F[927]

After 5 June 2007

1. The applicant wanted Ms Gobbo to see Mr Mannella at Melbourne Assessment Prison to get instructions from him. Mr Mannella hoped a new container would be imported prior to the applicant's trial (provided on 7 and 10 June 2007).927F[928]
2. The applicant conversed with Mr Mannella on Ms Gobbo's phone for ten minutes and they would be communicating again tomorrow (provided on 14 June 2007).928F[929]
3. In relation to the 2007 trial, Mr Sergi will say that he told them all it was tobacco and nothing else. In his interview, the applicant denied having anything to do with the three calls relating to the container. Ms Gobbo considers it will be difficult to use the tobacco defence with the applicant. General talk regarding the applicant's trial and incidents throughout the day (provided on 15 June 2007).929F[930]
4. General talk regarding the applicant's trial. The applicant described the new container coming to Melbourne as "three times" as big as his current trial (the 2007 trial), and the applicant usually checked the status of containers and likelihood of Customs x-rays (provided on 17 June 2007).930F[931]
5. General talk about the applicant's trial; there was lots of infighting between co-accused; Mr Sergi wanted to sack his lawyer; Mr Sergi wants to give evidence re tobacco but his barrister says no, this is why Mr Sergi wants to sack him; Ms Gobbo conceded this would hurt all accused (provided on 19, 20 and 21 June 2007).931F[932]
6. Information Ms Gobbo received from the applicant about the container, including: the applicant's contact is someone in the transport industry; the container is on a ship that has either just left Singapore or still in Singapore; the applicant's contact has therefore not confirmed where it is exactly; the applicant said he could not get it offloaded in Singapore; the applicant cannot get it off in Sydney therefore it will definitely be in Melbourne; the applicant is confident he can steal it in Melbourne and that is the plan when it gets here (provided on 19 June 2007).932F[933]
7. The applicant was at Curly Joe's in Maribyrnong last night; Higgs was present and some unknown Italians from Griffith; the applicant said it was to organise the next import from Italy which will be worth $8 million; the applicant is going to Sydney on the weekend with family and might be catching up with a freight forwarder while there (provided at 5.23pm on 21 June 2007).933F[934]
8. The applicant had dinner with Ms Gobbo, Mr Higgs and Evan who works for Chubb Security; 27 July is the arrival date of the container (provided at 11.35pm on 21 June 2007).934F[935]
9. Ms Gobbo would be having dinner with the applicant and his crew the following night (ie 28 June 2007), that the applicant had said the dinner was an "alibi" for the container (provided on 27 June 2007).935F

Text (omitting formal parts) of an email dated 15 February 2012 from Nicola Gobbo to Martine Marich, being exhibit RK2-10 to the Affidavit of Rob Karam affirmed 6 March 2017.941F[942]

Having now spent approximately 30 hours with Rob, focusing solely on the issue of locating any "evidence" that lends support to Rob's proposition that he ONLY continued to meet with Pat and co. in order to try to save the lives of others, principally Fred/Hair, I do not share the same degree of confidence or enthusiasm as Rob does for using the "trying to save Fred's life" explanation as a reason capable of explaining Rob's continued association with Pat & others. I am not trying to be cryptic but Rob & I disagree as to what material is available that may assist in this regard.

My primary concern is that whilst it is true that during the period of the MDMA conspiracy, there are plans afoot by Pat to kill Fred (and MB as well as others), and true it is that Rob informs Fred of the fact that Pat wants to harm him, I do not think that relying upon the excuse/reason of "well I had to keep seeing Pat and going along with him to try to find out what was going on with his plans to try to kill Fred" is necessarily capable of explaining Rob's continued contact with Pat (and Pat's crew), particularly given that their contact extends over a lengthy period and there is not any direct evidence that shows that Fred escaped a murder attempt because of direct information from Rob.

I have marked the relevant pages of the transcript from Fred D'Amico's committal proceeding from 2011 in which D/Sgt Jason Kelly confirms that Fred confirmed to Police that Rob Karam had warned him that his life was in danger. Please note Fred abides by a strict honour code and refused to make a statement to Police ...

I think it is problematic to try to take certain propositions further. For example, to attempt to prove that Rob saved Fred's life, it would be suicidal to call D'Amico to give evidence notwithstanding that he has almost no priors but is currently on bail for large commercial trafficking/manufacturing ... He would not be a particularly credible witness. For completeness, in the brief of evidence against Rob (for drug trafficking and trafficking particularly with the under cover operative), there are numerous intercepted conversations between Fred & Rob which appear to relate to drug trafficking and Rob's comments in my opinion, would satisfy the broader definition of trafficking i.e., an agreement to sell or supply.

So beyond the evidence of Jason Kelly (see pages marked with sticky notes on transcript) and possibly another detective from Purana, there seems little else to definitively rely upon. Rob claims that he kept Fred informed of what Pat was up to by calling Fred from phone boxes. I have not been able to find any evidence of this in GEMS although I do not have access to a computer/GEMS to re-check this. In any event as luck would have it, Fred himself was the subject of a VicPol Drug Squad investigation in 2007/08 and his mobile was intercepted. I have suggested to Rob that he obtain the relevant information about Fred's T/I Warrant from Fred and then discuss with you the possibility of obtaining via subpoena, the conversations between Rob (from phone boxes) to Fred's mobile. I am concerned that there may not be much at all to substantiate Rob's claims. For completeness, what Rob says is that he didn't want to risk calling Fred from his own mobile phone (preferring phone boxes) to tell him about Pat in case Pat got his mobile phone and saw the number he'd been dialing [sic].

Rob also says that he felt as time passed that he could not get away from Pat and that Pat would not listen to reason nor leave him alone. There is merit to this proposition as the conversations you are aware of demonstrate Pat chasing Rob on occasion and notwithstanding that there is no possibility of ever actually getting the container or its contents, Pat simply will not accept this from Rob or anyone else.

In broad terms, Rob would like to explain away his continued association with Pat, Zirilli, Falanga, Higgs & to a lesser degree, others, on the basis that he had to stay in contact with them to save lives. I agree that there is evidence of a conspiracy to murder Fred (by Pat & Potter) and a conspiracy to murder M.B. (Pat again). There will be no great difficulty proving that those conspiracies occurred, in fact a 10 volume brief of evidence exists to that end but taking it the next step, that is to try to argue that the only reason for Rob being anywhere near Pat was to prevent such murders from occurring, is in my view inherently dangerous. There is a lack of actual evidence in support and additionally, by way of example, M. B. survived an actual murder attempt because of a car breaking down (on route to the venue where he was to be killed). That had nothing to do with Rob (who was as you know, arrested and interviewed with respect to being involved in supplying the car to Potter which he then used in the attempt on M.B.)

If this kind of affirmative "defence" was foreshadowed to the jury in an Opening I think it would give Brent Young far too much time to prepare to rebut anything that was said.

I have gone through all of this in repeated detail with Rob and have also indicated that whilst I believe he would be credible if you were to call him to give evidence, I have concerns that there are some matters that he would not really be able to explain under cross-examination.

We have put together a folder of documents that are marked and self-explanatory which Rob believes help to show he only maintained contact with Pat because he could not get away from him and because he had to to save Fred from harm. (Will be dropped off to Martine later today).

In addition to the possibility of issuing a subpoena for Fred's intercepted conversations from 2007-08 (as detailed above), Rob would like the opportunity of looking through the balance of conversations recorded pursuant to the Warrants on his mobile phones during the period of the investigation. He believes there will be exculpatory calls that may assist him. Given that he cannot attend at the AFP each day to look through call logs/records, he states that after raising this with you Martine, a subpoena is required for the production of the balance of all calls that are not contained within GEMS. My suggestion is that Rob first examines ALL the conversations in which he features that form part of the GEMS material and then perhaps proceed with a subpoena for the balance, or perhaps after examining the GEMS conversations, he may be able to limit/identify time periods. I will leave this for you to consider and will discuss further when we meet tomorrow.

As discussed, I'll see you tomorrow at lunchtime if that is convenient; just let me know where & when suits.

For your information, I have agreed to assist Rob on a limited basis. I have serious medical issues that necessitate various appointments on a weekly basis but I can try to assist him as much as I can.

See you tomorrow,

[1] The name derives from the fact that the drugs were concealed within tins labelled as containing tomatoes and shipped as such within a shipping container from Naples to Melbourne.

[2] The name derives from the relevant investigative operation of Australian Federal Police ('AFP').

[3] DPP (Cth) v Karam & Ors [2013] VSC 133R A (King J).

[4] See [18]-[20] below.

[5] DPP v Karam [2015] VCC 855 (Judge Montgomery).

[6] Respondent's Facts Not in Dispute dated 28 June 2021, Court book ('CB') Vol 4, Tab 8, p 479 [17].

[7] Karam v The Queen [2022] VSCA 23, [1] (Beach and Kennedy JJA).

[9] Karam v The Queen [No 2] [2022] VSCA 163 (Beach and Kennedy JJA).

[10] Evidence Act 2008 s 140(2) applies by analogy; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2.

[11] Maroun took delivery of a quantity of ecstasy tablets from an undercover agent.

[12] Response to Applicant's Revised Written Cases, 28 June 2021, CB Vol 1, Tab 2.1, pp 157-64 [25]-[76] (emphasis in original) (citations in original).

[15] See Tomato Tins sentence [7]-[27] and Appeal Reasons [7]-[29] for a more detailed summary. See, also, CDPP v Karam, Higgs, Agresta & Sergi [2013] VSC 133 (sentencing remarks in relation to the applicant's co-accused).

[18] Tomato Tins sentence [12]-[13].

[20] Tomato Tins trial transcript (King J's Charge), 3 May 2012, 2707:18-31.

[21] See Tomato Tins sentence [13], [31] and Appeal Reasons [15]-[17], [23]-[28] for more detail of these discussions and meetings.

[24] Tomato Tins sentence [3], [5].

[26] DPP v Barbaro & Zirilli [2012] VSC 47.

[27] R v Falanga & Visser [2014] VSC 306, Visser v Director of Public Prosecutions (Cth) [2020] VSCA 32, [7].

[28] See Inca sentence [5]-[18] for a more detailed summary.

[30] Kirne affidavit #1 (A319) [46]-[47] and Exhibit SPK-2 (A320).

[31] Commercial quantity at the time was 2kg of pure cocaine.

[35] Commercial quantity at the time was 1.2kg of pure pseudoephedrine.

[40] First Inca trial transcript (Montgomery J's Charge), 10 December 2012, 2454:10-15.

[41] First Inca trial transcript (Montgomery J's Charge), 10 December 2012, 2461:14-18.

[43] Ruling of his Honour Judge Montgomery, dated 14 March 2014; Kirne affidavit #1 (A319) [46].

[46] Second Inca trial transcript, 25 and 27 August 2014.

[48] Inca sentence [7]. Commercial quantity at the time was 500g of pure MDMA.

[49] Second Inca trial transcript (defence closing address), 6 November 2014, 3907:1-6.

[50] Second Inca trial transcript (defence closing address), 6 November 2014, 3904:6-21; 3909:19-23.

[51] Second Inca trial transcript, 25 August 2014, 5:15, 117:19-27. Second Inca trial transcript (defence closing address), 6 November 2014, 3909:1-9, 19-23.

[53] Second Inca trial transcript (plea hearing), 19 January 2015.

[54] Second Inca trial transcript (further plea hearing), 5 May 2015.

[55] Applicant's Reply (Inca Trials and Tomato Tins Trial), 30 August 2021, CB Vol 1, pp 116-17 [1].

[56] The most significant issues identified in the Response to Narrative Background as being in dispute are as follows:

• The extent of fees paid by Karam to Gobbo - [12], [51], [283].

• The nature of meetings and communications between Jason Kelly and the AFP on and between 18 and 22 June 2008 - [140], [150], [153], [154].

• The characterisation of questions relating to drug related matters asked of Karam during his record of interview conducted as part of the Operation Kennels investigation into alleged conspiracies to murder - [228], [233].

• The nature of a conversation between Federal Agent Herman and Gobbo on 18 August 2009 - [243].

• The nature and extent of text messages between Gobbo and Karam concerning legal proceedings - [279], [281].

• Whether Gobbo advised Karam before, during and after the committal - [287].

• Whether Gobbo advised Karam at the time of XXXXXXXXXXXXXXX - [305], [306].

• The extent of Breckweg's communications with Argitis about Gobbo's status as an informer - [334].

• Other details of Breckweg's evidence - [379], [395].

• The extent of Gobbo's involvement with Christopher Dane - [429].

• The extent of Gobbo's role as an advisor in the Tomato Tins case - [442], [443].

The Further Response to Narrative Background clarifies a series of further details of the evidence and takes hearsay objections to the production of some documentation. These objections must be upheld but the documents are not necessary to my determination.

[57] During the period in issue, Supt Kelly held the following positions: Detective Senior Constable (1998-2004), Sergeant (2004), Detective Sergeant (2004-2005), Supervisor (Sergeant) (2006-2009), Detective Senior Sergeant (2009-2013), Detective Inspector (2013-2019), and Superintendent (2019-). For simplicity, I will refer to him as Jason Kelly.

[58] See [169]-[170] below.

[59] See [139] below.

[60] Evidence Act, Dictionary, pt 1 - Definitions.

[62] See Power v The Queen [2014] VSCA 146; (2014) 43 VR 261, 279 [66] (Redlich JA and Robson AJA).

[63] Kaddour v The Queen [2019] NSWCCA 90, [88]-[90] (Bathurst CJ, Harrison and Davies JJ).

[64] See [75] below.

[67] Section 42(c) provides:

The trial judge, the prosecution and defence counsel (or, if the accused is unrepresented, the accused) must not say, or suggest in any way, to the jury that, because an accused did not give evidence or call a particular witness (as the case requires), the jury may -

(c) draw an inference that the accused did not give evidence or call a witness (as the case requires) because that would not have assisted his or her case.

[68] Section 43 provides:

(1) If the prosecution does not call or question a particular witness, defence counsel may request under section 12 that the trial judge direct the jury on that fact.

(2) The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the prosecution -

(a) was reasonably expected to call or question the witness; and

(b) has not satisfactorily explained why it did not call or question the witness.

(3) In giving a direction referred to in subsection (1), the trial judge may inform the jury that it may conclude that the witness would not have assisted the prosecution's case.

[69] In the course of final address, the respondent indicated that if any such inference were sought by Karam he would seek leave to adduce evidence explaining why he had not called Gobbo: T105-6, 26 September 2022.

[70] Summary of Prosecution Opening Tomato Tins trial, 15 June 2011, (Doc A161), CB Vol 2.6, Tab 11, pp 652-732.

[71] Victorian Legal Service Board v Gobbo [2020] VSC 692.

[72] At the Tomato Tins trial, Karam did not deny there was a conspiracy. He denied that he was party to it.

[73] Many of the documents use the acronym 'HS'.

[74] This initial meeting between Gobbo and her handlers was recorded and transcribed and comprises 134 pages, five pages of which relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 16 September 2005, (Doc A4), CB Vol 2.2, Tab 3, p 117-19; ICR001, 16 September 2005, (Doc A6), CB Vol 2.2, Tab 5, p 214.

[75] The meeting between Gobbo and her handlers was recorded and transcribed and comprises 200 pages of which 12 pages relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 21 September 2005, (Doc A9), CB Vol 2.2, Tab 8, pp 408-9, 411-14; ICR002, 21 September 2005, (Doc A7), CB Vol 2.2, Tab 6, p 222; Diary of Officer Peter Smith dated 20 September 2005, (Doc A8), CB Vol 2.2, Tab 7, p 224; Information report SID277 dated 21 September 2005, (Doc A10), CB Vol 2.2, Tab 9, p 425.

[76] The meeting between Ms Gobbo and her handlers was recorded and transcribed and comprises 342 pages in total, 17 pages of which relate to Karam. See Transcript of discussion between Ms Gobbo and Victoria Police, 26 September 2005, (Doc A11), CB Vol 2.2, Tab 10, pp 464-71; ICR003, 26 September 2005, (Doc A12), CB Vol 2.2, Tab 11, p 769.

[77] ICR006, 12 October 2005, (Doc A15), CB Vol 2.3, Tab 2, pp 5-6, the correct date appears to be 13 October based on the next day's entry of the ICR at p 7, and the diary entry of Sandy White, (Doc A19), CB Vol 2.3, Tab 6, p 15.

[78] ICR006, 14 October 2005, (Doc A15), CB Vol 2.3, Tab 2, p 7; Diary of Officer Peter Smith dated 14 October 2005, (Doc A16), CB Vol 2.3, Tab 3, p 11; Information report SID287 dated 14 October 2005, (Doc A17), CB Vol 2.3, Tab 4, p 12.

[79] ICR006, 18 October 2005, (Doc A15), CB Vol 2.3, Tab 2, p 8.

[80] ICR006, 19 October 2005, (Doc A15), CB Vol 2.3, Tab 2, pp 8-9.

[81] ICR008, 12 November 2005, (Doc A20), CB Vol 2.3, Tab 7, p 25.

[82] ICR010, 29 November 2005, (Doc A28), CB Vol 2.3, Tab 15, pp 45-6.

[83] ICR010, 1 December 2005, (Doc A28), CB Vol 2.3, Tab 15, p 47.

[84] ICR010, 5 December 2005, (Doc A28), CB Vol 2.3, Tab 15, p 51.

[85] ICR011, 7 December 2005, (Doc A29), CB Vol 2.3, Tab 16, pp 53-4.

[86] ICR011, 7 December 2005, (Doc A29), CB Vol 2.3, Tab 16, pp 53-4.

[87] Transcript of discussion between Ms Gobbo and Victoria Police, 13 December 2005, (Doc A31), CB Vol 2.3, Tab 18, p 158; ICR012, 13 December 2005, (Doc A30), CB Vol 2.3, Tab 17, p 64.

[88] ICR012, 14 December 2005, (Doc A30), CB Vol 2.3, Tab 17, p 66.

[89] Transcript of discussion between Ms Gobbo and Victoria Police, 13 December 2005, (Doc A31), CB Vol 2.3, Tab 18, pp 139-44, 154.

[90] ICR013, 20 December 2005, (Doc A32), CB Vol 2.3, Tab 19, p 324.

[91] ICR016, 15 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 330.

[92] ICR016, 17 and 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, pp 331, 338; ICR017, 3 and 6 February 2006, (Doc A35), CB Vol 2.3, Tab 22, pp 350-1; ICR018, 17 February 2006, (Doc A36), Vol 2.3, Tab 23, p 363.

[93] ICR016, 18, 19 and 24 January 2006 (Doc A34), CB Vol 2.3, Tab 21, pp 332-3, 339.

[94] ICR016, 18-19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, pp 332, 334.

[95] ICR016, 19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 333.

[96] ICR016, 19 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 334.

[97] ICR016, 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 338.

[98] ICR016, 24 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 339.

[99] ICR016, 25 January 2006, (Doc A34), CB Vol 2.3, Tab 21, p 340-1.

[100] ICR017, 31 January 2006, (Doc A35), CB Vol 2.3, Tab 22, p 346.

[101] ICR017, 6 February 2006, (Doc A35), CB Vol 2.3, Tab 22, p 351.

[102] ICR017, 7 February 2006, (Doc A35), CB Vol 2.3, Tab 22, p 351.

[103] ICR018, 13 February 2006, (Doc A36), CB Vol 2.3, Tab 23, p 359.

[104] ICR018, 16 February 2006, ((Doc A36), CB Vol 2.3, Tab 23, p 362.

[105] ICR019, 18 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 365.

[106] ICR019, 23 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 369.

[107] ICR019, 23 February 2006, (Doc A37), CB Vol 2.3, Tab 24, p 370.

[108] ICR020, 25 February 2006, (Doc A302), CB Vol 2.11, Tab 3, p 6.

[110] ICR021, 7 March 2006, (Doc A39), CB Vol 2.3, Tab 26, p 542.

[111] Transcript dated 9 March 2006, (Doc A38), CB Vol 2.3, Tab 25, pp 477-9.

[112] ICR024, 28 March 2006, (Doc A42), CB Vol 2.3, Tab 29, p 578.

[113] ICR034, 8 June 2006, (Doc A43), CB Vol 2.3, Tab 31, p 603.

[114] ICR036, 28 June 2006, (Doc A48), CB Vol 2.3, Tab 35, p 645.

[115] AFP Case Note, 29 June 2006, (Doc A53), CB Vol 2.4, Tab 3, p 23.

[118] ICR039, 31 July 2006, (Doc A51), CB Vol 2.4, Tab 1, p 13.

[119] ICR041, 14 August 2006, (Doc A52), CB Vol 2.4, Tab 2, pp 17-18. Karam said in evidence that discussions he had in 2006 about shipping were in preparation for his defence for the 2005 matter: T124-5.

[120] AFP Information Report 914949, 20 September 2006, (Doc A53), CB Vol 2.4, Tab 3, p 24.

[121] Letter from AFP to Garde-Wilson Lawyers, 14 August 2020, (Doc A325), CB Vol 2.11, Tab 20, p 146 [15].

[122] AFP Case Note, 21 September 2006, (Doc A53), CB Vol 2.4, Tab 3, pp 26-7.

[124] AFP Case Note, 29 September 2006, (Doc A53), CB Vol 2.4, Tab 3, p 29.

[126] ICR068, 26 February 2007 (Doc A78), CB Vol 2.4, Tab 28, p 178.

[127] ICR074, 10 April 2007 (Doc A92), CB Vol 2.4, Tab 42, p 739; ICR075, 15 April 2007 (Doc A93), CB Vol 2.4, Tab 43, p 752.

[128] ICR082, 5 June 2007, (Doc A103), CB Vol 2.4, Tab 53, p 855.

[130] Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007, (Doc A106), CB Vol 2.5, Tab 1, pp 1-498.

[131] ICR082, 5 June 2007 (Doc A103), CB Vol 2.4, Tab 53, pp 855-6.

[132] Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007, (Doc A106), CB Vol 2.5, Tab 1, pp 49-50.

[133] ICR082, 5 June 2007, (Doc A103), Vol 2.4, Tab 53, pp 855-6: Transcript of discussion between Victoria Police and Ms Gobbo, 5 June 2007, (Doc A106), CB Vol 2.5, Tab 1, pp 48-65.

[134] ICR082, 5 June 2007, (Doc A103), CB Vol 2.4, Tab 53, p 856.

[135] Respondent's Facts Not In Dispute - Addendum dated 17 September 2021, CB Vol 1, Tab 2.3, p 488 [74].

[137] Respondent's Facts Not In Dispute - Addendum dated 17 September 2021, CB Vol 1, Tab 2.3, p 488 [73]; Respondent's Written Case dated 28 June 2021, CB Vol 1, Tab 2.3, p 175 [129].

[138] ICR083, 15 June 2007, (Doc A113), CB Vol 2.5, Tab 8, pp 534-5.

[139] ICR080, 24 May 2007, (Doc A98), CB Vol 2.4, Tab 48, p 814.

[141] ICR080, 25 May 2007, (Doc A98), CB Vol 2.4, Tab 48, p 818.

[142] ICR081, 29 May 2007, (Doc A99), CB Vol 2.4, Tab 49, p 828.

[143] ICR086, 29 June 2007, (Doc A347), CB Vol 2.11, Tab 41, pp 637-8.

[144] See [414(e)] below. Respondent's Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022, [198].

[145] Respondent's Confidential Submissions on the Section 319A Referral Questions dated 24 June 2022, [199]. See also Letter from CDPP to Zarah Garde-Wilson re disclosure of AFP correspondence, 29 January 2021, (Doc A359), CB Vol 2.11, Tab 48, p 653 [15].

[146] DPP (Cth) v Karam & Ors [2013] VSC 133R A (King J).

[148] Summary of Prosecution Opening Tomato Tins trial, 15 June 2011, (Doc A161), CB Vol 2.6, Tab 11, p 686.

[149] See also Karam v The Queen [2015] VSCA 50, [34] (Weinberg, Priest and Beach JJA).