Prosecution v Prosecution

Case study: Ms Gobbo's involvement in the 'Tomato Tins' drug-trafficking syndicate cases[108]

Ms Gobbo's involvement with the so-called 'Tomato Tins' drug-trafficking syndicate serves as a further example of the wide-ranging consequences of her improper conduct towards the latter period of her work as a human source.

Between February 2008 and August 2012, 33 people were arrested and charged with drug-related offences as part of three connected police operations:

• Operation Bootham Moko - AFP operation that targeted a conspiracy to import a very large quantity of MDMA hidden in tomato tins shipped from Italy to Australia.

• Operation Inca - joint operation between Victoria Police, the AFP, the then Australian Crime Commission, Australian Customs and the Australian Taxation Office targeting drug and money-laundering offences.

• Operation Cardinia - AFP investigation into MDMA trafficking.

On 28 June 2007, a large quantity of MDMA was intercepted by Australian authorities. It was at the time the largest shipment of MDMA ever seized worldwide. Numerous people were arrested, charged and convicted through Operation Bootham Moko, including Mr Pasquale Barbaro, who was found to be at the 'apex' and 'centre' of the attempted importation; Mr Karam, who was said to lead a group that attempted to take possession of the ecstasy tablets supplied and Mr Barbaro's 'major wholesale customer'; and six other associates of Mr Barbaro and Mr Karam.

Operations Bootham Moko, Inca and Cardinia, and the offending they targeted, had various causal and evidentiary connections. It is important to note that the offending targeted by Operations Inca and Cardinia occurred after the failure of the Tomato Tins conspiracy and the seizure of the MDMA; that at least some of it was seemingly prompted by a desire - particularly on Mr Barbaro's part - to recoup losses and repay debts incurred through the failure of the importation; and that this offending was detected and prosecuted partly through the inroads made during Operation Bootham Moko.

Figure 7.4 provides an overview of the people charged in the Tomato Tins proceedings, and specifically which operation they were charged under.

Ms Gobbo provided information to Victoria Police from and about people targeted by these operations. This was because she was acting for several of them. She also acted for people charged on the basis of evidence that she helped police obtain, despite acknowledging that doing so would leave her 'morally, ethically and legally conflicted'. The cases of at least 32 people arising out of these operations may have been affected by her improper conduct.

Extracts from Karam v The Queen [2022] VSC 808

...

ICRs[109] and transcribed discussions between Ms Gobbo and her handlers record that in March and June 2006, Ms Gobbo provided Victoria Police with further information about Karam, which included:

• Karam's movements including interstate travel (provided 7 March 2006);109F

• discussion on 9 March 2006 about potential conflict of interest during which one of Ms Gobbo's handlers suggested that she would have a conflict of interest in acting for a person after their arrest. Ms Gobbo replied 'What conflict? He'll be pleading guilty. What difference does it make?' The handler asked 'Well, what if it was Rob, then? 'Cause he probably wouldn't plead guilty.' Ms Gobbo replied: 'That's a different story.' Ms Gobbo's handler asked if Karam would ring her if he was arrested and Ms Gobbo responded 'Yep. All of them will, they won't... ring anyone else.' The handler observed that the situation was unprecedented and Ms Gobbo responded 'Probably is. I'm sitting now creating half - created half the or provided half the material and half the reason why they got arrested or maybe more than half.';10

• Karam thought there was a tracking device in his car and believed he was under surveillance (provided on 28 March 2006);111F

• Karam wanted to vary his bail conditions so that he could go to Queensland for a holiday with his children (provided on 8 June 2006);

• one of Karam's mobile phone numbers which was already known to police (provided on 28 June 2006).[110]

On 29 June 2006, an AFP[111] case note recorded that Victoria Police officer Jason Kelly provided Karam's mobile phone number to the AFP and that it came from an unnamed human source.114F The AFP case note also records that AFP investigators had been aware of Karam's use of this telephone for some months and had previously advised Purana Taskforce investigators of this number.115F In evidence, Supt Kelly could not recall whether that human source was Ms Gobbo116F but I accept that it is likely that it was.[112]

...

On 20 September 2006, an AFP information report recorded that the AFP received information about Karam and an alleged importation of cigarettes. It is likely that Ms Gobbo was the source of this information.[113]

On 21 September 2006, an AFP case note recorded that the AFP received information from Victoria Police about an MDMA importation of 5 million tablets. The case note recorded that Karam is alleged to be involved in the importation. 2 It is likely Ms Gobbo was the source of this information.[114]

On 28 September 2006, Victoria Police officers Jason Kelly and Jim O'Brien met with the AFP to discuss the contents of two information reports received concerning the activities of Brian Armatruda and Fedele D'Amico. During that meeting, Jason Kelly and O'Brien were shown information reports. An AFP case note recorded that "[w]hen shown the second information report stating that [Armatruda and D'Amico] were undertaking an importation of narcotics, both KELLY and O'BRIEN stated that they were aware of that information as it had originated from a human source currently assisting the Purana Taskforce. Both stated that they believe the information to be quite credible".[115]

In January and February 2007, Ms Gobbo provided regular information to her handlers about Karam's activities.[116]

This included information that Karam had said he was waiting for a phone call from his man in Customs to discover the reasons for three containers going missing. Karam was considering he may be being ripped off by somebody on his side. Karam had told Ms Gobbo that a fourth container was on its way (provided on 26 February 2007).[117]

...

The respondent accepts that the investigation into the Tomato Tins importation commenced on 5 June 2007, although the AFP did not become involved until 28 June 2007.[118]

...

As with the bill of lading however, whether such information concerning the Pacific International Apartments was truthful or not, it was nonetheless relevant on its face to the Tomato Tins offending with which Karam was subsequently charged and was adverse to Karam. The information provided by Ms Gobbo directly associated Karam with the conspirators. The provision of information concerning a proposed meeting at the Pacific International Apartments may thus be seen to have potentially created a conflict between Ms Gobbo's role as an informer and subsequent activity as the legal representative or advisor of Karam.[119]

For completeness, I note that there is no record that this information was passed to the AFP. Moreover, Federal Agent Brener gave evidence that:

... in relation to material the AFP receives during investigation, it would be unusual for the information not to appear in a document, in an MIR running log if there is a major incident room running, and an email, a diary record, anything that's in written form of some description, a PROMIS[120] entry. You would expect that a piece of information that is as significant as is alleged here in this material, that would appear in document form in some way.[121]

...

An ICR on 15 June 2007 indicated that Victoria Police officers told Ms Gobbo that they had worked out how to deal with the container without compromising Ms Gobbo. Victoria Police used Customs as a conduit for Victoria Police to notify the AFP of the suspected importation. Victoria Police met with Customs.[122]

Records relating to these meetings show that Ms Gobbo's handlers were aware that her actions as an informer may place her in danger. A diary entry made by Officer Sandy White on 19 June 2007 recorded that a representative of Customs was advised 'VicPol has source + may be able to get cont. no. but not sure if worth risk to HS.'[123]

...

The information was then supplied to the AFP. It is not in dispute that on 21 June 2007, the ACC[124] told the AFP that it understood the source to be a human source controlled by Victoria Police. There is no evidence the AFP knew who the human source was or how the human source had obtained the relevant information.[125]

...

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

• prior to and during the course of the Tomato Tins and Inca offending; and

• during the preliminary stages of the Tomato Tins proceeding.[126]

The information supplied prior to Karam's arrest was significant in the respects I have summarised at [157] above.1[127]

Ms Gobbo further informed after Karam's arrest with respect to the matters I have summarised at [161] above.[128]

For the reasons I have expressed, I am satisfied Ms Gobbo also gave Karam advice with respect to [redacted] Operation Kennels, the investigation into alleged conspiracy to murder arising out of the conduct of the offenders involved in the Tomato Tins and Inca offending. Ms Gobbo also assisted Karam in the preparation of a draft police statement. This advice and assistance had the effect of assisting Victoria Police in respect of that investigation but I am not satisfied that the advice and statement preparation were provided primarily for that purpose.666F Rather, having regard to the evidence as a whole, the probability is the advice and statement preparation were given in pursuance of the pretext conspiracy defence which reflected Karam's instructions.[129]

Ms Gobbo also assisted Victoria Police by providing them with a copy of the GEMS brief prepared by the AFP for the purpose of the Tomato Tins, Inca and Hong Kong proceedings. Once again, I take the view that the probability is that this was done in order to advance the pretext conspiracy defence.[130]

The respondent submits that the ICRs on which Karam relies include information as to Ms Gobbo's activities which do not fall within the description of informing on the applicant.667F Whilst as a matter of strict language this may be correct, they involved informing with respect to matters relevant to the applicant and, in this sense, potentially assisted police. Information that Ms Gobbo was working on Karam's brief or taking other action on his behalf falls within this category. As the respondent accepts, such information is relevant contextually,668F it may also directly evidence conduct which was undertaken when Ms Gobbo was subject to conflict of interest.[131]

Similarly, the respondent submits that advice to Jason Kelly that Karam wanted to sign a statement was not strictly informing. It constituted an action taken on instructions.669F Nonetheless, it is relevant to an understanding of the course of events and as evidence of an action taken on behalf of Karam at a time when there is controversy whether or to what extent Karam received and acted on advice from Ms Gobbo.[132]

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

• the bill of lading was foundational to the Tomato Tins investigation;

• the telephone numbers supplied to Victoria Police assisted in the Tomato Tins investigation (although it cannot be determined to what extent that assistance was material);

• information as to Karam's alleged statements concerning drug importations helped make him a person of interest to police; and

• information as to Karam's activities generally potentially assisted police in ongoing surveillance.[133]

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is probable that this information derived from Ms Gobbo. The evidence of the informant, Mr Herman, is that this information related to a separate operation known as Operation Trudere and did not relate to Operation Bootham-Moko or Inca.[134]

...

A deliberate strategy was adopted by Victoria Police to conceal the identity of Ms Gobbo as an informer.[135]

...

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

• to seek the exclusion of evidence on the basis that it was improperly obtained; and/or

• to obtain a stay of the proceeding if public interest immunity had successfully been claimed with respect to evidence of Ms Gobbo's conduct.[136]

Karam submitted such a stay might be granted because disclosure of Ms Gobbo's identity was necessary to ventilate challenges under s 138 of the Evidence Act to the admissibility of evidence and more generally on the basis that the use of Ms Gobbo in the investigation constituted an abuse of process by Victoria Police.[137]

These possibilities are essentially speculative and have not been shown to have a realistic evidentiary basis.[138]

First, the grounds of appeal do not raise a direct challenge to the admissibility of the evidence adduced at trial. In consequence, the evidence adduced by the parties has not facilitated the evaluation of such a challenge. Most obviously, the evidence at trial has not been tendered before me (save for limited parts of the transcript). Further, no specific items of evidence have been identified by Karam as the putative subject of exclusionary challenge.[139]

Secondly, Karam denies that he:

• supplied the bill of lading to Ms Gobbo;

• advised Ms Gobbo of a meeting at the Pacific International Apartments; and

• advised Ms Gobbo of knowledge of the ongoing status of the Tomato Tins importation.[140]

It follows that a substantial body of material contained in the ICRs is contested by Karam himself as to its truth. It is difficult in these circumstances to see how, for example, a challenge could be brought by Karam on the basis that he supplied the bill of lading to Ms Gobbo.[141]

Thirdly, it is apparent that the bulk of the information which Ms Gobbo passed on to her handlers was obtained on social occasions and was not provided to her either for the purpose of obtaining professional legal advice or for the purposes of litigation. Thus Mr Higgs' telephone number was obtained when Ms Gobbo overheard it at the dinner table and the meetings between Karam and other alleged conspirators which Ms Gobbo described to her handlers were on the face of it social in nature. No piece of information was specifically identified as having a character which cloaked it with legal professional privilege.[142]

Fourthly, the informing potentially bearing on evidence adduced against Karam related to continuing offending. The informing occurred during the actual course of the offences subsequently charged. As such, disclosure of its subject matter was on the face of it not protected by duties of confidence and loyalty owed by a legal adviser.[143]

Fifthly, the information Ms Gobbo supplied was essentially preliminary in nature. The evidence which was adduced at the trials was objective evidence obtained subsequent to the informing. The reliability and probative force of the evidence was in no way diminished by the fact that it flowed from antecedent informing. Thus, as I understand it, the copy of the bill of lading provided by Ms Gobbo to her handlers was not itself in evidence but the fact of the importation and contents of the Tomato Tins container were. The surveillance, telephone intercept and covert recording evidence spoke for itself. Its force did not turn upon the nature of any antecedent tip-offs. It is, in my view, unrealistic to suggest that evidence of this nature would readily be excluded pursuant to s 138 of the Evidence Act.[144]

Sixthly, the offending was very serious and it is improbable if the above problems could be overcome that the direct evidence of such offending would be excluded in the balancing exercise required by s 138.[145]

Insofar as the possibility of a stay is concerned, the real relevance of Ms Gobbo's identity as the source of the bill of lading or other background information relating to the evidence is equally problematic. The evidence before me does not provide a satisfactory basis for concluding that there is a realistic possibility that the prosecutions of Karam would have been stayed if a public interest immunity claim had been made with respect to Ms Gobbo's identity prior to trial.[146]

...

1(Citations omitted.)

[1] For completeness, one of the 45 Warrant Affidavits supported an application for the issue of a tracking device authorisation rather than a warrant, but nothing turns on this.

[2] Methylenedioxymethamphetamine, also referred to as ecstasy.

[3] See, for example, fn 24 below.

[4] Karam v The Queen [2022] VSC 808, [127]-[128] (Osborn JA).

[5] Zirilli was observed as early as 15 June 2007 at this location and both Barbaro and Zirilli were likewise observed by Federal Police surveillance operatives on 26 and 27 June 2007.

[6] No joint agency agreement was ever entered into.

[7] But see further fn 10 below.

[8] Specific to Potter, he was alleged to have trafficked at least 45,000 ecstasy tablets between January and August 2008, contrary to s 302.2(1) of the Criminal Code.

[9] In relation to other persons charged in connection with Operation Inca and the Tomato Tins Importation, numerous guilty pleas and convictions resulted. Some of the convictions have been unsuccessfully challenged as a result of allegations raised during the Royal Commission: see par 36 below.

[10] Operation Cardinia was a Federal Police operation related to Operation Inca concerned with investigating MDMA trafficking, the main target of which was Karam.

[11] Barbaro was also charged with conspiracy to murder another person.

[12] See par 10 above.

[13] AB v CD and EF [2017] VSCA 338 (Ferguson CJ, Osborn and McLeish JJA).

[14] A pseudonym was used by the High Court. Gobbo was not publicly identified as the person who was known as "Lawyer X" until early 2019.

[15] AB v CD [2018] HCA 58; (2018) 362 ALR 1, 4 [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

[17] "Convicted Persons" was a reference to Antonius Mokbel and 6 of his criminal associates, none of whom was Potter.

[18] AB v CD [2009] FCA 1227; (2018) 262 ALR 1, 4 [10].

[21] Ibid, 5 [12]. See also Chief Commissioner of Police v Crupi [2024] HCA 34; (2024) 419 ALR 271, 277 [20] (Gageler CJ, Edelman and Beech-Jones JJ).

[23] See further pars 45-46 below.

[24] M McMurdo AC, Royal Commission into the Management of Police Informants Final Report, 30 November 2020.

[25] Ibid, Vol II, 48, 51-53. A copy of this section of the Final Report is annexed to these reasons marked "Annexure A".

[26] Operation Posse was established by Victoria Police in 2004 and was conducted by the Purana Taskforce. It investigated the manufacture of methamphetamine by the Mokbel family and associates in 3 clandestine laboratories.

[28] See Vol II, 51-53, Figure 7.4: "Involvement of Gobbo with people charged in the 'Tomato Tins' drug-trafficking syndicate, June 2007 to August 2008".

[29] Volume II, 11-12, Figure 7.1, 57, Box 7.1.

[30] [2022] VSC 808 (Osborn JA). This judgment was delivered pursuant to a reference under s 319A of the Criminal Procedure Act 2009 (Vic).

[31] Potter also referred to [24]-[37] of this judgment in his submissions relating to the Karam Subpoena. As this subpoena is not the subject of any ruling these paragraphs of the judgment have not been included in annexure B. For completeness, annexure B also contains paragraphs of the judgment referred to in the Federal Police's submissions.

[32] See par 23 above.

[33] [2024] VSC 725 (Fullerton J).

[35] More specifically, [3]-[19] of the prosecution opening were referred to. It is unnecessary to set out all the detail of the various meetings and events that it is alleged took place in 2007 and 2008.

[36] R v Saleam [1999] NSWCCA 86, [11] (Simpson J, with whom Spigelman CJ and Studdert J agreed). See also Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, 555 [80] (Beazley JA, with whom James and Kirby JJ agreed).

[37] 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18]-[19] (Derham AsJ), and the cases there cited; Webb v Wheatley [2015] VSC 153, [55]-[56] (Derham AsJ), and the cases there cited; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 61, [6] (Collier J).

[38] Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(a)] (J Forrest J) and the cases there cited; R v Saleam (1989) 16 NSWLR 14, 18C (Hunt J, with whom Carruthers and Grove JJ agreed).

[39] Rinehart v Rinehart [2018] NSWSC 1102, [48] (Ward CJ in Eq); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [20] (Derham AsJ); Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(d)].

[40] Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(g)] and the cases there cited.

[41] Rinehart v Rinehart [2018] NSWSC 1102, [47] (Ward CJ in Eq); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(c)]; Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(c)]; Director of Public Prosecutions v Selway (No 2) [2007] VSC 244; (2007) 16 VR 508, 512-514 [8]-[10] (Cummins J); Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414.5 (Gibbs CJ).

[42] Webb v Wheatley [2015] VSC 153, [55(e)] (Derham AsJ) and the cases there cited; Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(a)] and the cases there cited.

[43] 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(f)]; Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(f)] and the cases there cited.

[44] State of Victoria v Lane [2012] VSC 328, [20] (Kyrou J); Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(e)] and the cases there cited; Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26] (Redlich and Mandie JJA).

[45] Holloway v State of Victoria [2015] VSC 526; (2015) 73 MVR 145, 160 [47] (Cavanough J), citing Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, 550-551 [59]-[63] (Beazley JA, with whom James and Kirby JJ agreed).

[46] This principle was applied in R v Mokbel (Ruling No 1) [2005] VSC 410, [45]-[46], [71]-[76] (Gillard J) and the cases there cited, where legitimate forensic purpose was demonstrated by the accused in respect of documents that could provide information relevant to the credibility of the police officers that were central to the Crown case. See also Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(g)] (J Forrest J) and the cases there cited.

[47] Shaw v Yarranova Pty Ltd [2011] VSCA 55, [26] (Redlich and Mandie JJA).

[49] See fn 36 above.

[50] Director of Public Prosecutions v Debono [2012] VSC 350; (2012) 268 FLR 261, 306 [212] (Kyrou J); Victoria v Lane [2012] VSC 328, [18] (Kyrou J).

[51] Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, 324 [97] (Bell J).

[52] Commissioner of Australian Federal Police v Song (Subpoena Objection) [2023] VSC 273, [17] (Forbes J); 1045 Burke Rd Pty Ltd v Bosi [2018] VSC 157, [18(g)] (Derham AsJ); Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3, [28(f)] and the cases there cited. This should not to be understood as an encouragement for subpoenaed parties to take blanket objections to every document of which production is sought on the basis that no legitimate forensic purpose is served by its production: see R v Saleam (1989) 16 NSWLR 14, 19B (Hunt J, with whom Carruthers and Grove JJ agreed).

[53] Evidence Act, s 138. Such evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting the evidence: subs (1).

[54] Chief Commissioner of Police v Zammit [2023] VSC 635, [65] (Richards J), citing R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82, 87 [20] (Howie J).

[55] Ibid, [63]-[64], quoting Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 109; (2018) 359 ALR 142, 154-155 [53]-[54] (Basten JA, with whom Johnson and Adamson JJ agreed). See also Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 100.8 (McHugh J), citing cases including Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 443.7 (Mason CJ, Brennan, Gaudron and McHugh JJ); Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, 204D (Beaumont, Ryan and Lindgren JJ).

[56] Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, 79.8-80.7, 85.2 (Toohey J), 87.5 (Gaudron J) 100.6 (McHugh J), 125.8-126.8, 127.5, 131 (Gummow J).

[57] Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149, 216E-217G; Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542, 555D, 560C-564B (Beaumont and Whitlam JJ), 569E, 570F (Hill J).

[58] See par 53 above.

[59] Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 88.8 (Brooking J, with whom Southwell and Teague JJ agreed).

[60] On a broad meaning of credibility, the term also encompasses reliability: ibid, 93.3.

[61] See, for example, fn 46 above; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, 315 [64] (Bell J), citing Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125, 155 [81] (Kirby J). See also Jovanovski v The Queen [2008] NSWCCA 9; (2008) 181 A Crim R 372, 377 [22]-[23] (Hodgson JA, with whom Kirby and Buddin JJ agreed).

[62] Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 91.4 (Brooking J, with whom Southwell and Teague JJ agreed).

[63] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 438.7 (Wilson and Dawson JJ, dissenting), 455.3 (Brennan J). Brooking J in Jarvie v Magistrates' Court of Victoria [1995] VicRp 5; [1995] 1 VR 84, 91.2 refers to a "strong enough case", but noting that phrase was used in a case concerned with non-disclosure of the identity of undercover police operatives who were to give evidence.

[64] A "Form 32" is a case direction notice, being the form prescribed by r 59 of the Magistrates' Court Criminal Procedure Rules 2019 (Vic) for the purposes of s 119(a) of the Criminal Procedure Act.

[65] See also par 93 below.

[66] These are the product of warrant affidavits listed in rows 3, 10, 16, 25, 26, 28, 29, 31, 36, 38, 39 and 43 of the table to the Federal Police Subpoena. See further par 79 below.

[67] Home Office v Harman [1983] AC 280.

[68] It is unnecessary to address Potter's submissions erroneously premised on the supposition that the Former Officer had been dismissed as there was no evidence to support this.

[69] The Court was informed that the Former Officer will be available to attend and give evidence if required to do so under s 198B of the Criminal Procedure Act. The defence initially relied upon what was believed to be the Former Officer's unavailability as a factor which exacerbated the prejudice claimed in being unable to attack the Former Officer's character, credibility and reliability.

[70] See fn 61 above.

[71] The defence intends to refer to a number of draft statements allegedly generated from information provided by Potter with the involvement of the Former Officer, as well as alleging that the Former Officer was engaged in oppressive, intimidatory and overbearing conduct when dealing with Potter.

[72] See confidential annexure C to these reasons.

[73] The Federal Police Subpoena sought each warrant and any affidavit "and supporting material, including exhibits, annexures to any affidavit or the like filed by Australian Federal Police (or other law enforcement agency)" with respect to the 45 Warrant Affidavits.

[74] See pars 65-66 above.

[75] The warrant affidavits listed in rows 19, 30, 34 and 39 of the Federal Police Subpoena.

[76] Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 174.4, 177.7-180.3 (Kirby ACJ, dissenting obiter dictum) and Peters v Attorney-General (NSW) (1988) 84 ALR 319, 335.1 (McHugh JA, with whom Kirby P and Mahoney JA agreed) were relied upon for the proposition that courts have the capacity to review warrants in appropriate cases.

[77] Except with respect to a minor error in a date in her affidavit (which was corrected by Brener giving oral evidence at the hearing), Brener was not the subject of cross-examination with respect to the contents of her affidavit.

[78] That is, Police Realtime Online Management Information System, being an information system used by the Federal Police.

[79] These persons included Barbaro, Falanga, Higgs, Karam and Zirilli.

[80] See pars 98-100 below.

[81] See par 25 above.

[82] Of the 45 Warrant Affidavits, only 3 of the affidavits (that provided warrant product to be relied upon in this proceeding) made reference to the Pacific International Apartments, being those listed in rows 3, 10 and 16 of the table to the Federal Police Subpoena.

[83] See par 25 above.

[84] See par 22 above.

[85] In addition, Brener's affidavit provided details of the formulation of this information in the remaining warrant affidavits.

[86] See par 66 above.

[87] See par 39 above.

[88] See par 58 above.

[89] See pars 23 and 45 above.

[90] See fnn 53, 73 above. Amongst other cases, Potter also referred to Karam v The King [2022] VSC 808 (Osborn J); Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327 (McLeish, Emerton and Osborn JJA), which Potter distinguished on the basis that the balancing exercise under s 138 of the Evidence Act would be very different because Potter was not involved in the Tomato Tins Importation (T101.01); R v Petroulias (No 8) [2007] NSWSC 82; (2007) 175 A Crim R 417, 437-438 [82] (Johnson J), though this paragraph refers to submissions of counsel rather than any finding; R v Turner (No 14) [2001] TASSC 124, [96]-[97] (Blow J), but see also at [98]-[100].

[91] Thus, s 57 of the Evidence Act did not provide any basis for finding the evidence relevant.

[92] The court was informed that "many" of the deponents in relation to the 45 Warrant Affidavits are not witnesses in this proceeding. In response to this, the defence stated that Potter would be requiring all officers who secured warrants relevant to the Tomato Tins Importation to be called. It was also stated that if the prosecution did not agree with position, then an application would be made to the court to invite the prosecution to reconsider its position. On the present application, the court was not invited to express a view on this issue, and as these reasons demonstrate, it is not necessary to do so on this occasion.

[93] Including because the same police officer was involved in obtaining the relevant warrants.

[94] See par 61 above.

[95] See par 103 above.

[96] See annexure B, Karam v The King [2022] VSC 808, [76]-[77], [79]-[83] (Osborn J).

[97] For completeness, in addition to the information concerning the Pacific International Apartments, the evidence demonstrated that some other pieces of information provided by Gobbo to Victoria Police that were passed on to the Federal Police were already known by the Federal Police: see, for example, annexure B, Karam v The King [2022] VSC 808, [77].

[98] The time range for the documents sought commenced on 8 June 2007.

[99] Potter submitted the court should not accept Brener's evidence because of the alleged failure to address information provided by Gobbo in 2006.

[100] Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327, [134] (McLeish, Emerton and Osborn JJA); Wu v The Queen [2020] VSCA 94, [106] (T Forrest, Emerton JJA and Croucher AJA).

[101] Karam v The King [2023] VSCA 318, [274] (Beach, McLeish and Kennedy JJA); cf Visser v Director of Public Prosecutions (Cth) [2020] VSCA 327, [135].

[102] See par 80 above.

[103] See par 59 above.

[104] See pars 103-105 above.

[105] See, for example, Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 52 FCR 542, 555B (Beaumont and Whitlam JJ).

[106] See also ibid, 566D-569F (Hill J).

[107] Unintentional or otherwise: cf Seven West Media Ltd v Commissioner, Australian Federal Police [2014] FCA 263; (2014) 223 FCR 234, 257-258 [105]-[110] (Jagot J).

[109] That is, Informer Contact Reports.

[110] Karam v The Queen [2022] VSC 808, [76] (Osborn JA).

[112] Karam v The Queen [2022] VSC 808, [77].

[120] Understood to be an acronym to Police Real-time Online Management Information System, the information management system used by the Australian Federal Police.

[121] Karam v The Queen [2022] VSC 808, [115].

[123] Ibid, [125]. "HS" is understood to be an acronym for "human source".

[125] Karam v The Queen [2022] VSC 808, [130].