Barbaro v The Queen [2021] VSCA 370 (23 December 2021)

Last Updated: 23 December 2021

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0116

DOMINIC BARBARO	Applicant
v
THE QUEEN	Respondent

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JUDICIAL REGISTRAR:	McCANN JR
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2021
DATE OF JUDGMENT:	23 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 370

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CRIMINAL LAW – Appeal – Practice and procedure – Production of documents – Applicant seeks documents from Chief Commissioner of Victoria Police – Dispute over date range of documents – Dispute over breadth of categories of documents – Whether legitimate forensic purpose – Criminal Procedure Act 2009 s 317.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Sarah Tricarico Lawyers
For the Respondent	Ms A Martin	Director of Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Mr J Bayly and Ms A Yuan	Victorian Government Solicitor’s Office

McCANN JR:

Introduction

1 On 15 October 2008 the applicant, Mr Dominic Barbaro (‘the applicant’) entered a plea of guilty to one count of conspiracy to traffic in a commercial quantity of a drug of dependence, namely phenyl–2–propanone (a substance used in the manufacture of methylamphetamine) in the County Court of Victoria. On 15 December 2008, the applicant was sentenced to two years and nine months imprisonment, of which two years was suspended for a period of three years.^[1]
2 On appeal against sentence to this Court on 4 May 2009, the applicant was re–sentenced to two years imprisonment, of which 15 months was suspended for a period of three years from the date of sentence.^[2]
3 The applicant has not previously appealed against his conviction and has served out the sentence imposed.
4 On 10 September 2021, the applicant applied for leave to appeal against his conviction pursuant to s 274 of the Criminal Procedure Act (2009) (‘CPA’). Given the delay in making such an application he also seeks an extension of time in which to file his application and relies on the contents of an affidavit sworn by Ms Sarah Tricarico in support of this application.
5 The applicant advances a single ground of appeal with a number of particulars, being that:

A substantial miscarriage of justice has been occasioned due to Victoria Police’s use of Nicola Gobbo as an informer. In particular:

(a) legal advice the applicant received was not independent, in circumstances where his barrister was an informer for Victoria Police; and/or
(b) investigators (and ultimately the prosecution) gained an unfair advantage by reason of the barrister for the applicant and “Mr Cooper” (a pseudonym) being a police informer; and/or
(c) investigators failed to disclose to the applicant that his barrister was a police informer; and/or
(d) investigators failed to disclose to the applicant that his barrister also acted for the primary prosecution witness against him; and/or
(e) investigators failed to disclose to the applicant that Victoria Police had made payments to the primary prosecution witness, “Mr Cooper” (a pseudonym), as was subsequently revealed in Cvetanovski v The Queen [2020] VSCA 272; and/or
(f) investigators failed to disclose to the applicant that “Mr Cooper” had himself originally been arrested due to the improper or unlawful conduct of Victoria Police and Ms Gobbo; and/or
(g) the plea negotiations were infected as a result of the above matters; and/or
(h) a fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice has miscarried.

6 On the same date, the applicant also made an application to the Court for the following orders for the production of documents by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’) pursuant to s 317 of the CPA:

1. All materials relating to information exchanged between Nicola Gobbo and Victoria Police between 1 September 2004 (being one year before Ms Gobbo’s registration as a human source) and 5 June 2009 (being one month after the applicant’s sentence was successfully appealed) regarding:

i. “Mr Cooper” (a pseudonym); and/or
ii. the applicant.

2. All materials relating to information exchanged between “Mr Cooper” and Victoria Police between 1 September 2005 (being the month of Ms Gobbo’s registration as a human source) and 5 June 2009 (being one month after the applicant’s sentence was successfully appealed) regarding:

i. the applicant; and/or

2. payments or other benefits (including comforts) sought by or offered to “Mr Cooper”.
100. To the extent that they are not covered by the above, all materials between 1 September 2004 and 5 June 2009 relating to the decision of “Mr Cooper” to cooperate with the authorities in respect of the prosecution of the applicant and/or Shane Moran and/or Frank Ahec.

4. To the extent that they are not covered by the above, all materials between 1 September 2004 and 5 June 2009 relating to benefits (including but not limited to payments and comforts) provided to or sought on behalf of “Mr Cooper”.
5. All affidavits in support of warrants obtained during the course of the investigation leading to the applicant’s convictions.

7 The Chief Commissioner contested the categories sought and pursuant to orders made on 10 November 2021, both the applicant and Chief Commissioner filed the following further material in relation to the making of orders for production:

(a) Applicant’s submissions in support of s 317 application dated 19 November 2021;
(b) Submissions of the Chief Commissioner of Police dated 3 December 2021; and
(c) Affidavit of Timothy James McKinney affirmed 3 December 2021.

8 The submissions exchanged and affidavits filed made clear that the issues for determination were confined to the date range and breadth of content in documents sought to be produced.
9 The contested application was heard on 8 December 2021. Discussions between the applicant and Chief Commissioner prior to the hearing refined the issues relating to the categories and identified a further issue in relation to the timeliness of production. On 7 December 2021, the further affidavit of Commander Millett was filed in respect of this issue. Given the delay in receiving materials experienced by the applicant to date,^[3] I sought to expedite matters by announcing the orders of the Court on 8 December 2021. I asked the parties to resolve the issue of the timetable for production and advised that I would provide my reasons at a later date. The categories of documents ordered for production are contained in Schedule A of the orders included at the end of these reasons.
10 It was apparent in the week following the hearing that a timetable for production was unable to be resolved. The parties asked that I determine that issue on the papers. I did so in the manner set out in the orders at the end of these reasons.
11 What follows are my reasons in respect of both the categories of documents ordered for production and the timetable for their production.

Background

12 The applicant was arrested on 17 May 2006 in relation to a drug manufacturing enterprise centred on a methamphetamine lab in Strathmore. Charged in relation to the same enterprise were Mr Cooper (a pseudonym), Zlate Cvetanovski, Tony Bayeh, Akl Hammoud, Abdul Khoder, Milad Mokbel and Horty Mokbel. The investigation that resulted in these arrests was conducted by Operation Posse, an operation that was part of the Purana Taskforce from 31 October 2004 until 4 May 2009.
13 The prosecution case against the applicant included the evidence of Mr Cooper. It is part of the applicant’s case on this appeal that without Mr Cooper’s evidence the case against the applicant was weak.
14 Counsel for the applicant submits that former barrister, Ms Nicola Gobbo (‘Ms Gobbo’) acted for the applicant on several occasions between December 2006 and December 2008. Submissions of counsel assisting (‘counsel assisting’) the Royal Commission into the Management of Police Informants (‘RCMPI’) record an appearance at a committal mention on 15 December 2006 as well as two conferences prior to this date on 6 and 11 December 2006. They also record advice on appeal against sentence on 22 December 2008.^[4]
15 On 1 March 2019, it was publicly revealed that Ms Gobbo had been a registered police informant and, relevant to the applicant’s matter, was registered as an informer with Victoria Police between 16 September 2005 and 13 January 2009. Prior to 2019, the applicant was unaware of this. Records presented to the RCMPI and included in the submissions of counsel assisting show that Ms Gobbo provided information to Victoria Police in relation to the applicant.^[5]
16 Ms Gobbo also represented Mr Cooper in relation to numerous legal proceedings between 2002 and 2007. Mr Cooper was arrested as part of Operation Posse on 22 April 2006. Ms Gobbo advised him prior to the police interview in which he agreed to provide assistance to Victoria Police. This was 25 days prior to the arrest of the applicant on 17 May 2006.
17 In my assessment, the following dates are also relevant background to the consideration of the production sought by the applicant:

(a) 31 October 2004 – Operation Posse commenced.
(b) 16 September 2005 – Ms Gobbo registered as a police informant for the third time.
(c) 22 April 2006 – Mr Cooper arrested at the Strathmore methamphetamine lab and commenced making statements.
(d) 17 May 2006 – Applicant arrested.
(e) 6 and 11 December 2006 – Ms Gobbo advises the applicant.
(f) 15 December 2006 – Ms Gobbo appears for the applicant at committal mention.
(g) 15 December 2008 – The applicant is sentenced by the County Court.
(h) 22 December 2008 – Ms Gobbo advises the applicant on an appeal from sentence.
(i) 13 January 2009 – Ms Gobbo deregistered as a human source.
(j) 27 February 2009 – Operation Posse concluded.
(k) 4 May 2009 – Date of judgment in relation to the applicants appeal against sentence.

Applicable statutory provisions and legal principles

18 The applicant seeks leave to appeal against his conviction pursuant to s 274 of the CPA. The determination of that appeal is governed by s 276 of the CPA:

(1) On an appeal under section 274, the Court of Appeal must allow the appeal against conviction if the appellant satisfies the court that—
(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b) as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c) for any other reason there has been a substantial miscarriage of justice.

19 Before his application for leave to appeal will be considered, the applicant will need to be granted leave by the Court to appeal out of time pursuant to s 313 of the CPA. The applicant has sought this leave. The discretion to extend the time for filing is broad and will depend on what is found to be in the interests of justice when the Court considers the applicant’s appeal.^[6]
20 Pursuant to s 317 of the CPA, the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if it considers that it is in the interests of justice to do so.
21 In his written submissions, the applicant outlined the applicable legal principle in respect of orders for production with which the Chief Commissioner agreed. They are principles that are well established and have been summarised in recent cases in this Court.^[7]
22 Counsel for the Chief Commissioner cited the recent decision of the Court in the matter Higgs v the Queen^[8] (‘Higgs’) as authority for the proposition that there will not generally be a legitimate forensic purpose for seeking production of documents created after an applicant is sentenced. She did so to resist the post sentence date range for the documents sought by the applicant.
23 In my view, the decision in Higgs does not enunciate general principle that relevance for the purpose of production in a criminal appeal expires upon sentence. Whether there is a legitimate forensic purpose in documents sought to be produced pursuant to s 317 of the CPA is to be determined on the facts of each case with reference to the case on appeal that is advanced by the party making the application for production.

Parties submissions and consideration

24 The Chief Commissioner accepted that production should be ordered but sought a narrowing of the range of dates and subject matter on the basis of legitimate forensic purpose.
25 The applicant used letters to identify the categories of documents sought. During the hearing, submissions were made in respect of each of the lettered categories, that is A, B, C and E and the reasons for the orders made in respect of each category are set out in that order below.^[9]

Category A

26 All materials relating to information exchanged between Nicola Gobbo and Victoria Police between 1 September 2004 (being one year before Ms Gobbo’s registration as a human source) and 5 June 2009 (being one month after the applicant’s sentence was successfully appealed) regarding:

(i) “Mr Cooper” (a pseudonym); and/or
(ii) The applicant.

27 At the commencement of the hearing counsel for the applicant revised the date range for Category A, bringing it forward from 1 September 2004 to 1 September 2005. This is 15 days earlier than the relevant registration of Ms Gobbo as an informer.
28 Ms Boston submitted that the registration of Ms Gobbo was unlikely to have occurred in a vacuum, by which I understood her to mean suddenly or out of the blue. The RCMPI certainly reached that conclusion, finding that the registration in September 2005 was a ‘culmination of relationships with police officers that had been developing for some time.’^[10] Additionally, the RCMPI found that ‘on occasions before her third registration, [Ms Gobbo] had certainly in substance acted as a human source.’^[11]
29 The applicant’s argument about the relevance of records that pre-date the formal registration in 2005 has merit, there is a reasonable possibility that information dating back to the beginning of September 2005 would materially assist his case.^[12] In my view, the expansion of the time frame by 15 days is relatively small and therefore not unduly onerous for the producing agency, in this instance the Chief Commissioner. It is for these reasons that I have ordered production of documents in Category A date back to 1 September 2005.
30 In relation to Category A, and also in relation to Category B and C, the applicant sought a date range concluding on 5 June 2009, being one month after the applicant’s sentence was successfully appealed. The submissions in support of the extension of the date range beyond the date of sentence were the same in respect of each of the categories, as are my reasons.
31 As discussed above, the Chief Commissioner asserted that the decision of the Court in the matter of Higgs supported their submission that, with the exception of information concerning the provision of benefits to ‘Mr Cooper’, there will be no legitimate forensic purpose for the production of materials generated post sentence.
32 Specifically, the Chief Commissioner submitted that nothing advanced on behalf of the applicant explained how Ms Gobbo’s conduct or the information provided by ‘Mr Cooper’ following the applicant’s sentencing ‘could as a matter of real possibility’ have affected his conviction.
33 For her part, counsel for the applicant submitted that each case will turn on its facts. With respect, I agree and in this case the applicant asserts that he was attended upon by Ms Gobbo after his sentence and whilst she was still a registered informant. Records referred to by counsel assisting show that Ms Gobbo provided information to Victoria Police in relation to Mr Barbaro on and in the period surrounding the date she provided him with advice in relation to his sentence.^[13] Adopting the liberal approach appropriate in criminal matters,^[14] in the applicant’s case this information indicates a legitimate forensic purpose in the extension of the date range for production beyond the date of sentence.

Category B

34 All materials relating to information exchanged between “Mr Cooper” and Victoria Police between 1 September 2005 (being the month of Ms Gobbo’s registration as a human source) and 5 June 2009 (being one month after the applicant’s sentence was successfully appealed) regarding:

(i) the applicant; and/or
(ii) payments or other benefits (including comforts) sought by or offered or provided to “Mr Cooper”, directly or indirectly.

35 There was no issue for determination in relation to the start date for the category. The Chief Commissioner challenged the breadth of records of benefits sought in this category. In particular, the Chief Commissioner sought to limit benefits to payments provided.
36 In his application, the applicant asked for benefits both direct and indirect and not only those provided but also those ‘offered to’ or ‘sought by’ Mr Cooper. Ahead of the oral hearing, the applicant removed benefits ‘offered’ to Mr Cooper from the category of records sought.
37 In relation to the nature of benefits, Ms Boston submitted that prisoners receive inducements in a wide range of forms; not just payments and not only directly.^[15] For her part, counsel for the Chief Commissioner conceded as much, but resisted the breadth of the order on the basis that there may not be a record of all that had been provided, such as coffees or meals or to whom the benefits had been given when they were not given to the applicant directly. It is not speculative that benefits were received directly or indirectly by Mr Cooper and any record of those benefits have a legitimate forensic purpose. It is understood that all that can be produced are the records that exist. I have ordered the production of records of benefits including indirect benefits.
38 In respect of the order framed to include benefits sought, counsel for the applicant stated that the purpose here was to counter an assertion by the Chief Commissioner in previous matters, that the benefits provided to Mr Cooper did not have the character of inducement because he was unaware that he was receiving the benefits or from whom. Given the applicant’s case in respect of the role of Mr Cooper and anticipated argument in respect of inducement, records of benefits sought would be of material assistance.

Category C

39 To the extent that they are not covered by the above, all materials between 1 September 2004 and 5 June 2009 relating to the decision of “Mr Cooper” to cooperate with the authorities in respect of the prosecution of the applicant and/or Shane Moran and/or Frank Ahec.
40 Ahead of the hearing, the applicant revised what was sought in Category C. The revision narrowed the ambit to only those materials in relation to Mr Ahec and Mr Moran where they were alleged co-offenders with the applicant. Thus, the date range remained the only issue between the parties. In relation to the date range, counsel for the applicant submitted that it was clear from materials disclosed elsewhere that there was a Victoria Police strategy targeting Mr Cooper prior to his arrest on 22 April 2006.^[16] The Final Report of the Royal Commission finds that Ms Gobbo was tasked to target Mr Cooper’s activities shortly after her registration in September 2005.^[17] Allocation of such a specific task, like the registration of Ms Gobbo was unlikely to come out of the blue. It is ‘on the cards’ therefore that information that pre-dates her registration would be of material assistance. Counsel for the applicant conceded that forensic purpose could be achieved without predating Ms Gobbo’s registration by a year. In the absence of any material guidance otherwise, it was ordered that the date range for the production of materials in Category C commence on 1 September 2005 in line with the orders in Category A and B.

Category E

41 All affidavits in support of warrants obtained during the course of the investigation leading to the applicant’s convictions.
42 In support of the order sought in respect of Category E, the applicant submitted that there was legitimate forensic purpose in examining not only evidence that was improperly or illegally obtained, but also evidence obtained as a consequence of evidence illegally or improperly obtained.^[18] The Chief Commissioner relied on the affidavit of Superintendent McKinney in respect of the process followed by Victoria Police to identify this material and in particular the paragraphs in which it was stated that improperly derived evidence revealed during the process would be disclosed to the applicant. The Chief Commissioner raised concerns about the very large size of the task and the practical unlikelihood the material sought would be revealed in an undertaking of the kind dictated by the applicant’s proposed orders. There were sensible exchanges between the parties during the hearing, with concessions by the applicant and suggestions by the Chief Commissioner. Ultimately, the order is made in the terms that seem most likely to practically achieve the revelation of documents of material assistance. As noted in the hearing, if the applicant finds in the material produced an indication of documents or records not produced, but relevant to his case, further application can be made.

Time frame for production

43 The Chief Commissioner relied upon the affidavit of Commander Millett in relation to the timeframe for production. Commander Millet deposed that compliance with the orders proposed by the Chief Commissioner would take 25 weeks. It was submitted by counsel for the Chief Commissioner that if the Court ordered production in broader terms, then the time estimates would need to be reviewed and increased.
44 Both the Chief Commissioner and the applicant agreed that documents be produced in tranches. Commander Millett deposed that a tranche of material representing part of the applicant’s Category B could be produced within 4 weeks, albeit following a three week Christmas break for members of Taskforce Reset, the team responsible for collation and preparation.^[19]
45 As the orders of the Court in respect of Categories A, B and C (but not E) represented a broader range of documents than that for which the time estimate was given, I asked the parties to confer and provide a timetable for production along with a draft of the orders in the terms announced in Court. The parties were also asked to consider a timetable for filing in the event objection is taken to the form in which the documents are provided.
46 Within a week of the hearing, the Court was asked to resolve the issues between the applicant and the Chief Commissioner to determine the timeframe for the production of documents in each of the categories. The proposed timeframes for production by the Chief Commissioner by category were:

(a) Category A – 15 weeks;
(b) Category B – 22 weeks;
(c) Category C – 25 weeks;
(d) Category E – 35 weeks.

47 As already noted, the Chief Commissioner had submitted that additional time would be required where the ordered categories were more expansive than those that he proposed; as has transpired, that is Categories A, B and C. The evidence of Commander Millet was that production in respect of most of what makes up Category B could occur quite quickly.^[20] The proposed time frame of 22 weeks for production of Category B cannot be accepted. Commander Millet allowed 7 weeks for production of part. I will allow an additional 4 weeks; that is 11 weeks.
48 Category E has been ordered in the terms proposed by the Chief Commissioner. No additional explanation has been given as to why any time in addition to their original estimate for this particular category is now required, let alone 10 weeks. Accordingly, I order that this be produced in accordance with the original estimate of 25 weeks. The timetable below is incorporated into the orders that have already been provided to the applicant and Chief Commissioner:

(a) Category A – 15 weeks;
(b) Category B – 11 weeks;
(c) Category C – 25 weeks;
(d) Category E – 25 weeks.

49 It is preferable, where a redaction scheme is adopted by the Chief Commissioner that it be in a form that will allow the applicant to understand and therefore consider raising objections rather than taking up additional time of the Court in considering whether the redactions are appropriately made and sufficiently justified. A timetable for the preparation, filing and exchange of submissions in respect of redactions and any objection to them is included in the orders of the Court should the applicant and Chief Commissioner be unable to resolve the issues between them, although they are encouraged to do so.
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Annexure A

Documents to be produced by the Chief Commissioner of Victoria Police

(a) All materials relating to information exchanged between Nicola Gobbo and Victoria Police between 1 September 2005 and 5 June 2009 regarding:

(i) “Mr Cooper” (a pseudonym); and/or

(ii) the applicant.

(b) All materials relating to information exchanged between “Mr Cooper” and Victoria Police between 1 September 2005 and 5 June 2009 regarding:

(i) the applicant; and/or

(ii) payments or other benefits (including comforts) sought by or provided to “Mr Cooper”, directly or indirectly.
(c) To the extent that they are not covered by the above, all materials between 1 September 2005 and 5 June 2009 relating to the decision of “Mr Cooper” to cooperate with the authorities in respect of the prosecution of the applicant and/or Shane Moran and/or Frank Ahec, where they were alleged to be co-offenders with the applicant.
(e) Any affidavits in support of warrants which were relied upon in the brief of evidence against the applicant or used to obtain evidence that was served on the applicant to the extent that they contain information obtained from, or likely to have been obtained from, Nicola Gobbo and/or “Mr Cooper”.

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^[1] R v Barbaro, Dominic [2008] VCC 1587 (Judge Howie).

^[2] The Queen v Dominic Barbaro [2009] VSCA 89 (Vincent and Weinberg JJA and Coghlan AJA).

^[3] The first letter requesting disclosure was sent by solicitors for the applicant to the Director of Public Prosecutions on 14 March 2019, as deposed in the affidavit of Sarah Tricarico dated 10 September 2021.

^[4] Submissions of Counsel Assisting the Royal Commission into the Management of Police Informants, Case Study: Dominic Barbaro [6], 61.

^[5] Submissions of Counsel Assisting the Royal Commission into the Management of Police Informants, 62–63.

^[6] Bolton(a pseudonym) v The Queen [2021] VSCA 117, [14], citing Madafferi v the Queen [2017] VSCA 302.

^[7] Zirilli v The Queen [2021] VSCA 174, [59(d)]; also Zirilli v The Queen [2021] VSCA 2, [88]–[98].

^[8] [2021] VSCA 301 (Irving AsJ).

^[9] In an email from his solicitor to the Court of Appeal registry dated 7 December 2021, the applicant withdrew his application in respect of Category D.

^[10] Royal Commission into the Management of Police Informants (Final Report, 30 November 2020) Volume 2, 26.

^[11] Ibid.

^[12] Zirilli v The Queen [2021] VSCA 174, [59].

^[13] Submissions of Counsel Assisting the Royal Commission into the Management of Police Informants, 63.

^[14] Alister v The Queen (1984) CLR 404, [456]; Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at [170]; Zirilli v The Queen [2021] VSCA 174, [59].

^[15] Applicant’s submissions in support of s 317 application dated 19 November 2021 at [25].

^[16] Royal Commission into the Management of Police Informants (Final Report, 30 November 2020) ch 7, 35–37.

^[17] Ibid at p 35.

^[18] Evidence Act 2008 s 138 (1).

^[19] Affidavit of Paul Michael Millet affirmed on 7 December 2021 at paras [24]-[26].

^[20] See para 40 above.