Arico v The King

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 filed in respect of the contested redactions over these pages:
(a)Submissions of the applicant dated 28 August 2023
(b)Submissions of the Chief Commissioner of Police dated 18 September 2023
The Chief Commissioner provided a folder of the selected documents in unredacted form to the Court.
The submissions of the applicant and the Chief Commissioner each annexed a table of the documents in question along with the contentions that they each make in respect of the redactions. The Chief Commissioner, having re-reviewed the documents selected by the applicant and reading the applicant’s submissions, decided to lift some redactions, replacing them with pseudonyms.
The Chief Commissioner’s current colour coding of redactions to identify the nature of each PII claim is reproduced in Annexure A to these reasons. I have adopted the table format used by the applicant and the Chief Commissioner in setting out my ruling on each of the redacted documents and it is attached to these reasons as Annexure B.

Background

In January 2021, it was revealed that the applicant’s solicitor, Mr Joseph ‘Pino’ Acquaro (‘Mr Acquaro’), had provided information to Victoria Police in 2008 and in the first half of 2014.[5]
[5] Madafferi v The Queen [2021] VSCA 1; 287 A Crim R 380.
On 3 June 2021, the applicant applied for leave to appeal his convictions for extortion, intentionally causing injury, trafficking a large commercial quantity of methylamphetamine, possession of a firearm and possession of a drug of dependence.[6] As already observed this is his second appeal against those convictions.
[6]On 10 November 2016, the applicant was convicted of extortion, intentionally causing injury and trafficking. He was convicted of being a prohibited person in possession of a firearm and possession of a drug of dependence at a second trial in February 2017. The applicant was sentenced in respect of both trials on 3 March 2017 to a term of 14 years’ imprisonment with a non-parole period of 10 years. The criminal conduct giving rise to the convictions commenced in 2010 and concluded with the applicant’s arrest on 15 March 2015. An application for leave to appeal against conviction was refused in 2018.
The applicant relies upon a single ground of appeal; that there has been a substantial miscarriage of justice caused by the subversion of his right to a fair trial. The applicant asserts that, unbeknownst to him:
(a)legal advice he received was not independent, in circumstances where his solicitor was an informer for Victoria Police; and/or
(b)investigators (and ultimately the prosecution) gained an unfair advantage by reason of the applicant’s solicitor being a police informer; and/or
(c)investigators failed to disclose to the applicant that his solicitor had acted as a police informer; and/or
(d)investigators failed to disclose that they had seized the computer of the applicant’s solicitor which contained materials relating to the applicant; and/or
(e)investigators failed to disclose to the applicant that Victoria Police had a practice of making payments to prosecution witnesses beyond expenses associated with the giving of their evidence, as was subsequently revealed in Cvetanovski v The Queen [2020] VSCA 272.

The documents and their redaction

The Chief Commissioner objects to production on two broad bases; that the material is outside the scope of the orders or irrelevant, or that the information ought to be restricted pursuant to his claims of PII.
The applicant’s challenges to the redactions are primarily expressed in terms of relevance and are necessarily based on educated guesswork. His counsel also made submissions in respect of PII redactions that may conceal known identities and possible benefits provided to witnesses in his case.
The legal principle in respect of each basis is well settled. There was no controversy between the parties about the considerations that arise. The issue was the application of well-settled principle to information in the subject documents.

Legal principle

Scope

Irving JR, as he then was, considered redactions applied by a producing agency and contested by an applicant in the matter of Zirilli v The Queen.[7] In doing so, he enumerated the principles to be applied. Among them he listed the following:
(f)the terms of a s 317 order will dictate the scope of the documents required to be produced and, as in all criminal cases, it is appropriate to adopt a liberal reading to the terms of the order;
…
(i)the producing entity seeking to redact information bears the onus of demonstrating that the information does not fall within the scope of the s 317 order; and
(j)the underlying guiding principle for the Court in determining whether documents or parts of documents are required to be produced will be what is required to do justice between the parties.[8]
[7]Zirilli v The Queen [2021] VSCA 174.
[8]Ibid [59] (footnotes omitted).
Additionally, his Honour noted that;
… in my view use of the term ‘relevance’ as a basis for redaction or non-production of documents under a s 317 order is apt to divert attention from the terms of the order and should be avoided in favour of the terms like ‘out of scope’ or ‘beyond the scope of the order.[9]
[9]Ibid [60].

The s 317 orders

The applicant applied on 31 May 2021 for the production of documents pursuant to s 317 of the CPA 2009.
On 13 August 2021 orders for production were made by consent. At paragraph 4:
4.Pursuant to s 317 of the Criminal Procedure Act 2009 (Vic), the Chief Commissioner produce documents, exhibits or other things connected with the proceedings as follows:
(a)All materials relating to information exchanged between Joseph Acquaro (unregistered human source) and Victoria Police (including but not limited to Peter Trichias, Shaun Bingham and Cliff Pickett) as contained within the materials listed in the appendix of Madafferi v The Queen [2021] VSCA 1 between 22 December 2010 (being the date on which ‘Witness A’ allegedly agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (being the date of Mr Acquaro’s death) regarding:
(i)the applicant; and/or
(ii)‘Witness A’: -
(subset of documents in category 1(a) in the 317 application)
(b)All materials relating to information exchanged between ‘Witness A’ and Victoria Police between 1 January 2014 (being the year wherein ‘Witness A’ approached police) and 28 February 2017 (being the month of the applicant’s ultimate conviction) regarding:
(i)the applicant; and/or
(ii)Joseph Acquaro: -
(category 1(f) in the 317 application).
(c)All materials relating to the decision of ‘Witness A’ to cooperate with the authorities and/or give evidence at the applicant’s trial (category 1(g) in the 317 application).
(d)All materials relating to payments made and/or benefits provided to ‘Witness A’ (category 1(h) in the 317 application)
On 28 March 2022, further orders for production were made by Beach JA,[10] as follows:
[10]Arico v The Queen [2022] VSCA 35.
1.Pursuant to s 317 of the Criminal Procedure Act 2009, the Chief Commissioner of Victoria Police produce documents, exhibits or other things connected with the proceedings as follows:
(a)All materials relating to information exchanged between Joseph Acquaro and Victoria Police (including but not limited to Peter Trichias, Shaun Bingham and Cliff Pickett) between 22 December 2010 (being the date on which Witness A allegedly agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (being the date of Mr Acquaro’s death) regarding:
(i)The applicant; and/or
(ii)Witness A
(b)All affidavits in support of warrants obtained during the course of the investigation leading to the applicant’s convictions (at trials in November 2016 and February 2017).
(c)All materials relating to the review, and/or use, for any purpose, by Victoria Police, of any materials relating to the applicant which were seized as part of the investigation into Mr Acquaro’s death (including but not restricted to materials on his computer).
On 23 June 2022 further orders were made by Pedley JR in respect of materials seized as part of the investigation into the death of Mr Acquaro.
The documents selected for ruling in this instance are produced pursuant to the orders of 13 August 2021 and 28 March 2022. It can be seen that these orders do not require the production of all of the material provided by either Mr Acquaro or ‘Witness A’. Material exchanged between Victoria Police and Mr Acquaro will only be in scope if it relates to the applicant and/or ‘Witness A’. Material exchanged between Victoria Police and ‘Witness A’ will only be in scope if it relates to the applicant and/or Mr Acquaro.
None of the orders for production make reference to Operation Kinvo. However, this operation was cited as a hallmark of relevance by both the applicant and Chief Commissioner in their submissions to the Court.
The applicant additionally identified the work of Operations Palindrome, Seismology and Cuebert. Each involved investigation of the applicant’s activities to varying degrees. None of these operations are named in the s 317 orders. The Court was informed that it was Operation Kinvo that focussed solely on the conduct and activities of the applicant leading to the charges and convictions he now appeals.
During the course of the hearing, the Chief Commissioner agreed to lifting redactions concealing Operation Kinvo.[11] This was done without conceding the necessity of doing so.
[11]Operation Kinvo redactions are identified within the table containing the ruling in Annexure B.
Both in written submissions and during the hearing, the applicant provided cogent reasons for his postulation that ‘in scope’ material likely sits behind the Chief Commissioners redactions for scope.
As an example, the applicant pointed to a single entry in the diary of ‘Z1’ on the 4 April 2014 redacted in its entirety. In his written submissions the applicant asserted that:
Z1 is a police officer who attended face to face meetings with Mr Acquaro on 4 April 2014.
Thus, the applicant harboured a suspicion that information was exchanged regarding the applicant and/or ‘Witness A’ at that 4 April 2014 meeting, and that in scope material is recorded in the diary of ‘Z1’ on that date.
During the hearing, I went to this diary entry and confirmed that there was no information recorded on that day that was within scope of the order.

Determination of Scope redactions

I have read and considered all of the selected documents with reference to the s 317 orders and in accordance with the principles set out above. I have also taken into account the particular matters raised by counsel during the hearing. The rulings in relation to all of the documents are contained in Annexure B.

Public Interest Immunity

The principles and process relevant to a claim of public interest immunity are captured by s 130 of the Evidence Act 2008.
Initially, it is necessary that the class of documents in question are established as being governmental in character, as conceptualised at common law, or relate to matters of state, as described in the Evidence Act.[12] If this hurdle is satisfied, the Court will then weigh the public interest in admitting the information into evidence against the interest in maintaining confidentiality or restricting that information.
[12]See Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; 15 VR 22, [25]; Evidence Act 2008 s 130(1).
Section 130(1) describes the threshold requirement and the relevant balancing act as follows:
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Section 130(4) provides a non-exhaustive list of possible relevant considerations in determining whether the initial threshold requirement to establish whether a document is properly categorised as relating to matters of state is satisfied:
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
Section 130(5) provides a non-exhaustive list of relevant matters to be considered in the balancing exercise:
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters —
(a)The importance of the information or the document in the proceeding;
(b)If the proceeding is a criminal proceeding —whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)The nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)The likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)Whether the substance of the information or document has already been published;
(f)If the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused —whether the direction is to be made subject to the condition that the prosecution be stayed.
The applicant submitted that ‘the importance of the document or information in the proceeding’ in s 130(5)(a) does not impose a burden on the applicant. The burden in a PII claim resides with the person claiming the immunity.
The process and principle must be applied contextually. The balancing is undertaken with reference to the potential significance of the documents to the ground of appeal within the applicant’s written case. The applicant gave a further exposition of his ground of appeal in his submissions dated 28 August 2023:
In short summary — and without purporting to enumerate each of the matters upon which the Applicant may rely in a revised Written Case — the key propositions underlying the application for leave to appeal against conviction are as follows:
a.the Applicant was convicted of offences at two trials (the first resulting in guilty verdicts in November 2016, and the second in February 2017);
b.the police investigation which led to those convictions was named ‘Operation Kinvo’;
c.the central prosecution witness against the Applicant was [redacted] (who has been referred to as ‘Witness A’ in published judgments or rulings in this matter), and as noted by Maxwell ACJ and Weinberg JA on the Applicant’s appeal against conviction, the case ‘turned primarily upon’ his evidence;
d.the Applicant’s long-time trusted solicitor was Mr Joseph Acquaro;
e.Mr Acquaro acted for the Applicant on the matters leading to the convictions the subject of the application for leave to appeal against conviction, and made all forensic and strategic decisions in respect of the matter until his death in March 2016;
f.during the police investigation into the death of Mr Acquaro, police searched and reviewed Mr Acquaro’s computer and devices; including by applying the search term ‘Arico’;
g.documents on Mr Acquaro’s computer and devices included privileged documents prepared in connection with, and relating to, the applicant’s defence;
h.contrary to an assertion made in affidavit material relied upon by the Chief Commissioner, it has been found by Beach JA that it is ‘at least on the cards that relevant material from Mr Acquaro’s computer or other devices was reviewed [by] and/or disseminated to at least one officer involved in Operation Kinvo’;
i.the review of documents on Mr Acquaro’s electronic devices by police (including privileged documents relating to the Applicant’s defence), and the involvement of at least one investigator also involved in Operation Kinvo in that review, was not disclosed to the Applicant prior to his trials;
j.Mr Acquaro was a police informer who had passed on information to Victoria Police in (at least) 2008 and 2014, about at least one client;
k.having informed on at least one client — and so having demonstrated a preparedness to betray duties of loyalty and confidence — it is at least reasonably likely that Mr Acquaro informed on others, including the Applicant;
l.it was not disclosed to the Applicant, prior to his trials, that his lawyer was a police informant;
m.Mr Acquaro was ‘handled’ by, at least, ‘Officer Pearce’ and ‘Z1’, both Victoria Police Officers;
n.both ‘Officer Pearce’ and ‘Z1’ were involved in ‘Operation Kinvo’;
o.it was not disclosed to the Applicant prior to his trails that both ‘Officer Pearce’ and ‘Z1’ were ‘handlers’ of his lawyer, Mr Acquaro;
p.police officers involved in Operation Kinvo were also involved in related investigations Operation Seismology, Operation Palindrome and Operation Cuebert, and investigations by those officers involved in Operation Kinvo into ‘Italian organised crime’ related to the Applicant and his family members (noting that family members of the Applicant were also clients of Mr Acquaro);
q.while there was partial disclosure of payments made to, or for the benefit of, Witness A at trial, significant correspondence between Victoria Police and a person appearing in email correspondence as ‘bbeissel’ indicating that Victoria Police had sought payment details for a loan balance of $24,400 apparently owing by Witness A and/or Witness B ([redacted], the wife of Witness A) was not disclosed prior to trial.

These submissions; in addition to the other material filed by the parties in the appeal, have informed the context for the balancing exercise to be undertaken by the Court. The Court has also had regard to all the submissions and affidavit material filed by the applicant and Chief Commissioner in relation to the application for production.

Identity and Pseudonyms

The PII redactions applied to the documents by the Chief Commissioner included redactions covering the identities of human source handlers (colour coded green) as well as protected witnesses (colour coded red). The applicant submitted that the source handlers in relation to these convictions are well known by the pseudonyms ‘Officer Pearce’ and ‘Z1’ and the witnesses are known by the pseudonyms ‘Witness A’ and ‘Witness B’.
The Chief Commissioner indicated in their written submissions that they would remove some redactions and replace police members names in five of the twenty-six documents. Following a hearing in closed session, the Chief Commissioner advised the Court that they would remove redactions from the names of the three police officers/handlers (where they appeared) and replace them with the pseudonyms ‘Officer Pearce’, ‘Z1’ and a further pseudonym of ‘Officer Orange’ would be used to replace the name [redacted].
The applicant made submissions that in deciding whether to uphold the Chief Commissioner’s claim of PII, the Court is to have regard to s 130(5)(e) and ‘whether the substance of the information or document has already been published’. He submitted that the true names of these police officers/handlers are known to the applicant as are the identities of ‘Witness A’ and ‘Witness B’. In the circumstances, he submitted that redactions concealing these identities should simply be lifted from all mention of them in the documents.
Whilst the identities of the three police officers/handlers and two witnesses may be known to the applicant and his legal team, they have not necessarily been widely published and there remains a public interest in protecting that information. This public interest is grounded in the protection of the safety of the individual informer as an end in itself as well as an interest in supporting the ongoing provision of information by informers to investigators.
Of police informers, Brooking JA in Jarvie v The Magistrates’ Court of Victoria, stated that:
There is a public interest in preserving the anonymity of informers, since otherwise these wells of information will dry up and the police will be hindered in preventing and detecting crime; moreover, the public interest on which the need to protect informers rests is based in part on a regard for their personal safety, considered, not as a matter of expediency, but as an object in itself … The personal safety of the informer is both a means to an end and an end in itself.[13]
[13]Jarvie v The Magistrates’ Court of Victoria [1995] 1 VR 84, 89.
Justice Besanko drew upon Brooking J’s formulation in Gee v Magistrates’ Court of South Australia stating that:
I do not think that confidentiality is the only basis for public interest immunity. I think the personal safety of a witness is an end in itself, to use the expression used by Brooking J in Jarvie.[14]
[14]Gee v Magistrates’ Court of South Australia [2004] SASC 315.
The safety concerns, explicitly cited here in relation to informers, appear to me to have application, at least in part, to human source handlers.
To reveal the identity of the witnesses and police officers/handlers in preference to the continued adoption of pseudonyms, creates a risk to their safety. The continued use of pseudonyms will not hinder the applicant in pursuing his appeal. Accordingly, I requested during the hearing that the Chief Commissioner insert the known pseudonyms in place of redactions over the names of those individuals.

Determination of other PII claims of the Chief Commissioner

The determination of PII claims is recorded in the table in Annexure B to this judgment.
The rulings in respect of scope and PII will necessarily require the reproduction of the selected documents. The parties should confer to establish timetabling orders for the re-production of the material with redactions lifted. An order should be included providing that within five business days of the Chief Commissioner reproducing the documents to the Registrar and the legal representatives for the parties, the Chief Commissioner must use his best endeavours to deliver those documents to the applicant, Mr Arico.
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ANNEXURE A

Representative Sample Redactions - Colour Coding Table

ANNEXURE B

Representative Sample Documents Rulings

Document Number

Document Title

Ruling

1. (22 of 107)

VPL.4023.0004.0143

Diary of SOCIU member (Officer Orange)

VPL.3023.0004.0151

· Entries for dates 4, 5,6 and 7 April 2014.

o The applicant made submissions in respect of the meeting that took place between members of SOCIU and Mr Acquaro on 4 April 2014. The applicant had an expectation that there would be an entry in respect of this meeting in the diary of ‘Officer Orange.’

o The Chief Commissioner advised the applicant and the Court in submissions that they would lift redactions on entries for 4 April 2014 at 13.20 and 13.29 hours. These entries both relate to undertaking tasks with ‘Officer Pearce’ and ‘Z1’, the entry at 13.29 is marked ‘re: P.A.’ and the Chief Commissioner accepts that this is probably Mr Acquaro.

o There is otherwise no information in scope of the order, and the redactions are otherwise upheld.

VPL. 4023.0004.0167

· Entries for dates 29, 30 and 31 May and 1 June 2014.

o The applicant made submissions in respect of a meeting that took place between members of SOCIU and Mr Acquaro on 30 May 2014. There are entries in the diary at 1500 and 1520 hours that appear similar to those entered on 4 April 2014, in that they involve ‘Officer Pearce’ and ‘Z1’, but this entry omits who the meeting is with.

o Given the submissions of the applicant and the Chief Commissioners attitude in respect of the similar entry on 4 April 2014, the redaction should be lifted from these entries.

o The information concealed elsewhere on the page is out of scope, and the redactions are upheld.

VPL.4023.0004.0171, VPL.4023.0004.0172, VPL.4023.0004.0173

· Entries for 13 and 16 June 2014.

o The Applicant submits that on these dates in the diary of ‘Officer Pearce,’ work is recorded on Operations Kinvo and Palindrome with ‘Officer Orange.’ There is no record of work on Operation Kinvo on these dates, nor is there a record of anything within the scope of the order.

· The redactions are upheld.

2. (26 of 107)

VPL.4023.0004.0997

Diary of “Z1”

The applicant submits that ‘Z1’ is an officer who attended meetings with Mr Acquaro on 4 April and 30 May 2014 along with ‘Officer Pearce’ and ‘Officer Orange’.

There is a redaction applied in a portion of the entry on 30 May 2014 that is in scope and conceals the identity of a person known by a pseudonym. I understand this will be replaced by that pseudonym.

The scope redactions are otherwise upheld.

3. (2 of 107)

VPL.4023.0002.0091

Diary of Liam O’Connor

These diary pages were previously produced in response to a subpoena in the trial of the applicant. They have been previously considered in respect of the Chief Commissioner’s then claims of PII and redacted in consequence.

The quality of the copying and the colour of the redactions made some of the information the subject of PII claims illegible. The Chief Commissioner reproduced typed transcription of the notes.

There are a number of references to ‘Op. Kinvo’, or ‘Kinvo’ or ‘KINVO’ both redacted and unredacted. These redactions are to be lifted.

The redactions in the document representing claims of PII are upheld.

4. (3 of 107)

VPL.4023.0007.0075-76 VPL.4023.0004.0001

Diary of Shaun Bingham

The applicant submits that the diary of ‘Officer Pearce’ records Shaun Bingham being involved in the activation of a Vodafone SIM card in relation to Operation Kinvo.

The scope redactions to the diary on this date conceal information that is out of scope.

The redactions are upheld.

5. (8 of 107)

VPL.4032.0007.0085

Diary of Michael Ehmer

The applicant submits that Michael Ehmer was a police officer involved in Operation Kinvo. A diary entry of Officer Simon Florence states that Ehmer was involved with other officers in work on Operation Kinvo on 12 September 2014.

The scope redactions on these pages of Ehmer’s diaries conceal information about Operation Kinvo that should be lifted.

The PII redactions are upheld.

6. (11 of 107)

VPL.4032.0007.0089

Diary of Leemara Fairgrieve

The applicant submits that this officer was involved in Operation Kinvo.

The scope redactions concealing references to Operation Kinvo should be lifted from these pages.

7. (13 and 14 of 107)

VPL.4032.0007.0095 VPL.4023.0002.0149

Diaries of Cliff Pickett

The applicant submits that Detective Pickett was closely involved with Operation Kinvo.

Redactions concealing Operation Kinvo should be lifted.

Additionally, the following redactions should be lifted:

· 2 October 2014 at 0920 hours

· 3 October 2014 at 0800 hours

· 6 October 2014 at 0800 single entry regarding Operation Kinvo

· 8 December 2014 at 0800

· 9 December 2014 at 1605

· 11 December 2012 (date recorded incorrectly) at 0800.

Redactions concealing known pseudonym ‘Witness A’ should also be lifted.

8. (18 of 107)

VPL.4023.0004.1221

Diary of ‘Officer Black’

The Chief Commissioner lifted scope redactions prior to providing the sample documents to the Court. They have reproduced them following the hearing with redactions representing revised scope redactions and PII claims.

The revised redactions are appropriate and are upheld.

9. (21 of 107)

VPL.4023.0004.0008

Diary of SOCIU member (Brett Dawson)

It is noted that the VPL numbers other than those assigned to the Court version are inconsistent. The dates referred to make clear that the diary pages are in fact those sought by the applicant.

The applicant submits that entries in the diaries of other officers show that Dawson was involved in a briefing regarding ‘Witness A’ on 28 May 2014 and involved in Operations Kinvo.

The redactions on the selected pages all conceal material that is out of scope and are upheld.

10. (25 of 107)

VPL.4023.0004.0808

Diary of ‘Officer Pearce’

The applicant submits that ‘Officer Pearce’ was the handler for Mr Acquaro.

The period from the end of May 2014 through June is identified as a period when ‘Officer Pearce’ had contact with Mr Acquaro (per Acquaro contact reports).

Additionally, 24 July 2014 is identified as being a date when ‘Officer Pearce’ was involved in payment of expenses associated with Operation Kinvo. The applicant submits that the entries for these dates must have relevance to his appeal.

The scope redactions are appropriately made and are upheld.

Green coded redactions conceal the identity of individuals known by pseudonyms. Those redactions should be lifted and replaced with previously adopted pseudonyms.

11. (37 of 107)

VPL.4023.0002.0012 INT14IR662949 with subject ‘Witness A management’

The applicant submits that Document 11 is a Management Log recording, in summary, the interactions between officers and ‘Witness A’ and ‘Witness B’. The Chief Commissioner submits that the document had been previously produced in response to a subpoena issued in 2016 during the criminal trial of the applicant and still bear the redactions applied in those proceedings. The colour coding of redactions differs from that used currently by the Chief Commissioner. The Chief Commissioner stated in submissions filed with the Court his intention to lift redactions from pages of this document.

During the hearing of the matter counsel for the Chief Commissioner confirmed redactions of identities protected by pseudonyms would be lifted to be replaced by the pseudonyms.

Further lifting of redactions were confirmed during the hearing as set out below.

VPL.4023.0002.012

Yellow redaction at the top of the page to be mostly removed with an exception.

VPL.4023.0002.0060

Red redactions lifted to reveal the sentence commencing ‘Approval was granted for the funding of accommodation…” towards the top of the page.

Red redactions lifted from the sentence commencing “On 05-Dec-214 at 1525 …” in the middle of the page.

VPL.4023.0002.0061

The Chief Commissioner confirmed that this page has already been provided with redactions relating to forensic accounting provided to the parties.

Otherwise, the redactions are appropriately made and are upheld.

12. (39 of 107)

VPL.4023.0004.0782

In relation to Document 12 as a whole, the applicant submits that redactions appear to cover the names of officers to whom relevant intelligence was disseminated.

The Chief Commissioner submitted prior to the hearing that he no longer pressed redactions of the police numbers for some of officers recorded. The Chief Commissioner revealed in open submissions the names and numbers of those officers. There is no need to reproduce the numbers and corresponding names here.

The remaining redactions are upheld as they are out of scope or subject to PII.

13. (41 of 107)

VPL.4023.0008.0023

Document 13 is an information report. The applicant submits that it relates to a meeting on 28 April 2015 between officers involved in Operation Kinvo. A large portion of the document is redacted for scope.

Whilst the meeting includes officers involved in Operation Kinvo, the meeting does not relate to that operation. The name of the investigation is recorded as ‘PTF Polliceri’, and the work unit is recorded as the ‘Crime Intelligence Group’.

The information masked by redaction is all out of scope of the orders, and the redactions are upheld.

14. (42 of 107)

VPL.4023.0008.0029

Information Report –

INT15IR755037

This document is an information report. The subject of this document is given as ‘Contact with potential target of conspiracy to murder JOE AQUARRO’(sic). The investigation name is ‘PTF Polliceri’, and the work unit identified as ‘Purana Taskforce’.

The document is extensively redacted for scope.

The applicant submits that it is a report concerning contact with Mr Acquaro.

None of the redacted information relates to either the applicant or ‘Witness A’ and is therefore not within scope of the orders. The redactions are upheld.

15. (43 of 107)

VPL.4032.0007.0118

‘Investigation – Full Response Report’ INTMIN215127

This document is an investigation report relating to Operation Kinvo. It contains two scope redactions. It was recalled and red redactions were applied concealing information in respect of which the Chief Commissioner has public interest immunity claims.

Both scope and red redactions are upheld.

16. (44 of 107)

VPL.4023.0002.0003

Application for Funds from Imprest Account

The applicant submits that this document concerns an application for a payment of $150 in connection with Operation Kinvo.

The particulars of expenditure are redacted colour coded yellow.

During the hearing, the Chief Commissioner indicated that the yellow redactions could be replaced with the word ‘Accommodation’. The Chief Commissioner should attend to this and reproduce the document.

17. (45 of 107)

VPL.4023.0002.0004

Application for Funds from Imprest Account

The applicant submits that this is another document where the particulars of expenditure are redacted colour coded yellow.

During the hearing, the Chief Commissioner indicated that the redactions colour coded yellow could be replaced with the word ‘Accommodation’. The Chief Commissioner should attend to this and reproduce the document.

18 (48 of 107)

VPL.4023.0002.0011

‘Issue Cover Sheet — Issue: Short Term Accommodation Required for Witnesses — Operation Kinvo’

The applicant submits that as this document relates to payment for accommodation for witnesses in Operation Kinvo, the redactions applied should be removed. The redactions are colour coded red.

The applicant’s interest is in benefits received by the witnesses. I am satisfied that the redacted portion is a matter of state and does not relate to benefits received by witnesses in the case against the applicant and the Chief Commissioners claim of PII is therefore upheld.

19. (56 of

107)

VPL.4023.0002.0347

Request for reimbursement

The applicant submits that as this document relates to payment for accommodation for witnesses in Operation Kinvo the redactions applied should be removed.

20. (58 of

107)

VPL.4023.0007.0050

The applicant submits that this document is an email thread between officers involved in Operation Kinvo.

The redactions all relate to matters of state, and do not contain any detail of information exchanged between police and ‘Witness A’ or between police and Mr Acquaro.

The PII claim of the Chief Commissioner is upheld.

21. (60 of 107)

VPL.4032.0007.0097

Email chain “Re: Op KINVO”

The document is an email thread relating to Operation Kinvo and the payment of $150 associated with that operation. The applicant submits that his case relates to payments made to ‘Witness A’ and the previous non-disclosure of those payments.

The applicant submits that it is in the public interest that the identity of the police officer be disclosed to him.

The Chief Commissioner will replace the redaction of identity with a pseudonym.

The email exchange relates to the booking of accommodation. Where the particulars are currently redacted, the redaction should be replaced with the word ‘accommodation’ and the document reproduced.

The remaining pink redactions are not pressed.

Any remaining redactions are upheld.

22. (61 of 107)

VPL.4032.0007.0103

Email chain “Re: Op KINVO”

This document is an email between officers with the subject heading Operation Kinvo.

The Chief Commissioner has advised that they will lift redactions concealing names where they could be replaced with a pseudonym.

The email exchange relates to the booking of accommodation. Where the particulars are currently redacted the redaction should be replaced with the word ‘accommodation’ and the document reproduced.

The remaining pink redactions are not pressed.

Any remaining redactions are upheld.

23. (62 of 107)

VPL.4023.0003.0132

Transcript of Interview with Witness A —9/6/14.

This document is a transcript of an interview between officers involved in Operation Kinvo and ‘Witness A’.

The applicant submits that given that context and the significance of the evidence of ‘Witness A’ in his prosecution and conviction, the redactions ought to be lifted.

The Chief Commissioner has submitted in writing that he no longer presses the redaction on VPL. 4023.0003.0147. That redaction should be removed, and the document reproduced.

The other redactions to the document are upheld.

24. (78 of 107)

VPL.4023.0004.0073

Source Management Comments

The redactions conceal the identity of individuals and material that is said to be out of scope.

The Chief Commissioner submitted in writing before the hearing that they would remove the redactions that concealed the police numbers of some officers.

There are also redactions concealing the identity of individuals that can be replaced with an existing pseudonym.

The redactions for scope and to protect identity are otherwise upheld.

25. (85 of

107)

VPL.4023.0004.0956

Acquaro Source File – Personnel

The applicant submits that there is significant public interest in the disclosure to the applicant of the identities of officers involved in handling Mr Acquaro. This is because of the importance of establishing that the officers involved in handling Mr Acquaro were involved in Operation Kinvo.

The balance required favours non-disclosure. The Chief Commissioner’s PII claim is upheld.

26. (81 of

107)

VPL.4023.0004.0515

Source Contact Reports

The applicant submits that, as this document records contact between ‘Officer Pearce’, who was involved in Operation Kinvo, and his lawyer, Mr Acquaro, it is likely to contain relevant material.

The information redacted is out of scope. The redactions are upheld.

It is noted that there are some green redactions concealing identity that could be replaced with pseudonyms.

[2023] VSCA 268

9 November 2023