Arico v The King - [2023] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0064

ROCCO ARICO	Applicant
v
THE KING	Respondent

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JUDGES:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2023
DATE OF JUDGMENT:	9 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 268

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CRIMINAL LAW – Where production of documents ordered pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Victoria Police – Documents produced in redacted form – Objections to redactions – Determination of redactions based on scope and public interest immunity – Representative sample provided to Court.

Criminal Procedure Act 2009, s 317; Evidence Act 2008, s 130.

Arico v The King [2023] VSCA 132; Zirilli v The Queen [2021] VSCA 174; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22; Jarvie v The Magistrates’ Court of Victoria [1995] 1 VR 84; Gee v Magistrates’ Court of South Australia [2004] SASC 315.

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Counsel
Applicant:	Mr J O’Connor
Respondent:	No appearance
Chief Commissioner of Police:	Ms S Maharaj KC Ms M Pekevska
Solicitors
Applicant:	Theo Magazis and Associates
Respondent:	No Appearance
Chief Commissioner of Police	Victorian Government Solicitor’s Office

MCCANN JR:

Introduction

Mr Rocco Arico is an applicant for leave to appeal conviction for a second time[1] who has obtained orders that the Chief Commissioner of Police (‘the Chief Commissioner’) produce certain documents to the court pursuant to s 317 of the Criminal Procedure Act 2009 (‘CPA’).[2]
[1]Pursuant to Criminal Procedure Act 2009 s 326A.
[2]Arico v The Queen [2022] VSCA 35.
The details of his conviction and appeal have been set out by the Court in a number of the decisions[3] relating to the documents he seeks. That background is set out again below.
[3]See for example, Arico v The Queen [2021] VSCA 353; 294 A Crim R 20.
On 19 October 2022, the applicant made a general application that 107 of the documents produced with redactions be made available to him unredacted. The documents have been redacted by the Chief Commissioner to conceal material he submits is out of scope or the subject of a claim of public interest immunity (‘PII’). The redactions are colour coded to indicate the nature of his objection.
On 5 June 2023, the Court made orders setting out a procedure to determine the application.[4] The Chief Commissioner appealed those orders.
[4]Arico v The King [2023] VSCA 132.
On 4 August 2023, at the hearing of that appeal, the Chief Commissioner and the applicant agreed to orders setting aside the orders of 5 June 2023 and giving directions for the application to return before me for rulings on the redactions applied to approximately 100 pages selected by the applicant from the 107 documents listed in his general application.
On 28 August 2023, the applicant filed the list of 26 documents, a total of 123 pages for ruling on redactions. In addition, the following documents have been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arico v The King

Details

AGLC: Arico v The King [2023] VSCA 268
Case: [2023] VSCA 268
Decision Date: 9 November 2023

CaseChat Overview and Summary

In the Victorian Supreme Court, Arico challenged the redactions made to documents produced by the Chief Commissioner of Victoria Police under section 317 of the Criminal Procedure Act 2009. The dispute centred around the disclosure of documents related to an ongoing criminal investigation, with Arico objecting to the redactions made by the police. The Court was required to determine whether the redactions were justified under the law.

The primary legal issue before the Court was whether the redactions applied to the documents were appropriate and whether they were justified under the principles of public interest immunity as provided by the Evidence Act 2008. Arico argued that the redactions went beyond what was necessary to protect the public interest and that the Court should order the release of the documents in their entirety or with fewer redactions. The Crown, on the other hand, contended that the redactions were necessary to protect sensitive information and that disclosure in its entirety would undermine the investigation and potentially endanger individuals.

The Court examined the redactions in the context of the public interest immunity doctrine, considering the nature of the information and the potential harm that could result from its disclosure. It found that while some redactions were justified to protect sensitive information, others could be lifted to ensure a fair trial. The Court noted that a representative sample of the documents had been provided, allowing it to assess the scope and necessity of the redactions. Ultimately, the Court ruled that certain redactions were excessive and ordered that the documents be disclosed with fewer redactions, ensuring a balance between the public interest and the rights of the accused.

The final orders of the Court required the Chief Commissioner of Victoria Police to provide the documents to Arico with the specified redactions lifted, thereby facilitating a more transparent and fair legal process. The Court's decision underscored the importance of striking an appropriate balance between protecting sensitive information and ensuring that the accused has access to the necessary evidence to mount a proper defence.

Orders