Arico v The King
[2023] VSCA 132
•5 June 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0064 |
| ROCCO ARICO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | JUDICIAL REGISTRAR McCANN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 April 2023, 26 May 2023 |
| DATE OF JUDGMENT: | 5 June 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 132 |
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CRIMINAL LAW – Inspection of documents – Duty of confidentiality – Client confidential information – Where documents are redacted and subject to claims of privilege – Whether Applicant’s legal representatives can inspect documents on a confidentiality undertaking – Applicant’s legal representatives best placed to determine the claims of confidence and privilege – Respondent to produce documents with redactions lifted to Applicant’s legal representatives on a confidential undertaking.
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| Counsel | |||
| Applicant: | Mr OP Holdenson KC (24 April 2023, 26 May 2023) Mr J O’Connor (24 April 2023, 26 May 2023) | ||
| Respondent: | Ms D Piekusis KC (24 April 2023) No Appearance (26 May 2023) | ||
| Chief Commissioner of Police | Ms S Maharaj KC (24 April 2023) Mr M Keks (24 April 2023) Ms M Pekevska (26 May 2023) | ||
Solicitors | |||
| Applicant: | Theo Magazis and Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions (24 April 2023) -(26 May 2023) | ||
| Chief Commissioner of Police | Victorian Government Solicitor’s Office | ||
McCANN JR:
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.[1] This is a second appeal brought pursuant to s 326A Criminal Procedure Act 2009 (Vic) (‘CPA’).
[1]On 10 November 2016 the applicant was convicted of extortion, intentionally causing injury and trafficking following a trial. The applicant was convicted of prohibited possession of a firearm and a drug of dependence following a second trial in February 2017. On 3 March 2017, the applicant was sentenced in respect of both trials to a total term of 14 years’ imprisonment with a non-parole period of 10 years.
The application follows revelations in January 2021 that the applicant’s solicitor, Mr Joseph ‘Pino’ Acquaro, provided information to Victoria Police in 2008 and the first half of 2014.[2]
[2]Madafferi v The Queen [2021] VSCA 1.
In the appeal proceedings the Chief Commissioner of Police (‘the Chief Commissioner’) has provided documents, pursuant both to court order and his duty of disclosure. The applicant challenges the redactions the Chief Commissioner has applied to those documents. The Court is asked to determine the manner in which the Chief Commissioner’s claims of confidence and privilege are to be considered. Should the applicant’s lawyers be permitted to inspect the documents produced from the Chief Commissioner’s holdings, on a confidentiality undertaking and then assist the Court in considering the privilege claims, or should the Court inspect a representative sample of the documents and assess the claims with the assistance of counsel for the Chief Commissioner alone?
The Court is also asked to determine how to progress the inspection of material extracted from the devices of the Acquaro legal practice and then to identify and determine any claims of client legal privilege.
PART A:BACKGROUND
The applicant relies on 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. In particular, it is asserted that, unbeknownst to the applicant:
(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.
In this appeal, the court has ordered production by the Chief Commissioner of Police pursuant to s 317 of the CPA on the following dates:
(a)13 August 2021;
(b)23 September 2021;
(c)28 March 2022; and
(d)23 June 2022.
The applicant has also requested and received disclosure material from the Chief Commissioner.
According to registry records, from 3 September 2021 to 16 May 2023, approximately 500 documents have been produced from the holdings of the Chief Commissioner pursuant to both orders and disclosure.
Documents from the legal practice of Acquaro (‘the Acquaro documents’) were ordered to be produced in category 1 (c) of the orders of Justice Beach of 28 March 2022 being:
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 (included but not restricted to materials on his computer).
This category of documents was the subject of a further order, made by consent on 23 June 2022 by Pedley JR. In accordance with this order, the Chief Commissioner produced 18 documents set out in a table annexed to the affidavit of Detective Inspector Scott Wallace, sworn 21 November 2022 (‘the inspection table’).
Redactions for scope and relevance have been applied to the documents. Additionally, redactions representing what the Chief Commissioner describes as potential client legal privilege have been applied to the Acquaro documents and redactions representing public interest immunity claims (‘PII’) have been applied to the documents from the Chief Commissioner’s holdings.
The applicant challenges the Chief Commissioner’s claims of privilege in respect of 107 of the documents from the holdings of the Chief Commissioner (‘the 107 documents’). At the hearing of the matter on 24 April 2023 the applicant informed the Court that he no longer pressed inspection of 12 of the 18 documents in the inspection table and provided a waiver of privilege in respect of members of the Arico family, who were also clients of the Acquaro legal practice. The preliminary issue for determination is the approach to be adopted to consider:
(a)the Chief Commissioner’ objections and claims of PII in respect of the 107 documents derived from his holdings; and
(b)which of the Acquaro documents should be inspected, in what form and by whom.
Having considered the grounds of appeal and the importance of the material contained in the 107 documents, I have decided that the Court will be best placed to determine the claims of confidence and privilege with the assistance of a contradictor. The contradictor in this instance will be the applicant’s legal representatives upon a non-disclosure undertaking.
Following a further hearing of the matter on 26 May 2023, focused on the Acquaro documents, the Chief Commissioner agreed to lift redactions relating to the names ‘Rocco Arico’, ‘Arico’ and ‘Rocco’ and provide these to the applicant. The Chief Commissioner also agreed to conduct a further search of the documents using terms chosen by the applicant with the objective to further reduce the volume of material to be considered. Upon receipt of these documents the applicant will then notify the Court if they press their claim and steps can be taken to implement a process to assess any claims of client legal privilege.
PART B:THE 107 DOCUMENTS
On 19 October 2022 the applicant filed a general application challenging redactions to 107 of the 186 documents produced. According to the Chief Commissioner this amounts to in excess of 2,000 pages. He submits that the volume of documents for consideration can be reduced by excluding:
(a)documents that have been the subject of a ruling by Judge Misso during in the applicant’s trial (‘the Misso ruling’)[3]; and
(b)the redacted documents that form part of what is called the Madafferi index (‘the Madafferi index’).
[3]DPP v Arico (Ruling No 1) [2016] VCC 1143.
The applicant opposed the reduction of the 107 documents on either of these bases.
The Misso Ruling
The Chief Commissioner informed the Court that his PII claims in respect of 17 of the 107 documents were considered and upheld in pre-trial rulings of his Honour Judge Misso.[4] During the oral hearing on 24 April 2023, senior counsel for the Chief Commissioner disavowed her reliance in written submissions on the doctrine of res judicata, submitting instead that the Court simply has a discretion to adopt the pre-trial ruling because it related to the same charges.
[4] DPP v Arico (Ruling No 1) [2016] VCC 1143.
In response, the applicant argued that the doctrine of res judicata had no application and that I ought not exercise my discretion to adopt the ruling from the trial in the County Court in respect of PII as it relates to his appeal.
I agree with the applicant. The issues in his appeal are different from those at trial, albeit that the conviction the subject of the appeal is in respect of the same charges. The focus of the appeal is the conduct of Victoria Police and the applicant’s lawyer during the investigation and legal proceedings leading to the conviction. The applicant was unaware of this conduct at the time of the trial. The assessment of the Chief Commissioner’s claim of PII will involve a balance of the issues in the appeal against the public interest.
It is appropriate that the material the subject of Judge Misso’s ruling be considered in this new context.
The Madafferi Index
In the case of Madafferi v The Queen the Chief Commissioner identified 31 documents ‘containing, or relating to, information exchanged between Acquaro and Victoria Police in 2008 and 2014’.[5] A list of those documents was appended to that decision.
[5]Madafferi v The Queen [2021] VSCA 1 Appendix.
On 13 August 2021, JR Pedley ordered by consent the production of:
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”.
Following the orders of 13 August 2021, the applicant amended his general application to seek a broader category of documents from the Madafferi appendix. In his ruling on the contested hearing in respect of that amended application, Pedley JR declined to order production of the expanded category sought, being:
all documents or things identified in the appendix to the decision in Madafferi, whether or not those documents or things concern the applicant or Witness A.[6]
[6]Arico v The Queen [2021] VSCA 353, 23.
In his application to review the decision of Pedley JR of 15 December 2021, the applicant did not seek to review the refusal to order production of this expanded category.
On 28 March 2022, Beach JA ordered the production of a slightly expanded category and included all Victoria Police holdings as follows:
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.
This expanded category is referred to in the open affidavit of Detective Inspector Scott Wallace as the ‘Madafferi index’.[7] The Chief Commissioner argues that the applicant is precluded from seeking to contest the redactions to the Madafferi index because he failed to pursue the expanded category in his review of Pedley JR’s orders.
[7]Respondent, ‘Open affidavit of Detective Inspector Scott Wallace’ 22 November 2022 [11].
This argument is rejected. The applicant’s objections do not seek to traverse the scope of the orders made on 28 March 2022. The Court is now to consider redactions representing the Chief Commissioner’s objections to production based on privilege, statutory prohibition and/or broad relevance. None of these objections have previously been considered, or determined.
What process should the Court adopt to determine the redactions to the 107 documents?
‘The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertakings as to confidentiality, are permitted to see the material’.[8]
[8]Goussis v The King [2022] VSCA 255, [23].
The Chief Commissioner pointed out that in addition to the approaches identified in Goussis, in appeals relating to the conduct of Nicola Gobbo and/or arising out of the Royal Commission into the Management of Police Informants, the court has also, from time to time, adopted the approach of reviewing a representative sample of those documents. The Chief Commissioner filed an appendix quoting transcript from proceedings and correspondence with the Court from 2019 demonstrating the adoption of, and positive attitude to, this approach.
Counsel for the Chief Commissioner submitted that in this case the Court ought to conduct a review of a representative sample of the documents selected by the applicant and the Chief Commissioner.
At the time of the hearing, the Court had a series of extracts selected from those documents which were annexed to the confidential affidavit of Scott Wallace referred to as Exhibits SW2-7.[9]
[9]Respondent, ‘Confidential affidavit of Detective Inspector Scott Wallace’ 21 November 2022.
The applicant sought to be permitted to inspect the confidential documents upon an undertaking as to confidentiality and thereafter act as contradictor in respect of the privilege and confidence claims made by the Chief Commissioner.
Counsel for the Chief Commissioner argued that the decisions in Mokbel[10] and Goussis stand for the limited proposition that among the courses that a Court might take to determine a claim of PII, a Court is ‘not precluded’ from permitting a party’s legal representatives to inspect the documents on an appropriate undertaking as to confidentiality. Neither Mokbel nor Goussis, he submitted, ‘support the view that the applicant’s legal representative should be appointed as a matter of principle to act as a contradictor in this matter’.[11] I accept this submission.
[10]Mokbel v The Queen [2021] VSCA 366.
[11]Respondent, ‘Submissions of the Chief Commissioner of Police with respect to the Appointment of a Contradictor for the Determination of Public Interest Immunity Claims’ 20 December 2012 [5].
The applicant, for his part, relied upon Goussis as the leading authority on the considerations relevant to the determination of a process to be adopted in assessing claims of PII. I accept this submission.
The Chief Commissioner also submitted that both Goussis and Mokbel are factually distinguishable from applicant’s circumstances. Amongst the points of distinction in this case he argues that:
(a)the term of imprisonment to which the applicant has been sentenced following conviction is not as lengthy as the sentences imposed in either Goussis or Mokbel;
(b)the applicant’s appeal lacks merit; and
(c)the Chief Commissioner has not provided early disclosure to the applicant in this case but did so in Mokbel.
Undoubtedly there are factual distinctions between the applicant’s circumstances and those of Mokbel and Goussis, just as there are between Mokbel and Goussis. They are each serving differing terms of imprisonment imposed for different charges. The applicant in Mokbel raises issues on appeal in respect of the conduct of Nicola Gobbo as his sometime legal representative. This applicant raises issues in respect of the conduct of his legal representative Mr Acquaro. All three have raised issues in respect of past compliance with disclosure obligations by Victoria Police.
The decision in Goussis makes clear that the approaches to the determination of claims of PII will vary from case to case. The approach to be adopted in any given case ‘requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate’.[12]
[12]Goussis v The King [2022] VSCA 255 [23].
Two further factors, whilst not determinative of the result in Goussis, were found to be in favour of making an order that the applicants legal representatives be granted permission to inspect confidential material:
(a)‘The saving of court time and scarce judicial resources’; and
(b)‘In circumstances where there have been issues about material not being disclosed by Victoria Police to accused who have been convicted of serious offending and sentenced to substantial terms of imprisonment … it is in the interests of justice that those caught up in the criminal justice system believe that it’s processes are fair’.[13]
[13]Ibid at [28]-[29].
I do not accept that the points of distinction raised by the Chief Commissioner between the facts in either Mokbel or Goussis and the circumstances of the applicant mean the considerations identified in Goussis have no application here.
The life term of imprisonment in Goussis was a factor demonstrative of the importance of the issue in that case.[14]
[14]Ibid at [22].
The merit of the applicant’s appeal, if it had relevance to the question of production, fell to be considered when the orders were made.[15] I note in this regard that some of the orders for production in this proceeding were with the consent of the Chief Commissioner. The decisions of the Chief Commissioner to disclose or not and the stage of proceedings at which he chose to do so are not managed by the Court and are irrelevant to a determination by the Court about how to consider his claims of confidence over material he has now both disclosed and produced.
[15]Polimeni v The Queen [2022] VSCA 20.
In this case, information provided to or held by Victoria Police during the criminal investigation and trial proceedings not disclosed to the applicant are central to his ground of appeal. It follows that the information held by Victoria Police is potentially of significant value to the applicant.
Decision
The task of assessing the Chief Commissioner’s claims of PII is neither small nor straight forward. The method preferred by the Chief Commissioner would involve the Court considering a representative sample from the over 2,000 pages with the assistance of counsel for the Chief Commissioner of Police. During the hearing his counsel expressed a willingness to remove scope and other pink, green and yellow redactions for inspection by the applicant and the Court. The Chief Commissioner does not make a submission about a contradictor.
I am not prepared to consider the objections raised without a contradictor. There is a real risk in this matter, as there was in Goussis, that ‘the Court’s analysis (unassisted by a contradictor) would be superficial and the applicant might be deprived of material (the real significance of which may not be apparent to the Court)’.[16]
[16]Goussis v The King [2022] VSCA 255, [21].
I am also satisfied that the contradictor to be appointed ought to be the applicant’s own legal team upon providing non-disclosure undertakings.
In reaching this conclusion I have taken into account the following:
(a)The nature of the proceeding:
(i)this is a second appeal in which the applicant submits that his lawyer had unbeknownst to him acted against his interests;
(ii)that the lawyer did so with the knowledge of Victoria police; and
(iii)that this information has not previously been disclosed to him.
(b)The significance of this revelation to the applicant who was convicted of serious criminal offences following his representation by this lawyer;
(c)The familiarity of the applicants legal team with his grounds of appeal and the material produced and disclosed to date; and
(d)The size and complexity of the task.
In this case the submissions and affidavit alone will, in my view, be insufficient for the applicant’s legal team to make an assessment of the Chief Commissioner’s claims and assist the Court in its determination.
On the basis of what has been provided, along with the Chief Commissioner’s submissions that they would be prepared to remove scope, pink, green and yellow redactions from a sample for viewing by the applicant, I have determined that the issues between the Chief Commissioner and the applicant will be best progressed if the applicant’s legal representatives, on the provision of an undertaking, are provided with the confidential affidavit of Scott Wallace. These documents will need to be redacted to mask information referring to material masked with red redactions in the annexed documents. The Chief Commissioner must also provide the annexures to that affidavit numbered 2 to 7 with redactions lifted in relation to scope, and redactions marked in categories pink, green and yellow.
The preparation of these documents is not a large or onerous task, the affidavit amounts to 17 pages and the annexures to 113 pages. It should be done in a timely manner following the publication of this judgment.
Orders giving effect to these reasons will be made. The timetable for the preparation of the documents identified and the provision of an undertaking by the applicant should be prepared by the parties and provided to the Court.
PART C:THE ACQUARO DOCUMENTS
Orders of Pedley JR
On 31 May 2021, the applicant made an application for orders for production pursuant to s 317 of the CPA. As part of that application the applicant sought a category of documents at paragraph 1 (d) being:
All 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).
In his judgment of 15 December 2021,[17] Pedley JR ordered this production and made clear where he considered legitimate forensic purpose lay;
As a matter of ordinary disclosure, the applicant should be able to know what material on Mr Acquaro’s computer related to him. This would be wider than knowing which documents had “Arico” in the document title. I consider there is a legitimate forensic purpose both to know whether Mr Acquaro provided information about the applicant to police and to have information about their ongoing professional relationship.[18]
[17]Arico v The Queen [2021] VSCA 353.
[18]Ibid [108].
He directed the parties to confer and draft terms of orders to give effect to his decision.[19]
[19]The applicant applied for review of the decision of Pedley JR Arico v The Queen [2021] VSCA 353. However the decision in respect of the Acquaro documents was not the subject of that review. The Acquaro documents were ordered for production by Beach JA following Arico v The Queen [2022] VSCA 35, see [10] above. The further order of Pedley JR of 23 June 2022 set out the search terms anticipated in his decision of 15 December 2021.
In compliance with the direction in the judgment, the parties provided the court with a minute of consent and on 23 June 2022 Pedley JR made the following order for production by the Chief Commissioner of Police:
1. Pursuant to s 317 of the Criminal Procedure Act 2009 (Vic), the Chief Commissioner must produce to the Registry of the Court of Appeal all materials relating to the Applicant that were seized as part of the investigation into Mr Acquaro’s death (including but not restricted to materials on his computer).
2. Without limiting the scope of Order 1, the Chief Commissioner must:
a) review the contents of all electronic devices seized pursuant to search warrants by members of Victoria Police on or around 15 March 2016 from the residential and/or business premises of Joseph Acquaro (seized devices), including:
i. HP ProBook laptop computer, model 650 G1, laptop serial number CNU402BHQ5, hard drive serial number TF0501Y93YG4LR;
ii. Samsung tablet, Galaxy Tab S model SM-T805Y, serial number RF2G3001GCF;
iii. HTC mobile phone, model Desire A8183, serial number HT09MR300568;
iv. mobile phone, iPhone 4s model A1387, serial number DX3HX47RDTDD;
v. Nokia mobile phone, model 1616-2 RH-125, serial number DWL914140; and
vi. Samsung mobile phone, model GT-I9305T, serial number RF1D882CPJY.
b)ascertain whether any material, including any part of any material, contained on the seized devices relates, directly or indirectly, to:
i. The Applicant;
ii. the investigations and prosecutions of the Applicant that led to his conviction at trial in 2016 and 2017; and/or
iii. between Joseph Acquaro and Victoria Police about the Applicant.
3. Without limiting the scope of Orders 1 and 2, in determining whether any documents or materials are captured by Order 2(b), the following search terms will be used:
a) Rocco Arico;
b) Arico;
c) Rocco Carmelo Arico
d) Kinvo
e) Witness A’s name (first and second name as separate searches);
f) Trichias;
g) Bingham
h) Pickett;
i) O’Connor
j) Mitchell; and,
k) Officer Pearce’s real name (second name);
l) Milorad Keca (first and second name as separate searches);
m) Jesse Franco (first and second name as separate searches);
Production
In compliance with the orders, the Chief Commissioner produced 18 documents to the Court and orders were made for their release to the parties for inspection.
At the hearing in relation to the Chief Commissioner’s objections on 24 April 2023, senior counsel for the applicant informed the Court that waivers of client legal privilege had been provided by Mr Arico’s wife and parents. Senior counsel for the applicant also informed the Court that they had abandoned their claim to all but six of these 18 documents. The six documents were identified by reference to the numbers and titles given to them in the inspection table annexed to the affidavit of Detective Inspector Scott Wallace as follows:
3. Arico – Chats
4. Arico – Outlook emails
15. Outlook emails
16. Roc – Chats
17. ROCCO – Chats.xlsx
18. Outlook Emails.pdf
At some stage subsequent to the preparation and filing of the affidavit annexing the inspection table, the Chief Commissioner identified duplication of information across the 18 inspection table documents. Analysis in the form of ‘extraction reports’ reduced this duplication. The applicant and Court were notified of the process and results on the day of the hearing. The Chief Commissioner submitted that the reports contained the information that was pressed by the applicant, although no longer in the groupings or with the labels applied in the inspection table.
Also at the hearing the Chief Commissioner informed the Court and the applicant that there was further analysis that was being undertaken and that they would produce further reports. I expressed my dissatisfaction about this lack of finality in relation to what had been produced. The Chief Commissioner was to produce the final update by 4 May 2023.
Following the hearing on 24 April 2023, on 28 April 2023, 5 May 2023 and 16 May 2023 there was further production, recall and reproduction of the material on the Acquaro devices. Consequently it became unclear what documents from the original inspection table annexed to the affidavit of Detective Inspector Scott Wallace had been provided and which among them were the subject of dispute. It was for this reason that a further hearing of the matter was conducted on 26 May 2023. Issues in relation to the consideration of the client confidential information contained in the documents were also raised at that hearing.
The Documents sought by the Applicant and Client Confidential Information
As part of their investigation into the death of Mr Acquaro, Victoria Police seized materials, documents and devices held by the legal practice of Mr Acquaro; Acquaro and Co. It is information held by a legal practice and consequently includes information confidential to the clients of that legal practice.
The Chief Commissioner submits that a large volume of the material he has produced set out in the inspection table and in the extraction reports does not relate specifically to the applicant and is outside the scope of the orders. On reviewing a small portion of the material it is clear to me that this is the case. It seems that the vast proportion of the material relates to clients of Mr Acquaro other than the applicant and relate to proceedings and communications which could not possibly have any relevance to the applicant in his appeal against conviction.
At the hearing of this matter on 26 May 2023 I sought to explore with the applicant and Chief Commissioner the ways in which the volume of irrelevant and out-of-scope material that had been produced could be reduced to make the task of identifying relevant material manageable. The task of excluding irrelevant and out of scope material needs to be cognizant of and sensitive to the confidence Mr Acquaro’s clients placed in him when they provided him with instructions and sought his legal assistance.[20] Obviously Victoria Police have had access to this confidential information and to that extent client confidence has been breached. The Court should be cautious about unnecessarily breaching it further.
[20]The duty of confidentiality arises in contract law and equity and is replicated in the professional conduct rules: see generally Gino Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 7th ed, 2017) 356; See also Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 9.1.
In their submissions, the Chief Commissioner had raised the issue of client legal privilege which might be claimed in respect of any material the applicant ultimately seeks to use.
In my view, it is premature to consider a process that might unfold in relation to claims of privilege of that nature. It is contingent on factors unknown. The applicant’s lawyers are unaware of the information contained in the Acquaro documents let alone whether they will wish to rely upon any of it.
What is clear, is that in the event that the applicant seeks to use any material from the Acquaro documents in his appeal, the Court must satisfy itself that any relevant witness or party is aware of any claims of privilege that they might make. The Chief Commissioner has referred the Court to s 132 of the Evidence Act 1995 (Cth) in this regard:
Court to inform of rights to make applications and objections
If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.
The confusion that has arisen in the production process in respect of the Acquaro documents is best addressed by returning to the identification adopted in the inspection table. This is the framework that has been adopted by the applicant to identify his claims and it is the base categorisation that is used in the orders that have been made by the Court.
Decision
Having raised these issues during the 26 May 2023 hearing of the matter, a solution was agreed between the parties which addressed the confusion that had arisen in respect of the production and reproduction of the Acquaro documents. A process was agreed to further refine the subject matter of the documents for inspection by the applicant to increase the likelihood that information contained might assist the applicant whilst also reducing the risk of unnecessary breach of client confidence.
On 26 May 2023 I made orders which included the following:
The Chief Commissioner is to produce, to the Court and to the applicant’s legal representatives, all documents represented in inspection table items 3, 4, 15, 16, 17 and 18, including those documents where a waiver of privilege has been made by the applicant’s wife and parents, and with all redactions over information related to the names ‘Arico’, ‘Rocco Arico’ and ‘Rocco’ lifted.
The applicant is to file and serve a list of search terms which can be used to refine the content of the inspection table documents produced by the Chief Commissioner and pressed by the applicant. The Chief Commissioner is to apply those terms and re-produce the document bundle to the Court and to the applicant’s legal representatives as soon as practicable.
If, at the conclusion of this process, the applicant still seeks material that has been masked in production, or seeks to rely on material that may be the subject of client legal privilege, further application can be made to the Court.
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