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[2024] VSC 725
Supreme Court of Victoria
2024-11-25
Fullerton J
Original judgment source is linked above.
The applicant's view as to whether the conversation under discussion was privileged and his attitude to the waiver was a privileged communication. It is unclear whether the applicant knew Ms Gobbo was with another client. There is nothing to indicate he did or that he communicated his views knowing that it was not a confidential communication with her for that reason.
Ms Gobbo detailed a discussion she had with Ms McGuire about the Orbital charges and the version of events that the applicant gave in his record of interview.
The respondent submitted that the information was neither confidential nor privileged as the conversation was with Ms McGuire, who as not her client.
On one view, the respondent's submission is sustainable. On the other hand, it would appear that she may have breached the applicant's privilege by discussing with Ms McGuire contents of his record of interview and his instructions to her.
Ms Gobbo reported a discussion she had with Dr Bagaric regarding the s 56A application in Orbital.
It is unclear whether the conversation with Dr Bagaric and Ms Gobbo was confidential or privileged, as it related to her role as a potential witness.
The lack of clarity as to what was discussed does not allow for the resolution of the question whether the communication was privileged or otherwise confidential.
Ms Gobbo discussed the s 56A application and said she would advise the applicant to waive privilege, followed by a general discussion about what evidence she would give in court if privileged was waived.
The respondent submitted that the information was neither confidential nor privileged because it relates to Ms Gobbo's role as a potential witness, except in relation to her proposal to tell the applicant to waive privilege.
I reject the respondent's construction of this conversation. In my view, it was clearly a privileged communication.
Ms Gobbo discussed the lawyers retained by the applicant in his current matters and issues of conflict. Ms Gobbo reported that the applicant told Ms Gobbo she had 'nothing to worry about' as she had not been involved in the process of helping people make statements against him, and he intended file subpoenas soon.
The respondent submitted that it was unclear that this information was imparted in confidence, given that Ms Gobbo construed it as containing a ''veiled threat''. In any event, it was not privileged as no legal advice was sought from Ms Gobbo or given.
Ms Gobbo's views are not determinative of the question. I regard the communication of this information as in breach of her duty of confidentiality, in light of my finding that she agreed to continue to provide legal advice to (although not to act for) the applicant after the "break-up call".
Ms Gobbo reported a discussion with the applicant about the strength of the evidence against Mr Karam, his assets and the s 56A application.
The respondent submitted that the information was neither confidential nor privileged (at least in respect of the applicant) as it did not involve the applicant, but Mr Karam.
Ms Gobbo reported that she and the applicant discussed Mr Cooper, Horty Mokbel, his trials, his stay applications and the s 56A application.
The respondent submitted that there was no evidence this information was privileged as it concerned other matters (not the applicant's). There was no record of the substance of the discussion (the other matters were simply "mentioned"), no legal advice was sought or given and the court dates were already in the public domain.
Ms Gobbo reported that she had a discussion with the applicant about his court matters.
The respondent submitted that the information was neither confidential nor privileged as it did not follow from a conversation with the applicant. The respondent also submitted that Ms Gobbo was not retained by the applicant in relation to the stay application; and there was no basis to conclude she was expressing her opinion by reference to any information she received from the applicant or anyone else (noting the length of time since she had been engaged to do any substantive legal work).
There is insufficient detail about what was discussed regarding 'his court matters' to determine whether the communication was privileged. However, given the basis on which I have resolved that she acted for the applicant in a limited capacity after the "break-up call", the conversation was at least confidential.
Ms Gobbo reported that the applicant asked her questions about Mr Cooper.
The respondent submitted that this information was neither confidential nor privileged, it not being for the dominant purpose of legal advice or services.
Although it is unclear whether the questions about Mr Cooper were in the context of him being a witness against the applicant, the probabilities favour that being the case. To the extent that the applicant was asking questions about the ways of approaching him in cross-examination (which I am again prepared to accept as likely), it was subject to privilege and should not have been relayed to her handlers.
No (the ICR states 'not disseminated owing to legal professional privilege').
Ms Gobbo reported that she had a discussion (with the applicant) regarding the murder charge relating to Michael Marshall and the possibility that would call her to give evidence.
The respondent submitted that the possibility of Ms Gobbo being a witness in his then pending criminal trial for murder was neither confidential nor privileged.
Ms Gobbo reported that she had a discussion with the applicant about VFSC delays and the upcoming Magistrates' Court matters.
The respondent submitted that the information was neither confidential nor privileged, in so far as it related to her being a potential witness.
There is insufficient detail about what was discussed about 'the upcoming court matters' to determine whether the communication was privileged. However, given the basis upon which I have resolved that she acted in a limited capacity after the "break‑up call", the conversation was at least confidential.
Ms Gobbo reported that the applicant informed her that his lawyers were preparing a "raft of subpoenas" to serve on Purana, the AFP and the ACC.
The respondent conceded that this communication was privileged.
Ms Gobbo reported that the applicant asked for her opinion on Terry Forrest KC.
The respondent submitted that this information was not privileged, but accepted it may have been confidential.
Ms Gobbo reported that the applicant sought advice from her regarding the order of his upcoming trials, defence barristers and the s 56A application, and also asked her about Mr Bickley.
The respondent conceded that to the extent the applicant was relaying privileged information to Ms Gobbo from other lawyers, the information was privileged. The respondent conceded that the request for advice about the order of the trials was privileged.
The respondent did not otherwise accept the information was privileged (but conceded it may have been confidential).
[1] Mokbel v The Queen [2022] VSCA 83.
[2] Orders of Beach and McLeish JJA in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 23 May 2023).
[3] Orders of Beach, McLeish and Kennedy JJA in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 14 December 2023).
[4] An amended notice of application for leave to bring a second appeal against conviction was filed on 10 September 2021.
[5] Members of the Source Development Unit ("the SDU") who "handled" Ms Gobbo while she was registered with Victoria Police used the term "human source" or "registered human source" in reference to Ms Gobbo, seemingly as a matter of police nomenclature. I propose to refer to Ms Gobbo as an "informer" or "agent of police". These terms more accurately describe the role she performed for Victoria Police during her registration with the SDU from September 2005 to January 2009.
[6] On 20 March 2006 the applicant absconded in breach of a bail undertaking in the course of a criminal trial that was proceeding before Gillard J. He was arrested in Greece on 5 June 2007. On 17 July 2007, the applicant's extradition hearing in the Court of Appeal of Athens was adjourned to 24 July 2007. At the conclusion of argument on that date, the Court of Appeal reserved its decision until 26 July 2007, on which date the application for extradition was granted. The applicant appealed that decision, filing his statement of appeal on 26 July 2007. The appeal was ultimately unsuccessful, with the Supreme Court of Greece making its decision on 11 March 2008. On 16 May 2008 he was surrendered to the Australian authorities in Greece and extradited to stand trial in Australia on 17 offences and to serve a sentence imposed by Gillard J in his absence. See Exhibit J7/28; agreed facts, [234], [249], [251], [294], [297]-[298].
[7] On 17 May 2013 the Court of Appeal refused leave to appeal the applicant's convictions on the Quills, Orbital and Magnum offences. See Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625.
[9] Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[10] Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 70 and sch 11, pt 3, column 1B.
[11] Contrary to s 11.4(1) of the schedule to the Criminal Code Act 1995 (Cth).
[12] Under s 233B(1) and sch 6 of the Customs Act 1901 (Cth).
[13] R v Mokbel [2006] VSC 119, [115].
[14] Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[15] Each of the operations have been summarised at paragraphs 101-273 below. For a summary of Operation Posse, see paragraphs 121-131. For a summary of Operation Kayak, see paragraphs 132-145. For a summary of the Plutonium trial, see paragraphs 146-152. For a summary of Operation Landslip, see paragraphs 153-168. For a summary of Operation Landslip Two, see paragraphs 169-172. For a summary of Operation Matchless, see paragraphs 174-189. For a summary of Operation Quills, see paragraphs 190-212. For a summary of Operation Orbital, see paragraphs 213-228. For a summary of Operation Spake, see paragraphs 229-242. For a summary of Operation Magnum, see paragraphs 243-256. For a summary of Operation Macaw, see paragraphs 257-265. For a summary of Operation Gotta, see paragraphs 266-273.
[16] Contrary to ss 71AA and 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[17] Contrary to s 71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[18] Contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[19] Contrary to ss 71 and 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).
[20] Eighteen offences were included in the extradition request. In Mr O'Brien's investigator's affidavit (Exhibit A224) those offences were organized into nine briefs of evidence. The applicant was extradited on 16 of these offences (see later at paragraphs 140, 162-163, 169, 182, 206, 217, 236, 247, 262, 270). A reduced number of offences were ultimately the subject of committal proceedings. In the course of plea negotiations, the applicant pleaded guilty to three of the offences upon which he was extradited, with four further offences being the subject of a nolle prosequi.
[21] R v Mokbel [2012] VSC 255.
[22] Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625.
[23] Mokbel v The Queen [2013] HCATrans 321.
[24] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[25] See Mokbel v Director of Public Prosecutions (Cth) [2020] VSCA 325.
[26] Mokbel v The King [2023] VSCA 40, [79] (Emerton P, Beach and McLeish JJA).
[27] Operation Kayak commenced in October 2000 and Operations Matchless and Landslip in January and February 2003 respectively.
[28] The "gangland wars" and Victoria Police's efforts to "solve" the so-called "wars" is the subject of referral question 17.
[29] Mr Cooper was implicated in Operations Matchless and Landslip in 2003 and Operation Spake in early 2002. Mr Thomas was implicated in the murder of Michael Marshall on 25 October 2003.
[33] See referral questions 2, 3, 6 and 6B. I note that while referral questions 5 and 6A concern the relationship of lawyer/client between Ms Gobbo and various of the people that she represented that also made statements and gave evidence against the applicant, whether she breached her duties to those clients as a result of her status as an informer was not the subject of any significant factual dispute.
[34] See referral questions 2, 3, 6 and 6B.
[38] See referral questions 6A, 15 and 16.
[39] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[40] Further amended joint statement of agreed facts filed on 11 July 2024, [392] ("agreed facts"). I note that the parties filed two previous versions of the joint statement of agreed facts on 20 January 2023 and 8 January 2024 before settling on the final version filed on 11 July 2024. I will use the term "agreed facts" to refer to the agreed facts in their final form.
[41] There were contested committal hearings at the Melbourne Magistrates' Court in 2009 for a number of offences upon which the applicant was extradited, and upon which he was ultimately committed to stand trial to this Court.
[42] See generally, R v Mokbel [2012] VSC 255, [94] (Whelan J); Mokbel v The Queen [2013] HCATrans 321.
[43] Applicant's closing submissions filed on 24 June 2024, 166 [658], 174 [701] ("applicant's closing submissions").
[44] Respondent's closing submissions filed on 5 July 2024, 226 [852] ("respondent's closing submissions").
[45] AB & EF v CD [2017] VSC 350.
[46] See referral questions 8, 9, 10, 11, 15 and 17.
[49] It did not arise in Karam v The King [2022] VSC 808 ("Karam reference determination") as the CDPP was the prosecuting authority. See Kadir v The Queen [2020] HCA 1; (2020) 267 CLR 109 ("Kadir").
[50] See Edwards v The Queen [2021] HCA 28; (2021) 273 CLR 585, 600‒601 [48] (Edelman and Steward JJ) ("Edwards"). See also Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327 ("Visser"); Roberts v The Queen [2020] VSCA 58; (2020) 60 VR 431 ("Roberts") for the common law approach and ss 110 and 111 of the Criminal Procedure Act 2009 (Vic), which supplemented the position at common law: see Roberts, 444‒445 [58] (Osborn and T Forrest JJA and Taylor AJA).
[53] AB & EF v CD [2017] VSC 350; AB v CD & EF [2017] VSCA 338.
[54] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[57] Roberts, 444 [56] (Osborn and T Forrest JJA and Taylor AJA).
[58] See referral questions 14, 18 and 20.
[59] Applicant's proposed answers to questions referred filed on 2 June 2023; applicant's proposed answers to questions referred filed on 12 January 2024; respondent's answers to the referral questions filed on 14 June 2023; respondent's revised answers to the referral questions filed on 23 October 2023; respondent's further revised answers to the referral questions filed on 25 January 2024. See also applicant's closing submissions; respondent's closing submissions.
[60] Joint statement of agreed facts filed on 20 January 2023; amended joint statement of agreed facts filed on 8 January 2024; further amended joint statement of agreed facts filed on 11 July 2024. See also Re Mokbel (No 5) [2024] VSC 190.
[61] The applicant's closing submissions consisted of 213 pages. The respondent's closing submissions consisted of 249 pages. Between 9 and 11 July 2024 they addressed their submissions orally and on 11 July 2024 I reserved my judgment.
[62] As raised in my memorandum of 8 July 2024 forwarded to the parties after receipt of submissions on 5 July 2024.
[63] Applicant's closing submissions, 59 [185].
[64] Respondent's closing submissions, 59 [230].
[65] Respondent's closing submissions, 61 [236]-[237], referring to Beach Petroleum NL v Kennedy [1999] NSWCA 408; (1999) 48 NSWLR 1, 46 [192] (Spigelman CJ, Sheller and Stein JJA) ("Beach Petroleum").
[66] See Beach Petroleum, 46 [192].
[67] Both parties relied upon Braham v ACN 101 482 580 Pty Ltd [2018] VSC 575, [163] (Emerton JA) ("Braham"), although they interpreted the particular passage cited in slightly different ways. A number of other authorities were also relied upon by the parties where the concept of a fiduciary relationship outside a lawyer/client relationship was discussed. These will need to be the subject of closer consideration in the answers to referral questions 3, 4 and 6B.
[68] At the relevant time, the Victorian Bar Practice Rules 2005 (Vic). Note that when I subsequently use the term "Victorian Bar Rules" I will specifically be referring to the 2005 practice rules.
[70] The respondent cautioned against attributing undue weight to Ms Gobbo's account of her relationship with the applicant, including (it seems) her professional relationship. See respondent's closing submissions, 21-2 [47]-[50].
[71] See my findings at paragraphs 608-618.
[72] Mr Cooper agreed to assist police upon his arrest on 22 April 2006, Mr Bickley agreed to assist police upon his arrest on 13 June 2007 and Mr Thomas agreed to assist police on 18 July 2006.
[74] See referral questions 8, 9, 11 and 15.
[75] [1993] 1 WLR 509, 575‒576, 582; [1992] 4 All ER 161, 235, 242‒243 (Peter Gibson J). See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 163 [174] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) ("Farah Constructions"); Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296, 361‒363 [259]‒[269] (Finn, Stone and Perram JJ).
[76] Lewers (a pseudonym) v The Queen (No 2) [2021] VSCA 351, [5] (Priest, Kyrou and Niall JJA); Roberts, 439-43 [34]-[51] (Osborn and T Forrest JJA and Taylor AJA).
[77] Roberts, 439-43 [34]-[51] (Osborn and T Forrest JJA and Taylor AJA); Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469, 478 [18], 481 [30]-[31] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). See also Peters v The Queen (No 2) [2019] VSCA 292; (2019) 60 VR 231, 241-3 [37]-[45] (Maxwell P, Kaye and McLeish JJA).
[78] Karam reference determination, [16], [55] (Osborn JA).
[79] Ibid; applicant's closing submissions, 4 [4]; respondent's closing submissions, 10 [11], citing Arnautovic v The King (No 3) [2024] VSC 355, [56] (Kaye JA).
[80] [2017] HCA 2; (2017) 340 ALR 368, [18] (Gordon J) (citations omitted). See also GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635, 655 [60] (Kiefel CJ, Gageler and Jagot JJ).
[81] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J) ("Briginshaw"); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449-50 (Mason CJ, Brennan, Deane and Gaudron JJ). See also Karam reference determination, [16], where Osborn JA acknowledged the operation of s 140(2) of the Evidence Act 2008 (Vic) which he accepted applied analogously.
[82] See the dramatis personae included as annexure A to this judgment.
[84] The SDU was a dedicated unit within the Covert Support Division that was responsible for the management of police informers. The SDU was managed by Mr Moloney during the time of Ms Gobbo's registration as an informer. The Purana Taskforce and the SDU are discussed in detail at paragraphs 104-119.
[85] Lehrmann v Network Ten Pty Ltd [2024] FCA 369, [122] (Lee J) was cited by the respondent as authority for that approach. I do not consider the onerous task of fact-finding undertaken in that case by Lee J as stating matters of principle by which I am bound or which I should follow as a matter of judicial comity.
[86] Katsoulas v Kritikakis [2024] NSWSC 67, [44] (Leeming JA).
[88] Informers were "handled" by members of the SDU, each of whom was a police officer. This role was said to have been designed to ensure that investigators were relieved of the role of "managing" a person providing police with information. Ms Gobbo had a number of handlers, each of whom gave evidence under the protection of anonymity.
[89] There were 52 transcripts tendered within Exhibit J4, which recorded 44 separate meetings Ms Gobbo had with her handlers between 16 September 2005 and 12 January 2009. The compiled transcripts total over 13,000 pages, however due to them being heavily redacted it is not possible to determine how many hours they extend over.
[90] See Exhibit J1. Over 146 ICRs were tendered by the parties during the proceeding.
[91] At all relevant times the IRs were reviewed by Officer White, with Officer Black acting as controller when he was on leave. It is worth noting that of the 218 IRs that were tendered during the proceeding, the vast majority of them were created in 2005 and 2006. Of the IRs tendered, only four of them were created in 2007 and no IRs from 2008 were included in the joint tender bundle. Neither party offered an explanation for this.
[94] That direction reflects what is known as a Jones v Dunkeld direction at common law. The respondent complained that the applicant nonetheless contravened the Jury Directions Act 2015 (Vic) by inviting me to more safely draw an inference adverse to the applicant on the question of whether and when there was a lawyer/client relationship between Ms Gobbo and the applicant, there being 'gaps in the evidence' by reason of the applicant's failure to call her, see respondent's closing submissions 12 [17]. I will defer resolving that issue until I move to consider referral question 3.
[95] See applicant's closing submissions, 24 [71], 28 [85], 34 [100].
[96] Both parties agreed with the approach taken by Osborn JA at [41]-[53] of the Karam reference determination.
[97] See the observations of Ginnane J in AB & EF v CD [2017] VSC 350, [17]-[20] and the observations of Osborn JA in the Karam reference determination.
[98] Evidence Act 2008 (Vic) Dictionary pt 1 (definition of "previous representation").
[99] Karam reference determination, [436].
[100] I made orders for the manner in which the applicant would give his evidence. This was following an application made by the applicant's counsel and upon receipt of a report by Dr Peter Ashkar who assessed the extent of the applicant's cognitive impairment following a traumatic brain injury he sustained in custody.
[102] Ms Gobbo was retained to act for the applicant in respect of the Kayak offences and the Plutonium trial.
[103] Mokbel v R [2013] HCATrans 321.
[104] Those authorities are discussed later in the answers to referral questions 3 and 4.
[105] See generally, Cvetanovski v The Queen [2020] VSCA 272 ("Cvetanovski"); Gavanas v The King [2022] VSCA 271; (2022) 304 A Crim R 503 ("Gavanas"); Orman v The Queen [2019] VSCA 163; (2019) 59 VR 511 ("Orman"); Visser; Karam reference determination; Karam v The King [2023] VSCA 318 ("Karam").
[106] AB & EF v CD [2017] VSC 350; EF v CD [2017] VSC 351.
[107] I note the Court of Appeal did not have occasion to reconsider the correctness of the approach taken by Ginnane J as there was no challenge to that aspect of his Honour's judgment by the appellants.
[108] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1, 4‒5 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[109] The interface between the two operations and the circumstances in which that occurred is the subject of referral questions 13 and 14.
[110] Victoria Police Act 2013 (Vic) sch 2, and formerly Police Regulation Act 1958 (Vic) 2nd sch. See also AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1, 4‒5 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[111] Orders of McCann JR in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 11 May 2023) as continued by Fullerton J in orders dated 7 February 2024.
[112] Mr Bateson gave evidence from 4-6 March 2024. His evidence can be found at T1644-1942.
[121] He did not give evidence in this proceeding.
[130] Although Mr Overland and Mr O'Brien gave different accounts of what Mr Overland knew of Ms Gobbo's registration in September 2005, at T3294 he ultimately agreed as a general proposition that at no stage when she was operating as a police informer did he seek or urge a member of Victoria Police to obtain legal advice as to the propriety of her use either directly or indirectly.
[131] See Exhibit J7 (Tab 6); Exhibit J7 (Tab 20).
[134] An Ethical Standards Department investigation into alleged corruption in the MDID was a source of delay in the timely prosecution of the applicant necessitating a reconsideration of his remand status, see Exhibit J7 (Tab 20).
[136] Agreed facts, [35], [50]; Exhibit J1 (ICR 10). See also appendix B to the respondent's closing submissions filed on 5 July 2024 ("appendix B to the respondent's closing submissions).
[137] See applicant's closing submissions, 85 [305]; respondent's closing submissions, 110-1 [411.1].
[138] Exhibit A224. Mr O'Brien's affidavit was filed in compliance with the Treaty on Extradition between Australia and the Hellenic Republic, Australia-Greece, signed 13 April 1987, 1660 UNTS 323 (entered into force 5 July 1991) art 5 ("the extradition treaty").
[139] See Exhibits A6-8, which are email exchanges between Mr Faris KC and Mr Kidd KC sent between
7-11 April 2011. These emails record the course of the negotiations. See also Grace Morgan's evidence at T577.
[142] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[143] Agreed facts, [52]. See also Exhibit J7 (Tab 41).
[145] R v Mokbel [2006] VSC 119.
[146] On 16 May 2008 the applicant was surrendered to officers of the AFP in Athens. He arrived in Australia the following day. See agreed facts, [297], [298].
[148] As noted above at paragraph 24, on 7 March 2023 the applicant was resentenced. This was due to the fact that in sentencing the applicant for the Quills, Orbital and Magnum offences on 3 July 2012, Whelan J took into consideration the sentence imposed by Gillard J on 31 March 2006. See Mokbel v The King [2023] VSCA 40.
[150] See Exhibit A64, which is dated 17 October 2005. Operation Matchless was expressly referred to in the Operation Posse Investigation Plan.
[151] Ibid. See also Exhibit J7 (Tab 2).
[152] In 2007 he pleaded guilty to the Landslip offences and the Matchless offences, see paragraphs 325-357 following. See generally R v [Mr Cooper] [2007] VCC 0168 ("Mr Cooper").
[153] Mr Cooper, [43]. Mr Cooper was sentenced to 10 years' imprisonment with a non-parole period of seven years.
[158] Exhibit A6; Exhibit A7; Exhibit A8.
[160] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[162] This charge was withdrawn by Victoria Police on 22 May 2008 as the applicant was not extradited on this offence due to there being no equivalent offence in Greek law, as required by Part 2 of the extradition treaty.
[164] On 22 November 2006 Mr Cooper made a statement waiving privilege in respect of the meeting that occurred at Mr Grace's chambers on 2 June 2005. See Exhibit A187.
[167] Between April 2006 and November 2006 Mr Cooper gave 40 witness statements to police. His assistance was taken into account when he was sentenced to 10 years' imprisonment with a non-parole period of seven years in February 2007: see Mr Cooper, [43].
[170] See Exhibit A6; Exhibit A7; Exhibit A8.
[173] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[174] Pursuant to the orders of McCann JR in Mokbel v The King (Court of Appeal, S EAPCR 2020 0180, 11 May 2023) as continued by Fullerton J in orders dated 7 February 2024.
[176] Applicant's closing submissions, 149 [577]-[578].
[177] Exhibit A64. See also Exhibit J1 (Tab 13).
[180] T4856.26-4857.2. See also Exhibit R20, [97]-[98].
[183] Mr Rowe gave evidence that he transferred a copy of the recording onto both the MDID hard drive and a CD disk before deleting the recording from the hard drive and placing the disk inside a safe in Mr O'Brien's office in Mr O'Brien's presence. There was an entry in Mr Rowe's diary that stated that the conversations were transcribed, however Mr Rowe denied this and gave evidence that entry was reflective of his belief that they would later be transcribed. No transcriptions have ever been located. See Mr Rowe's evidence at T4812-4868. Mr O'Brien was not asked any questions on this topic.
[184] Exhibit R20, [98]; T4859.26-4860.2.
[190] On 1, 2 and 23 March, 8, 9, 13 and 14 April, 30 May and 23 June 2010, the Quills trial was mentioned in the Supreme Court, see, agreed facts, [341], [343]-[344].
[191] Director of Public Prosecutions v Mokbel (Orbital & Quills - Ruling No 1) [2010] VSC 331.
[193] Contrary to s 11.4 of the schedule to the Criminal Code Act 1995 (Cth).
[198] Ibid [308], [310], [315], [318]. See also Exhibit J7 (Tab 41) 4196.
[199] Ibid [328]. The applicant was discharged in respect of one of the counts of incitement on the basis that one of the informer witnesses was not available to give evidence.
[200] See Exhibit A5(2) (being Grace Morgan's further affidavit).
[204] See Grace Morgan's evidence at T562.10-5. See also Director of Public Prosecutions v Mokbel (Orbital & Quills - Ruling No 1) [2010] VSC 331.
[208] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[214] Laid contrary to s 233B(1) of the Customs Act 1901 (Cth). See also Exhibit R20, [87].
[215] Exhibit J7 (Tab 21); Exhibit R23.
[220] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[221] RHS 3030 was managed by members of the SDU from 7 May 2007.
[222] Agreed facts, [138.3]-[138.4].
[223] See the Operations Schedule (Version 2), filed jointly by the parties on 25 June 2024 as an aide memoir (not exhibited).
[227] See Grace Morgan's evidence at T569-571.
[228] Agreed facts, [351]; R v Mokbel (Magnum - Ruling No 2) [2011] VSC 128, [31]. The grounds of complaint in that matter concerned the unlawful conduct in the process of the applicant's extradition, which was a variation of the application for a stay of the proceeding for abuse of process heard and determined by Kaye J in 2008: see Mokbel v Director of Public Prosecutions (Vic) (2008) 26 VR 1.
[229] Exhibit A6; Exhibit A7; Exhibit A8.
[230] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[235] During the course of the determination hearing, the applicant gave evidence that he was told that Mr Andrews had "rolled" against him and that Ms Gobbo encouraged him to flee the jurisdiction. I note that Ms Gobbo informed her handlers that this same information was leaked to the applicant's brother who allegedly reported it to the applicant. However, nothing turns upon the applicant's motivations for absconding and the parties made no submissions on the issue or whether or not the applicant should be believed when he attributed to Ms Gobbo some encouragement for him to flee at the same time that she was assisting Victoria Police to ensure the applicant was charged with offences additional to the charges he was facing at that time (being the Orbital offence) and those the subject of the Kayak and Plutonium trials.
[238] Mr Williams was sentenced to life imprisonment after also pleading guilty to the murder of Mark Mallia and conspiracy to murder Mario Condello. He was also at that time serving a sentence for the murder of Michael Marshall, having been sentenced on 19 July 2006 following a jury's return of a guilty verdict (see Exhibit A224, being Mr O'Brien's investigator's affidavit).
[241] (County Court of Victoria, Judge Montgomery, 18 October 2011), upheld on appeal in Director of Public Prosecutions v Marijancevic [2011] VSCA 355; (2011) 33 VR 440.
[242] Agreed facts, [355]; Exhibit J7 (Tab 41).
[243] R v Mokbel [2012] VSC 86; (2012) 35 VR 156.
[244] Agreed facts, [370]; Exhibit J7 (Tab 23).
[245] Agreed facts, [373]; R v Mokbel [2012] VSC 255, [94] (Whelan J).
[247] Ibid. The applicant's written case was signed and filed by Ms Mortimer QC (as her Honour then was), and the respondent's written reply was signed by Mr Gyorffy SC for the DPP dated 19 October 2012. As Mr Gyorffy gave evidence at the reference determination hearing, his evidence will need to be considered when considering Mr Champion's evidence as to the steps he took after the September 2012 meeting with Victoria Police when the issue of Ms Gobbo's role as an informer was brought to his notice. For Mr Gyorffy's evidence on this, see T3559-3587.
[248] Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625.
[249] Exhibit A69. See also the earlier draft version dated 28 September 2011 as Exhibit A94.
[250] Now the Australian Criminal Intelligence Commission.
[254] See generally, Prosecution Policy of the Commonwealth: Guidelines for the making of decisions in the prosecution process, Commonwealth Director of Public Prosecutions (2008).
[270] Agreed facts, [374]; Exhibit A61, 3.
[273] The Comrie review and the work done by Mr Gleeson in researching and writing the report, including seeking the advice of Mr Ryan and the Victorian Government Solicitor's Office ("the VGSO"), was the subject of extensive evidence in the proceeding.
[276] AB & EF v CD [2017] VSC 350; AB v CD & EF [2017] VSCA 338.
[277] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[278] Respondent's closing submissions, 23 [53].
[279] Respondent's closing submissions, 23 [55].
[280] I note there is no evidence that Ms Gobbo had any contact with members of the AFP or that the SDU disseminated information to that law enforcement body.
[281] Respondent's closing submissions, 36-8.
[282] This is the subject of referral question 5.
[283] Applicant's closing submissions, 17 [58]. That submission was developed at greater length in the answers to referral questions 11 and 12. The extent to which there was a commonality of purpose is also the subject of referral question 7.
[284] See Exhibit A186; Exhibit A187; Exhibit R20; Exhibit R19; Exhibit J7 (Tab 37); Exhibit J7 (Tab 4).
[285] See Exhibit R20; Exhibit J7 (Tab 4); Exhibit J7 (Tab 36).
[286] See Exhibit R19; Exhibit R20; Exhibit J7 (Tab 4).
[288] Applicant's closing submissions, 18-24 [59]-[71].
[289] Respondent's closing submissions, 34-6 [127]-[136].
[293] Exhibit J1 (Tab 23) 190. See also Mr Flynn's diary entry for 16 March 2006 which he read into the transcript at T4577.3-12; Exhibit A228.
[296] Exhibit A184.1 (being an affidavit in support of a telephone interception warrant in relation to Mr Bickley).
[297] Exhibit A222 (being an affidavit in support of a telephone interception warrant in relation to Mr Cooper).
[298] Exhibit J1 (Tab 25) 225; Exhibit J1 (Tab 28) 252; Exhibit J4 (Tab 15A) 3610-3685.
[299] Exhibit J1 (Tab 25); T5249.18-26.
[303] Respondent's closing submissions, 35 [131].
[304] Applicant's closing submissions, 21 [64].
[314] Applicant's closing submissions, 23-4 [67].
[315] Respondent's closing submissions, 36 [133]-[134].
[317] Applicant's closing submissions, 24 [69].
[319] See Exhibit A223 which details the payments made into Mr Cooper's account on behalf of Victoria Police. Mr Flynn also gave evidence on this at T4569.20-31. See also Mr Flynn's affidavit at Exhibit R19.
[320] Respondent's closing submissions, 35 [131].
[321] The respondent accepted that Ms Gobbo was in breach of both the "no-conflict" rule and the duty of loyalty: (a) by informing against Mr Cooper when he was her client (in both Operations Matchless and Landslip); and (b) when advising Mr Cooper upon his arrest in April 2006, because at that time she was simultaneously "acting" as an independent lawyer whilst continuing to act as an agent for Victoria Police. See later at paragraph 815 when I deal with referral question 6B.
[322] Mr Cooper was charged on 14 February 2002 for the Landslip offence and on 23 April 2003 for the Matchless offence. He was committed to the County Court on 22 March 2005 on a plea of guilty for both offences.
[325] In the sentencing judgment, the sentencing judge (whose name is redacted) remarked 'the dominant feature of the plea hearing has been the acknowledgement by the prosecution of the very substantial assistance you have given to police in exposing people involved in drug related crime and their activities [and] your willingness to give evidence in the trials of those charged'. See Mr Cooper, [3]. Neither party submitted what Mr Cooper pleaded guilty to, nor is it possible to discern what exactly Mr Cooper pleaded guilty to due to the redacted nature of the judgment.
[326] Exhibit J4 (Tab 41) 11351-11353.
[330] Applicant's closing submissions, 20-1 [63].
[337] T4508.4-18; T4509.9-16; T4510.11-4.
[341] I regard Mr Flynn's evidence as to why notes were taken as explicable only on the basis that Ms Gobbo was present and assisting police to "roll" Mr Cooper.
[342] In Mr Flynn's evidence, he recorded that this conversation extended over two hours (between 18:50 hours and 21:08 hours), see T4525-4545. In Mr Rowe's diary he recorded the interview recommenced at 11:08-11.27pm, see Exhibit A207.
[346] T1060.23. Officer Smith colloquially gave evidence that it was Purana's objective to catch Mr Cooper "red-handed".
[347] On 8 February 2007 Mr Cooper was sentenced to 10 years' imprisonment with a non-parole period of seven years after pleading guilty to serious and repeated drug related offences. See Mr Cooper, [43].
[348] Gavanas, 519 [64]-[66] (Kyrou, McLeish and Kennedy JJA).
[355] Exhibit A184.1 (being an affidavit in support of a telephone interception warrant in relation to Mr Bickley).
[356] Exhibit A222 (being an affidavit in support of a telephone interception warrant in relation to Mr Cooper).
[357] Applicant's closing submissions, 26-7 [78]-[82].
[358] Mr Bickley made a "can say" statement on the day of his arrest in June 2006 implicating the applicant in the Quills offence. That was later converted to a witness statement. See Exhibit A182 (being a transcript of Mr Bickley's record of interview on 15 August 2005); Exhibit A207 (being a transcript of Mr Bickley's record of interview on 16 August 2005). See also Exhibit R20, 165-237 (being the Quills depositions for Mr Bickley's statements).
[369] Although Mr Bickley had no criminal record, it appears that following his arrest on 15 August 2005 he was in custody until he was granted bail on 6 September 2005. See Exhibit A209.
[370] Applicant's submissions in reply filed 28 July 2024, 9 [30] ("applicant's reply submissions"); respondent's closing submissions, 37-8 [141].
[371] Evidence Act 2008 (Vic) s 60(3).
[375] See Exhibit A211. Mr Rowe gave evidence about that call at T4961-4969 to the effect that although it was agreed between them that Ms Gobbo would not attend the police station, she was not instructed or advised to avoid taking a call from Mr Bickley if he later sought legal advice from her before participating in an interview.
[389] Exhibit J1 (Tab 38). See also applicant's closing submissions, 27-8 [84].
[391] The nature of that retainer and other occasions when she acted on Mr Thomas's behalf is the subject of referral question 5.
[392] Mr McGrath implicated Mr Thomas and others in the Marshall murder and the Moran/Barbaro murders after pleading guilty to the Marshall murder on 19 January 2005. He gave evidence in committal proceedings in March 2005 involving Mr Thomas.
[393] The transcripts of each of those interviews can be found at Exhibit A43; Exhibit 44; Exhibit 45.
[396] Mr Thomas gave no information or evidence implicating the applicant in either of the two murders for which he was charged.
[397] See Exhibit J1 (Tab 142); Exhibit J4 (Tabs 1, 11).
[398] See Exhibit J5 (Tabs 1, 2, 13, 50).
[402] Exhibit J2, 27; Exhibit A40, 29; T1852.6-26.
[415] T1872.11-24; agreed facts, [127].
[419] T1876.21-1877.20; T1877.31-1878.14.
[421] Exhibit A228 (being a diary entry from 19 July 2006).
[424] Agreed facts, [126]; Exhibit J1 (Tab 28) 361.
[425] T2625.2-4; Exhibit A89; agreed facts, [128].
[427] Agreed facts, [128]; Exhibit R19.
[436] See Exhibit J1 (Tab 38) 391. See also, Exhibit J1 (Tab 35) 327, 329; Exhibit J1 (Tab 36) 336, 338, 340, 342, 343; Exhibit J1 (Tab 37) 348, 350, 352, 353; Exhibit J6 (Tab 18) 362-5.
[438] The applicant was committed to stand trial for this offence on 15 February 2005. See paragraphs
[439] Exhibit J1 (Tabs 88, 90); Exhibit A96 (Tabs 19, 20); Exhibit A193; T2538-2539; T2551-2552. See also agreed facts, [50].
[441] See, generally Exhibit J1 (Tabs 1-29).
[442] Applicant's closing submissions, 39 [118].
[443] See Exhibit R19, 252-74 (being Mr Cooper's statements), 326-64 (being Mr Thomas's statements).
[444] See Exhibit R19, 42-133, 164-5 for Mr Cooper and Mr Thomas's evidence.
[445] I confirm I made no finding that Ms Gobbo assisted in maintaining Mr Thomas's resolve to give evidence as a witness as distinct from assisting police in their management of him for a period after July 2006 (see paragraphs 396-411 above), but that she did in relation to Mr Cooper (see paragraphs 325-357 above).
[447] Respondent's closing submissions, 26 [68].
[448] Applicant's closing submissions, 41 [125].
[449] Agreed facts, [80]; T4725.2-4726.30. The date of 11 December 2006 recorded in the agreed facts is incorrect, and should read 7 December 2006.
[451] Applicant's closing submissions, 41-2 [128]-[132].
[452] Agreed facts, [166]; Exhibit J1 (Tab 82) 893.
[458] Agreed facts, [324]; Exhibit J5 (Tab 7) 900-10. Mr O'Connell also gave evidence about this at
[460] Respondent's closing submissions, 28 [82].
[465] Exhibit J1 (Tab 14) 103; Exhibit J3 (Tab 53).
[467] Respondent's closing submissions, 29 [87].
[468] Exhibit J1 (Tab 35) 328; Exhibit J1 (Tab 51) 530. See also agreed facts, [116].
[469] See Exhibit A55; Exhibit A183. See also Mr Flynn's evidence at T4722.4-4726.5.
[473] T5356.3; T5360.31-5361.10. Mr O'Brien also gave evidence that he did not recall it being his idea at T5362.9-15; T4626.29-30.
[476] T4725.20-4726.1. A list of the evidence seized pursuant to the warrant is contained in Exhibit A202.
[481] See Exhibit A202 for a transcript of the ACC proceeding. See also Re Mokbel (No 4) [2024] VSC 68.
[482] Agreed facts, [216]. See also Exhibit J1 (Tab 88) 1010.
[484] See, Exhibit A186; Exhibit A187. See also Exhibit J7 (Tab 3) (being the Landslip charges and summary).
[486] Respondent's closing submissions, 30 [97].
[489] See Exhibit R20, 16 [93] (being Mr Rowe's affidavit).
[491] Agreed facts, [189]-[194], [198]; Exhibit J1 (Tab 84) 924.
[492] I note that the brief of evidence was provided by the AFP in various tranches between 2 and 6 August 2007.
[495] Respondent's closing submissions, 32 [108].
[496] Applicant's closing submissions, 37-8 [115].
[497] Exhibit A57 (being Ms Gobbo's email to Shane O'Connell).
[502] Being the number assigned to Ms Gobbo by Victoria Police when she became a registered informer.
[503] T2555.4-20; T2556.27-30; Exhibit A96 (Tab 28).
[504] Exhibit J1 (Tab 116) ICR 117, VPL.4001.0012.2335, 2340.
[505] Agreed facts, [279.3]. See also Exhibit J1 (Tab 118) 1566.
[506] Ibid [280.1]. See also Exhibit J1 (Tab 118) 1579.
[507] Ibid [280.3]. See also Exhibit J1 (Tab 123) 1643.
[508] Ibid [290]. See also Exhibit J1 (Tab 126) 1686.
[509] Ibid [281], [281.1]. See also Exhibit J1 (Tab 124) 1644.
[510] Ibid [284]. See also Exhibit J1 (Tab 124) 1646.
[513] Mr Robertson was asked about the fact that multiple statements were taken from Witness Q during this period, but was not asked about whether he knew about Ms Gobbo's role in those statements being taken.
[515] The Embassy is often referred to as "the Post".
[518] On 5 July 2007 Australia made a formal request for the applicant's extradition on the grounds that the applicant had been sentenced to a term of imprisonment in absentia by Gillard J in 2006, and for the applicant to stand trial for an additional 18 offences**.** See Exhibit J8 (Tabs 2-5).
[525] Mr Coghlan gave evidence about email correspondence between himself and Mr Sweetman where each party would regularly address each other as "mate" or "matey". See T2558.17-25; T2560.12-24; Exhibit A96 (Tabs 17, 20, 24, 31). See also Exhibit A96 (Tab 6), where Mr Coghlan addressed Mr Sweetman as "Big Al".
[526] Mr Coghlan gave evidence over two days. During the course of his evidence, 10 exhibits were tendered through him.
[528] Exhibit A190; Exhibit J8 (Tab 4).
[532] See Exhibit J8 (Tab 10). The extradition request for the Orbital offence was not included within Mr O'Brien's investigator's affidavit but in separate affidavits from the CDPP and the AFP at a time when the AFP had no knowledge of Ms Gobbo's role an informer. The Orbital prosecution was not taken over by the DPP until after the applicant was extradited to Australia.
[533] In the same email, Ms McDonald advised Mr Gardner that as Australia's extradition relationship with Greece was based on the "no evidence" standard, it was not necessary for him to include witness statements. Ms McDonald advised that all that was required was for each separate offence upon which extradition was sought to have an identified statement of the acts and omissions that constituted that offence at law.
[535] Exhibit J1 (Tab 80) 884. See also applicant's closing submissions, 48 [161.2]; agreed facts, [152].
[536] Ibid. See also applicant's closing submissions, 49 [161.3]; agreed facts, [152].
[537] Exhibit J1 (Tab 82) 887. See also applicant's closing submissions, 49 [161.4]; agreed facts, [155].
[538] Exhibit J1 (Tab 82) 905; applicant's closing submissions, 49 [161.5]; agreed facts, [162A].
[541] Exhibit J1 (Tab 82); applicant's closing submissions, 49 [161.6]. See also Exhibit J4 (Tab 39) 9113.
[542] Exhibit J1 (Tab 83) 912; applicant's closing submissions_,_ 49 [161.8]. See also agreed facts, [176]-[178].
[543] Applicant's closing submissions, 49 [161.10]; Exhibit J1 (Tab 87) 993.
[544] Applicant's closing submissions, 49 [161.13]; agreed facts, [223].
[545] Applicant's closing submissions, 49 [161.14]; Exhibit J1 (Tab 88). See also agreed facts, [226].
[548] Applicant's closing submissions, 50 [161.16]; Exhibit J1 (Tab 90) 1037. See also agreed facts, [242].
[549] Applicant's closing submissions, 50 [161.17]; Exhibit J1 (Tab 90). See also agreed facts, [242].
[550] Applicant's closing submissions, 50 [161.18]; Exhibit A193; T2551.11-2552.5.
[553] Applicant's closing submissions, 50 [161.20]; Exhibit J1 (Tab 90).
[554] Applicant's closing submissions, 51 [161.22]; Exhibit J1 (Tab 104); agreed facts, [264].
[555] Applicant's closing submissions, 51 [161.23]; Exhibit J1 (Tab 105) 1302. I note that Ms Gobbo only mentioned the Orbital material expressly.
[556] Exhibit J1 (Tab 107) 1646; applicant's closing submissions, 51 [161.24]. See also agreed facts, [283].
[557] Exhibit J1 (Tab 126) 1648; applicant's closing submissions, 51 [161.25]. See also agreed facts, [292A].
[558] Applicant's closing submissions, 52 [164]; respondent's closing submissions, 52 [201].
[559] Agreed facts, [256]. See also Exhibit J1 (Tab 95) 1140.
[560] Agreed facts, [260]; Exhibit J1 (Tab 97) 1181-2.
[562] Agreed facts, [269]. See also Exhibit J1 (Tab 102) 1274.
[563] Applicant's closing submissions, 56 [171.1]; agreed facts, [165].
[564] Applicant's closing submissions, 56 [171.2]; agreed facts, [231]-[233]. See also Exhibit J1 (Tab 88).
[565] Applicant's closing submissions, 56 [171.3]; agreed facts, [302(a)]; Exhibit J1 (Tab 89) 1026; Exhibit J3 (Tab 217) 270.
[566] Applicant's closing submissions, 56 [171.4]; agreed facts, [168A]; Exhibit J1 (Tab 82) 892-3.
[567] Applicant's closing submissions, 56 [171.4]; Exhibit J1 (Tab 88) 1010.
[568] See, for example, Exhibit J1 (Tabs 83, 91, 124). See generally Mr Coghlan's evidence at T2371-2605.
[571] Exhibit J1 (Tab 124) 1648; T2571.5-12.
[572] Exhibit A96 (Tab 40); T2571.20-2572.5.
[574] T2902.11-2903.24; Exhibit J1 (Tab 95).
[575] T2906.24-2907.26; Exhibit J1 (Tab 95) 1128, (Tab 102) 1261; Exhibit A110; T2908.16-2911.2; Exhibit A111; T2911.7-2913.15; Exhibit J1 (Tab 104) 1302-3; Exhibit A112.
[576] Respondent's closing submissions, 51 [198.1].
[577] Exhibit J7 (Tab 40) 4130, 4139, 4141, 4146, 4149.
[579] As to which see later in answer to referral question 3.
[580] Respondent's closing submissions, 52 [203], 54 [210].
[582] Agreed facts, [159]; Exhibit J1 (Tab 81).
[583] Agreed facts, [156]; Exhibit J1 (Tab 81).
[584] Respondent's closing submissions, 50 [197.2].
[585] Albeit that he expressed it to her as 'a whisper' about the strategy of involving the Lebanese government. See Exhibit A96 (Tabs 23, 40).
[589] The respondent conceded that Ms Gobbo was the applicant's lawyer for a period of months from June 2007 in her proposed answer to referral question 3: see respondent's closing submissions, 67 [257].
[590] Exhibit J1 (Tab 88) 1011; applicant's closing submissions, 53 [166.1].
[591] Applicant's closing submissions, 53 [166.2]; Exhibit J1 (Tab 88) 1014; agreed facts, [220]-[221].
[592] Applicant's closing submissions_,_ 53 [166.3]; Exhibit J1 (Tab 88).
[593] Applicant's closing submissions, 53 [166.4]; Exhibit J1 (Tab 95); agreed facts, [258].
[594] Applicant's closing submissions, 53 [166.5]; Exhibit J1 (Tab 89); agreed facts, [259].
[595] Applicant's closing submissions, 53 [166.6]; Exhibit J1 (Tab 101); agreed facts, [262].
[596] Applicant's closing submissions, 53 [166.9]; agreed facts, [272].
[597] Applicant's closing submissions, 54 [166.8]; Exhibit J1 (Tab 105); agreed facts, [271].
[599] Applicant's closing submissions_,_ 54 [166.10]; Exhibit J1 (Tab 126); agreed facts, [290]-[292].
[600] Respondent's closing submissions, 52 [204].
[601] Applicant's reply submissions, 12 [37].
[602] Respondent's closing submissions, 52 [204]. The duties Ms Gobbo owed the applicant and the circumstances in which those duties were breached is the subject of referral questions 6 and 6B.
[603] Applicant's closing submissions, 54 [168].
[605] Respondent's closing submissions, 52-3 [205]-[206].
[607] Exhibit A226, 16 [21.8], 15 [21.4].
[617] Applicant's closing submissions, 59 [184].
[618] As to which, see Braham, [163] (Emerton JA).
[619] Beach Petroleum, 46 [192] (Spigelman CJ, Sheller and Stein JJA), citing Lyell v Kennedy [1889] UKLawRpAC 36; (1889) 14 App Cas 437, 456, 459-60 (Lord Selborne, with whom Lords Fitzgerald, Macnaghten and Halsbury agreed); Boardman v Phipps [1966] UKHL 2; [1967] 2 AC 46, 100 (Lord Cohen), 118 (Lord Guest), 126-7 (Lord Upjohn); Walden Properties v Beaver Properties Ltd [1973] 2 NSWLR 815, 833 (Hope JA, with whom Kerr CJ agreed).
[620] Respondent's closing submissions, 61 [237].
[621] Gerrard Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (No 2) [2024] NSWCA 232, [27] (Stern JA, with whom Kirk JA agreed and Basten AJA relevantly agreed), citing Groom v Crocker [1939] 1 KB 194, 222 (Scott LJ).
[622] Braham, [163] (Emerton JA) (citations omitted).
[623] [2022] HCA 39; (2022) 277 CLR 115 ("Realestate.com.au").
[624] Ibid 126 [15] (Kiefel CJ and Gageler J).
[625] Ibid 5 [17] (Kiefel CJ and Gageler J).
[626] Ibid 136 [50], citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, 179-80 [40]-[41] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ) ("Toll") and Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, 275 [59] (Gummow and Hayne JJ), both in turn citing Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, 429 (Mason A-CJ, Murphy and Deane JJ).
[627] Ibid 135 [47] (citations omitted).
[628] See Watson v Ebsworth & Ebsworth [2010] VSCA 335; (2010) 31 VR 123, 160 [117]-[118] (Neave, Mandie and Hansen JJA) ("Watson"), citing Beach Petroleum, 53 [227] (Spigelman CJ, Sheller and Stein JJA). In the Karam reference determination, Osborn JA noted that the parties were agreed that whether a lawyer/client relationship existed between Ms Gobbo and Mr Karam should be determined in accordance with that approach. See Karam reference determination, [428].
[629] Respondent's closing submissions, 60 [235], citing McFee v Reilly (2018) 18 ASTLR 442, 466 [97] (Leeming JA); Beach Petroleum, 53 [227] (Spigelman CJ, Sheller and Stein JJA); Watson, 160 [117] (Neave, Mandie and Hansen JJA).
[630] Respondent's reply to note on scope of retainers filed 11 July 2024, 1 [1] (emphasis altered).
[631] Realestate.com.au, 126-7 [15]-[17] (Kiefel CJ and Gageler J), 132-4 [43]-[45] (Gordon J), 147 [83] (Edelman and Steward JJ). See more generally, Toll, 179 [40] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116 [46] (French CJ, Nettle and Gordon JJ); Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ); Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, 461-2 [22] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
[632] Referral question 5 is framed in similar terms, where the inquiry is whether there was a lawyer/client relationship between Ms Gobbo and those of her clients who gave evidence against the applicant.
[634] The applicant was initially granted bail at Melbourne Magistrates' Court on 8 September 2001. See Exhibit J6 (Tab 20) for details of Ms Gobbo's visits to the applicant whilst in custody.
[636] See generally, Exhibit J1 (Tabs 1-20).
[640] The respondent prepared a schedule of the applicant's scheduled court appearances from 9 April 1998 to 5 October 2016. See generally Exhibit J7 (Tab 41).
[644] Respondent's closing submissions, 72 [277].
[646] Mokbel v Director of Public Prosecutions (Vic) [2005] VSC 476.
[647] Because the application for the restraining order was dismissed, the retainer was effectively terminated at that time.
[648] Applicant's closing submissions, 61 [194].
[652] See Victorian Bar Rules, rule 111.
[654] Exhibit J7 (Tab 43); respondent's closing submissions, 61-3 [238]-[242].
[655] Exhibit A2, 134. See also Exhibit J1 (Tab 1). In that ICR, Ms Gobbo reported that following Mr Bickley's arrest he informed her that he had been given her contact details by the applicant. Ms Gobbo also reported that the applicant had arranged for Mr Hargreaves to represent Mr Bickley at his bail application, stating '[Mr Bickley] will go to any solicitor that Mokbel sends him to'. Ms Gobbo later relayed that the applicant introduced her to Mr Thomas, see Exhibit J1 (Tab 7).
[658] [1979] Ch 384, 402-3.
[661] As discussed above, Ms Gobbo alerted police to that meeting on 12 June 2006 and police executed a search warrant on her chambers to obtain her notes from it on 7 December 2006. See Exhibit J1 (Tab 35). Those notes became the objective evidence of the offence of attempting to pervert the course of justice (the Landslip 2 offence) upon which extradition was sought. See the discussion of Operation Landslip 2 in the chronology at paragraphs 169-173 above.
[662] T155.26-7; T162.12-4; T211.18-9.
[673] Exhibit J1 (Tab 164). I note that this is the final ICR that was created prior to Ms Gobbo's deregistration as an informer.
[676] Additionally, the SDU transcripts provide a more accurate account of what exactly was discussed, given that they are a verbatim transcription of the conversations between Ms Gobbo and her handlers. Only 12 meetings were recorded between Ms Gobbo's registration until the point that the applicant absconded. See generally Exhibit J4.
[677] These duties are the subject of consideration under referral questions 6 and 6B.
[678] In her first engagement with the SDU in September 2005, she reported being asked or told by the applicant to monitor the circumstances in which Mr Cooper and Mr Bickley were arrested (in 2003 and 2005, respectively). On 27 February 2006 Ms Gobbo reported being told by the applicant to tell Mr Thomas if he required assistance to contact her and to 'just stay strong' because the applicant was worried that Mr Thomas might 'put him in', see Exhibit J1 (Tab 20). This conduct is the subject of focused attention in answering referral question 10.
[681] See Victorian Bar Rules, rule 111.
[683] Applicant's note on scope of retainers filed 10 July 2024.
[686] See the answer to referral question 5.
[687] See generally, Exhibit J1 (Tabs 1-14).
[688] The lawyer/client relationship between Ms Gobbo and Mr Cooper will be considered in the context of answering referral question 5.
[690] Respondent's closing submissions, 87-8 [322]-[326].
[693] See generally, applicant's response to 8 July 2024 memorandum filed on 9 July 2024.
[695] Agreed facts, [151]-[168], [300]-[301].
[698] Exhibit J1 (Tabs 133-135, 143, 138).
[699] See Exhibit J1 (Tab 135) 1893-5.
[700] See generally, agreed facts, [310], [311], [315], [318], [336], [340], [343]-[344]. See also Ms Morgan's evidence at T533.
[702] See generally, the applicant's evidence at T127-542.
[703] The last call the applicant placed to Ms Gobbo over the prison telephone network was on 25 August 2010, according to the call activity report produced by Corrections Victoria, see Exhibit J6 (Tab 2). Ms Gobbo's final visit to the applicant in custody was on 13 February 2009, see Exhibit J6 (Tab 21) 693.
[706] See McFee v Reilly (2018) 18 ASTLR 442, 466 [97] (Leeming JA). See also Beach Petroleum, 53 [227] (Spigelman CJ, Sheller and Stein JJA); Watson, 160 [117] (Neave, Mandie and Hansen JJA).
[715] T642.18-24. The applicant's challenge to his extradition was heard on 27 September 2007 and Gordon J delivered judgment on 5 October 2007: see Mokbel v Attorney-General (Cth) [2007] FCA 1536; (2007) 162 FCR 278. The Full Court affirmed Gordon J's judgment on 12 October 2007: see Mokbel v Attorney-General (Cth) [2007] FCAFC 161.
[718] During the course of giving evidence, the applicant was not asked any questions by his counsel or counsel for the respondent about the conversations recorded in the ICRs.
[719] Much of this contact has been discussed in the answer to referral question 1B.
[720] The applicant sought special leave from the High Court to challenge the decision of the Full Federal Court to refuse his extradition, see Mokbel v Attorney-General for the Commonwealth of Australia [2007] HCATrans 813.
[721] Following the decision of Supreme Court of Greece to grant the Australian government's request for the extradition of the applicant to Australia, the applicant had exhausted all avenues of appeal in that jurisdiction.
[723] See respondent's closing submissions, 68-70 [264]-[269].
[724] See my answer to referral question 3.
[729] Exhibit J1 (Tab 132) 1803. The so-called "Brunswick crew" allegedly included as members the applicant and his brothers Horty, Kabalan and Milad Mokbel. I note it is not clear whether the applicant's criminal associates such as Mr Cooper or Mr Bickley were members of the "Brunswick crew", as it is more likely that they were considered to be "working" for them in the applicant's drug manufacturing enterprise rather members of the so-called "crew". In the ICRs, Ms Gobbo generally refers to all those criminally associated with the applicant as being part of the "Brunswick crew". While it was generally considered that the applicant was "aligned" with Carl Williams, Mr Williams was considered to be the head of the so-called "Sunshine crew" rather than part of the "Brunswick crew". Both the "Brunswick crew" and the "Sunshine crew" were infamously "at war" with the so-called "Carlton crew", and it was the feud between those groups that became known colloquially as the "gangland wars".
[733] Stephen Andrianakis was retained by the applicant to act on his behalf in respect of the charges arising out of Operation Gotta (being the murder of Lewis Moran).
[735] Exhibit A4, [28] (being the affidavit of Grace Morgan, dated 29 January 2024); T555.
[736] I note that on 10 September 2008, Ms Gobbo relayed to her handlers that the applicant had informed her that he had retained Robert Stary Lawyers, see Exhibit J1 (Tab 151).
[743] Dr Bagaric last appeared for the applicant at a committal mention on 12 August 2008, see Exhibit J7 (Tab 41). Dr Bagaric also gave evidence that he recalled he was no longer retained by the applicant to represent him in his then-current criminal proceedings by October 2008, see T683.20-5.
[744] See generally, Exhibit J1 (Tabs 130-164).
[748] See Officer White's evidence at T1149, T1285, T1375.
[750] Ms Gobbo's mixed motivations in becoming an informer is the subject of discussion in referral question 7.
[756] With the exception of the appearance on 9 February 2010 when the applicant was unrepresented, he had legal representation for each of his hearings. Although Ms Morgan was the instructing solicitor in the majority of his matters, different counsel were instructed to appear across the range of committal matters and the murder trials.
[760] Ibid [312], [314]. See Mokbel v Director of Public Prosecutions (Vic) (2008) 26 VR 1.
[763] And therefore the subject of referral question 4.
[775] Ibid [345]. See Director of Public Prosecutions v Mokbel (Orbital & Quills - Ruling No 1) [2010] VSC 331.
[780] See Exhibit A2, 21-3 [130]-[135], [139] (being the applicant's second affidavit).
[781] Magistrates' Court Act 1989 (Vic) (as at 2006). I note that this section has since been repealed.
[782] See, for example, Exhibit J1 (Tab 157) 2253.
[784] See, for example, Exhibit J4 (Tab 16) 3596.
[785] See, for example, Exhibit J1 (Tab 28) 258 (being an ICR which states, 'HS waxing ironic re imminent [COOPER] arrest and that HS won't get paid for representing him').
[787] Exhibit A2, [128] (being the applicant's second affidavit).
[788] See generally Mr O'Connell's evidence at T1981-2209. Mr O'Connell was integral to obtaining a signed witness statement from Ms Gobbo, see Exhibit A56.
[802] Exhibit J5 (Tab 11) 1050, (Tab 97) 4355.
[815] Applicant's closing submissions, 72 [252]; agreed facts, [141].
[816] I note that this explanation is what Ms Gobbo reported to her handlers on 1 October 2005, see Exhibit J1 (Tab 1). See also Exhibit J7 (Tab 35).
[825] See, for example, Exhibit J1 (Tabs 69, 70).
[836] I note that in the schedule of prisoners visited by Ms Gobbo prepared by Corrections Victoria, her visit to Mr Thomas at that time is categorised as a 'prof[essional]' visit. See Exhibit J7 (Tab 20).
[837] Applicant's closing submissions, 72 [254]; agreed facts, [141].
[839] Applicant's closing submissions, 73 [256].
[840] T4875.23-4876.3. See also Mr Rowe's affidavit (Exhibit R20) 16 [94].
[842] Applicant's closing submissions, 73 [257].
[844] See, for example, AB & EF v CD [2017] VSC 350; Karam reference determination.
[845] See Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [2019] HCA 26; (2019) 265 CLR 646, 656 [12] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[846] See appendix B of the respondent's closing submissions.
[848] It was ultimately agreed between the parties that the Professional Conduct and Practice Rules 2005 (Vic) ("the Professional Conduct Rules") had no application to individuals practising as members of the Victorian Bar.
[852] See Badenach v Calvert [2016] HCA 18; (2016) 257 CLR 440, 458 [58] (Gageler J) ("Badenach").
[853] Ibid 457 [57], citing Heydon v NRMA Ltd (2000) 51 NSWLR 1, 53-4 [147] (Malcolm AJA), 117 [362] (McPherson AJA) and Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479, 483 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).
[854] Badenach, 462 [79] (Gordon J), citing Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, 370 [19] (French CJ and Gummow J).
[855] [2017] VSC 350, [118]-[123] (original citations).
[856] G E Dal Pont, Lawyers' Professional Responsibility (Lawbook Co, 6th ed, 2017) 344 [10.15].
[859] [1987] FCA 266; (1987) 14 FCR 434, 456 (Gummow J).
[860] Minter v Priest [1930] AC 558, 573 (Viscount Dunedin), cited with approval in Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) [2009] FCA 449; (2009) 180 FCR 1, 7 [19] (Finkelstein J) ("Brookfield Multiplex").
[861] Brookfield Multiplex, 7 [19]. This case was cited with apparent approval by Dr Sue McNicol KC in the Kellam report, see Exhibit R17.
[862] Esso Australia Resources Ltd v Commissioner of Taxation for the Commonwealth of Australia [1999] HCA 67; (1999) 201 CLR 49, 64-5 [35] (Gleeson CJ, Gaudron and Gummow JJ) ("Esso Australia Resources").
[863] Evidence Act 2008 (Vic) s 131A.
[864] AWB Ltd v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30, 45 [44(5)] (Young J). See also Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357, 365 [30] (Finn J, with whom Merkel J agreed).
[867] See Andrianakis v Uber Technologies Inc [2022] VSC 196, [82]-[83] (Matthews AsJ).
[869] Esso Australia Resources, 64 [35] (Gleeson CJ, Gaudron and Gummow JJ). See also the advice provided by Dr Sue McNicol SC in the Kellam report, Exhibit R17, 66-79 [20]-[21].
[870] Breen v Williams [1995] HCA 63; (1996) 186 CLR 71, 108 (Gaudron and McHugh JJ) ("Breen"). See also Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, 198-9 (Deane J); Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd [2018] HCA 43; (2018) 265 CLR 1, 29-30 [67]-[69] (Gageler J) ("Ancient Order of Foresters"); Beach Petroleum, 46-7 [196]-[203] (Spigelman CJ, Sheller and Stein JJA).
[871] Breen, 108 (Gaudron and McHugh JJ).
[872] Break Fast Investments Pty Ltd v Rigby Cooke Lawyers (a firm) [2022] VSCA 118, [55]-[56], [71] (Kyrou, McLeish and Walker JJA) ("Break Fast Investments").
[873] (1997) 18 WAR 467, 489-90 (Malcolm CJ, with whom Franklyn and Wheeler JJ agreed).
[875] Respondent's closing submissions, 101-2 [379] (original citations).
[876] Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, 465 (Brennan CJ, Gaudron, McHugh and Gummow JJ). See also Karam reference determination, [455]-[457] (Osborn JA); Break Fast Investments, [55]-[56], [71] (Kyrou, McLeish and Walker JJA).
[877] Coope v LCM Litigation Fund Pty Ltd [2016] NSWCA 37; (2016) 333 ALR 524, 542 [109] (Payne JA, with whom Gleeson and Leeming JJA agreed).
[878] See Pilmer v Duke Group Ltd (in liq) [2001] HCA 31; (2001) 207 CLR 165, 200-1 [82]-[83] (McHugh, Gummow, Hayne and Callinan JJ).
[879] Break Fast Investments, [55(c)-(d)] (Kyrou, McLeish and Walker JJA).
[880] Watson, 165 [134] (Neave, Mandie and Hansen JJA).
[881] Gunasegaram v Blue Visions Management Pty Ltd [2018] NSWCA 179; (2018) 129 ACSR 265, 298 [152] (Gleeson JA, with whom Meagher JA agreed) ("Gunasegaram").
[882] That is, the respondent accepted that the law in Victoria is as expressed in the obiter dictum of Brooking JA in Spincode, despite conflicting authority in other jurisdictions, a state of affairs discussed in ACN 092 675 164 Pty Ltd v Suckling [2018] VSC 620; (2018) 56 VR 448, 462 [63] (Riordan J), referring to Cooper v Winter [2013] NSWCA 261, [92]-[102] (Ward JA, with whom McColl and Barrett JJA agreed); Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481, 486-7 [24] (Barrett JA, with whom Beazley P and McColl JA agreed); Re IPM Group Pty Ltd [2015] NSWSC 240, [32] (Black J); Técnicas Reunidas SA v Andrew [2018] NSWCA 192, [36] (Leeming JA, with whom Bathurst CJ and White JA agreed).
[883] Spincode, 521-2 [52]-[53] (emphasis added).
[884] See Beach Petroleum, 47-8 [204]-[207] (Spigelman CJ, Sheller and Stein JJA); Belan v Casey [2002] NSWSC 58, [16]-[21] (Young CJ in Eq); Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 582 [76] (Brereton J).
[885] Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222, 235 (Millett LJ, with whom Browne‑Wilkinson, Hope, Clyde and Hutton LJJ agreed).
[886] As noted at fn [849](NOTEREF _Ref180679178 * MERGEFORMAT) above, it was agreed between the parties that the Professional Conduct Rules did not apply to Ms Gobbo since she was practising as an individual member of the Bar.
[887] Rondel v Worsley [1969] 1 AC 191, 227 (Lord Reid).
[888] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, 60 [13] (Ipp J).
[889] Bolitho v Banksia Securities Ltd [2021] VSC 666; (2021) 69 VR 28, 83-5 [1319] (John Dixon J) (citations omitted) ("Bolitho"). See also DA Ipp, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63, to which his Honour made reference in the course of the judgment.
[890] This is explained further in my answer to referral question 3.
[891] [2018] HCA 58; (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[892] Respondent's closing submissions, 106 [395].
[893] For the common law approach, see Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657, 663-4 (Deane J). See also Victorian Bar Rules, rule 134 (which refers to prosecuting barristers); Professional Conduct Rules, rule 20 (which refers to solicitors in the employ of the DPP).
[894] Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, 155-6 [82] (Kirby J).
[895] See the answer to referral question 7 as to the common objective Ms Gobbo shared with Victoria Police to have the applicant convicted.
[896] Gunasegaram, 298 [152] (Gleeson JA, with whom Meagher JA agreed).
[897] Applicant's closing submissions, 83 [295].
[901] Agreed facts, [60]; respondent's closing submissions, 111 [411.2].
[902] Agreed facts, [57.1]; respondent's closing submissions, 111 [411.3].
[903] See Karam reference determination, [455].
[905] See the answer to referral question 5.
[920] T3485.3-21; T3489.11-25; T3493.27-2494.7.
[921] T3414.26-31; T3420.9-21; T3552.10-24; Exhibit R6. See also Exhibit A46**.**
[922] Applicant's closing submissions, 87 [314]; agreed facts, [79]-[80].
[923] Applicant's closing submissions, 87 [315]; agreed facts, [277].
[928] Applicant's closing submissions, 87 [313].
[929] Bolitho, 84 [1319(d)] (John Dixon J). See also DA Ipp, 'Lawyers' Duties to the Court' (1998) 114 Law Quarterly Review 63. See also applicant's closing submissions, 89 [318].
[930] Respondent's closing submissions, 120 [452].
[931] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[932] Bolitho, 81-3 [1311]-[1317].
[934] Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279, 298 (Kitto J), quoted in Bolitho, 81-2 [1314].
[935] Contrary to the prohibition described in Bolitho, 84 [1319(b)] (John Dixon J).
[942] A transcript of that meeting can be found at Exhibit J4 (Tab 1). Mr Rowe's contemporaneous notes of that meeting can also be found at Exhibit A207.
[947] Respondent's closing submissions, 126 [472].
[950] The prosecution of Rob Karam is one such example. It was reported that Ms Gobbo provided intelligence relating to 164 people, see Exhibit A131.
[954] See, for example, Exhibit J1 (Tabs 17, 135).
[955] AB & EF v CD [2017] VSC 350, [20] (Ginnane J).
[956] Referral question 14 addresses whether there are reasonable grounds on the evidence before me to make that application. I am satisfied that there are.
[957] Evidence Act 2008 (Vic) Dictionary pt 2, cl 9(2).
[958] Parker v Comptroller-General of Customs (2009) 252 ALR 619, 627 [30] (French CJ).
[960] Wu (a pseudonym) v The Queen [2020] VSCA 94, [73]-[74] (T Forrest and Emerton JJA and Croucher AJA).
[961] Kadir, 125 [14] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
[962] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520 (Mason CJ, Dawson, Toohey and McHugh JJ) ("Williams v Spautz").
[963] Respondent's closing submissions, 131 [486].
[964] See generally, Karam, [187], [228], [356].
[965] For example, Karam cited Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456, 478 [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), which in turn cited Williams v Spautz, 520 (Mason CJ, Dawson, Toohey and McHugh JJ). Indeed, Williams v Spautz was a case about an abuse of process.
[967] Mokbel v The Queen [2022] VSCA 83, [24] (Beach, McLeish and Kennedy JJA).
[969] Applicant's closing submissions, 97 [355].
[970] Respondent's closing submissions, 134 [496]-[497].
[972] Barnes v Addy [1874] UKLawRpCh 20; (1874) LR 9 Ch App 244, 251-2 (Selbourne LJ, with whom James and Mellish LJJ agreed) ("Barnes v Addy"); applicant's closing submissions, 98 [363], quoting Farah Constructions, 159 [160] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
[973] Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 87 NSWLR 609, 636 [124] (Leeming JA, with whom Barrett and Gleeson JJA agreed). That is the standard that has been adopted in Victoria: see Coonwarra Pty Ltd v CornoNero Pty Ltd [2023] VSC 781, [902]-[905] (Nichols J).
[974] Barnes v Addy, 251-2 (Selbourne LJ, with whom James and Mellish LJJ agreed). The concession under the second limb of Barnes v Addy relates to the question of when a third-party might be 'liable' in the sense that certain equitable remedies may be sought against them - most importantly, an order for equitable compensation or an account of profits. Here, of course, no such remedy is sought. Notwithstanding that, I regard the principles as having some utility in informing the question whether the conduct of third parties (relevantly here, Victoria Police) may have been 'improper'. See also Ancient Order of Foresters, 33 [76] (Gageler J).
[976] Respondent's closing submissions, 137 [505.1]. I note that referral question 11 concerns whether Victoria Police had knowledge of any such relevant impropriety or illegality.
[977] Victoria, Royal Commission into the Management of Police Informants, Final Report (2020).
[978] Applicant's closing submissions, 100 [370], citing Farm Transparency International Ltd v New South Wales [2022] HCA 23; (2022) 403 ALR 1, 38-9 [162] (Gordon J). There is some controversy and commentary in the case law as to whether third party liability for dissemination of confidential information is best understood as direct, or of a secondary or derivative form. See Nyuk Yin Nahan, 'The Duty of Confidence Revisited: The Protection of Confidential Information' [2015] UWALawRw 28; (2015) 39(2) University of Western Australia Law Review 270. The controversy need not be resolved here as either basis for Victoria Police's illegality is sufficient for the applicant's purposes.
[979] This will be the subject of elaboration in answering referral question 12.
[980] See my findings on the existence of the extradition retainer in answer to referral question 3.
[981] See my findings on the breaches of duty in relation to the extradition retainer in answer to referral question 6B.
[986] Applicant's closing submissions, 102 [380].
[987] [2006] UKPC 38; [2007] 1 WLR 47, 62 [35] (Lord Bingham of Cornhill) (emphasis added).
[990] See Exhibit A11; Exhibit A12. See also the answer to referral question 1B.
[991] Mokbel v Attorney-General (Cth) [2007] FCA 1536; (2007) 162 FCR 278, 23 [66].
[992] Applicant's closing submissions, 104 [389].
[993] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[994] [2012] FCA 1458; (2012) 299 ALR 621, [357] (Gordon J).
[995] That offence is often referred to as the "foundational offence".
[996] See Arafan v The Queen (2011) 31 VR 82, 88-91 [24]-[36] (Maxwell P and Weinberg JA); McEwan v The Queen [2013] VSCA 329; (2013) 41 VR 330, 336-7 [32]-[34] (Redlich and Coghlan JJA and Dixon AJA). See also Judicial College of Victoria, Criminal Charge Book (online as at 6 November 2024) [5.3].
[998] This is a fair summation of the applicant's case, see applicant's closing submissions, 110-2 [416].
[999] R v Rogerson (1992) 174 CLR 268, 277 (Mason CJ), 280 (Brennan and Toohey JJ) ("Rogerson").
[1000] See applicant's closing submissions, 110-2 [416], 114-115 [423]. See also my answer to referral question 1A above.
[1002] Rogerson, 280 (citations omitted).
[1003] In Mr Cooper's sentence proceeding, his ongoing and future commitment to cooperate with the authorities as a witness in criminal proceedings against the applicant and others was considered by the sentencing judge. See Mr Cooper, [3].
[1005] See referral question 1A above.
[1006] The significance of that date is discussed later when answering referral question 13 below.
[1007] (1995) 184 CLR 132, 140-1 (Brennan, Toohey and McHugh JJ) (citations omitted, emphasis added) ("Meissner").
[1010] Meissner, 143-4 (Brennan, Toohey and McHugh JJ), 149 (Deane J).
[1011] Ibid 143 (Brennan, Toohey and McHugh JJ) (citations omitted, emphasis added).
[1013] Applicant's closing submissions, 110-3 [416]-[418], 113-4 [421], 114-5 [423] (original emphasis in underline, emphasis added in italics).
[1018] Of the witnesses that gave evidence during the course of this proceeding, Officer Smith was probably the police officer that was least likely to have been aware of the plan. Despite this, he gave evidence that he was aware of the plan. See T1060.19-23.
[1036] R v Rohan (a pseudonym) (2024) 417 ALR 51, 58-9 [29] (Gageler CJ, Gordon and Edelman JJ).
[1060] Agreed facts, [162]. See also Exhibit J1 (Tab 82) 890.
[1062] T4521.27-4522.5; Exhibit A228 (being Mr Flynn's diary). Mr Flynn noted in his diary that the conversation took place from 6:50pm to 9:08pm. See also Exhibit A229 (being Mr O'Brien's diary). Mr O'Brien noted that that the conversation commenced at 7:15pm.
[1066] See Mr O'Brien's evidence on this topic at T5253.
[1067] Applicant's closing submissions, 113 [418] (emphasis added).
[1074] See applicant's closing submissions, 110 [416.8].
[1075] See Mr O'Brien's evidence at T5246.28-31. See Mr Flynn's evidence at T4506-7.
[1076] See Mr O'Brien's evidence at T5247. See generally, Exhibit A228 (being Mr Flynn's diary); Exhibit A229 (being Mr O'Brien's diary), neither of which include any notations concerning a discussion that Ms Gobbo make herself unavailable on the day of Mr Cooper's anticipated arrest.
[1082] T1083.22. I note that Officer Smith was the author of ICR 28.
[1083] See Exhibit J4 (Tab 16) 3677-3756.
[1086] In evidence, Mr O'Brien accepted that notation reflected his briefing to the SDU of the plan to arrest Mr Cooper at the laboratory that day. See T5253.
[1087] Mr O'Brien gave evidence that he insisted on being informed of any contact Mr Cooper made with Ms Gobbo, suggesting that his interest in their potential contact was consistent with his expectation that she would not make herself available following his arrest. See T5254.
[1089] Whilst the ICR does not expressly state that Ms Gobbo was put on "standby" at this point in time, a later entry from the same day notes that Ms Gobbo was taken off "standby" after Mr Cooper assisted police. I interpret that to mean that Ms Gobbo had been effectively put on "standby" by Officer Smith from the first point of contact he made with her that day. See Exhibit J1 (Tab 28) 258-9.
[1092] Exhibit J1 (Tab 28) 258 (being an ICR which states, 'HS waxing ironic re imminent [COOPER] arrest and that HS won't get paid for representing him').
[1094] T4512.20-3. See also Exhibit J1 (Tab 28), being an ICR in which it is noted that Ms Gobbo relayed to Officer Smith that Mr Flynn had informed her of Mr Cooper's arrest.
[1096] Ibid. See also Exhibit A207 (being Mr Rowe's diary); Exhibit A228 (being Mr Flynn's diary).
[1098] See Exhibit A207; Exhibit A228.
[1105] See generally, Exhibit J1 (Tab 28) 258. I note that the ICR does not state who provided this information to Ms Gobbo. However, in her later conversation with her handlers at the motel Ms Gobbo was recorded as relaying that this information came from Mr Cooper, not Mr Ahec. See Exhibit J4 (Tab 28) 3966.
[1106] See Exhibit A27 (being Officer Smith's diary); Exhibit A228 (being Mr Flynn's diary); Exhibit A229 (being Mr O'Brien's diary).
[1110] In Mr Flynn's diary he noted 'Solicitor Gobbo attended - explained offer'. However it is unclear whether this referred to a conversation that occurred between Mr Flynn and Ms Gobbo prior to entering the conference room with Mr Cooper or whether this notation referred to the "pitch" that Mr Flynn gave Mr Cooper in Ms Gobbo's presence, see Exhibit A229. Mr Flynn gave evidence that upon Ms Gobbo's arrival, Mr O'Brien informed her of 'what we were doing' prior to entering the conference room with Mr Cooper, see T4441.13. Mr O'Brien gave evidence that upon her arrival he explained the offer that had been made to Mr Cooper, not in the presence of Mr Flynn, see T5271.1-11.
[1116] Exhibit A207; Exhibit A228; Exhibit A229.
[1119] Exhibit A27; Exhibit J1 (Tab 28) 259.
[1121] Exhibit A207; Exhibit A228; Exhibit A229.
[1123] Exhibit J4 (Tab 18); Exhibit J1 (Tab 28).
[1125] Exhibit J4 (Tab 17) 3916, 3931.
[1140] Exhibit J4 (Tab 18) (emphasis added).
[1146] Respondent's closing submissions, 148 [553], citing Meissner, 143 (Brennan, Toohey and McHugh JJ).
[1148] Applicant's closing submissions, 116 [426].
[1159] Exhibit J3 (Tab 67); Exhibit J1 (Tab 23) 190. See also Exhibit A228 (being Mr Flynn's diary entry for 16 March 2006); T4577.3-12.
[1164] Respondent's closing submissions, 158 [596].
[1166] AB & EF v CD [2017] VSC 350; EF v CD [2017] VSC 351.
[1167] Mr Overland was Assistant Commissioner (Crime) from 2004 until he was appointed as Deputy Commissioner of Victoria Police in June 2006.
[1169] Agreed facts, [352]; Exhibit A69, 1 [2] (being the Maguire advice).
[1170] Ibid 12 [54] (emphasis added).
[1171] Applicant's closing submissions, 126 [473].
[1177] Respondent's closing submissions, 198 [751].
[1178] Agreed facts, [375]; Exhibit A109.
[1179] Applicant's closing submissions, 127 [478].
[1183] Exhibit A59. See also T2039-2041.
[1188] To date, there have been two successful "Lawyer X" cases in this court. In both instances, the convictions were quashed by the Court of Appeal after it was held that both accused had suffered a miscarriage of justice resulting from the conduct of Victoria Police and Ms Gobbo. See Cvetanovski; Orman.
[1189] Who at the relevant time held the ranks of Assistant Commissioner and Detective Inspector, respectively.
[1191] Respondent's closing submissions, 164-5 [611].
[1192] Applicant's closing submissions, 122-3 [450]-[454].
[1193] Exhibit A19, 6 (being the SWOT analysis).
[1194] See the answer to referral question 6A above.
[1195] See the answer to referral question 6 above.
[1196] See Mr Blayney's evidence at T1973.2-7. For Mr O'Brien's evidence and Mr Overland's evidence, see T2139.3-9 and T1972.19-26 respectively. Mr Buick also gave evidence that he assumed that independent legal advice had been obtained as part of the risk assessment that was conducted, see his evidence at T2617-2619.
[1197] See the answer to referral question 3 above.
[1198] Applicant's closing submissions, 10-2 [21]-[31]. Convicting the applicant was considered a priority for Victoria Police and is central to understanding why Victoria Police engaged in such behaviour that exposed it to potential legal ramifications.
[1202] Exabit A53 (emphasis added); T1961.
[1222] See below for my answer to referral question 11, where I found that Mr Overland was informed by Mr O'Brien of Ms Gobbo's proposed registration on 12 September 2005 (that is, prior to her registration on 16 September 2005), contrary to Mr Overland's evidence that he was only informed after the fact.
[1227] See Officer White's evidence at T1386.16 and Mr O'Brien's evidence at T2180.21-2181.20; T2181.28-31. By 2009, at least 130 members of Victoria Police knew of Ms Gobbo's status as a registered informer, see T2862.3-4.
[1228] See Mr O'Brien's evidence at T2181.28-31.
[1230] Mr Overland was the Assistant Commissioner (Crime) in 2004 and Deputy Commissioner of Victoria Police in June 2006. In 2009 he was appointed Chief Commissioner of Victoria Police and remained in that position until his resignation in 2011.
[1237] This concept was the gravamen of the Maguire advice in 2011. See Exhibit A69.
[1238] Respondent's closing submissions, 158 [599]-[600].
[1239] By way of example Ms Gobbo was tasked by her handlers to furnish information from both Mr Cooper and Mr Bickley, see Exhibit J1 (Tab 5) 25, (Tab 7) 45, (Tab 8) 52.
[1241] Applicant's closing submissions, 9 [17].
[1242] Respondent's closing submissions, 163 [609].
[1243] See T989.24-30; T1256.11-26; T1278.29-1279.4; T1324.2-12.
[1244] Officer Black gave evidence that he knew that Ms Gobbo was conflicted from giving Mr Bickley legal advice about making a statement against the applicant, but because she told him that her advice was 'always ethical and lawful', he believed the issue of conflict was a matter for her rather than Victoria Police to consider. See T792.7-25.
[1245] Applicant's closing submissions, 128 [482.6].
[1247] Exhibit J1 (Tab 81) (emphasis added). Notably, Ms Gobbo went on to represent a number of people charged with offences arising out of Operation Magnum.
[1253] In his written submissions, the applicant clarified that his understanding of this question involved permitting the attribution of individual employees' knowledge to the institution and also, relatedly, aggregation of the knowledge held by different employees.
[1254] The parties were agreed that the approach I would take to the "key concepts" of illegality and impropriety in referral questions 8 and 9 apply equally answering this question.
[1263] Applicant's closing submissions, 138 [526].
[1264] See the discussion in referral question 10 above.
[1266] Applicant's closing submissions, 131-2 [497].
[1267] Baden, 575‒576, 582 (Peter Gibson J).
[1268] Respondent's closing submissions, 166-8 [616]-[621].
[1269] See the answer to referral question 10.
[1270] Mr Overland graduated with a Graduate Diploma in Legal Studies from the University of Canberra in 1988 and a Bachelor of Laws from the Australian National University in 1994. Mr Overland also completed the following courses: a police executive leadership program at the Australian Institute of Police Management in 1997, a strategic human resource management course at the University of New South Wales in 1998, a company director's course through the Australian Institute of Company Directors in 2004 and a course in strategic management of enforcement and regulatory agencies at the Kennedy School of Government, Harvard University. It is worth noting that Mr Overland has never been admitted as a practising lawyer in any jurisdiction. See T3124-5.
[1272] In the same risk assessment, it was noted that Ms Gobbo had suggested 'bugging her own chambers', which can only have conveyed that she intended to inform on her clients during the course of private meetings in her chambers.
[1273] Exhibit A16, 6 (emphasis added).
[1277] Officer Black gave evidence that once completed, he delivered the risk assessment to Detective Superintendent Cowlishaw (who did not give evidence in this proceeding), see T752. Mr Biggin also gave evidence that they were provided with a copy of the report upon its completion and also recalled reading it, see T1158.
[1278] Applicant's closing submissions, 131 [495.4]-[495.6]. The respondent accepted that '[t]here is sense' in the applicant nominating these individuals, but submitted that as the applicant did not seek any findings in respect of any other individuals, my findings should limited to those individuals. I will take that approach. See respondent's closing submissions, 166 [615].
[1280] Respondent's closing submissions, 168 [621] (original emphasis).
[1283] Ibid [620.3] (original emphasis).
[1284] Ibid 168 [625] (original emphasis).
[1285] T2164.25, referring to AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[1294] T854.12-22 (emphasis added). I note that the original diary entry of Officer Black was not tendered as an exhibit.
[1321] T4573.30-4574.1; T2399.5-6; T2424.11-3.
[1326] Exhibit A228 (being Mr Flynn's diary notes); T4544.14-4546.4; T4525.27-4526.14; T4530.5-11;
[1330] T1159.12-1162.5; T2914.1-2915.30; Exhibit A113.
[1331] T2908.10-2911.2; Exhibit A111 (being an email from Mr Ryan to Mr Cartwright dated 3 October 2007); Exhibit J1 (Tab 102).
[1332] Exhibit A59 (being an email from Mr Gleeson to Mr Pope and Mr McRae dated 30 April 2012).
[1337] Exhibit R8, [4] (being the affidavit of Glenn Morrison dated 24 January 2024, the informant in Operation Orbital).
[1338] Pursuant to s 15GI of the Crimes Act 1914 (Cth).
[1340] Mr Morrison gave that evidence. It remains unclear whether there was direct evidence in the prosecution case that the applicant had been tipped off in some way or whether he simply became uneasy about his dealings with the undercover operatives. See T3932.9-10.
[1343] Ibid [17]-[18]. See also T4831.17-23.
[1355] Applicant's closing submissions, 149 [576].
[1357] Respondent's closing submissions, 177 [665].
[1362] Exhibit A178 (being an email from Mr Morrison to Ms Prapas dated 7 September 2009); T3953.2-21.
[1364] Exhibit A97 (being Ms Heffernan's file note dated 27 February 2007).
[1365] Exhibit J7 (Tab 10) 2491 (being an email chain between Michelle Sewell, Commonwealth Office of Public Prosecutions, and Ms Prapas and Mr Kidd SC dated 21 May 2009).
[1368] Exhibit J6 (Tab 15) [4] (being the 'Outline of argument in support of joinder of Orbital and Quills counts' dated 1 October 2009).
[1375] Exhibit A178 (being an email from Mr Morrison to Ms Prapas dated 7 September 2009); T3930.7-10.
[1379] Applicant's closing submissions, 149 [577], 150 [581]. It was the joint indictment filed on 18 April 2011 to which the applicant entered a plea of guilty.
[1388] Respondent's closing submissions, 185 [695]-[696].
[1389] In the respondent's proposed answers to referral questions 10 and 11, only impropriety was conceded. See respondent's closing submissions, 158-69 [596]-[625].
[1390] Applicant's closing submissions, 156 [609].
[1391] Exhibit J7 (Tab 18) [14] (being the summary of prosecution opening for Operation Quills and Orbital dated 8 September 2010).
[1392] See, for example, Exhibit R20, 229-49 (being the statements of Mr Dunlop dated 31 May 2007 and 26 January 2009).
[1394] Evidence Act 2008 (Vic) ss 59, 76.
[1398] Exhibit R20, 293-323 (being the statements of Mr Daniels dated 6 March 2007, 4 May 2007 and 17 July 2007).
[1399] Respondent's closing submissions, 190 [710.1(c)].
[1400] Exhibit J7 (Tab 18) 2545-6 [63]-[68] (being the summary of prosecution opening for Operation Quills and Orbital dated 8 September 2010).
[1401] Respondent's closing submissions, 190 [710.3].
[1403] Respondent's closing submissions, 190 [711].
[1405] See generally, Exhibit J7 (Tab 18).
[1407] Exhibit J7 (Tab 2) 80 (being the summary of prosecution opening for Operation Landslip dated 3 September 2010).
[1411] Respondent's closing submissions, 192 [718].
[1412] Applicant's closing submissions, 158 [619].
[1413] Respondent's closing submissions, 192 [717].
[1414] Exhibit J7 (Tab 5) 1404-6 [1]-[6].
[1418] Applicant's closing submissions, 162 [637].
[1420] AB v CD & EF [2017] VSCA 338, [12]-[13].
[1421] AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58; (2018) 362 ALR 1.
[1422] Agreed facts, [406]-[409].
[1423] See my answer to referral question 11.
[1424] See my findings in relation to referral question 9. As at September 2005 the only matters which were current were Plutonium and Kayak, as the applicant was not charged with the Orbital offence until October 2005.
[1426] Mr Moloney gave evidence that immediately following receipt of the SWOT analysis on 5 January 2009 he personally delivered it to Mr Overland, giving evidence that he witnessed Mr Overland 'read it'. See T1599.12. Mr Buick also noted in his correspondence report 'file forwarded to [Mr] Overland by hand by [Mr] Moloney', see Exhibit A91; T2661.20-2662.9.
[1427] See the discussion in referral question 10 above.
[1430] Mr Overland attended a meeting with members of the SDU on 17 May 2006, where the 'termination process' for Ms Gobbo was discussed, see Exhibit J2, 21. See also T3331-3332; T1466-1467. Mr Overland also attended the Purana Taskforce's monthly meeting on 6 August 2007, where the following was discussed: 'Three options available: deactivate, ongoing management with no tasking or witness. Agreed witness not an option as source will be compromised, deactivation not an option ... agreed [Ms Gobbo] to be managed with no tasking', see Exhibit J2, 120; T3345-3346. Mr Overland attended additional meetings with members of the SDU on 25 March 2006 and 2 May 2007.
[1433] Exhibit A69, [53]-[54] (being the Maguire advice).
[1434] The DPP being the prosecutor in the applicant's then-current proceedings before the Court, and the CDPP being the prosecutorial body in the Plutonium matter.
[1438] See generally the dramatis personae included as annexure A of this judgment. Mr Cartwright was appointed in mid-2011 to the role of Acting Deputy Commissioner, Crime and operational support. While he had executive responsibility for major investigations in which Ms Gobbo was involved, they were at that date in the past.
[1440] T2237.8. See also Exhibit A129; Exhibit A130.
[1441] AB & EF v CD [2017] VSC 350.
[1442] See Exhibit R18 (being the Champion report).
[1445] See generally, AB & EF v CD [2017] VSC 350, [56]-[62] (Ginnane J).
[1446] Respondent's closing submissions, 196-8 [744]-[751].
[1449] Under the auspices of the Witness Protection Act 1991 (Vic).
[1453] T3699.18-9. See also Exhibit A152.
[1455] Respondent's closing submissions, 198 [751].
[1456] See applicant's closing submissions, 127 [475]-[478].
[1464] Ibid. These issues were discussed in greater detail in answering referral question 12B.
[1470] Exhibit A68, [7]-[8] (being Mr Fryer's affidavit). See Mr Fryer's evidence at T2240.4-8; T2243.20-1; T4266.7-9. See also Mr McRae's evidence at T3760-3764. See also Exhibit A157 (being Mr McRae's file note from the 1 June 2012 meeting).
[1471] T2243.9; T2255.26. See also Exhibit R12, 11-14 [73]-[95]. See also Mr Gardner's file note from that meeting at Exhibit R12, 239.
[1484] Exhibit A160 (being Mr McRae's file note of that meeting).
[1488] See Exhibit A160. See also Exhibit A161.
[1500] See Exhibit A109, 10; T3047.24-3048.14.
[1501] See generally, Exhibit R17, 81 (being the Kellam report).
[1504] I note that Mr Gleeson had no involvement in Operation Loricated, see T2096.
[1510] See Exhibit A166 (being the minutes of that meeting); Exhibit A167 (being Mr McRae's file note from that meeting). See also T3846-7.
[1524] Exhibit A174. See also, T3879.26-8.
[1527] Exhibit R17. This investigation was launched under the Independent Broad-Based Anti-Corruption Commission Act 2011 (Vic) s 64(1)(c).
[1532] Exhibit R18 (being the Champion report).
[1533] Criminal Procedure Act 2009 (Vic) ss 110-111. For a discussion of the basis and origins of the prosecutorial duty of disclosure, see R v Keogh (No 2) [2015] SASC 180; (2015) 255 A Crim R 546, 560 [58] (Blue J); Marwan v Director of Public Prosecutions [2019] NSWCCA 161; (2019) 278 A Crim R 592, 597 [27] (Leeming JA, with whom RA Hulme and Adamson JJ agreed) ("Marwan").
[1534] Victorian Bar Rules, rules 141-143; Professional Conduct Rules, rules 20.5-20.6, 20.8; Director of Public Prosecutions of Victoria, Director's Policy: Disclosure (8 May 2012) 5.1. See also Exhibit R12, 52 [5], 62 [5.2.10], 69-70 [5.2.17]-[5.2.19], 77 [7], 81 (being Mr Gardner's affidavit).
[1535] Roberts, 444 [56] (Osborn and T Forrest JJA and Taylor AJA).
[1537] Gavanas, 520-1 [73] (Kyrou, McLeish and Kennedy JJA), citing Roberts v The Queen [2020] VSCA 277, [127] (T Forrest and Osborn JJA and Taylor AJA).
[1539] Ibid. See also Visser, [39]-[40] (McLeish, Emerton and Osborn JJA), citing R v Forrest (2016) 125 SASR 319, 331 [62]-[63] (Kourakis CJ, with whom Kelly and Lovell JJ agreed).
[1541] Visser, [35] (McLeish, Emerton and Osborn JJA), citing Ngyuen v The Queen (2020) 269 CLR 299, 315 [37] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[1542] It was common ground that the Director had no knowledge of Ms Gobbo's status as a registered informer for Victoria Police prior to June 2012.
[1543] See, applicant's closing submissions, 174 [704].
[1545] Respondent's closing submissions, 223-4 [840]-[844].
[1547] Applicant's closing submissions, 183 [718].
[1549] Applicant's closing submissions, 182-3 [717]-[718].
[1550] See generally, AB & EF v CD [2017] VSC 350.
[1552] On 13 December 2013 an application for special leave to the High Court was refused. See Mokbel v The Queen [2013] HCATrans 321.
[1554] Respondent's closing submissions, 228 [862].
[1555] See generally, Exhibit A109; Exhibt A61; Exhibit A60; Exhibit A69.
[1557] See Mr McRae's evidence at T3760-3765; T3783-3790. See Mr Fryer's evidence at T2239-2257.
[1560] Although Mr Gardner gave evidence that to his memory Mr Gleeson was not at the meeting, he described the information that was provided by Mr McRae as vague and uncertain, see T4514.
[1564] Mr Fryer gave evidence regarding how he had referred to Ms Gobbo during that meeting, 'I would've used the word 'registered human source'. I may have used the word 'informer'. I could've used the word 'gig' ... but ... however I've described it, it was abundantly clear in that meeting that ... I conveyed the message that she was a registered human source for Victoria Police'. See T4268.11-6.
[1565] See Director of Public Prosecutions of Victoria, Director's Policy: Disclosure (8 May 2012) 5.1. I note that the policy provided that the test to be applied in in making determinations relating to disclosure was that set out in R v Farquharson [2009] VSCA 307; (2009) 26 VR 410, 464 [213] (Warren CJ, Nettle and Redlich JJA).
[1567] [2005] HCA 68; (2005) 224 CLR 125, 155-6 [81]-[82] (citation omitted).
[1568] See applicant's closing submissions, 167-8 [663]-[668].
[1569] See, for example, AJ v The Queen (2010) 32 VR 614, 620 [22] (Weinberg and Bongiorno JJA, with whom Buchanan JA agreed); R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123, 147 [81] (McColl JA, with whom RS Hulme and Hislop JJ agreed). However, compare Marwan, 601-603 [45]-[60] (Leeming JA); Ho v The Queen [2023] NSWCCA 245, [89] (Wilson J, with whom Beech Jones CJ and RA Hulme AJ agreed).
[1571] Applicant's closing submissions, 183 [719].
[1573] Respondent's closing submissions, 228-30 [864]-[868].
[1577] See generally Mr Fryer's evidence at T2239-2257; T4264.31-4270.
[1578] Exhibit A68, 2 [7]. See also, T2241.2-26.
[1582] T2255.31-2256.1. See also T4269.24-5.
[1593] Applicant's closing submissions, 178 [709.4].
[1596] Respondent's closing submissions, 226 [852].
[1602] That was the gravamen of the Maguire advice in 2011. See Exhibit A69.
[1603] See applicant's closing submissions, 166 [658], 174 [701].
[1604] See the answer to referral question 15.
[1605] On 13 December 2013 an application for special leave to the High Court was refused. See Mokbel v The Queen [2013] HCATrans 321.
[1608] See my answer to referral question 7.
[1610] Ibid. It was reported that Ms Gobbo provided intelligence relating to 164 people, see Exhibit A131.
[1611] For instance, Ms Gobbo formed relationships with former police officers such as Mr Dale and Mr Waters.
[1612] Applicant's closing submissions, 186 [732].
[1615] See my answer to referral questions 15 and 16 above.
[1623] Applicant's closing submissions, 186 [730]-[732].
[1624] I note that the CDPP was deceived by the failure on the part of Victoria Police to disclose that the applicant's junior counsel was providing intelligence during the Plutonium trial. As a result, that conviction was quashed and no retrial resulted because of the attitude of the then-CDPP to that revelation. See Mokbel v Director of Public Prosecutions (Cth) [2020] VSCA 325.
[1625] Re Mokbel (No 4) [2024] VSC 68.
[1626] Applicant's closing submissions, 186 [730].
[1631] Applicant's closing submissions, 187 [736].
[1633] Agreed facts, [119]; Exhibit A223 (being a schedule of payments made to Mr Cooper's account on behalf of Victoria Police, as prepared by Corrections Victoria); Exhibit J7 (Tab 37) (being a redacted letter to the court in relation to Mr Cooper dated 7 February 2007).
[1637] Gavanas, 522 [79] (citations omitted).
[1638] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635, 653 [52] (Kiefel CJ, Gageler and Jagot JJ).
[1639] Applicant's closing submissions, 189 [748].
[1640] T4813.25. Also see, my answer to referral question 9.
[1642] For instance, Mr Bateson had dealings with Ms Gobbo as far back as 2003. See T1691-1693.
[1643] Applicant's closing submissions, 189 [750.1].
[1645] Applicant's closing submissions, 190 [751.2].
[1646] Applicant's closing submissions, 190 [751.3]. The emails were unable to be recovered, as Dr Bagaric's Deakin University-affiliated email account that he used to communicate with Ms Gobbo was deleted subsequent to his resignation from Deakin University.
[1648] See generally Dr Bagaric's evidence at T612-687.
[1649] Applicant's closing submissions, 190 [750.2].
[1651] Applicant's closing submissions, 190 [750.3].
[1652] Respondent's closing submissions, 238-9 [902]; applicant's closing submissions, 191 [756]-[757].
[1653] Applicant's closing submissions, 191 [754].
[1655] Applicant's closing submissions, 191 [755].
[1656] See the answers to referral questions 3 and 4.
[1657] See my answer to referral question 1A above.
[1659] See generally Director of Public Prosecutions of Victoria, The Prosecutorial Discretion: Policy (14 February 2008).
[1661] Applicant's closing submissions, 192-3 [761]-[762] (original citations).
[1662] R v Mokbel (Ruling No 1) [2005] VSC 410; R v Mokbel (No 2) [2005] VSC 502; Herald & Weekly Times Pty Ltd v Mokbel [2006] VSCA 93; (2006) 161 A Crim R 238.
[1663] R v Mokbel [2006] VSC 136.
[1664] Mokbel v Director of Public Prosecutions [2005] VSC 476.
[1665] R v Mokbel [2010] VSCA 11; (2010) 30 VR 115.
[1666] Mokbel v The Queen [2010] HCATrans 329.
[1667] Mokbel v Attorney-General (Cth) [2007] FCA 1536; (2007) 162 FCR 278.
[1668] Mokbel v Attorney-General (Cth) [2007] FCAFC 161.
[1669] Mokbel v Attorney-General for the Commonwealth of Australia [2007] HCATrans 813.
[1670] Mokbel v Director of Public Prosecutions (2008) 26 VR 1.
[1671] R v Mokbel (2009) 26 VR 618.
[1672] Director of Public Prosecutions v Mokbel (Orbital & Quills - Ruling No 1) [2010] VSC 331.
[1673] R v Mokbel (Magnum - Ruling No 2 - Stay) [2011] VSC 128.
[1674] Director of Public Prosecutions v Mokbel (Orbital & Quills - Ruling No 1) [2010] VSC 331, [57]-[72].
[1675] See R v Mokbel [2010] VSC 541.
[1676] Mokbel v the Queen [2010] VSCA 354.
[1677] Exhibit A5 (being Ms Morgan's third affidavit).
[1678] R v Mokbel [2012] VSC 86; (2012) 35 VR 156.
[1679] Mokbel v The Queen [2013] VSCA 118; (2013) 40 VR 625.
[1680] Mokbel v The Queen [2013] HCATrans 321.
[1681] Respondent's closing submissions, 240 [906]. The position of the respondent was reflected in the way referral question 14 was interpreted.
[1682] Respondent's closing submissions, 241-7 [908]-[937].
[1683] Exhibit A2, 27 (being the applicant's second affidavit dated 10 September 2021).
[1688] T585.11. See also Exhibit A2, 26 (being the applicant's second affidavit dated 10 September 2021); T495.
[1690] See Grace Morgan's evidence at T569-571.
[1701] Exhibit A2, 27 (being the applicant's second affidavit dated 10 September 2021).
[1708] See generally, Jenkins v The Queen [2004] HCA 57; (2004) 211 ALR 116, 121-4 [25]-[33] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).
[1709] See respondent's closing submissions, 193-4 [729]-[730].
[1710] Mokbel v Director of Public Prosecutions (2008) 26 VR 1, [45] (Kaye J).
[1711] Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; (2018) 266 CLR 325, 369 [101] (Kiefel CJ, Bell and Nettle JJ).
[1714] The respondent accepted that referral question 20 should have read as 'fully and properly' in her oral submissions, see T5714.30-1.
[1716] R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454, 468 [46] (Hodgson JA, with whom Barr J agreed), quoting R v McIlkenny (1991) 93 Cr App R 287, 312.
[1717] Respondent's closing submissions, 249 [941].
[1719] Applicant's closing submissions, 197 [177].
[1720] An asterisk is used to designate members of Victoria Police that had retired at the time of giving evidence and the rank they held at the time of their retirement.
[1725] It was formerly known as the Dedicated Source Unit.
Mokbel
The King [2024] VSC 725
(2013) 40 VR 625
(2018) 362 ALR 1
(2020) 267 CLR 109
(2021) 273 CLR 585
(2020) 60 VR 431
(1999) 48 NSWLR 1
(2007) 230 CLR 89
(2012) 200 FCR 296
(2012) 246 CLR 469
(2019) 60 VR 231
(2017) 340 ALR 368
(2023) 414 ALR 635
(1938) 60 CLR 336
(1992) 110 ALR 449
(2019) 59 VR 511
(2008) 26 VR 1
(2011) 33 VR 440
(2012) 35 VR 156
(2022) 277 CLR 115
(2004) 219 CLR 165
(2011) 243 CLR 253
(1983) 151 CLR 422
(2010) 31 VR 123
(2015) 256 CLR 104
(2014) 251 CLR 640
(2004) 218 CLR 451
(2007) 162 FCR 278
(2019) 265 CLR 646
(2016) 257 CLR 440
(2000) 51 NSWLR 1
(1992) 175 CLR 479
(2011) 243 CLR 361
(1987) 14 FCR 434
(2009) 180 FCR 1
(1999) 201 CLR 49
(2006) 155 FCR 30
(2004) 136 FCR 357
(1996) 186 CLR 71
(1984) 154 CLR 178
(2018) 265 CLR 1
(1997) 18 WAR 467
(2001) 4 VR 501
(1997) 188 CLR 449
(2016) 333 ALR 524
(2001) 207 CLR 165
(2018) 56 VR 448
(2014) 86 NSWLR 481
(2005) 64 NSWLR 561
(1999) 21 WAR 56
(2021) 69 VR 28
(1983) 152 CLR 657
(2005) 224 CLR 125
(1957) 97 CLR 279
(2009) 252 ALR 619
(2005) 64 NSWLR 612
(1992) 174 CLR 509
(2011) 245 CLR 456
(2014) 87 NSWLR 609
(2022) 403 ALR 1
(2012) 299 ALR 621
(2011) 31 VR 82
(2013) 41 VR 330
(1992) 174 CLR 268
(1995) 184 CLR 132
(2024) 417 ALR 51
(2016) 125 SASR 319
(2020) 269 CLR 299
(2011) 32 VR 614
(2009) 26 VR 410
(2010) 32 VR 614
(2011) 82 NSWLR 123
(2008) 20 VR 677
(2014) 253 CLR 58
(2010) 30 VR 115
(2009) 26 VR 618
(2004) 211 ALR 116
(2018) 266 CLR 325
(2004) 60 NSWLR 454