Arico v The King - [2023] VSCA 132

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…

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 132
Case: [2023] VSCA 132
Decision Date: 5 June 2023

CaseChat Overview and Summary

Arico, the applicant, brought a case against the King, the respondent, before the court. The dispute involved the inspection of documents that were redacted and claimed to be privileged. The applicant sought to have their legal representatives inspect the documents on a confidentiality undertaking, arguing that they were best placed to determine the claims of confidence and privilege.

The legal issues the court had to decide were whether the applicant's legal representatives could inspect the redacted documents on a confidentiality undertaking, and whether the respondent should produce the documents with the redactions lifted to the applicant's legal representatives under such an undertaking. The court had to balance the duty of confidentiality owed to the client with the need to ensure that the applicant's legal representatives could properly advise their client on the claims of confidence and privilege.

The court held that the applicant's legal representatives were indeed best placed to determine the claims of confidence and privilege. Therefore, the respondent was ordered to produce the documents with the redactions lifted to the applicant's legal representatives on a confidential undertaking. This decision ensured that the applicant's legal representatives could properly advise their client while also upholding the duty of confidentiality owed to the client.

Orders