Applicant v Respondent

2 The documents are described in the schedule in the following way:

any documents - including but not limited to any informer registration/reactivation application and human source deactivation form or equivalent document, relating to the fact of any registration of (named person) in 2006 or 2007, and the duration of that registration (my emphasis).

3 By email of 7 March 2024, the applicant was notified of the Chief Commissioner's intention to make a public interest immunity claim in respect of any document that might fall within the scope of the subpoena.

4 As the application progressed to the date fixed for hearing and orders made for the filing of written submissions, the Chief Commissioner's position was further clarified.

5 In the Commissioner's written submissions filed on 20 March 2024 an order was sought setting aside the subpoena as an abuse of process.[2] In support of that application the Commissioner filed an open affidavit and a confidential affidavit of Detective Superintendent Jacqueline Curran, both dated 20 March 2024.

6 In the applicant's written submissions of 22 March 2024, the Chief Commissioner's application for an order setting aside the subpoena as an abuse of process was interpreted (correctly as was made clear in oral argument) as reflecting the Commissioner's position that access to such documents as may exist would serve no legitimate forensic purpose in the case the applicant seeks to advance on the Reference Determination.

7 The Commissioner contended that access to such documents as may be capable of establishing the fact (if it be the fact) that any of the named people was registered as a human source in 2006 or 2007, and the duration of that registration, could not materially advance the applicant's case.

8 In the Commissioner's submission the only relevance in either a confirmation or refutation of the applicant's suspicion that one or more of the three men was a registered human source in 2006 or 2007, would be on the question of credit, an issue which does not arise on the Reference Determination.

9 Further, the Commissioner submitted that in circumstances where there has been full disclosure of the assistance Mr Bickley, Mr Thomas and Mr Cooper gave to police in the prosecution of the applicant as people criminally concerned in his drug manufacturing and trafficking enterprises, the additional fact (if it be the fact) that any one or more of them was also registered as a human source, cannot materially advance the applicant's appeal against his convictions for Orbital, Quills and Magnum because they are offences to which he entered pleas of guilty. In the Commissioner's submission because the subpoenaed material is essentially "impeachment material", the authorities support the proposition that successfully impeaching the evidence of a key prosecution witness or witnesses is not an established basis for allowing appeal against conviction entered following a guilty plea.[3]

10 The applicant responded to that submission in a variety of ways.[4] Most pointedly he submitted that the proposition that nondisclosure of impeachment material to an accused who subsequently pleads guilty can never constitute a substantial miscarriage of justice within the meaning of ss 276 or 326D of the Criminal Procedure Act 2009 (Vic), is not a submission advanced by the Victorian Director of Public Prosecutions in her written case filed in the applicant's substantive conviction appeal and is not a submission otherwise supported by Australian authority.

11 On the Commissioner's application to set aside the subpoena, it is unnecessary to resolve that dispute. As the applicant has made clear he does not seek access to the subpoenaed material for the purpose of casting doubt on the credibility of any of the three people named in the subpoena. In the applicant's submission proof of the fact (if it be the fact) that all of the three named people was a registered human source in 2006 or 2007 is relevant to the case he advances on the Reference Determination because proof of that fact, either alone or in combination with other facts, will advance the basis upon which he will contend that a number of the Referral Questions should be answered.

12 That submission was developed at length in the applicant's written submissions. The Commissioner replied to that argument in his written submissions filed 3 April 2024.

13 In oral argument on 12 April 2024, both parties comprehensively addressed that formulation of the applicant's case in the context of the question whether he had identified a forensic purpose in seeking access to the subpoenaed material "expressly and with precision"[5] (the first step in a two-stage process)[6] and, if so whether he had discharged the onus of demonstrating the reasonable possibility that the documents sought under the subpoena will materially assist or advance his case (the second step in that process).[7]

14 In the event that I was persuaded that the applicant had demonstrated a legitimate forensic purpose in being permitted access to such documents as the Commissioner may hold within the scope of the subpoena, the parties relied upon their written submissions (and the Chief Commissioner upon Superintendent Curran's confidential affidavit) on the question whether the public interest in maintaining the confidentiality of the identity of a registered source (including whether a person was or was not a registered informant) outweighed the public interest in ensuring that the applicant has access to such information as may advance his case.

15 Notwithstanding the position taken by the Commissioner in his written submissions in which he resisted providing the Court with any materials that might fall within the scope of the subpoena,[8] (on the basis that production might, of itself, undermine or destroy the basis for the public interest immunity claim), on the hearing of the application, senior counsel for the Commissioner abandoned that position [REDACTED] I made orders at that time preserving and ensuring the confidentiality of that material.[9]

16 After I reserved my decision, on 15 April 2014, the Chief Commissioner sought a grant of leave to file confidential supplementary submissions further elaborating upon the question whether the applicant had discharged the onus of identifying a legitimate forensic purpose for access to the subpoenaed material. With some reservation, I granted leave on condition that were I of the opinion that the content of the confidential supplementary submissions deprived the applicant of an opportunity to properly respond to the Chief Commissioner's further submitted position, I would disregard the further submissions in determining whether the subpoena should be set aside.

17 The confidential submissions filed on 18 April 2024 were largely, although not exclusively, a repetition of the oral submissions senior counsel advanced on the Commissioner's behalf on 12 April 2024. Because the confidential submissions [REDACTED] I propose to take that aspect of the further submissions into account when determining whether the subpoena should be set aside. However, I do not propose to take into account the Commissioner's further submissions that either restated or elaborated upon the Commissioner's submitted position. Senior counsel for the Commissioner had the opportunity to advance such submissions in reply as she thought appropriate in the hearing on 12 April 2024. If she wanted the opportunity to file a further written note to supplement her oral submissions in reply she ought to have sought my indulgence at that time. Were she to have taken that approach, I would also have invited a written response from the applicant to any further note the Commissioner may have wished to file. Upon being granted leave to advance further submissions, senior counsel for the Commissioner should have exercised greater restraint in formulating those submissions so as not to exceed the terms upon which leave was granted.

Has the applicant identified the forensic purpose in seeking access to the subpoenaed material "expressly and with precision" ?

18 At the outset it is important to emphasise that the documents to which the applicant seeks access under the subpoena are of a limited scope, namely any documents in the Commissioner's possession or control that relate to:

(a) Mr Cooper, Mr Bickley or Mr Thomas being registered as a human source in 2006 or 2007; and

(b) (if any of the three men was registered as a human source in that time frame) the duration of their registration.

19 The applicant seeks access to those materials for the express purpose of establishing, as a fact, that the role Ms Gobbo was intended to perform, and in fact performed, for Victoria Police after her registration as a human source from September 2005 was not limited, in the case of Mr Cooper, to strategising his arrest in April 2006 on drug charges and then encouraging him to assist police by agreeing to implicate the applicant as the principal in a major drug manufacturing offence, and was not limited to encouraging Mr Bickley and Mr Thomas to assist police with the objective of them giving evidence to implicate the applicant in serious criminal offending.

20 The applicant submitted that aspects of the evidence he has adduced in the proceedings to date supports the fact that it was also contemplated that Ms Gobbo would be used by Victoria Police to [REDACTED], after she represented to her handlers within the SDU [REDACTED]. That representation was then incorporated as a feature of the operational plan associated with Operation Posse in November 2005, a plan which had as its objective disrupting and disabling the Mokbel criminal cartel.[10]

21 As the party on the Reference Determination with the burden of establishing the facts which underpin the answers to each of the Referral Questions, the applicant submitted he is entitled to seek to prove that one or more of the three named people was in fact registered as a human source in 2006 or 2007, at the time Ms Gobbo was actively engaged with each of them as their legal representative or adviser while simultaneously, but without their knowledge, acting as a police informer. The applicant submitted that the fact and duration of the registration of any one or more of the three named men as a registered source, together with other facts established by the evidence would enable the further inference to be drawn that Ms Gobbo was actively involved in that process and that the registration of one or more of the three men was with her encouragement and imprimatur.[11]

22 On that analysis, I am satisfied the applicant has identified and articulated with precision, a legitimate forensic purpose in issuing the subpoena.

Is it "on the cards "that the subpoenaed documents will materially assist the applicant in these proceedings

23 The applicant nominated a number of the Referral Questions as capable of relevantly comprehending the factual finding to which it is said the subpoenaed material is relevant. Although Referral Questions 1, 2, and 9 were nominated in the applicant's written submissions as the questions that have the most direct factual link to the document sought by subpoena, with questions 7, 8, 12A(d) and 12 B and 17 being also referred to,[12] as the applicant's oral submissions were developed, Referral Questions 1 and 2, 9, 12A(d), and to a lesser extent question 17, became the focus.

24 For present purposes, it is unnecessary to set out those questions in full,[13] or, for that matter, to seek to grade the weight of any factual nexus between the facts sought to be established by reference to the subpoenaed documents and the nominated Referral Questions. That can be avoided it being the applicant's contention that he has discharged the onus of establishing a legitimate forensic purpose in seeking access to the subpoenaed documents, by his contention that the nature and extent of Ms Gobbo's breach of her duties to her clients, and the nature and extent of the impropriety or illegality attending the use of her as a human source (including whether Victoria Police acted in concert with her in securing the agreement of any one or more of the three named people to becoming a registered source) are factual questions comprehended by way in which many of the Referral Questions have been framed by the Court of Appeal. In short, the applicant submitted that it is "on the cards" that access to the subpoenaed documents, when considered with a range of other facts established by the evidence, will materially advance or assist him in furnishing a full and complete answer to a range of the questions referred for determination.

25 The Commissioner's primary submission is that the applicant is engaged in an impermissible fishing exercise, the object of which is to seek to make a case from the subpoenaed material in circumstances where the documents he seeks are unrelated to either the applicant or the subject matter of these proceedings, in the sense that they are irrelevant to any of the questions referred for determination.

26 The Commissioner submitted that Referral Question 17 is the only question of the 25 questions referred for determination to which the fact and duration of the registration of any of the three named individuals might, at first glance, be relevant. However, as the Commissioner points out, properly understood, the conduct of the police that is the subject of that question, is qualified by the words "in relation to the applicant" and "the gangland war". The Commissioner submitted that the materials sought under subpoena are unrelated in any sense to "the applicant" and, further, it has never been suggested that Mr Bickley had any involvement in the gangland murders. To the extent that the statements of Mr Cooper and Mr Thomas encompass their knowledge and/or involvement in the murder of any so called gangland figure, the Commissioner submitted those statements have been the subject of full disclosure and that the status of Mr Cooper and Mr Thomas as a registered human source (if it be fact) adds nothing to the evidence which has already been adduced relevant to answering Referral Question 17.

27 To the extent that Referral Question 9 might be thought to provide a basis for the applicant to advance his claim that a legitimate forensic purpose has been made out, the Commissioner submitted that a vague and general allegation of "improper conduct by Victoria Police in their use of Ms Gobbo as a registered source", including the way Referral Question 9 was elaborated upon in the applicant's oral submissions reveals, in the clearest terms, that the issue of the subpoena is, in truth, an exercise in impermissible "fishing".

28 Although it is not possible at this stage in the proceedings to predict whether the applicant will ultimately make good his contention that Ms Gobbo and police were jointly involved in conscripting Ms Gobbo's clients to become registered human sources,[14] because there are facts already established by the evidence bearing upon proof of that fact, I am of the view that access to the subpoenaed material could be viewed as no different to the forensic purpose for which that evidence was adduced.

29 I am not satisfied that the applicant has engaged in impermissible "fishing". Neither am I of the view that the only threshold that the applicant has met is one of mere relevance to the issues as they present in these proceedings[15]. To the contrary, I am satisfied that there is a reasonable possibility the documents will materially assist the applicant in advancing his case in these proceedings.

The Chief Commissioner's public interest immunity claim

30 In considering the Chief Commissioner's alternative basis for setting aside the subpoena, namely that the subpoenaed documents are protected by public interest immunity, it was the agreed position of the parties that by reason of s131A of the Evidence Act 2008 (Vic) that application must be determined by reference to the legal framework in s 130 of that Act.

31 Section 130(1) provides:

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

32 Section 130(4)(e) provides that information or a document is taken to relate to "matters of state" if adducing it as evidence would "disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State".

33 Given the nature of the materials sought under the subpoena, the only remaining issue between the parties on the application to set aside the subpoena, is whether the Chief Commissioner has discharged the onus of satisfying the court that the public interest in maintaining the secrecy of the information sought outweighs the competing public interest in ensuring that the applicant has access to materials to advance his case.

34 It is appropriate to observe that in undertaking that balancing exercise it has been the experience of courts in a number of common law jurisdictions that where the disclosure of an identity of an informer is at issue, the balance between competing aspects of the public interest will most often be struck in favour of an order protecting that information from public disclosure. There are sound reasons why that is so, including the public interest in the administration of justice. They also include the so-called "chilling effect" that disclosure would have on potential sources of confidential information customarily utilised by investigating police and other investigative bodies, and the potential risk to the life or safety of a particular human source, or alleged human source, were they publicly identified.[16]

35 In Madafferi v the Queen,[17] the Court of Appeal observed that in balancing the competing aspects of the public interest, a court is only to balance those interests that are genuinely engaged in the particular circumstances of the case. The Court went on to observe:

[A] claim for public interest immunity must be articulated with rigour and precision, and supported by evidence demonstrating that currency and sensitivity of the information, so as to constitute a compelling case for secrecy...[18]

36 In discharging the onus of establishing that in this case the balance should be struck in favour of preserving from the disclosure such documents as are comprehended by the scope of the subpoena, the Chief Commissioner relied upon both the open affidavit and confidential affidavits of Superintendent Curran.

37 In Superintendent Curran's open affidavit she set out, under various subject headings, what might be described as the well-established rationale in preserving the anonymity of people who provide information to police on a strictly confidential basis. She acknowledged that some police informers assist police by making a statement and agreeing to give evidence against criminal associates without being registered as a human source under the processes and protocols of registration of the specialised Source Development Unit (SDU) within Victoria Police. She accepted that informers in that category might not be afforded the full protection of anonymity otherwise reserved for a registered human source. She also noted that some police informers fit into both categories, in that an "informer" may agree to give evidence against a nominated criminal associate or associates (in which case, because of disclosure obligations, their identity is invariably revealed) but that person may also agree to be registered as a human source in order that they might provide information on a confidential basis about other criminal associates on the understanding that their identity as a registered source will not be publicly revealed.

38 In Superintendent Curran's open affidavit she deposed to the belief that the risk of retaliation against a person may significantly increase if it is known that a person who has assisted police by providing evidence against others was also a registered human source. Moreover, as she rightly points out, it is not necessary that there be an express, current or established threat to a person's health and safety for someone who is, or was, at some time a registered human source to be at risk of retaliation or reprisal either from those who suspect they may have been informed about or from people who are otherwise entrenched in a criminal milieu.

39 The applicant emphasised that in this case it is widely publicly known, (including by the applicant), that each of the three people nominated in the subpoena have cooperated extensively with the authorities in the prosecution of the applicant and in the prosecution of other people charged with serious criminal offences. The applicant also emphasised that it is also publicly known that Mr Cooper and Mr Bickley's extensive cooperation with the authorities may also have involved their cooperation as a registered human source. I note that Ms Heffernan gave evidence in the proceedings that Mr Bickley was arrested and charged with a conspiracy to traffic amphetamines after speaking with Mr Cooper in the days following his arrest on 23 April 2006 [REDACTED]. There is also evidence in the proceedings that [REDACTED].

40 I accept, that partial disclosure of an informer's identity does not foreclose on an application to preserve full disclosure of an informer's identity (or in this case the disclosure of the fact of a person's registration as a human source).[19] However, in this case [REDACTED] that there is a [REDACTED] suspicion that Mr Cooper and Mr Bickley were in fact registered as human sources for a period following their arrest in 2006, the weight that might otherwise be afforded the need to protect an informer's identity where there has been no indication or suggestion that a person has that status in the balancing exercise is reduced.

41 In Superintendent Curran's confidential affidavit, she refers to the confidential affidavit of Superintendent Mahony dated 7 February 2022, filed in the proceedings in support of the Commissioner's general application for suppression of other documents relating to Mr Cooper and Mr Bickley,[20] and the confidential affidavit of Acting Inspector Luke McDonald dated 12 January 2024, the contents of which I considered when upholding a claim for public interest immunity earlier in the course of these proceedings.[21] I have taken into consideration that material together with the additional information Superintendent Curran has provided updating the matters that were the subject of detailed consideration by her colleagues, including such [REDACTED].

42 I am of the view that the various matters deposed to by Superintendent Curran in her affidavit and those of her colleagues are entitled to considerable weight in the balancing exercise. That is, I am satisfied that they are matters which, are "genuinely engaged" on this application.

43 Finally, it falls to me to make an assessment as to whether the subpoenaed material will "substantially assist" the applicant on the Reference Determination and ultimately on his application for leave to appeal his convictions.[22] It is unnecessary to engage in an analysis of what might constitute "substantial assistance" as a matter of law. As the Court of Appeal remarked in Madafferi, the debate about whether the "substantial assistant test" is a threshold to be met before disclosure can be contemplated when a public interest immunity claim is mounted is a "sterile one", given that what is engaged in the process of determining a public interest immunity claim is a balancing exercise calling for the exercise of judicial discretion.

44 Although I was satisfied that the applicant had demonstrated it was "on the cards" that the subpoenaed material would advance his case, or to put it another way, there was a "reasonable possibility" it would do so, the question whether that material might be of "substantial assistance" to him is a quantitative assessment of a different order.

45 I accept that the nature and extent of Ms Gobbo's dealings with clients who became witnesses against the applicant, and the extent to which the police acted in concert with her in breaching her duties to those clients by persuading them to implicate the applicant (including but not limited to concealing from them her own status as a registered informer), is an underlying theme in each of the Referral Questions to a greater or lesser degree.

46 However, after careful consideration of the materials the Commissioner has placed before me on a confidential basis, including, to a very limited extent the submissions I received on a confidential basis, I have come to the view that the subpoenaed documents will not "substantially" assist the applicant in any making out or advancing that aspect on his case.

47 That conclusion has been arrived at in the following way. Even were there no basis in the evidence for a suspicion that any one or more of the three men were ultimately registered as a human source, the material in Operation Posse operational plan itself allows for a factual finding that Ms Gobbo did offer to assist [REDACTED] and that Victoria police acted on that offer by including the [REDACTED] operational objective. It is that fact (taken alone or in combination with such other facts as the applicant may seek to rely on) which supports, or may support, the proposition that Victoria Police acted improperly not the fact or duration of any registration of one or more of them.

48 Proceeding on the assumption that it remains the applicant's case that Ms Gobbo and Victoria Police did act in concert in an attempt to have Mr Cooper, Mr Bickley and Mr Thomas registered as a human source, proof of the fact, if it be the fact, they agreed to be registered in 2006 or 2007 does not, in my view, substantially advance proof of the fact that they did so with the encouragement or imprimatur of Ms Gobbo. While that may have been the case, it does not necessarily follow that it is the case. Given the way the subpoena is drafted [REDACTED] does not resolve that question.

49 On that analysis, the public interest in preserving the anonymity of the identity of any one or more of the three unnamed people as a human source (if that be the fact) emerges as the factor of preponderant weight in the balancing exercise.

50 The Commissioner's public interest immunity claim is made out.

51 The subpoena issued by the applicant on 6 March 2024 is set aside.

[1] Pursuant to pseudonym orders of McCann JR dated 11 May 2023 and continued by Fullerton J dated 7 February 2024.

[2] The Chief Commissioner's submissions of 20 March 2024 [1].

[3] The Commissioner's Submissions of 20 March 2024 [17-24]; also see, footnotes 38-50 which make extensive reference to authorities Australia United Kingdom and the United States.

[4] Applicant's submissions of 22 March 2024 [12]-[16].

[5] R v Saleam (1989) 16 NSWLR 14, [18].

[6] Attorney General v Chidgey [2008] NSWCCA 65; [2008] 182 A Crim R 536.

[7] Madafferi v The Queen [2021] VSCA 1, [42].

[8] Chief Commissioner's submissions [29]; Superintendent Curran's open affidavit [14].

[12] Applicant's written submissions of 22 March 2024 at [10] and [11].

[13] On 9 May 2022 the Court of Appeal referred a number of questions to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act 2009 (Vic). On 26 May 2023, the Court of Appeal amended six of those questions; and on 14 December 2023, the Court of Appeal referred a further two additional questions.

[14] Applicant's submission [9] as elaborated upon in oral submissions on 12 April 2024.

[15] See, eg, Madafferi (n 7) at [98]; citing Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404 at 414.

[16] See, for example, Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [94]. See also generally, Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 88 (Brooking J); D v National Society for the Prevention of Cruelty to Children [1977] UKHL 1; [1978] AC 171, 218 (Lord Diplock) and 232 (Lord Simon of Glaisdale); R v Mokbel [2005] VSC 410, [68]-[69], [88]; R_yan v State of Victoria_ [2015] VSCA 353, [75]-[81].

[18] Ibid at [43], citing Victoria v Brazel [2008] VSCA 37; (2008) 19 VR 553; 181 A Crim R 562, [68] (Maxwell P, Buchanan and Vincent JJA).

[19] The Attorney General for NSW v Stuart (1994) 34 NSWLR 667, 679-80.

[20] The General Application, filed 7 February 2022.

[21] Re Mokbel (Ruling No 1) [2024] VSC 26.