Arico v The King
[2023] VSCA 81
•11 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0064 |
| NOTE: | This is a redacted version of the judgment that was published to the parties on a confidential basis. |
| ROCCO ARICO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | McCANN JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 March 2023 |
| DATE OF JUDGMENT: | 11 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 81 |
| JUDGMENT APPEALED FROM: | DPP v Arico (County Court of Victoria, Judge Chettle, 3 March 2017) |
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APPEAL – Application for leave to appeal conviction for a second time – Applicant seeks orders for production of documents – Whether application has a legitimate forensic purpose – Whether application for documents is fishing – Whether application is merely a check on the prosecutorial duty of disclosure – In the interests of justice to order production.
Criminal Procedure Act s 317.
Polimeni v The Queen [2022] VSCA 20, ACCC v Pratt [2008] FCA 1373.
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| Counsel | ||
| Applicant: | Mr J Gullaci SC with Mr J O’Connor | |
| Respondent: | Ms D Piekusis KC | |
| Respondent to the s 317 application: | Mr A Dinelli SC with Mr A Terzic | |
Solicitors | ||
| Applicant: | Theo Magazis and Associates | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
| Respondent to the s 317 application: | MinterEllison | |
MCCANN JR:
Introduction
On 10 November 2016, Mr Rocco Arico (‘the applicant’) was convicted of charges of extortion, intentionally causing injury and trafficking a large commercial quantity of methylamphetamine. In February 2017, he was convicted of possession of a firearm and possession of a drug of dependence.[1]
[1]The applicant was sentenced to a total effective sentence of 14 years with a non-parole period of 10 years in respect of all offences. An appeal against sentence was successful and he was resentenced to 12 years with a non-parole period of 9 years. An appeal against conviction was unsuccessful as was an application to the High Court for special leave to appeal against conviction.
The conduct giving rise to these criminal convictions commenced in 2010 and concluded with the applicant’s arrest on 15 March 2015.[2]
[2][2018] VSCA 135.
Upon his arrest, the applicant contacted solicitor, Mr Joseph ‘Pino’ Acquaro, who had assisted him with a range of legal matters since 2006. Mr Acquaro assisted the applicant from the time of the applicant’s arrest until Mr Acquaro’s death on 5 March 2016.
In January 2021, it was revealed that Mr Acquaro had provided information to Victoria Police in 2008 and the first half of 2014.[3] Mr Acquaro represented the applicant during both periods. The second period coincided with criminal conduct for which the applicant was convicted.
[3]Madafferi v The Queen [2021] VSCA 1.
On 3 June 2021, the applicant applied for leave to appeal those convictions pursuant to s 326A Criminal Procedure Act 2009 (‘CPA’) as a second and subsequent appeal. The applicant relies on a single ground of 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.
Following the receipt of material produced by the Chief Commissioner of Victoria Police (‘Chief Commissioner’), the applicant filed an application pursuant to s 317 CPA seeking orders for the production of documents by [redacted] (‘the s 317 respondent’).
The s 317 respondent opposes the application and contends that:
(a)there is no legitimate forensic purpose in the applicant seeking the documents described; and
(b)it is speculative that the documents produced would materially assist the applicant, the application is fishing and/or an exercise to check on the Crown’s compliance with its duty of disclosure; and
(c)it is not in the interests of justice that the documents be produced.
Having considered the relevant matters including records of emails and messages referred to by counsel for the applicant during the hearing, I have determined that there is legitimate forensic purpose in the documents sought. Although there may be some uncertainty as to whether it is on the cards that the applicant will find material assistance in the documents disclosed, it is in the interests of justice that production be ordered in the context of this appeal.
Background – s 317 application
By way of a general application dated 17 October 2022, the applicant seeks that the s 317 respondent produce documents, exhibits and other things connected with the proceedings as follows:
(a)All materials which record, or otherwise relate to, any correspondence or communication between the s 317 respondent and Joseph Acquaro (including emails, text messages, recordings, file notes or other records) regarding the applicant.
(b)All materials which record, or otherwise relate to, any correspondence or communication between s 317 respondent and Victoria Police (including emails, text messages, recordings, file notes or other records) regarding the applicant.
Legitimate forensic purpose
In determining whether it is in the interests of justice to order production of documents pursuant to s 317 CPA, a primary consideration is whether there is a legitimate forensic purpose for seeking the subject documents. The purpose must be identified with precision.
In both written and oral submissions, the s 317 respondent asserted that the applicant had not identified a legitimate forensic purpose referable to either the ground of appeal in the case or the issues in dispute in the substantive hearing.
It is correct that an assessment of the legitimate forensic purpose in an application for production must commence with the grounds of appeal and the issues in the proceedings. In such an assessment, ‘it is necessary to give broad interpretation to the issues in the case or, put another way, the “parties respective cases should not be restrictively analysed”’.[4]
[4]Ragg v Magistrates’ Court and Corcoris [2008] VSC 1 [97].
At the hearing, counsel for the applicant pointed to two of the particulars of his ground of appeal, namely 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 …
The applicant submitted that the material sought had a legitimate forensic purpose to establishing critical issues in his case being, broadly, whether his legal adviser was independent or could be seen to have had an ‘ulterior motive’ for his conduct and whether investigators and prosecutors gained an unfair advantage because his legal adviser had those ulterior motives and acted as a police informer.
It is apparent from text message records produced in this case by the Chief Commissioner that Mr Acquaro and the s 317 respondent were in contact from at least May 2014,[5] and that Mr Acquaro was engaged in communication with the s 317 respondent in respect of his clients Francesco and Antonio Madafferi, albeit not clients at the time and not the applicant
[5]Email referred to in para [17] indicate the contact commenced earlier.
The applicant pointed to a message dated 9 December 2014 from the s 317 respondent which read, [redacted] and then, [redacted]. Another message from the s 317 respondent to Mr Acquaro on 17 December 2014 [redacted].[6]
[6]DPP v Madafferi [2014] VCC 2203.
It is also apparent from an email produced by the Chief Commissioner in this case from Boris Buick to Stephen Fontana on 3 April 2014 (‘the Buick email’) that [redacted] the s 317 applicant had facilitated contact between Mr Acquaro and Victoria Police.
The applicant submits that this is evidence supporting a legitimate forensic purpose as it demonstrates that Mr Acquaro had engaged in communication with the s 317 respondent about a client; had provided other information, possibly about clients, to the s 317 respondent; was willing to provide information to Victoria Police; and the role that the s 317 respondent played in facilitating communication between police and Mr Acquaro.
It is acknowledged that mere relevance will not suffice. In the circumstances, I am satisfied that the information sought goes to the issues in this case, being conduct of the applicant’s legal representative which demonstrates his lack of independence and links between Victoria Police and Mr Acquaro via the s 317 respondent.
Does the s 317 application amount to fishing?
At the hearing, counsel for the applicant drew my attention to paragraph 40 of his written case, which foreshadows revision of the written case following receipt of further materials. The s 317 respondent pointed to this reference as indicative of a fishing expedition.
It is one thing to signpost the further development of argument upon receipt of additional material. However, it is another thing to state an intention to add a ground of appeal if production ordered by the Court reveals the information an applicant hopes to find. It is only the latter that demonstrates a fishing expedition.[7] In this case, there is no such conclusion to be drawn from the applicant’s articulation of a possible future revision alone.
[7]Polimeni v The Queen [2022] VSCA 20 at [51]–[52].
Does the s 317 application amount to a check on the Crown’s disclosure?
The leading authority in relation to production under subpoena by prosecuting agencies is the case of ACCC v Pratt,[8] which makes clear that a prosecuting agency will not be required to comply with a subpoena from an accused person that operates as a mere check on whether the prosecution agency has complied with its obligations of disclosure. Such principle was referred to in this matter by Pedley JR in relation to the s 317 application brought by this applicant against the Chief Commissioner.[9]
[8][2008] FCA 1373.
[9][2021] VSCA 353.
The principle is founded in notions of fairness, but also in support of the weighty discretion invested in a prosecuting agency. It applies only to production sought from such an agency. As such, my view is that it does not apply in this case. In any event, the material sought is not in the possession of the prosecuting agency in this matter, rather it is held by the s 317 respondent.
Is it on the cards that the documents sought will materially assist the applicant?
The s 317 respondent asserts that it is pure speculation that there is information in the documents sought that will materially assist the applicant.
In assessing whether it is on the cards that the documents sought would materially assist in the case, the Court is required to consider whether it is in the interests of justice to order production. In Polimeni,[10] Beach JA stated the following:
… while a given application may involve a greater than usual degree of uncertainty about whether it is ‘on the cards’ that the production of the document would materially assist an applicant’s case, the importance of the issue in respect of which the document is sought might be such that, weighing all the relevant matters, the Court might conclude that it is nevertheless in the interests of justice to order production of the document.[11]
[10][2022] VSCA 20.
[11]Ibid [35].
In the matter of State of Victoria (Department of Justice) v Lane,[12] Kyrou J stated that ‘the reasonable possibility test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and take advantage of any applicable defences’.[13]
[12][2012] VSC 328 at [19].
[13]Ibid [19].
In an extraction report produced by the Chief Commissioner, the applicant identified 69 text messages and 356 calls between Mr Acquaro’s phone and the s 317 respondent. [Redacted].[14] Counsel for the s 317 respondent did not dispute it was a phone number attached to his client. The applicant is not referred to by name in any of the text message correspondence and the messages relied upon are typically enquiries for meeting times and locations.
[14]Affidavit of Theo Magazis sworn 15 February 2023.
The applicant prepared a chronology for the Court [redacted].[15]
[15]See para [16] above.
The applicant submits that it is an available inference that Mr Acquaro also shared information with the s 317 respondent about his other clients, including the applicant. He points to the volume of calls and number of meetings set up through text messages for which there are no records of what was discussed.
It is submitted that the emails and messages in combination demonstrate a relationship between the s 317 respondent and Mr Acquaro dating back to at least March 2014 and continuing until at least 30 March 2015.
As I discussed above, the applicant seeks to draw an inference from the Buick email [redacted that the s 317 respondent facilitated contact between the Mr Acquaro and Victoria Police on more than one occasion and that the s 317 respondent was in frequent contact with Victoria Police himself.[16]
[16]Theo Magazis affidavit sworn 15 February 2023 and annexures.
There was no document which recorded the provision of information by Mr Acquaro to the s 317 respondent or by the s 317 respondent to Victoria Police concerning the applicant. It is this missing piece that gives rise to the uncertainty regarding whether there is a reasonable possibility that the order for production would reveal documents of material assistance to his case.
Given the importance of this issue in the context of the appeal, I am of the view that the inferences that can be drawn from the material produced by the Chief Commissioner are sufficient to establish that there is a reasonable possibility that the information sought will materially assist the applicant’s case.
It is in the interests of justice to order production by the s 317 respondent. However, I consider that the date range and categories of material sought by the applicant are too broad and should be confined.
The orders of the Court are as follows:
Pursuant to s 317 of the Criminal Procedure Act 2009, the respondent to the application, [redacted], produce documents as follows;
(1)All correspondence and/or records of communication during the period 1 January 2014 to 15 March 2016 (including emails, text messages, file notes or other records) between [redacted] and Joseph Acquaro regarding the applicant; and
(2)All correspondence and/or records of communication during the period 1 January 2014 to 28 February 2017 (including emails, text messages, file notes or other records) between [redacted] and Victoria Police regarding the applicant.
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