Applicant v Respondent

2 The applicant was charged with trafficking in a commercial quantity of heroin between 11 September 1997 and 18 November 1997. It was alleged that the quantity of heroin trafficked by the applicant weighed between 700 grams and 1,000 grams.

3 Jackson was charged with trafficking in a commercial quantity of heroin between 22 October 1997 and 18 November 1997. It was alleged that the quantity of heroin trafficked by Jackson weighed 252.7 grams.

4 On about 17 September 1998, Jackson pleaded guilty to that charge. On 8 October 1998, he was sentenced to 4 years and 8 months' imprisonment with a non-parole period of 2 years and 8 months.

5 After a contested committal hearing, on 25 June 1998 the applicant was committed for trial in the County Court of Victoria. The trial commenced on 31 August 1999. The applicant was represented by Mr Damian Sheales and Ms Nicola Gobbo ('Gobbo') of counsel. On 27 September 1999, the applicant was convicted by the jury empanelled on his trial. On 13 October 1999, he was sentenced to 12 years' imprisonment with a non-parole period of 9 years.

6 The applicant applied for leave to appeal against conviction and sentence. Subsequently, on 28 August 2000, he filed a notice of abandonment of the application for leave to appeal against conviction. The effect of the abandonment was that his appeal against conviction was taken to be dismissed. On 19 March 2001, his application for leave to appeal against sentence was dismissed.[1]

7 On 8 November 2021, the applicant filed a notice of application for leave to appeal against conviction pursuant to s 326A of the Criminal Procedure Act 2009. The proposed grounds of appeal are based on the fact that, at some stages of the proceeding, including his trial, he was represented by Gobbo, who, since his trial, has been identified as a police informer for Victoria Police.

8 The applicant seeks leave to appeal on three grounds, namely:

(1) Gobbo's conduct amounted to a miscarriage of justice by, inter alia, (a) depriving the applicant of competent and independent counsel; and (b) breaching her professional duties to the applicant.

(2) Victoria Police's use of Gobbo as an informer amounted to an abuse of process.

(3) Victoria Police's failure to disclose its use of Gobbo as an informer denied the applicant a fair trial.

9 The applicant and Jackson were each arrested as part of the culmination of two operations conducted by Division 2 of the then Drug Squad of Victoria Police, namely, Operation Hamadan and Operation Carron. Operation Hamadan was concerned with the activities of the applicant. Operation Carron was concerned with a number of individuals, including Jackson, a person who was referred to as 'Person 2', and Peter Reid ('Reid'). The operations were effectively combined in November 1997, at or about the time of the applicant's arrest. They resulted in the arrest of ten persons, who, in addition to the applicant and Jackson, also included Person 2 and Reid.

10 In the amended written case in support of the application for leave to appeal against conviction, it is contended that Gobbo breached her obligations to the applicant by purporting to act for the applicant while:

(a) acting as an informer to Victoria Police;

(b) representing co-accused Jackson, who conducted his case directly contrary to the applicant's case;

(c) representing related accused Person 2, whose registration as a police informer she facilitated;

(d) representing related accused Reid, whose professional obligations she breached by asking Victoria Police to investigate his surety and other personal matters;

(e) in her capacity as a solicitor, volunteering information to Victoria Police about her principal (Solicitor 1) - whose office the applicant had instructed;

(f) potentially disclosing privileged information about the applicant's defence and/or trial strategy to Victoria Police;

(g) failing to disclose any of the above matters to the applicant.

11 In material filed in support of the application for leave to appeal, it appears that the proposed grounds of appeal are based on three principal propositions. The first basis is that Gobbo acted for the applicant while she was also a police informer. The second basis is that Gobbo, while acting for the applicant, also acted for a co-accused, Jackson, in circumstances that amounted to a conflict of interest. The third basis is that Gobbo, while acting for the applicant, was also acting for Person 2, and, in that capacity, Gobbo facilitated or advised Person 2 in respect of him potentially becoming police informer, in circumstances that conflicted with her duties to the applicant.

12 Pursuant to s 319A of the Criminal Procedure Act, the Court of Appeal has referred eight questions to the Trial Division of the Court, constituted by a judge.[2] Those questions are:

(1) When and in what capacity did Ms Gobbo act for the applicant?

(2) When and in what capacity did Ms Gobbo act for Darren Jackson? Did Ms Gobbo influence Mr Jackson to plead guilty (and/or agree to the agreed statement of facts for his plea) and if so, how, and what impact did that have on the applicant's trial?

(3) Did Ms Gobbo breach any professional duties owed to the applicant, or was Ms Gobbo in conflict, in her role as the applicant's legal practitioner and her role as the legal practitioner for Mr Jackson, Mr Reid and/or Person 2?

(4) Did Ms Gobbo inform on the applicant? If so, what information did she provide to police about the applicant and when?

(5) Did Ms Gobbo breach any duties to the applicant, or was Ms Gobbo in conflict, in her role as the applicant's legal practitioner and her role as a current or former registered police informer?

(6) Did Victoria Police, the OPP, the DPP, and/or Ms Gobbo have an obligation to disclose Ms Gobbo's role as a current or former registered police informer? To whom did the obligation extend?

(7) What was solicitor 1's role in relation to the applicant's matter, and the other Carron and Hamadan matters?

(8) While Ms Gobbo acted for the applicant in his Carron/Hamadan matter:

1. Did she facilitate Person 2's cooperation with police?
2. What ongoing assistance did she provide to the police in relation to Person 2?
3. What role did she play in facilitating any other Carron and/or Hamadan suspect's cooperation with police or other investigatory body?
4. What role did she play in the resolution of other Carron and/or Hamadan matters?
5. What assistance did she provide police?
6. What of the above did she disclose to the applicant?
7. What knowledge of Gobbo and Victoria Police's status as an informer did the OPP and the DPP have?
8. What of the above did Victoria Police or the Crown disclose to the applicant?

Summary of prosecution case on applicant's trial

13 In order to provide a relevant context in which to consider the questions, it is necessary, first, to summarise the prosecution case, and the evidence that was adduced, on the applicant's trial.

14 Most of the prosecution case comprised evidence that was the product of a substantial police investigation into the activities of the applicant and his co-accused, and which included police surveillance, covert photography and videotaping, undercover police officers posing as drug purchasers, and the covert recording of telephone calls.

15 The prosecution case was that the applicant maintained a stock of heroin hidden in two principal locations. The first location was in a paddock in Dohertys Road, Altona North, where it was alleged that the applicant kept a supply of heroin, hidden in different places beneath rocks and broken roofing tiles in the paddock ('the Dohertys Road paddock'). The second location was a shed at the Baseball and Softball Centre in Merton Street, Altona ('the Merton Street Centre'), where it was alleged the applicant kept a supply of heroin, hidden in the grooves of the corrugated iron wall of the shed. The heroin at the two locations, when tested, was found to range in purity between 47% and 90%, but the majority of it was between 75% and 90%. Recorded conversations involving the applicant included discussions by him of quantities in ounces, and large sums of money. In the course of the conversations, the applicant offered to sell ounces of product.

16 On 12 November 1997, Jackson agreed to supply an undercover police officer, referred to as 'Jack Jones', with twelve ounces of heroin, three ounces of which were to be supplied on 13 November, and the remaining nine ounces on 18 November. After a meeting with the applicant on 12 November, Jackson told Jack Jones that he would supply twelve ounces to him at $7,000 per ounce.

17 On the following day, the applicant supplied Jackson with three ounces of heroin. Jackson then met Jack Jones and told him that the price was $7,500, and not $7,000, per ounce. As Jones only had $21,000 in cash on him, he purchased two ounces for $15,000. The prosecution case was that the applicant was nearby when that transaction was effected.

18 On 18 November 1997, Jackson and Jack Jones attended at the Merton Street Centre. Jackson then met with the applicant, who directed him to a white bag that was in bushes nearby. Jackson collected the bag, and returned to Jack Jones, who purchased the nine ounces of heroin contained in it in exchange for $67,500. Jack Jones then left the area. A short time later, members of the Special Operations Group attended at the shed area and arrested both the applicant and Jackson. A search of the shed wall revealed a quantity of nine ounces of heroin hidden inside the outer wall of the shed. A search of the applicant's Mitsubishi van revealed a secret compartment underneath the vehicle, inside which was a further three ounces of heroin. In total, a quantity of almost 700 grams of heroin was recovered by police on that date. The applicant was charged on one Giretti[3] count of trafficking in a commercial quantity of heroin between 11 September 1997 and 18 November 1997.

Summary of prosecution evidence on applicant's trial

19 In order to properly understand the content of the case made against the applicant at his trial, it is necessary to summarise the evidence adduced in the trial in more detail.

20 As mentioned, a substantial part of the prosecution case comprised evidence which was the product of police surveillance, covert photography and videotaping, covert recording of telephone calls, and undercover police officers who posed as drug purchasers.

21 On 11 September 1997, the applicant was seen at the Dohertys Road paddock, where he bent down and picked up a package underneath some rocks. The applicant removed items from the package, placed them in his tracksuit top, and replaced the package under the same rocks. After he departed, police inspected the scene and found a container underneath some rocks. The container contained 10 grams of white compressed powder, a sample of which, on analysis, was found to be 83% pure heroin. After departing from the premises, the applicant, in succession, met a number of different persons at different locations.

22 On 16 September 1997, investigators returned to the Dohertys Road paddock, where they found a Berocca container, containing 67 small packages of compressed white powder. A sample from the packages, on analysis, was found to be 47% pure heroin. On the following day (17 September), the same container was retrieved by investigators. At that point, it contained 35 small packages of white compressed powder which, on analysis, was found to contain 47% pure heroin. The investigators returned to the Dohertys Road paddock and replaced the original packages with 35 packages of compressed glucodin powder.

23 On 19 September, the applicant returned to the Dohertys Road property. When investigators attended subsequently, they found that the substituted packages had been removed.

24 On 2 October 1997, the applicant again attended at the Dohertys Road paddock. He alighted from his vehicle and walked out of sight, behind the passenger side of the vehicle. After he had departed, investigators found a container hidden beneath a broken roof tile. The container contained three packages, each of which consisted of an amount of compressed white powder. Samples of the powder, when analysed, were found to constitute 80% heroin.

25 On 3 October 1997, a covert camera was re-installed at the Dohertys Road property. At 12:27 pm, the applicant was recorded as attending at the property. There, he collected a number of packages, which he placed down his tracksuit pants.

26 On 6 October 1997, investigators returned to the Dohertys Road paddock and found a Berocca vial that contained seven packages of compressed white powder. A sample of the powder, when analysed, was found to contain 78% to 84% heroin.

27 On the following day, 7 October 1997, the applicant returned to the Dohertys Road paddock. Four days later, on 11 October, investigators attended at the property and found a Berocca vial containing seven packages of white compressed powder, a sample of which was found to constitute between 75% and 80% heroin.

28 On 13 October 1997, investigators again attended at the Dohertys Road paddock, where they found a Berocca vial containing five packages of white compressed powder. The applicant was further recorded as attending the property on 16 October and 22 October.

29 On 23 October, investigators located a 'Doritos' packet at the property containing two packages of white compressed powder, wrapped in clear plastic inside a red balloon. In total, the packages weighed 19.2 grams. Samples taken from each of the packages were found to constitute 80% heroin. Later on the same day, the applicant returned to the property, where he removed an item from the packet before replacing the packet in the rocky area. On the next day, 24 October, investigators, having returned to the property, found that the Doritos packet only contained one package. Later on the same day, the applicant returned to the property and removed that packet from the rocky area.

30 On 26 October 1997, the applicant returned to the Dohertys Road property, where he placed an object in the rocky area.

31 On 27 October 1997, a listening device and tracking device, which were installed in the applicant's vehicle, recorded conversations involving the applicant that concerned: amounts in ounces; prices; drugs; heroin; cutting up of drugs placed in balloons; and large amounts of cash. Surveillance observations confirmed that the applicant was present in the vehicle at the times of those discussions.

32 On the same day, investigators found two Berocca vials at the Dohertys Road paddock, samples from each of which, when tested, were found to be 80% heroin. Later on the same day, the applicant returned to the property, where he removed a packet from the rocky area and replaced it. On the same day, the listening device recorded the applicant talking on his mobile telephone to an unknown person, in which he referred to a female having gone and 'picked up the drugs and dropped 'em off'.

33 On 28 October 1997, the listening device recorded four conversations in which the applicant, talking on his mobile telephone to an unknown person, spoke in terms of quantities and money. On the following day (29 October), he returned to the Dohertys Road paddock. On the same day, the listening device recorded him saying to a male, 'kilo bag, I fucking weighed it'. Subsequently, the listening device recorded him talking to another unknown person in which he said, 'Fucking heroin mate. About how much?'. In another telephone conversation, the applicant was recorded as saying, 'It cost $500 and $1500'. In a fourth conversation, he was recorded saying, 'I may have a deal for you soon'.

34 On 30 October 1997, investigators found a bag containing two Berocca vials at the Dohertys Road paddock. They contained packages of white powder. On the same day, surveillance officers followed the applicant to the Merton Street Centre, where they recorded the applicant bending down near the outside back corner of a corrugated iron shed at the rear of the premises. In five separate conversations recorded by a listening device on the same day, the applicant spoke in terms of 'ounces' and 'grams', and referred to large sums of money (in one conversation, $4,000, and, in another, 'twelve grand').

35 On 31 October 1997, the applicant returned to the Dohertys Road paddock, where he removed the plastic bag. On the same day, investigators found a Berocca vial inserted in a groove in the corrugated iron walls of the shed near the Merton Street Centre. The vial contained three packages of compressed white powder, samples of which were found to constitute 75% to 80% heroin. On the same day, investigators found another Berocca vial at the Dohertys Road paddock, which contained a 3.5 gram package of compressed white powder.

36 On 1 November, investigators found two Berocca vials inserted in grooves in the corrugated iron walls of the shed at the Merton Street Centre. The vials contained packages of compressed white powder, samples of which were found to constitute 60% to 80% heroin.

37 On 3 November 1997, surveillance officers followed the applicant to the Merton Street Centre. The applicant was observed bending down at the outside back corner of the corrugated iron shed. On the same day, the listening device recorded three conversations, which were relevant. In one of them, the applicant said to an unknown person, 'How much do I owe you?', and in another, when speaking to a female on his mobile telephone, the applicant said, '$30,000'.

38 On 4 November 1997, investigators found two vials inserted in the grooves of the corrugated iron shed at the Merton Street Centre. In total, they contained nine packages of compressed white powder. Samples of the powder, when tested, were found to constitute 70% to 90% heroin. On the same day, police who were conducting surveillance of the shed at the Merton Street Centre recorded, on videotape, the applicant attending, bending down, and removing an item from the outside back corner of the shed. On the following day, investigators checked the shed, where they found two Berocca vials inserted in the corrugated iron grooves in the outside back corner of the shed. The two vials, in total, contained nine packages of compressed white powder. In three conversations, recorded by listening device, the applicant spoke in terms of conducting a transaction.

39 On 6 November 1997, surveillance officers observed the applicant at the Merton Street Centre bend down at the outside back corner of the corrugated iron shed. On the same day, in conversations recorded by the listening device, the applicant was again heard speaking in terms of transactions.

40 On the following day, 7 November 1997, investigators checked the Merton Street Centre shed, where they found two Berocca vials inserted in the grooves of the shed. In combination, they contained eight packages of compressed white powder, which were believed to be the packages that were present on 5 November. On 10 November, investigators found at the shed two Berocca vials which, on this occasion, contained six of the packages.

41 On 12 November 1997, Victoria Police covert operative 'Jack Jones' contacted Jackson and requested the purchase of twelve ounces of heroin. It was agreed that 'Jack Jones' would purchase three ounces of the heroin on 13 November, and the remaining nine ounces on 18 November. On the same morning, investigators attending the shed at the Merton Street Centre found two Berocca containers in the shed wall, which had the same six packages that were in place on 10 November. Later on the same morning, surveillance officers observed a meeting between Jackson and the applicant in Deer Park. At the conclusion of that meeting, Jackson contacted 'Jack Jones' and said that he could supply twelve ounces of heroin, and that the price would be $7,000 per ounce.

42 On 13 November 1997, surveillance officers observed Jackson meet the applicant in Boundary Road, Derrimut. Jackson stepped into the applicant's van, and they drove a short distance to a location where they stopped the van. They then entered a grassed area alongside the road where the applicant placed an item at the base of a tree. They then returned to the van and drove away. At 10:20 am, surveillance officers followed Jackson to Lansdowne Street, East Melbourne, where he met 'Jack Jones' in the Fitzroy Gardens. 'Jack Jones' had with him $21,000 in cash. Jackson informed him the actual price was $7,500 per ounce. It was agreed that 'Jack Jones' would purchase two ounces of heroin for $15,000.

43 Jackson and 'Jack Jones' then left the Fitzroy Gardens in 'Jack Jones's' vehicle and drove to the tree in Boundary Road, Truganina. Jackson went to the base of the tree and collected the three ounces of heroin. He handed two ounces of heroin to 'Jack Jones', and retained one for himself. 'Jack Jones' handed $15,000 cash to Jackson.

44 'Jack Jones' then left the area. Surveillance officers observed the applicant collect Jackson and return him to Lansdowne Street, East Melbourne, where Jackson's car was parked. Surveillance officers then followed the applicant to the Merton Street Centre, where the applicant placed an item underneath a rock adjacent to the fence line. Subsequently, investigators attended at the shed at the Merton Street Centre. They found the two Berocca containers in the wall. The first container was empty, and the second contained five packages.

45 On 14 November 1997, investigators located a package under a rock at the Merton Street Centre. It contained a balloon, which contained one ounce of white powder, which, on testing, was found to constitute heroin.

46 On 17 November 1997, investigators found three Berocca vials in the shed wall of the shed at the Merton Street Centre. Two of the Berocca vials were empty, and the third vial contained five plastic bags containing white compressed powder, which, on testing, constituted 61% to 75% heroin.

47 On 18 November 1997, investigators again attended the Merton Street Centre. They found the three Berocca containers, which were the same containers that they had found the previous day. At 10:45 am, surveillance officers followed the applicant to James Street, Laverton North, where he placed an item underneath a rock. Investigators attending one hour later found a wrapped package that weighed 37.4 grams. The investigators replaced the item in its original location.

48 At 4:45 pm on 18 November 1997, Jackson and 'Jack Jones' attended in Merton Street, Altona. The applicant arrived shortly afterwards and had a brief conversation with Jackson. The applicant then travelled to the shed at the Merton Street Centre, where he was observed placing a white bag in bushes near the shed. Shortly afterwards, Jackson and 'Jack Jones' attended the same property. 'Jack Jones' remained in the vehicle, while Jackson met the applicant. The applicant indicated the white bag to Jackson, who then collected it. Jackson returned to 'Jack Jones', who purchased the nine ounces of heroin contained in the bag from Jackson in exchange for $67,500. After 'Jack Jones' left the area, Jackson and the applicant were then arrested by members of the Special Operations Group.

49 In a tape recorded interview conducted by the informant, commencing at 8:46 pm on 18 November and concluding at 12:33 am on 19 November 1997, the applicant gave a false explanation for his presence at the shed in the Merton Street property. He said that he had been contacted by mobile telephone by a friend of a friend who needed to borrow his vehicle for a few hours. He said that he had come to Melbourne from Ocean Grove that day for dog training. The applicant denied any knowledge of drug trafficking activities that occurred on the day. He denied being a party to any conversations between Jackson and 'Jack Jones' concerning drugs, and he denied allegations of previous activities involving drug trafficking.

50 The prosecution evidence was subjected to rigorous cross-examination by Mr Sheales, who, as I have stated, appeared with Gobbo on behalf of the applicant.

51 The cross-examination was directed to matters such as the accuracy of the observations made by particular witnesses, their independent recollections, and the processes of surveillance adopted by them. In addition, the witnesses were cross-examined concerning the malfunctioning of any equipment that was used in the course of the surveillance of the applicant. A number of witnesses were asked questions about their findings of the canisters that contained heroin. In addition, counsel directed questions to the lack of fingerprint and other evidence, and the question why particular investigative mechanisms, that could have been deployed, were not used by police. On one day, three civilian witnesses were called. One witness gave evidence in cross-examination of observing an injury to the applicant's arm, which had not been observed, apparently, by police witnesses. Two other civilian witnesses, who were connected with the Merton Street Centre, were cross-examined to provide an explanation of why the applicant would be in that location.

52 The applicant gave evidence at his trial. The applicant said that he had known Jackson for about 20 years. The applicant was a professional kickboxer who had retired after a fight on 16 August 1997 as the result of a broken arm. He said that he was an occasional drug user, and his supplier was Jackson. He said that he only collected half gram quantities for his own use at the hiding place in Dohertys Road, and that he did so at Jackson's direction. The applicant said that his attendances at the shed at the rear of the softball centre in Merton Road were to collect drugs left there by Jackson 'and his crew', and that he never placed drugs there. He said that he also attended the softball centre for dog training as a member of the dog club. The applicant said that he had never stored drugs at James Street or Boundary Road. He said that he had attended James Street with Jackson and he used to meet his suppliers there. The applicant would act as a tester by 'snorting' samples in order to ensure their quality.

53 The applicant said that on 13 November 1997, Jackson had asked him to drive him to certain locations, and that Jackson wished him to be present in case something went wrong.

54 In respect of 18 November 1997, the applicant said that he received a telephone call from Jackson, who asked to meet him in St Albans. The applicant said that he was going to be paid for providing 'protection' for Jackson. After meeting Jackson, it was agreed that the applicant would be available whenever Jackson called him back. He then received a call from Jackson and met him in the vicinity of the Merton Street centre. Jackson got into the vehicle and directed the applicant to go to the back of the softball centre to wait there. The applicant did as he was directed. He denied that he took a bag from the side of the shed and placed it on the grass. He denied having knowledge of the size of the transaction in question. He said that he had told lies in his tape recorded interview because he was in a state of shock, as his dog had been shot by police in front of him. He denied knowledge of the other drugs that were found by police on that day.

55 For the purpose of determining the questions referred by the Court of Appeal, the parties jointly compiled a table ('the joint table') in chronological order, listing facts upon which the parties agree, and which are relevant to the questions. In addition, the applicant called two witnesses, Darren Jackson and Mr Wayne Strawhorn, and a number of exhibits were tendered in evidence.

56 I have determined the answers to the questions on the basis that the applicant has borne the burden of establishing, on the balance of probabilities, the facts on which he relies. Conversely, the respondent has borne the burden of establishing any facts that it contends is relevant for that purpose.[4]

Gobbo relationship with police and role in acting for applicant

57 Before turning to the questions referred by the Court of Appeal, it is convenient to set out, by reference to the joint table, the following facts that are relevant to the issue of Gobbo's relationship with Victoria Police and her role in acting for and on behalf of the applicant:

• 3 September 1993. Gobbo was charged by Victoria Police with possession and use of cannabis and amphetamines.

• 29 November 1993. Gobbo pleaded guilty to drug charges and was released on a good behaviour bond without conviction.

• July 1995. Gobbo was registered by Victoria Police as a human source.

• 21 February 1996. Gobbo assisted police as part of Operation Scorn by introducing an undercover police officer to a former housemate and co-accused.

• 7 April 1997. Gobbo was admitted to practice as a barrister and solicitor in the State of Victoria.

• 1997 to 1998. Gobbo was employed at the office of Solicitor 1 for approximately 12 months.

• 19 November 1997. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a remand hearing.

• 3 December 1997. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a status hearing; Solicitor 1 appeared for Person 2 and Reid.

• 16 April 1998. Gobbo appeared for Reid, and Solicitor 1 appeared for the applicant and Jackson, in the Melbourne Magistrates' Court.

• 10 June 1998. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a committal mention hearing.

• 22 June 1998. The committal hearing was held at the Melbourne Magistrates' Court. Mr Wayne Toohey (instructed by Solicitor 1) appeared for the applicant.

• 21 July 1998. Detective Senior Constable Kruger[5] and Detective Senior Constable Lim met with Gobbo. Kruger generated an information report of information, provided by Gobbo, in relation to the suspected involvement by Solicitor 1 in money laundering.

• 26 August 1998. Pryles & Defteros Solicitors filed a notice that a practitioner acts on behalf of the applicant.

• 1 September 1998. Gobbo commenced the Victorian Bar Readers Course.

• 19 November 1998. Gobbo signed the Bar Roll after completing the Readers' Course.

• 11 May 1999. Mr Damian Sheales was briefed to appear for the applicant at the trial.

• 12 May 1999. Detective Sergeant Strawhorn and Detective Senior Constable Kruger met Gobbo to introduce her to Detectives Segrove and Pope regarding allegations she made relating to Solicitor 1.

• 13 May 1999. Detective Pope completed an Informer Registration Application form, nominating Gobbo as a proposed informer to police in respect of allegations against her former employer, Solicitor 1.

• 16 May 1999. Chris Pearson (the applicant's solicitor) and Gobbo attend conference with the applicant at Port Phillip Prison. The applicant confirmed that he wanted to retain Gobbo as his counsel in the upcoming trial.

• 19 May 1999 . Gobbo was briefed to appear as junior to Mr Damian Sheales at the applicant's trial.

• 21 May 1999. Gobbo appeared in a County Court mention to request that the applicant's trial be adjourned to 27 May 1999 in order to enable Mr Sheales to complete a trial in Western Australia and return to Victoria.

• 24 May 1999. Gobbo appeared in a County Court mention on behalf of the applicant.

• 26 May 1999. Acting Superintendent Sheridan approved Gobbo as a registered police informer.

• 31 May 1999 to 3 June 1999. Gobbo appeared for the applicant in respect of his trial, which was not then reached.

• June - September 1999. Gobbo met with Detectives Pope and Segrove as part of Operation Ramsden, which was an investigation by the Asset Recovery Squad into financial crimes allegedly committed by Solicitor 1.

• 30 August 1999. The applicant's trial commenced with Gobbo appearing as junior counsel to Mr Sheales on behalf of the applicant.

• 27 September 1999. The applicant was convicted by the jury empanelled on his trial.

• 30 September 1999. Sentencing submissions were made by Mr Sheales on behalf of the applicant.

• 1 October 1999. A final meeting took place between Detective Senior Constable Pope and Gobbo. Gobbo provided Detective Senior Constable Pope with no new information regarding Solicitor 1.

• 20 and 21 October 1999. Gobbo appeared for the applicant in an unrelated proceeding in the Melbourne Magistrates' Court.

• 26 October 1999. Gobbo appeared for the applicant in the unrelated proceeding in the Melbourne Magistrates' Court.

58 Question 1 asks when, and in what capacity, did Gobbo act for the applicant. The answer to that question is based substantially on the joint table.

59 After the applicant was arrested on 18 November 1997, he instructed Solicitor 1's office. At that time, Gobbo was employed as a solicitor in Solicitor 1's office, having been admitted to practice as a barrister and solicitor in Victoria on 7 April 1997. Solicitor 1 continued to act for the applicant from that date until 26 August 1998. Gobbo was employed by Solicitor 1 during the whole of that period.

60 In that capacity, Gobbo appeared for the applicant at three hearings in the Melbourne Magistrates' Court, namely:

(a) on 19 November 1997, on a remand hearing;

(b) on 3 December 1997, on a status hearing;

(c) on 10 June 1998, at a committal mention hearing.

61 On 26 August 1998, Messrs Pryles & Defteros, solicitors, filed a notice that a practitioner acts on behalf of the applicant. Gobbo did not act for the applicant between that date and 16 May 1999.

62 On 11 May 1999, Mr Damian Sheales was briefed to appear for the applicant on his trial. On 16 May 1999, Gobbo and Mr Chris Pearson (the applicant's solicitor) attended a conference with the applicant at Port Phillip Prison, and the applicant confirmed that he wished to retain Gobbo as his counsel in the trial. Accordingly, on 19 May 1999, Gobbo was briefed to appear as junior to Mr Sheales at the trial.

63 On 21 May 1999 and 24 May 1999, Gobbo appeared on mentions in the County Court in respect of the upcoming trial. Between 31 May and 3 June 1999, Gobbo appeared for the applicant in respect of the trial, which was not then reached. She was granted an appeal costs certificate for four days' appearance and two days' preparation.

64 The trial commenced on 30 August 1999. Gobbo was briefed as junior counsel to Mr Sheales on behalf of the applicant. Gobbo had a limited role in the trial, and she only attended the court on some of the days of the trial. She did not cross-examine any of the prosecution witnesses. On one occasion, on a date on which Mr Sheales was not in court (15 September 1999), Gobbo had the responsibility for one of the prosecution witnesses. She did not ask any questions in cross-examination of that witness. At the conclusion of that witness's evidence, Gobbo persuaded the judge to stand the matter down before the next witness was called, as Mr Sheales was otherwise engaged.

65 Subsequent to the trial, on 20 and 21 October 1999, Gobbo appeared as counsel for the applicant in the Melbourne Magistrates' Court at hearings that were adjourned. On 26 October 1999, Gobbo appeared for the applicant in the Melbourne Magistrates' Court at a plea hearing. All three hearings were unrelated to the conviction of the applicant that is subject of the application for leave to appeal.

66 Question 2 concerns the role and conduct of Gobbo in respect of the applicant's co-accused Jackson. The question itself involves four issues, namely:

(a) When, and in what capacity did Gobbo act for Jackson?

(b) Did Gobbo influence Jackson to plead guilty?

(c) Did Gobbo influence Jackson to agree to the Agreed Statement of Facts for his plea and, if so, how did it so influence Jackson?

(d) If issue (c) is answered in the affirmative, what impact did Gobbo's influence on Jackson in that respect have on the applicant's trial?

67 The answer to the first part of question 2 is based substantially on the agreed facts contained in the joint table.

68 After Jackson was arrested (with the applicant) on 18 November 1997, he initially retained Paul Vale as his solicitor. Sometime between 19 November and 8 December 1997, he arranged to be represented by Solicitor 1 in the proceeding. Gobbo was nominated as a contact person at the office should Detective Senior Constable John Greene (the informant) require blank tapes to facilitate the provision of telephone intercept and listening device material.

69 By reference to the joint table, the following chronology is relevant in respect of the representation of Jackson in the ensuing proceedings:

• 11 December 1997. Gobbo spoke to Detective Senior Constable Kruger concerning Jackson.

• 29 January 1998. Solicitor 1 appeared for Jackson in the Melbourne Magistrates' Court; Gobbo appeared for Person 2 and Reid.

• 16 April 1998. Solicitor 1 appeared for Jackson and the applicant in the Melbourne Magistrates' Court; Gobbo appeared for Reid.

• 10 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates' Court. On the same date, she also appeared for Reid in the Melbourne Magistrates' Court.

• 17 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates' Court.

• 1 September 1998. Gobbo commenced the Victorian Bar Readers Course.

• 14 September to 17 September 1998. The committal hearing was held in respect of charges arising from Operation Carron involving Jackson, Person 2, Reid and Dan Mosut. Mr Neil Clelland of counsel appeared for Jackson (instructed by Solicitor 1).

• 2 October 1998. Jackson's plea hearing was held before Judge Jones of the County Court. Mr Clelland of counsel appeared for Jackson (instructed by Solicitor 1).

• 8 October 1998. Jackson was sentenced by Judge Jones. Mr Clelland appeared on behalf of Jackson (instructed by Solicitor 1).

70 In short, the answer to the first part of question 2 is that Jackson instructed Solicitor 1's office from at least 8 December 1997. Solicitor 1 represented Jackson in appearances at the Melbourne Magistrates' Court on 29 January 1998 and 16 April 1998. On those dates, Gobbo represented other accused who had been arrested on 18 November 1997. On 10 June 1998 and 17 June 1998, Gobbo represented Jackson in the Melbourne Magistrates' Court. Gobbo ceased to be employed by Solicitor 1 at the latest by 31 August 1998, and she commenced the Victorian Bar Readers Course on 1 September 1998. She did not act for Jackson after she ceased to be employed by Solicitor 1.

71 The answer to the second part of question 2, whether Gobbo influenced Jackson to plead guilty, is straightforward. As I shall outline shortly, in his evidence, Jackson said that some eight months after his arrest, Gobbo visited him in gaol and encouraged him to name the applicant as the supplier of the heroin that was involved in his dealings with the undercover police operative, Jack Jones. In his evidence, Jackson said that, from an early stage, he understood that he would plead guilty, and he said that it was always his intention to do so. He specifically said that he was not put under any pressure by Gobbo to plead guilty.

72 Accordingly, the answer to the second part of question 2 is that Gobbo did not influence Jackson to plead guilty.

73 The third part of question 2 is whether Gobbo influenced Jackson to agree to the Agreed Statement of Facts that was presented on his plea in the County Court.

74 Jackson's plea and sentence proceeded on the basis of an agreed statement of facts that was filed in the County Court. That statement outlined the meetings between Jackson and the police undercover operative ('Jack Jones') in the Fitzroy Gardens on 22 October, 12 November and 13 November 1997, and the meeting on 18 November 1997 in which the drug transaction took place and Jackson and the applicant were arrested. In the agreed statement of facts, the applicant was referred to as the 'alleged co-offender'. The agreed statement of facts concluded as follows:

Jackson, the prosecution say, was acting on behalf of the alleged co-offender. In that sense he was not the principal. Nonetheless, he was a participant at a mid-level in the trafficking of significant amounts of pure heroin.

75 In similar terms, in sentencing Jackson, the judge, in his sentencing reasons, stated:

The prosecution say you were acting on behalf of the alleged co-offender. In that sense, you were not the principal. Nevertheless, the prosecution maintained that you were a participant at a mid-level in the trafficking of significant amounts of pure heroin.

76 Later in the sentencing reasons, the judge elaborated on the role of Jackson in the following terms:

Your role in relation to this trafficking needs to be considered. You were not the principal, you were not the supplier of the heroin. You had to go to a source to obtain the heroin. The conversations that you had with the undercover operative demonstrate that; for example, statements such as "I'll see what I can do". It is appropriate to describe you as a go between or middle man between the supplier and the purchaser. You were acting on behalf of the supplier. However, this is still an important role.

77 In his evidence in the present proceeding, Jackson affirmed the contents of a statement that he made to the Royal Commission into the Management of Police Informants dated 4 September 2019. In that statement, Jackson said that although Solicitor 1 occasionally visited him in prison, he mostly dealt with Gobbo, who visited him at least six or seven times. He said that Gobbo told him in the early stages that if he named his supplier, he would 'do a lot less time'.

78 In his evidence, Jackson specifically stated that, eight months after his arrest, Gobbo visited him and told him that if he named his supplier as the applicant, he could 'go home on time served'. Jackson told Gobbo that Person 1, and not the applicant, was his supplier, and he wanted to name Person 1 as his supplier in the 'statement of facts', but Gobbo refused to permit him to do so. According to Jackson, Gobbo told him that, as a result of a legal technicality issue, he could only say that he was introduced to Person 1 and that he owed Person 1 money. Accordingly, Jackson pleaded guilty to the charges, although he did not agree with the contents of the agreed Statement of Facts that were put to the judge.

79 In the present case, it was not submitted, on behalf of the respondent, that Jackson was untruthful in the evidence he gave before me. His credit was not put in issue in cross-examination, and my assessment is that Jackson was endeavouring to be an honest witness in the evidence that he gave on the hearing.

80 In order to determine the effect, if any, of the advice, which Gobbo gave to Jackson on the matters that were put on his behalf in the plea, it is necessary to return to the Agreed Statement of Facts on which the prosecution based its case on Jackson's plea.

81 As noted, the Statement of Facts asserted that Jackson was acting on behalf of the 'alleged co-offender' (the applicant), and that he was not the principal, in the transactions which Jackson undertook with the police undercover officer, Jack Jones. The Statement concluded with a page entitled, 'Facts conceded by the prosecution', which were as follows:

1. Jackson was a user of Heroin at the relevant time.
2. As a result of that drug use he came into contact with a person named [Person 1].
3. As a result of Jackson's drug use, he ended up owing money.
4. Jackson was subjected to threats to repay that money.
5. Jackson was introduced by [Person 1] to the police undercover operative. The undercover operative was introduced as a person wishing to purchase drugs. Jackson agreed to arrange for the supply of drugs.
6. Jackson did not receive the bulk of the moneys paid by the police undercover operative for the heroin.

Jackson alleges and the prosecution does not dispute that what he was receiving was a small quantity of cash and some Heroin for personal use and reduction of a debt.

82 The transcript of the plea that was presented on behalf of Jackson has not been located. However, it is evident from the judge's sentencing reasons that, consistent with the document entitled 'Facts conceded by the prosecution', it was submitted on behalf of Jackson that Person 1 was the supplier of the heroin, which Jackson sought then to traffick to the police undercover operative. In a passage that followed the part of the sentencing reasons which I have quoted earlier, the judge noted:

You have contended through your counsel, and there is reference to this in reports tendered, that Person 1 ... was the supplier. I am not able to make a finding that that was the position.

83 It follows from the foregoing that although Gobbo, in strong terms, advised Jackson to nominate the applicant as the supplier of the heroin that he then sought to sell to the police undercover operative, nevertheless, his plea was conducted on the basis that Person 1 (and not the applicant) was the supplier of the heroin to him.

84 It is clear, on the other hand, that Jackson's plea was conducted, and he was sentenced, on the basis that, in conducting the transaction, he was acting 'on behalf of' the applicant. The precise position and role of the applicant, in the chain of command of trafficking of the heroin, was not specified on Jackson's plea, other than that Jackson was acting on his behalf in the transaction that he undertook with the police undercover operative.

85 The question, then, is whether Gobbo influenced Jackson to have the plea presented to the judge in the manner in which it was, namely, that he acted on behalf of the applicant, albeit that the supplier of the heroin was Person 1.

86 As is apparent, that basis was different to the basis that Gobbo sought to persuade Jackson to adopt in pleading guilty. It did, however, have one element that was common to the advice given to Jackson by Gobbo, namely, that he should implicate the applicant in the offending with which he was charged, albeit that he did so in a manner different to that suggested by Gobbo. To that limited extent, and as properly conceded by senior counsel for the respondent, I conclude that the advice that Gobbo gave to Jackson did contribute to Jackson's plea being put on the basis that the applicant was implicated in the offending with which Jackson was charged, in that Jackson was acting on his behalf in committing that offending.

87 The fourth issue, in respect of question 2, concerns the effect on the applicant's trial of any influence, exercised by Gobbo, to induce Jackson to agree to the agreed Statement of Facts on his plea.

88 In respect of that issue, counsel for the applicant noted that, in dismissing the applicant's application for leave to appeal against sentence, Brooking JA described the account given by the applicant, in his evidence at trial, as 'a cock and bull story'.[6] Counsel submitted that the effect of Jackson pleading guilty, on the basis that he was acting on behalf of the applicant, precluded Jackson from giving evidence at the applicant's trial that the applicant's sole role, in respect of the intended transaction with the undercover police operative 'Jack Jones', was as a lookout while the transaction was being undertaken. Counsel submitted that, if Jackson could have been called as a witness on the applicant's trial, he would have been able to give evidence that the applicant was not the supplier of heroin to him, and that he had sourced his heroin from Person 1.

89 In response, senior counsel for the respondent submitted that the position taken by Jackson on his plea did not preclude him being called to give evidence on behalf of the applicant. It was submitted that, in any event, the evidence, which, the applicant contends, would have been called from Jackson, would have been directly contradicted by the surveillance evidence that was adduced on the applicant's trial. Further, and in any event, counsel noted that Jackson's evidence could not account for the quantity of heroin located under the Mitsubishi van driven by the applicant, or in the quantity located shed.

90 In his statement to the Royal Commission, Jackson, in effect, stated that when he and 'Jack Jones' arrived at the Merton Street Centre, he had arranged for 'a lookout' person to cover his back due to the large amount of cash and drugs that were involved in the intended transaction. It might be inferred that that 'lookout person' was the applicant. Jackson said that that person parked on the side of the shed so that he and Jackson could see each other. If that evidence had been adduced at the applicant's trial, it would have been consistent with, and would have supported, that part of the evidence given by the applicant at the trial.

91 The circumstance that Jackson had pleaded guilty in respect of the transaction, on the basis that he was acting on behalf of the applicant, did not necessarily preclude Jackson giving evidence at the applicant's trial to the effect that was contained in his statement to the Royal Commission. However, if he gave such evidence, it would have been open to be challenged on the basis of the agreed facts put before the court on his plea. That circumstance would necessarily have had the capacity to significantly impugn the credibility of any evidence given by Jackson in support of the applicant.

92 The applicant did not adduce any evidence as to why Jackson was not called on his behalf at the trial. The absence of such evidence is understandable due to the passage of time. However, it was not suggested, and certainly no evidence was adduced, that a decision was made not to call Jackson as a witness because of the basis upon which Jackson himself pleaded guilty to the offence with which he was charged. The most that can be concluded at this point is that if the applicant had sought to call Jackson to give evidence on his behalf at the trial, Jackson's evidence would have been vulnerable to attack on the basis that that evidence was inconsistent with the agreed basis upon which he had pleaded guilty.

93 The question, then, is whether the fact that Jackson did not give evidence on the applicant's trial had an impact on that trial.

94 As a preliminary matter, two points may be noted.

95 First, the applicant was charged with trafficking a commercial quantity of heroin between 11 September 1997 and 18 November 1997. The transactions with which Jackson was involved commenced on 22 October 1997. Any evidence adduced from Jackson could not have affected the case made against the applicant during the preceding period (from 11 September 1997).

96 Secondly, the 'between dates' (Giretti) charge against the applicant encompassed not only the quantity of heroin that was involved in the transactions between Jackson and the undercover police operative (252 grams), but it also included three other quantities of heroin. Those quantities comprised, first, the heroin that the applicant had been involved in trafficking between 11 September and 12 November 1997, secondly, the quantity of heroin located on 18 November 1997 under the applicant's motor vehicle, and, thirdly, the quantity of heroin located in the tin shed at the Merton Road Centre. Those three quantities of heroin totalled approximately 450 to 750 grams. Any evidence which could have been given by Jackson could not have assisted the applicant in respect of those aspects of the charge against him.

97 The characterisation by Brooking JA of the evidence of the applicant at his trial - as a 'cock-and- bull story' - was not based solely on the manner in which the applicant had given that evidence. It was based, substantially, on the fact that the applicant's evidence was directly contradicted by the surveillance evidence adduced on the trial, and to which I have referred, that described the movements of the applicant and Jackson between 12 November and 18 November 1997. It is not necessary to rehearse at length the totality of that evidence. It is sufficient, for present purposes, to make brief reference to the evidence.

98 On 12 November 1997, Jack Jones contacted Jackson and requested to purchase 12 ounces of heroin from him. At 11:50 am, Jackson and the applicant were observed to meet in Deer Park. At the conclusion of the meeting, Jackson contacted Jack Jones and said he could supply 12 ounces of heroin, and that the price would be $7,000 per ounce.

99 On the following day, 13 November, Jackson met the applicant in Boundary Road, Derrimut. They then drove together, in the applicant's vehicle, to a grassed area, where the applicant placed an item at the base of a tree. At 10:20 am, surveillance officers followed Jackson to the Fitzroy Gardens, where Jackson met Jack Jones, who purchased two ounces of heroin from Jackson for $15,000. Jackson and Jack Jones then drove to the tree in Truganina, where Jackson located the three ounces of heroin and sold two ounces to Jack Jones. At the time, the applicant was parked nearby.

100 After Jack Jones left the scene, the applicant was observed to collect Jackson and return him to East Melbourne, where Jackson's car was parked. The applicant was then followed by surveillance officers to the Merton Street Centre, where he placed an item under a rock. Subsequently on the same day, the investigators found two Berocca containers in the wall of the shed at the Merton Street Centre, which contained five packages of white compressed powder.

101 On 18 November 1997, at 10:45 am, the applicant was observed to drive to James Street, Laverton North, where he placed an item under a rock. Investigators who subsequently attended found that the item weighed 37.4 grams. Later on the same day, at 4:45 pm, Jackson and Jack Jones attended the Merton Street Centre. The applicant arrived shortly afterwards and had a brief conversation with Jackson. The applicant then travelled to the shed, where he was observed to place a white bag in bushes nearby. Jackson and Jack Jones then attended the Merton Street Centre. Jack Jones remained in the vehicle. Jackson met the applicant, who indicated to him the white bag, which Jackson collected. Jackson then returned to Jack Jones, who purchased the nine ounces of heroin contained in the bag, in exchange for $67,500.

102 In those circumstances, and in view of all of the evidence at the trial, it must be concluded that the evidence against the applicant was effectively overwhelming. If Jackson had been able to give evidence on the trial of the applicant in accordance with the statement that he made to the Royal Commission, and unimpeded by the agreed facts that were the basis of the plea of guilty advanced on his behalf, I do not consider that any such evidence by Jackson could have affected the verdict of the jury on the trial.

103 Question 3 asks whether Gobbo breached any professional duties that she owed to the applicant, or whether she was in conflict, in her role as the applicant's legal practitioner and her role as the legal practitioner for Jackson, Reid, and/or Person 2.

104 In order to answer each aspect of that question, it is necessary briefly to set out the principles concerning the duties owed by Gobbo to the applicant in her capacity as his legal representative, or as an employee of his legal representative, between 19 November 1997 and 26 August 1998, and in her capacity as counsel briefed on behalf of the applicant for his trial between 19 May 1999 and 27 September 1999.

105 It is a fundamental principle that, in acting for and on behalf of a client, a lawyer assumes a fiduciary duty to the client, which requires the lawyer to act at all times in the best interests of that client.[7] As such, the lawyer is required to act in the interests of the client to the exclusion of the lawyer's own personal interests.[8]

106 In a case in which a legal practitioner acts for more than one client interested in the particular case, the legal practitioner must be astute not to be placed in a position where there is a conflict of interest between representing each of the clients.[9]

107 A further important aspect of the fiduciary duty is that the legal practitioner must maintain the confidentiality of any communication with the client, subject, of course, to the proviso that that duty of confidence does not apply to communications relating to the existence or likelihood of the commission of a crime or serious civil wrong.[10]

108 In addition, a lawyer should not act for a client where, due to a past or current relationship between the lawyer and another person, or some other function of the lawyer, the lawyer's role in acting for the client might undermine confidence of the due administration of justice.[11]

109 Question 3 concerns whether Gobbo breached any duties owed to the applicant, and whether there was conflict, in Gobbo acting for the applicant on the one hand, and on the other hand acting as legal practitioner for Jackson, Reid and/or Person 2.

110 Based on the evidence adduced at the hearing, counsel for the applicant did not put, nor was there any evidence, that Gobbo breached her professional duties to the applicant, or was in conflict of interest, in acting for Reid.

111 In respect of Jackson, counsel for the applicant submitted that at the time that Gobbo had the conversation with Jackson in prison, in which she advised him to nominate the applicant as the supplier of heroin, Gobbo then had a conflict of interest in continuing to act for the applicant. Counsel noted that although Gobbo ceased to act for the applicant on 26 August 1998, nevertheless, when she was subsequently briefed to act for him on the trial, her conflict of interest re-emerged, such that Gobbo should have refused the brief. Counsel submitted that, having previously acted contrary to the applicant's interests, Gobbo had an irreversible conflict of interest in acting for him on his trial.

112 In response, senior counsel for the respondent submitted that there was no conflict or breach of professional duty by Gobbo in subsequently acting for the applicant, after she had previously acted for Jackson. In acting for Jackson, Gobbo had not been in receipt of any confidential information, which could have prevented her from acting for the applicant, because Jackson's instructions to Gobbo had been that the supplier of heroin to him was Person 1, and not the applicant.

113 It is clear that, at the time at which Gobbo advised Jackson that he should plead guilty on the basis that the applicant, and not Person 1, was the supplier of heroin to him, Gobbo was then in a position of conflict of interest in continuing to act for the applicant. At that point, she should have advised the applicant that he should seek separate representation. There is no evidence that such advice was given to the applicant.

114 Based on the evidence given by Jackson, it is apparent that the advice given to him by Gobbo took place eight months after his arrest, that is, in July 1998. Solicitor 1 (and thus Gobbo) ceased to act for the applicant on 26 August 1998, when the applicant terminated Solicitor 1's retainer and instructed Messrs Pryles & Defteros to act on his behalf. The applicant has not maintained that at any time between the date on which Gobbo advised Jackson as to how he should plead guilty, and the date on which Solicitor 1 (and thus Gobbo) ceased to act for the applicant, Gobbo performed any professional work on behalf of the applicant, which would have been affected by the conflict of interest that had arisen from the advice that she had given to Jackson.

115 At the time at which Gobbo accepted the brief to act on behalf of the applicant in May 1999, and acted for him (as junior counsel to Mr Sheales) up to and including the time of his conviction on 27 September 1999, Jackson's criminal proceeding had been completed. It was not put that, in acting for Jackson, or advising him, Gobbo was in receipt of any confidential information, which might have precluded her acting for the applicant on his trial.

116 It may be readily accepted that most members of counsel would have eschewed accepting a brief to act on behalf of the applicant on his trial, in circumstances in which they had given advice such as that which Gobbo gave to Jackson. However, the fact that Gobbo had given that advice to Jackson did not, in any way, constrain her from acting in the best interests of the applicant when she accepted and held the brief to appear on his behalf on his trial. In acting on behalf of the applicant at that trial, Gobbo did not breach any duty, nor was she in conflict of any duty, that she owed to Jackson.

117 In essence, then, there was no conflict of interest in Gobbo acting as junior counsel on the trial of the applicant arising from the fact that she had previously acted as legal practitioner for, and given advice to, Jackson.

118 In order to address the part of question 3 that relates to Gobbo acting for Person 2, it is necessary to set out some of the evidence that was adduced in the course of the hearing in respect of that issue.

119 As I have noted, Person 2 was one of the persons, who were the subject of Operation Carron, who was arrested on the same date as the applicant. Subsequently, Person 2 engaged Solicitor 1 to act on his behalf in the proceeding. On 3 December 1997, Solicitor 1 appeared for Person 2 and Reid, and Gobbo appeared for the applicant, at a status hearing in the Melbourne Magistrates' Court. Subsequently, on 29 January 1998, Gobbo appeared for Person 2 and Reid at a mention hearing in the Melbourne Magistrates' Court.

120 By reference to the joint table, the following facts, relevant to Person 2, were agreed between the parties.

121 At some time after the conclusion of the committal proceeding on 17 September 1998, Gobbo contacted Mr Strawhorn on behalf of Person 2 to discuss the parameters of Person 2 becoming an informer. That contact followed an approach, which Person 2 had made to Mr Strawhorn during the committal proceeding, in which Person 2 had had a general conversation with Mr Strawhorn concerning the matter.

122 On 13 October 1998, Ms Gobbo and Person 2 met with Mr Strawhorn to discuss Person 2 becoming an informer.

123 Subsequently, on 7 December 1998, Gobbo met with Mr Strawhorn to discuss travel arrangements for Person 2 and herself to go to Sydney. Person 2 had indicated that he wanted Gobbo to be involved in every meeting that he had with Mr Strawhorn. On 16 December 1998, Gobbo met with Mr Strawhorn and Person 2 to travel to Sydney.

124 Three months later, on 18 March 1999, Gobbo met with Mr Strawhorn to discuss Person 2's case.

125 On 9 June 1999, and again on 20 August 1999, Gobbo met with Mr Strawhorn, apparently in relation to assistance to be provided by Person 2.

126 Mr Strawhorn, in his evidence, largely confirmed each of those matters.

127 In his evidence, Mr Strawhorn adopted the contents of the statement that he made to the Royal Commission dated 18 April 2019.

128 In late 1997, Mr Strawhorn was a Detective Senior Sergeant in the Drug Squad of Victoria Police. In that capacity, he conducted the investigation that was referred to as Operation Carron, and he was also involved in assisting in Operation Hamadan.

129 Mr Strawhorn's first recollection of contact with Gobbo related to efforts that he made to have Person 2 become a police informer. At the committal proceedings relating to Operation Carron, Person 2 had approached Mr Strawhorn and spoken to him. As a result, Gobbo, who was acting for Person 2, telephoned Mr Strawhorn and arranged a meeting. Subsequently, Gobbo, Person 2 and Mr Strawhorn travelled to Sydney.

130 By reference to his diary, Mr Strawhorn noted the following. On 7 December 1998, Mr Strawhorn met with Gobbo, who was representing Person 2, for the purpose of discussing arrangements for the trip to Sydney with Gobbo and Person 2. On 16 December 1998, Mr Strawhorn met with Gobbo and Person 2 to travel to Sydney. On 18 March 1999, Mr Strawhorn had a further meeting with Gobbo concerning Person 2. On 20 August 1999, Mr Strawhorn met with Gobbo, Mr Strawhorn had no recollection of that meeting, but assumed it would have been about Person 2 providing assistance or his trial status.

131 In cross-examination, Mr Strawhorn confirmed that Operation Hamadan was a separate operation to Operation Carron. Operation Hamadan started with Jackson as its subject, but then the applicant became the target of that operation. The two operations in that way overlapped.

132 Mr Strawhorn stated that his first recollection of Gobbo was at the end of 1997 in respect of Operation Carron. Mr Strawhorn did not know that Gobbo was acting for Arnautovic. Mr Strawhorn further confirmed that Person 2 did not provide any information concerning either Operation Carron or Operation Hamadan. The discussions, which Mr Strawhorn had with Gobbo concerning assistance to be given by Person 2, did not relate to either of those two operations.

133 Mr Strawhorn acknowledged that, during 1998, he became aware that Gobbo had supplied information to police about the activities of her employer, Solicitor 1, and that she alleged that her employer had been engaging in money laundering through his trust account. Mr Strawhorn and Detective Kruger met with Gobbo on 12 May 1999 concerning the allegation. Gobbo was then passed to an appropriate unit to investigate her allegations, and Mr Strawhorn was not involved with Gobbo in her role as a human source to police. Gobbo did not, at any time, provide any information to Mr Strawhorn.

134 Based on that evidence, counsel for the applicant submitted that Gobbo was in a conflict of interest in acting both for Person 2 and the applicant. Counsel submitted that although Person 2, in the upshot, did not provide information to Mr Strawhorn concerning Operation Hamadan or Operation Carron, Gobbo was not to know the extent to which Person 2 gave assistance to the police. In essence, counsel submitted that because Gobbo did not know the parameters of the information that Person 2 was to provide to the police, she was in a conflict of interest in later accepting the brief to appear on behalf of the applicant at his trial.

135 In response, senior counsel for the respondent noted that Person 2 was not a co-accused of the applicant. He was charged as part of Operation Carron, and, accordingly, there was no conflict for Solicitor 1 or Gobbo in acting on behalf of Person 2 while acting for the applicant. Further, there was no evidence that Person 2 was involved in providing any information about persons involved in Operation Carron or Operation Hamadan.

136 Based on the evidence to which I have referred, I am not persuaded that there was a conflict of interest in Gobbo acting on behalf of Person 2 while also acting on behalf of the applicant, both as an employee solicitor, and subsequently as junior counsel on his trial. The short point is that there is no evidence that the discussions with Mr Strawhorn, in which Gobbo acted for Person 2 concerning the potential provision of information by Person 2 to Victoria Police, involved, or envisaged, Person 2 providing information to Victoria Police about Operation Hamadan, Operation Carron, or the applicant. Further, the uncontested evidence of Mr Strawhorn was that Person 2 did not provide any information to Victoria Police relating to those matters.

137 In those circumstances, there was no conflict in Gobbo acting on behalf of the applicant in circumstances in which she acted on behalf of Person 2.

138 In conclusion, then, counsel for the applicant did not put, nor was there any evidence, that Gobbo breached her professional duties to the applicant, or was in conflict of interest, in acting for Reid.

139 In addition, I have concluded that there was no conflict of interest in Gobbo acting on behalf of the applicant in circumstances in which she had previously acted as legal practitioner for, and given advice to, Jackson. I have reached the same conclusion in respect of Person 2, namely, that there was no conflict in Gobbo acting on behalf of the applicant in circumstances in which she acted on behalf of Person 2.

140 Those conclusions do not address the issue whether, as a result of having acted for, or as a result of her then acting for, Jackson and/or Person 2, Gobbo's role in acting for the applicant was such as might undermine confidence in the due administration of justice in accordance with the principles considered by the Queensland Court of Appeal in R v Szabo[12] to which I have earlier referred. That is an issue which may arise for consideration and determination by the Court of Appeal.

141 Question 4 asks whether Gobbo informed on the applicant to Victoria Police. The short answer to that question is that the applicant does not put, and there is no evidence, that Gobbo informed on the applicant to Victoria Police.

Did Ms Gobbo breach any professional duties owed to the applicant, or was Ms Gobbo in conflict, in her role as the applicant's legal practitioner and her role as a current or former registered police informer?

143 In respect of that question, counsel for the applicant submitted that at the time at which Gobbo was retained to act on behalf of the applicant in his trial, she was required, but failed, to disclose to the applicant her role as an informer to Victoria Police.

144 The evidence relating to Gobbo's role as an informer to Victoria Police was almost wholly based on the joint table. It may be summarised as follows.

145 In 1998, while Detective Kruger was serving briefs on Gobbo (as an employee of Solicitor 1) for persons who were charged as a result of Operation Carron, Gobbo supplied information to Kruger about alleged criminal activities of her employer, Solicitor 1. Subsequently, on 21 July 1998, Detective Kruger and Detective Senior Constable Lim met with Gobbo. Kruger generated an information report in relation to information as to suspected involvement, by Solicitor 1, in money laundering. The report recorded that Gobbo had told investigators that there was a need to investigate specific areas in relation to Solicitor 1's business dealings, and she provided some details concerning those areas of proposed investigation. In essence, Gobbo informed police that it was believed that Solicitor 1 assisted in money laundering by purchasing properties for cash and then refinancing them to make the properties legitimate.

146 On 12 May 1999, Detective Senior Sergeant Strawhorn and Detective Kruger met Gobbo to introduce her to Detectives Segrove and Pope of the Assets Recovery Unit. The purpose of the meeting was to discuss Gobbo's allegations against her former employer, Solicitor 1. In evidence in the present hearing, Mr Strawhorn said that, apart from that meeting, he did not have any other involvement with Gobbo in her capacity as a potential or actual human source.

147 Subsequently, between May and September 1999, Gobbo met with Detectives Pope and Segrove as part of Operation Ramsden, which was an investigation of the Asset Recovery Squad into allegations of financial crimes committed by Solicitor 1. Gobbo met with Pope and Segrove on 13 May 1999, and on more than one occasion after that date.

148 On 13 May 1999, Detective Pope completed an informer registration application nominating Gobbo as a proposed informer in respect of offences described as fraud/money laundering. On 26 May 1999, the informer registration application was approved, and Gobbo was registered as an informer.

149 Detective Pope had regular contact with Gobbo in the first two weeks of June 1999. He continued to meet with her until 1 October 1999. Detective Segrove also met with Gobbo on a number of occasions in May and June 1999. Ultimately, by October 1999, it was considered that the information that Gobbo provided was of little or no assistance to Victoria Police.

150 Operation Ramsden did not result in any charges being laid, and it was discontinued in 2000. On 3 January 2000, Detective Sergeant Segrove recommended to the officer in charge of the Asset Recovery Squad that Gobbo's status as a human source be changed from 'active' to 'inactive'. Detective Sergeant Segrove noted that Gobbo should be deregistered on the basis that investigators had had no recent contact with her.

151 In the course of evidence before me, an issue arose as to whether in fact Gobbo was at any time aware that she was a registered informer of Victoria Police. For that purpose, each side tendered a part of the evidence given by Gobbo to the Royal Commission on 4 February 2020. When read in context, it is sufficiently clear that the doubt expressed by Gobbo in that regard, in her evidence to the Royal Commission, related to her previous registration as an informer in July 1995, and not to her registration as an informer in May 1999. I am therefore satisfied that, at the relevant time, and in particular at the time at which Gobbo was briefed to appear as junior counsel on behalf of the applicant at his trial, Gobbo was aware that she was then registered as a police informer.

152 It was based on the foregoing facts that counsel for the applicant submitted, in respect of question 5, that, at the time at which Gobbo was briefed to appear on behalf of the applicant at his trial, she had an obligation to disclose to him that she was then an informer to Victoria Police. Counsel submitted that any potential client has the right to full information when deciding on who to brief to represent them in court. It was submitted that if a prospective client were aware of matters such as that the intended legal representative was a registered informer to Victoria Police, that might affect the prospective client's assessment of whether or not to engage that legal representative. In particular, it was submitted that the registration of Gobbo as a police informer affected her role as independent counsel on behalf of the applicant, particularly in a case which involved the defence vigorously contesting the evidence given by a number of police witnesses.

153 In response, senior counsel for the respondent noted that the sole purpose of the registration of Gobbo as a police informer was entirely unrelated to the applicant, or the issues that were to be agitated in his trial. Gobbo did not provide any information to police about the applicant, nor did she contribute in any way to the information that was gathered through Operation Hamadan and which resulted in the applicant's arrest, charge and conviction. Accordingly, counsel submitted that Gobbo was not obliged to reveal to the applicant her role as a police informer. At the time at which Gobbo was briefed to appear on behalf of the applicant, he was no longer represented by Solicitor 1. Accordingly, it was submitted that any function undertaken by Gobbo as an informer to Victoria Police concerning Solicitor 1 did not enliven an obligation by Gobbo to inform the applicant of her role as a police informer in respect of matters, which were completely unrelated to the applicant at his trial.

154 Counsel were not able to refer me, nor was I able to locate, any authority, which is comparable to the circumstances of the present case. They are quite unique.

155 The most relevant facts concerning the resolution of the issue, raised by question 5, include the following:

(1) At the time at which Gobbo became a registered police informer on 26 May 1999, she had been briefed (seven days earlier) to appear for the applicant on his trial.

(2) The only information provided by Gobbo to Victoria Police related to alleged criminal conduct by Solicitor 1. There is no evidence that that criminal conduct at all implicated, or was concerned with, the applicant or his trial.

(3) The applicant had ceased to be represented by Solicitor 1 on 26 August 1998. On his trial, he was represented by an independent firm of solicitors, MM&R, who instructed Gobbo as his counsel.

(4) In her role as a registered informer, Gobbo had a number of meetings with Detective Senior Constable Pope and Detective Senior Constable Segrove between 13 May 1999 and 1 October 1999. Thereafter, her role as informer effectively ceased.

(5) It was not suggested that Gobbo's registration, and function, as a registered informer, in any way affected or inhibited the performance by her of her role as junior counsel (to Mr Sheales) on behalf of the applicant at his trial.

(6) At no time did Gobbo inform the applicant that she was a registered police informer, or that she was providing information to police concerning alleged criminal activities of Solicitor 1.

156 As I have noted, I was not referred to, nor was I able to locate, any comparable authority. The question, whether the fiduciary duty owed by Gobbo to the applicant, being a duty of utmost good faith, required her to disclose to the applicant her status as a registered police informer, is one which must be determined on the application for leave to appeal, based on the facts that I have outlined above.

157 If the fiduciary duty owed by Gobbo to the applicant required her to disclose that information to the applicant, I am satisfied that Gobbo did not disclose that information to him.

Did Victoria Police, the OPP, the DPP and/or Ms Gobbo have an obligation to disclose Ms Gobbo's role as a current or former registered police informer? To whom did the obligation extend?

159 In answer to that question, it was accepted that there is no evidence that either the Office of Public Prosecutions or the Director of Public Prosecutions had any information that Gobbo was a current or former registered police informer.

160 In my consideration of question 5, I have addressed the issue, whether Gobbo had an obligation to disclose to the applicant her role as a current or former registered police informer. It was not suggested on behalf of the applicant that Gobbo had an obligation to disclose her role, as a police informer, to anyone else.

161 The question, then, is whether Victoria Police had an obligation to disclose Gobbo's role as a current or former registered police informer. In respect of that issue, counsel for the applicant submitted that, consistent with the duty of Victoria Police to disclose relevant information to an accused person, Victoria Police was obliged to disclose to the applicant the fact that his counsel, Gobbo, was a current or former registered police informer.

162 It is well established that the prosecution has an important duty of disclosure, which includes an obligation to disclose to an accused person any material that may affect the prosecution case against an accused person or assist the defence of the accused person.[13]

163 The information, that junior counsel briefed on the applicant's trial was then a registered police informer, neither affected the prosecution's case against the applicant, nor did it affect the case to be made on behalf of the accused man. Once again, the circumstances of the present case are unique. I was not referred to any case which might be considered to be comparable to the most unusual circumstances of this case.

164 It might fairly be accepted that if Victoria Police were aware of any fact or matter pertaining to an accused person's legal representative, which might in some way potentially affect the capacity or propriety of the legal representative acting on behalf of the accused person, as part of the overriding duty of disclosure, the police would have been obliged to disclose such a circumstance or fact to such an accused person. However, it was not suggested on behalf of the applicant that the circumstance, that Gobbo was then a registered police informer, was a fact or circumstance, which affected the ability of Gobbo to properly fulfil her duties to the applicant in acting on his behalf in his trial.

165 In those circumstances, the question, whether Victoria Police nevertheless was obliged to disclose to the applicant Gobbo's role as a current or former police registered informer, is a question of law, which will require to be determined by the Court of Appeal on the applicant's application for leave to appeal.

What was Solicitor 1's role in relation to the applicant's matter, and the other Carron and Hamadan matters?

167 The answer to question 7 concerns the role of Solicitor 1 in acting for the applicant, who was arrested as part of Operation Hamadan, and Jackson, Person 2 and Reid, each of whom were arrested as part of Operation Carron.

168 As noted, after the applicant's arrest on 18 November 1997, he instructed Solicitor 1's office. Solicitor 1 continued to act for him until 26 August 1998. During that time, Gobbo was employed as a solicitor by Solicitor 1.

169 By reference to the joint table, Solicitor 1 appeared on behalf of the applicant in the following court hearings:

• 19 November 1997. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a remand hearing.

• 3 December 1997. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a status hearing.

• 16 April 1998. Solicitor 1 appeared for the applicant in the Melbourne Magistrates' Court.

• 10 June 1998. Gobbo appeared for the applicant in the Melbourne Magistrates' Court on a committal mention hearing.

• At the contested committal hearing in the Melbourne Magistrates' Court on 22 June and 25 June 1998, the applicant was represented by Mr Wayne Toohey of counsel, instructed by Solicitor 1.

• On a bail application on 17 July 1998 in the Melbourne Magistrates' Court, the applicant was represented by Mr Neil Clelland of counsel, instructed by Solicitor 1.

• 26 August 1998. Pryles & Defteros Solicitors filed a notice that practitioner acts on behalf of the applicant. Thereafter, Solicitor 1 had no further role in the proceeding on behalf of the applicant.

170 As previously noted, after his arrest on 18 November 1997, Jackson initially instructed Paul Vale Solicitors. From at least 8 December 1997, Jackson instructed Solicitor 1's office until the conclusion of his proceedings, on his sentencing, on 10 October 1998.

171 In that respect, Solicitor 1 represented Jackson in the following court hearings:

• 29 January 1998. Solicitor 1 appeared for Jackson in the Melbourne Magistrates' Court on a committal mention hearing.

• 16 April 1998. Solicitor 1 appeared for Jackson in the Melbourne Magistrates' Court.

• 10 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates' Court.

• 17 June 1998. Gobbo appeared for Jackson in the Melbourne Magistrates' Court.

• 14 September to 17 September 1998. Mr Neil Clelland of counsel, instructed by Solicitor 1, represented Jackson at the committal hearing.

• 2 October 1998. Mr Clelland, instructed by Solicitor 1, appeared for Jackson on his plea hearing.

• 8 October 1998. Mr Clelland, instructed by Solicitor 1, appeared for Jackson on his sentence.

172 Following his arrest on 18 November 1997, Person 2 instructed Solicitor 1's office. Solicitor 1 continued to represent Person 2 until 26 November 1998, including on the following court hearings:

• 19 November 1997. Solicitor 1 appeared for Person 2 in the Melbourne Magistrates' Court on a remand hearing.

• 3 December 1997. Solicitor 1 appeared for Person 2 in the Melbourne Magistrates' Court on a status hearing.

• 29 January 1998. Gobbo (as a solicitor in the employment of Solicitor 1) appeared for Person 2 in the Melbourne Magistrates' Court at a committal mention hearing.

• 20 May 1998. Detective Kruger and Detective Senior Constable Kennedy attended the offices of Solicitor 1 to serve parts of the briefs of evidence that related to Person 2.

• 14 September to 17 September 1998. Person 2 was represented by Mr Neil Clelland of counsel (instructed by Solicitor 1) at the committal hearing.

• 26 November 1998. Suzanne Cameron solicitor filed a notice in the County Court that she acted on behalf of Person 2.

173 Following his arrest on 18 November 1997, Reid instructed Solicitor 1's office. In that capacity, Solicitor 1 represented Reid in the following hearings:

• 19 November 1997. Solicitor 1 appeared for Reid in the Melbourne Magistrates' Court on a remand hearing.

• 3 December 1997. Solicitor 1 appeared for Reid in the Melbourne Magistrates' Court at a status hearing.

• 17 December 1997. Solicitor 1 wrote to Reid to inform him that the police would negotiate with him, contingent on his cooperation in their investigation of Solicitor 1. Solicitor 1 also wrote to solicitor Paul Duggan to ask him to speak to Reid about the police request for cooperation in their investigation of Solicitor 1, and that Solicitor 1's office could not act in the interim.

• 29 January 1998. Gobbo (as an employee of Solicitor 1) appeared for Reid in the Melbourne Magistrates' Court.

• 16 April 1998. Gobbo (as an employee of Solicitor 1) appeared for Reid in the Melbourne Magistrates' Court.

• 20 May 1998. Detective Kruger and Detective Senior Constable Kennedy attended the offices of Solicitor 1 to serve parts of the briefs of evidence relating to Reid.

• 10 June 1998. Gobbo (as an employee of Solicitor 1) appeared for Reid in the Melbourne Magistrates' Court.

• 14 September to 17 September 1998. Reid was represented by Mr Marin of counsel (instructed by Solicitor 1) at his committal hearing.

• 16 June 1999. Solicitor 1 appeared for Reid at his sentence hearing in the County Court.

• On 23 January 1998, Gobbo accepted service of Operation Carron material at Solicitor 1's office.

• On 16 June 1998, Gobbo accepted service of further Operation Carron statements at Solicitor 1's office.

175 Question 8 poses eight separate questions as to Gobbo's conduct while she was acting for the applicant '... in his Carron/Hamadan matter'.

176 As I have noted, the applicant was arrested on 18 November 1997 as the culmination of Operation Hamadan. A number of other persons, who were charged with similar offending, were arrested as part of Operation Carron, which was related to Operation Hamadan.

177 Gobbo acted for the applicant in the Hamadan matter as follows:

(1) The applicant engaged Solicitor 1 to act on his behalf as his solicitor between 19 November 1997 and 26 August 1997. During that period, Gobbo was a solicitor employed by Solicitor 1.

(2) On 19 May 1999, Gobbo was briefed to appear, as junior counsel to Mr Damian Sheales, on behalf of the applicant in his forthcoming criminal trial. Gobbo acted for and on behalf of the applicant in that capacity between 19 May 1999 and 27 September 1999, the date upon which the applicant was convicted by the jury empanelled on his trial.

178 Questions 8(a) and (b), in combination, ask whether Gobbo facilitated Person 2's cooperation with police, and what ongoing assistance Gobbo gave to the police in relation to Person 2, while Gobbo acted for the applicant in the Hamadan matter.

179 The answer to that question is contained in the answer to question 3 above. It is evident that a substantial part of Gobbo's activities, in facilitating Person 2's cooperation with police, and assisting to provide police in relation to Person 2, took place when Gobbo was not acting for the applicant in his Hamadan matter.

180 Gobbo first contacted Mr Strawhorn on behalf of Person 2, to discuss the parameters of him becoming an informer, after the conclusion of the committal proceeding involving Person 2 and others on 17 September 1998. Gobbo had ceased to act for the applicant (as a solicitor in the employment of Solicitor 1) on 26 August 1998. The ensuing meetings that occurred between Person 2 and police, involving Gobbo, took place on 7 December 1998, 16 December 1998, and 18 March 1999. On those dates, Gobbo was a member of the Victorian Bar, and she was not acting in any capacity on behalf of the applicant.

181 Subsequently, on 9 June 1999, and again on 20 August 1999, Gobbo met with Mr Strawhorn, apparently in relation to assistance to be provided to Person 2. In his evidence, Mr Strawhorn had no recollection of those meetings. Gobbo had been briefed to appear on behalf of the applicant, as junior counsel on the trial, on 19 May 1999. Accordingly, each of those two meetings took place at a time at which Gobbo was acting on behalf of the applicant.

182 Apart from the fact that the meetings with Person 2 in some way related to assistance that might be provided by Person 2 to Victoria Police, and apart from the fact that, on the evidence of Mr Strawhorn, that assistance did not involve the provision of any information in relation to Operation Hamadan or Operation Carron, there is no other evidence relating to the content of those meetings. In particular, there is no evidence that at any time Person 2 provided information to police about the applicant.

183 Question 8(c) asks what role Gobbo played in facilitating any other Carron and/or Hamadan suspect's cooperation with police or other investigative body, while Gobbo was acting for the applicant in the Hamadan matter.

184 Other than in respect of Person 2, there is no evidence that Gobbo played any role in facilitating the cooperation by any other Carron and/or Hamadan suspect with police or any other investigatory body.

185 Question 8(d) asks what role did Gobbo play in the resolution of other Carron and/or Hamadan matters while she was acting for the applicant in those matters.

186 The answer to that question is that, other than in respect of Person 2, Gobbo did not play any role in the resolution of other Carron and/or Hamadan matters while she was acting for the applicant in the Hamadan matter.

187 Question 8(e) asks what assistance did Gobbo provide to police while she was acting for the applicant in the Hamadan matter.

188 The facts set out in answer to question 5 describe the assistance, which Gobbo provided to Victoria Police, in respect of an investigation into alleged criminal activities of her employer, Solicitor 1.[14] At the risk of repetition, the following facts are relevant.

189 In 1998, while Detective Kruger was serving briefs on Gobbo (as an employee of Solicitor 1) for persons who were charged as a result of Operation Carron, Gobbo supplied information to Kruger about alleged criminal activities of her employer, Solicitor 1. Subsequently, on 21 July 1998, Detective Kruger and Detective Senior Constable Lim met with Gobbo. Kruger generated an information report in relation to information as to suspected involvement, by Solicitor 1, in money laundering. The report recorded that Gobbo had told investigators that there was a need to investigate specific areas in relation to Solicitor 1's business dealings, and she provided some details concerning those areas of proposed investigation. In essence, Gobbo informed police that it was believed that Solicitor 1 assisted in money laundering by purchasing properties for cash and then refinancing them to make the properties legitimate.

190 On 12 May 1999, Detective Senior Sergeant Strawhorn and Detective Kruger met Gobbo to introduce her to Detectives Segrove and Pope of the Assets Recovery Unit. The purpose of the meeting was to discuss Gobbo's allegations against her former employer, Solicitor 1. In evidence in the present hearing, Mr Strawhorn said that, apart from that meeting, he did not have any other involvement with Gobbo as a potential or actual human source.

191 Subsequently, between May and September 1999, Gobbo met with Detectives Pope and Segrove as part of Operation Ramsden, which was an investigation of the Asset Recovery Squad into allegations of financial crimes committed by Solicitor 1. Gobbo met with Pope and Segrove on 13 May 1999, and on more than one occasion after that date. In particular, Detective Pope had regular contact with Gobbo in the first two weeks of June 1999. He continued to meet with her until 1 October 1999. Detective Segrove also met with Gobbo on a number of occasions in May and June 1999. Ultimately, by October 1999, it was considered that the information that Gobbo provided was of little or no assistance to Victoria Police.

192 Operation Ramsden did not result in any charges being laid, and it was discontinued in 2000. On 3 January 2000, Detective Sergeant Segrove recommended to the officer in charge of the Asset Recovery Squad that Gobbo's status as a human source be changed from 'active' to 'inactive'. Detective Sergeant Segrove noted that Gobbo should be deregistered on the basis that investigators had had no recent contact with her.

193 The periods in which Gobbo so assisted Victoria Police, in respect of investigations into Solicitor 1, almost wholly overlapped with the periods, first, in which Gobbo acted on behalf of the applicant in her role as an employee solicitor (up to 26 August 1998), and subsequently when she acted as his counsel on his trial (from 19 May 1999 to 27 September 1999).

194 Question 8(f) asks: 'What of the above did she [Gobbo] disclose to the applicant?'.

195 The answer to that question is that Gobbo did not disclose to the applicant her ongoing involvement in representing Person 2, or her role in assisting police with respect to their investigations into her employer, Solicitor 1.

196 Question 8(g) asks: 'What knowledge did the Office of Public Prosecutions and the Director of Public Prosecutions have of Gobbo's status as an informer to Victoria Police?'.

197 The answer to that question is that there is no evidence that the Office of Public Prosecutions or the Director of Public Prosecutions had any knowledge of Gobbo's status as an informer to Victoria Police.

198 Question 8(h) asks: 'What of the above did Victoria Police or the Crown disclose to the applicant?'.

199 The answer to that question is that neither Victoria Police nor the Crown disclosed any of the information, that is the subject of Questions 8(a) to 8(g) (inclusive), to the applicant.

[1] R v Arnautovic [2001] VSCA 34.

[2] Arnautovic v The King [2022] VSCA 280.

[3] R v Giretti (1986) 24 A Crim R 112 ('Giretti').

[4] Compare Karam v The King [2022] VSC 808 [16] (Osborn JA) ('Karam').

[6] R v Arnautovic [2001] VSCA 34, [10].

[7] Visser v Director of Public Prosecutions [2020] VSCA 327, [104]-[105] (McLeish, Emerton and Osborn JJA).

[8] AB & EF v CD [2017] VSC 350, [112]-[113] (Ginnane J); Gavanas v The Queen [2022] VSCA 271, [46] (Kyrou, McLeish and Kennedy JJA).

[9] Beach Petroleum NL v Kennedy & Ors [1999] NSWCA 408; (1999) 48 NSWLR 1, 47-48, [196]-[198] (Spigelman CJ, Sheller JA and Stein JA); Mills v The Queen [1995] UKPC 6; [1995] 1 WLR 511, 523; Clarke & Ors v The Queen (1996) 91 A Crim R 46, 71 (Cox J).

[10] Corrs Pavey Whiting & Byrne v Collector of Customs [1987] FCA 266; (1987) 14 FCR 434, 445-6 (Gummow J).

[11] R v Szabo (2000) 2 Qd R 214, 215-16 (de Jersey CJ), 217-19 (Davies JA), 227 [57], 234 [80] (Thomas JA) ('Szabo'); Karam [2020] VSC 808, [464] (Osborn JA); compare Ismail-Zai v The State of Western Australia [2007] WASCA 150 [30]-[32] (Steytler P).

[13] See, for example, Cannon v Tache [2002] VSCA 84; (2002) 5 VR 317 [56]-[59] (Winneke P, Charles and Chernov JJA); [2002] VSCA 84; Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745; Roberts v The Queen [2020] VSCA 58; (2020) 60 VR 431, 444-446 [56]-[64] (Osborn and T. Forrest JJA and Taylor AJA); [2020] VSCA 58.