Commonwealth Director of Public Prosecutions

Court of Appeal dismissed appeal in MDMA case

Year: 
2020-2021
Category: 
Organised Crime and Counter Terrorism
Location: 
Victoria

Name: Jan Visser

Date of Judgment: 18 December2020

Court (e.g. District Court of NSW; Court of Appeal – Victoria): Court of Appeal – Victoria

Partner Agency: Australian Federal Police

Summary of charges:

Mr Jan Visser was charged with one count of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug, contrary to ss 11.5 and 307.5 of the Criminal Code (Cth).

Synopsis: 

Operation Bootham-Moko was an investigation by the Australian Federal Police (AFP) into the 2007 importation of a border-controlled drug. Investigators discovered 1.4 tonnes of pure MDMA concealed in tomato tins in a shipping container in Melbourne.  At that time, this was said to be the world’s largest ecstasy seizure. Eight men, including Mr Visser, were arrested and charged with offences relating to the “tomato tins consignment”.

In July 2014, a jury found Mr Visser guilty of conspiring to possess the MDMA.  He was sentenced to 11 years’ imprisonment with a non-parole period of eight years. An appeal brought by Mr Visser against his conviction and sentence was dismissed by the Victorian Court of Appeal in 2015.

In September 2016, Mr Visser lodged a petition for mercy with the Commonwealth Attorney- General.  At the time, that petition was based on what was said to be fresh evidence obtained from two of Mr Visser’s co-offenders. In 2019, having received disclosure from the Commonwealth Director of Public Prosecutions (CDPP) outlining  the role played by Ms Nicola Gobbo as a Victoria Police informer, Mr Visser expanded his petition to make allegations about the impact Ms Gobbo’s conduct might have had on his trial.  In particular, Mr Visser pointed to evidence that, whilst appearing as counsel in the trial of a co-accused on an unrelated matter, Ms Gobbo had received and provided to Victoria Police a bill of lading shipping document which ultimately resulted in the seizure of the MDMA concealed in the “tomato tins consignment”. 

In November 2019 the Commonwealth Attorney-General referred the whole of Mr Visser’s case to the Court of Appeal to be heard and determined as if it were a fresh appeal.

On 18 December 2020, the Court of Appeal dismissed Mr Visser’s appeal.

Key points:

The first ground of Mr Visser’s appeal alleged a miscarriage of justice based on the failure of the CDPP and the AFP to disclose Ms Gobbo’s status as a registered informer and her role in obtaining the bill of lading shipping document which resulted in the seizure of the MDMA. 

The second ground of appeal ground alleged the prosecution was malicious and an abuse of process because the CDPP and the AFP knew Ms Gobbo was a registered police informer who was informing on her clients.

The third ground of appeal was based on the fresh evidence which had been obtained from two co-offenders and which suggested that Mr Visser had not aware that the “tomato tins consignment” contained drugs.

Decision:

Mr Visser’s appeal was dismissed.

In regards to Mr Visser’s first two ground of appeal, the Court found there was no failure by the CDPP or the AFP to comply with their disclosure obligations at trial.  The unchallenged evidence established that at no time prior to, or at the time of Mr Visser’s trial, were any of the AFP or CDPP officers (or counsel briefed by the CDPP) responsible for the prosecution of Mr Visser’s case aware of Ms Gobbo’s status as a Victoria Police informer.  Such matters were therefore not capable of being disclosed to Mr Visser at that time.  In addition, this evidence provided no factual basis for characterising the prosecution of Mr Visser as malicious.   

The Court also found that disclosure of that fact that Ms Gobbo had provided information to Victoria Police resulting in the detection of the “tomato tins consignment” would not have resulted in this evidence being excluded at Mr Visser’s trial.  The Court found that the bill of lading had not been improperly obtained by Victoria Police and that no legal professional privilege attached to this document. This document had not been brought into existence for the purpose of obtaining legal advice.  To the contrary, the document had been provided to Ms Gobbo for safekeeping and in furtherance of an illegal purpose – namely the ongoing criminal activity of importing the MDMA.  Furthermore, the Court also found that even if the bill of lading did attract legal professional privilege or its provision to Victoria Police did infringe some duty of loyalty or confidence, there was no prospect that the evidence of the detection of the “tomato tins consignment” and the MDMA would not have been admitted into evidence.  The evidence was reliable and highly probative.  The crime alleged to have been committed by Mr Visser was an extremely serious one and the non-disclosure of the source of the bill of lading was not deliberate.  Under s 138(3) of the Evidence Act, these factors would have weighed heavily in favour of admitting the evidence.

Finally, regarding the fresh evidence on which Mr Visser sought to rely, the Court ruled that there was no significant possibility that the jury, acting reasonably, would have acquitted Mr Visser, even if such evidence had been before it.

Relevant links:

Court of Appeal Decision