1. On 27 September 1999, the applicant, Dragan Arnautovic, was found guilty by a jury of the County Court of Victoria of trafficking a commercial quantity of heroin between 11 September and 18 November 1997. On 13 October 1999, he was sentenced to 12 years' imprisonment with a non-parole period of nine years. Amongst other aspects, the other orders included that the applicant was sentenced as a serious drug offender.
2. The applicant applied for leave to appeal against conviction and sentence, but later abandoned the conviction appeal application.[1] Therefore, only the sentence appeal came before this Court. Other than ordering that the record be corrected to delete the reference to the applicant being sentenced as a 'serious drug offender' within the meaning of the Sentencing Act 1991, by majority the Court dismissed the application.[2]
3. The applicant now seeks leave to appeal against the conviction under s 326A in pt 6.4 of the Criminal Procedure Act 2009 ('CPA').[3]
4. In broad terms, the applicant's proposed grounds of appeal under pt 6.4 of the CPA rely upon the fact that for some period of time between his arrest and conviction he was represented by a barrister, Ms Nicola Gobbo, who has since been identified as a police informer for Victoria Police. She was a subject of the Royal Commission into the Management of Police Informants (RCMPI) conducted by the Honourable Margaret McMurdo AC as Commissioner during 2019 and 2020.[4] The applicant set out the following proposed grounds:

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

Ground 2: Victoria Police's use of Nicola Gobbo as an informer amounted to an abuse of process.

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

1. To obtain leave to appeal for a second and subsequent appeal under pt 6.4 of the CPA, an applicant must satisfy this Court there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Section 326C explains the meaning of 'fresh' and 'compelling'. In substance, the evidence must not have been and, even with the exercise of reasonable diligence could not have been, adduced at trial; and it must be reliable, substantial, and either highly probative or such that it would have eliminated or substantially weakened the prosecution case if presented.
2. In support of his application for leave, the applicant has filed a substantial body of affidavits and other material. It is unnecessary to descend into any detail about that body of material at this point other than to say that it has given rise to a degree of dispute about its admissibility, accuracy and its quality as either 'fresh' or 'compelling'.
3. At a directions hearing in May this year, we decided to pursue the course of referring issues or matters for determination by the Trial Division of this Court pursuant to s 319A of the CPA.[5] To facilitate the identification of the issues or matters to refer, the Court made directions requiring the parties to file a series of documents with the aim of identifying the facts which are agreed, not agreed but not disputed, and disputed. Further, the parties have been required to file and serve lists of proposed issues they contend should be the subject of the reference under s 319A.
4. Ultimately, the parties have produced a list of issues, expressed in the form of questions, upon which they substantially agree. Following further oral submissions and concessions, there are only a few matters on which there remains disagreement. The proposed questions were as follows, with the emphasised portions being those sought by the applicant but either not agreed to or not supported by the respondent:[6]

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

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

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

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

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

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

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

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

a. Did she facilitate Person 2's cooperation with police?

b. What ongoing assistance did she provide to the police in relation to Person 2?

c. What role did she play in facilitating any other Carron and/or Hamadan suspect's cooperation with police or other investigatory body?

d. What cooperation did any other Carron and/or Hamadan suspect provide?

e. What role did she play in the resolution of other Carron and/or Hamadan matters?

g. What of the above did she disclose to the applicant?

h. What knowledge of Gobbo and Victoria Police's status as an informer did the OPP and the DPP have?

i. What of the above did Victoria Police or the Crown disclose to the applicant?

1. We agree with the questions jointly proposed or agreed by the parties together with the additional questions proposed by the applicant, except for the second sentence in Question 5, and paragraph (d) of Question 8.
2. The second sentence in Question 5 raises an issue that is too close to the ultimate issue to be determined by this Court. Question 8(d) would require the exploration of matters that lack a sufficient connection to the issues raised by the proposed grounds of appeal (and, sensibly, was not pressed by the applicant in oral submissions).
3. The respondent submitted that the topics raised in Questions 7 and 8, generally, are broad in scope, might more efficiently have been the subject of an order under s 317 of the CPA and, if raised earlier, may have been capable of being agreed between the parties. As observed during discussion, there is utility in referring more rather than less to ensure that all matters that need to be determined are determined and, in any event, it remains open to the parties to continue to explore areas of agreement (and they are encouraged to do so).
4. Accordingly, the orders that we will make are those set out above, save for the last sentence in Question 5 and paragraph (d) of Question 8.

[1] By Notice filed 28 August 2000 ('the abandoned application').

[2] R v Arnautovic [2001] VSCA 34, [16] (Brooking JA with whom Charles JA agreed, Winneke P dissenting).

[3] The applicant has also applied to reinstate the abandoned application.

[4] The Commissioner was appointed on 13 December 2018 and her final report was delivered 30 November 2020.

[6] As a result of further orders made on 19 May 2022 upon the application of the Chief Commissioner of Police, two persons identified in the proposed evidence, and referred to in the some of the questions below, are to be referred to by the pseudonyms 'Person 1' and 'Person 2'.