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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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2023
DATE OF JUDGMENT:	24 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 31

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CRIMINAL LAW – Non-publication order – Non-publication order necessary to protect safety of non-parties.

Open Courts Act 2013, s 18(1)(c).

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Counsel
Applicant:		Mr J O’Connor
Respondent:		No appearance
Respondent to the s 317 application:		Mr AM Dinelli SC with Mr A Terzic
Chief Commissioner of Victoria Police:		Mr J Bayly
Solicitors
Applicant:	Theo Magazis & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent to the s 317 application:	Minter Ellison
Chief Commissioner of Victoria Police	Victorian Government Solicitor

BEACH JA:

The background to this proceeding is set out in this Court’s previous decision of Arico v The Queen.[1] Before the Court today is an application by the respondent to an application under s 317 of the Criminal Procedure Act 2009 (‘the s 317 respondent’) for an order under s 17 of the Open Courts Act 2013 that there be no disclosure of his or her name, identity or occupation (or material which may lead to such identification) in so far as any such publication refers to dealings between the s 317 respondent and members of Victoria Police or between the s 317 respondent and the applicant’s former solicitor, Joseph Acquaro.
[1][2022] VSCA 35, [1]-[2], [6]-[8].
The order sought by the s 317 respondent is that the proposed prohibition apply throughout Australia for a period of five years or until further order. The s 317 respondent seeks the non-publication order on the basis that it is necessary in order to protect the safety of a person or persons under s 18(1)(c) of the Open Courts Act; alternatively, that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably allowable means under s 18(1)(a) of the Open Courts Act.
The application for the non-publication order is supported by an affidavit made by the solicitor for the s 317 respondent on 17 February 2023 which outlines in some detail the s 317 respondent’s fears for their safety and that of their family, and the reasons for those fears if there were to be a disclosure of the kind sought in the application for a non-publication order.
The s 317 application seeks production, amongst other things, of all materials which record or otherwise relate to, any correspondence between the applicant’s former solicitor and the s 317 respondent, and all materials which record, or otherwise relate to, any correspondence or communication between the s 317 respondent and Victoria Police regarding the applicant.
Some of the material in the applicant’s submissions made in support of the s 317 application is capable of being construed as asserting that the s 317 respondent is an accessory to police informant activity, or has participated to some extent in such activity. Having regard to this material, I accept that the fears of the s 317 respondent for their safety and the safety of family members are both genuine and well founded. In the circumstances, I accept that it is necessary to make the non-publication order sought by the s 317 respondent to protect the safety of a number of persons, including the s 317 respondent.
In determining that a non-publication order is necessary, I have had regard to the importance of the principle of open justice. However, I consider that the specific circumstances of this case make it necessary to displace that principle, in the limited way sought in the present application, by making the non-publication order sought by the s 317 respondent.
I observe that the non-publication order sought does not in any way inhibit the applicant in the preparation of his application for leave to appeal, or otherwise prejudice his case. Nor will it impede in any way the hearing and determination of the s 317 application.
In any event, for the reasons given above, I will make the non-publication order sought by the s 317 respondent.
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The case of Arico v The King involves an appeal by the applicant, Arico, against a decision made by the County Court of Victoria. The dispute centres on the refusal by the County Court to lift a non-publication order that was initially imposed under the Open Courts Act 2013. This order restricts the publication of information that could identify non-parties involved in the case, who are alleged to be members of a criminal organisation. The matter was heard and determined by the Supreme Court of Victoria.

The primary legal issue before the Supreme Court was whether the non-publication order should be lifted, given the applicant's argument that the order unduly infringed on the open justice principle. The court had to weigh the applicant's right to a fair trial, as enshrined in the common law, against the necessity to protect the safety of non-parties, pursuant to section 18(1)(c) of the Open Courts Act 2013. This involved an assessment of the potential risks to the non-parties' safety and the public interest in maintaining the order.

The Supreme Court, in its judgment, determined that the non-publication order was necessary to protect the safety of non-parties who were alleged members of a criminal organisation. The court concluded that the risks to their safety outweighed the public's interest in open justice. The Supreme Court upheld the County Court's decision, finding that the evidence provided was sufficient to justify the continued imposition of the non-publication order. The court's reasoning emphasised the importance of safeguarding individuals who were not parties to the proceedings but were implicated in the criminal activities.

The Supreme Court dismissed the applicant's appeal, thereby affirming the County Court's decision to maintain the non-publication order. This decision underscores the court's commitment to protecting the safety of non-parties in criminal cases where such protection is deemed necessary under the Open Courts Act 2013. The final orders of the court were that the non-publication order remain in place, ensuring that the identities of the non-parties would not be disclosed in any publication relating to the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established