Arico v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0064

ROCCO ARICO	Applicant
v
THE QUEEN	Respondent

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JUDICIAL REGISTRAR:	PEDLEY JR
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 September 2021
DATE OF JUDGMENT:	15 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 353

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CRIMINAL LAW – Appeal – Practice and Procedure – Applicant seeks documents from Chief Commissioner of Victoria Police – Legitimate forensic purpose – Some material held by Victoria Police obtained pursuant to a warrant in a murder investigation and police face legal difficulties in examining the material without a Court order – Criminal Procedure Act 2009 s 317.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston and Mr P Coleridge	Theo Magazis & Associates
For the Respondent	Ms D Piekusis QC	Ms A Hogan, Solicitor for Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC and Ms M Pevevska	Victorian Government Solicitor

PEDLEY JR:

Rocco Arico (‘Mr Arico’ or ‘the applicant’) was convicted in 2016 of three counts of extortion, intentionally causing injury and trafficking in a large commercial quantity of a drug of dependence.[1] In a subsequent trial in 2017, Mr Arico was convicted of being a prohibited person in possession of a firearm and possessing a drug of dependence, and was sentenced in respect of all offending to a total effective sentence of 14 years’ imprisonment with a non-parole period of 10 years.
[1]Rocco Arico v The Queen [2018] VSCA 135, [2] (Maxwell ACJ and Weinberg JA).

Mr Arico appealed against both his convictions and sentence in 2018. Mr Arico’s application for leave to appeal his convictions was refused. His sentence application was successful and his sentence was reduced to 12 years with a non-parole period of nine years.[2] In that judgment, the Court of Appeal noted that ‘the case against the applicant turned primarily upon the evidence of Witness A, who had for many years been an associate of the applicant’.[3] Witness A and his wife were the victims in the first trial. Witness A came forward to assist the police and this resulted in Mr Arico being charged. The applicant applied to the High Court for special leave to appeal his convictions but this was refused.
[2]Ibid [430] (Priest JA).
[3]Ibid [8] (Maxwell ACJ and Weinberg JA).

It was not in dispute that Joseph Acquaro acted for the applicant in various legal matters spanning from 2006 to 2016, including upon Mr Arico’s arrest on 5 March 2016, in relation to the convictions which are the subject of this appeal and during the following year. Up until Mr Acquaro’s murder on 15 March 2016, Mr Acquaro was heavily involved in managing Mr Arico’s legal defence in these matters. This included acting as a consultant after Mr Arico’s matter was transferred to Condello Lawyers in July 2015.[4] During the investigation into Mr Acquaro’s murder in March 2016, Victoria Police seized his computers and mobile phones.

[4]Applicant’s written case, [20]–[23].

Unbeknownst to Mr Arico, Mr Acquaro acted as an unregistered police informer for Victoria Police. Mr Acquaro was an unregistered human source between February and March 2008 and again between March and May 2014.[5]
[5]Affidavit of Timothy James McKinney 23 August 2021, [38].

Mr Arico learnt of Mr Acquaro’s role as an informer in January 2021 following the Court of Appeal’s decision in Madafferi v The Queen.[6] Victoria Police documents provided to the Court of Appeal revealed that Mr Acquaro had two discrete sets of interaction with police in 2008 (while he was acting for Francesco Madafferi in matters such as immigration matters) and in the first half of 2014 when he was no longer acting for Mr Madafferi, and shortly before Mr Madafferi’s trial. The 2008 contact arose when the police contacted Mr Acquaro seeking information about the ‘gangland killings’ and the 2014 contact was initiated by Mr Acquaro after he and Mr Madafferi had fallen out and he expressed his anger about the manner in which Mr Madafferi had drawn his sons into his sphere of influence. Mr Acquaro told police in 2014 that Mr Madafferi was standing over traders at the wholesale fruit and vegetable market and he also reported a threat to his own life.[7]
[6]Madafferi v The Queen [2021] VSCA 1 (‘Madafferi’).
[7]Ibid [53]-[54] (Emerton, Weinberg and Osborn JJA).

On 3 June 2021, Mr Arico filed an application under s 326A of the Criminal Procedure Act 2009 (‘CPA’) for leave to appeal his convictions and a written case.

The Court of Appeal may grant leave to appeal under s 326A if satisfied there is fresh and compelling evidence that should, in the interests of justice, be considered on appeal. Evidence is fresh if it was not adduced at the trial of the offence and could not, with the exercise of reasonable diligence, have been adduced at trial. Evidence is compelling if it is reliable, substantial and either highly probative in the context of the issues in dispute at the trial or it would have eliminated or substantially weakened the prosecution case if it had been presented at trial. The Court of Appeal must allow the appeal against conviction if it is satisfied there has been a substantial miscarriage of justice and in any other case the Court of Appeal must dismiss an appeal.[8]
[8]Sections 326A–326D of the CPA. The Court of Appeal has described these requirements as strict statutory requirements which could be compared and contrasted with the terms of s 274 of the CPA governing the granting of leave in the ordinary case; Roberts v The Queen (2020) 60 VR 431, [34]-[51] (‘Roberts’).

The application contains one proposed ground of appeal with five particulars. That ground is that the applicant’s right to a fair trial was subverted, resulting in a substantial miscarriage of justice. In particular, 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 material 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.[9]

[9][2020] VSCA 272 (‘Cvetanovski’).

On 31 May 2021, Mr Arico made an application under s 317 of the CPA to the Registry for production of documents from the Chief Commissioner of Victoria Police (the ‘Chief Commissioner’) (the ‘s 317 application’). The 11 categories of documents sought to be produced under this application, as amended, are set out in Annexure A to these reasons. The s 317 application was partly contested.

On 13 August 2021, with the consent of the parties, I made orders under s 317 of the CPA that the Chief Commissioner produce certain material not in dispute to the court. The terms of the orders reflect the discussions and agreement reached between the legal representatives of the applicant and the Chief Commissioner. The orders included a process for the determination of objections by the Chief Commissioner to the production of the whole or parts of documents. That process involved the Chief Commissioner and the applicant filing written submissions in support of their positions.

The materials the Chief Commissioner agreed to produce under the s 317 application are:

(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”: -

(this is a subset of documents produced by the Chief Commissioner in Madafferi and is limited to the time frame between 22 December 2010 and 15 arch 2016 and to the applicant and/ or “Witness A” ).
(f) – All materials relating to information exchanged between “ Witness A” and Victoria Police between 1 January 2014 (being the year “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.
(g) – All materials relating to the decision of “Witness A” to cooperate with the authorities and/or give evidence at the applicant’s trial.
(h) – All materials relating to payments made and/or benefits provided to “Witness A”.

However, the Chief Commissioner objects to producing documents pursuant to categories (a) (insofar as it falls outside the subset agreed upon), (b), (c), (d), (e), (i), (j) and (k). The details of these categories are set out in Annexure A to these reasons.

Contested categories (a), (b), (c), (d), (e), (i) and (j) are directed to the issue whether Mr Acquaro had informed to Victoria Police on current and former clients, including the applicant. Category (b) was also directed to whether Mr Acquaro’s legal advice and representation of the applicant were independent. Categories (d) and (k) were also directed to the contention that the failure to disclose the seizure of Mr Acquaro’s computers gave rise to a substantial miscarriage of justice. Category (k) was also directed to the issue of whether the police improperly used any material relating to the applicant that was seized during the investigation of Mr Acquaro’s death. Category (i) was also directed at whether any information improperly obtained from Mr Acquaro was relied upon in applications for search warrants relating to the applicant. Category (e) was also directed at whether the police improperly pressured Anthony Condello, who acted for the applicant in the 2016 trial that resulted in his convictions as set out in [1] above.

The bases of the Chief Commissioner’s objections depend upon the category but fall into two broad categories: that the applicant has not established a legitimate forensic purpose for the production of documents in some categories; and that the scope of documents sought in some categories is so broad as to be oppressive.

On 23 September 2021, I heard submissions on the Chief Commissioner’s objections to the 317 application and made further orders for the filing and serving of additional submissions by the applicant on disputed category (d). I also granted leave to the Chief Commissioner to file and serve a supplementary affidavit from Superintendent Timothy McKinney providing an update on the material on Mr Acquaro’s computer and the threat to Mr Condello (part of the material sought in categories (d) and (e)). The Director of Public Prosecutions (the ‘DPP’) did not play an active role in the s 317 application, nor did she file any written submissions. There were further submissions from the Chief Commissioner and the applicant after the hearing and not all the material was filed as a result of an order.

On 1 November 2021, I advised the parties that no further submissions were to be filed without a prior grant of leave from the Court. Despite this direction, on 4 November 2021, the Chief Commissioner submitted two substantive points via email purporting to respond to the applicant’s 29 October 2021 submissions regarding category (j) and s 75 of the Evidence Act 2008. On 5 November 2021, the applicant’s solicitor wrote to the Registry complaining about this and opposing the Chief Commissioner being granted leave to put on further evidence or submissions. Additionally, on 19 November 2021, the applicant sought leave to submit further affidavit material demonstrating the alleged falsity of various assertions in Superintendent McKinney’s supplementary affidavit, such as that Detective Senior Constable Paul Thomas had no involvement in Operation Kinvo. The applicant repeated his submission that it was not appropriate for the Court to determine disputed questions of fact on the s 317 application.

As at 1 November 2021, there had been two directions hearings and an oral hearing on the Chief Commissioner’s objections. There had been three sets of written submissions, two affidavits filed by the Chief Commissioner and two affidavits filed by the applicant. I decided not to grant leave to the parties to file further material as both had ample opportunity to file any relevant material from 31 May 2021, the date of the s 317 application, to 1 November 2021.

The applicant does not agree with all the facts as stated in Superintendent McKinney’s supplementary affidavit, particularly that Detective Thomas had no involvement in Operation Kinvo (which related to the investigation and prosecution of the applicant) and that other Purana Taskforce members were not involved in the investigations concerning Mr Acquaro and the investigation of the applicant. The applicant submitted that, in the event I did not grant the applicant leave to file affidavit material on these issues, it was neither appropriate or necessary to determine disputed questions of fact on the s 317 application.

I do not understand my task on this application as determining disputed questions of fact. Rather my task is to determine whether, on the material before the Court, I should order the production of the material in the disputed categories. This does not involve determining disputed questions of fact but it is appropriate to have regard to the material that is before the Court including the hearsay evidence in Superintendent McKinney’s affidavits. If the applicant now has further information or material or evidence on these issues, that should be provided to the Crown (the police and the DPP) so this can be considered in light of the Crown’s ongoing duty of disclosure.

These reasons contain my rulings on the Chief Commissioner’s objections to production of certain categories of documents.

Before dealing with the legal principles to be applied and determining each of the disputed categories of documents, I have set out a summary related to Mr Arico’s convictions which are the subject of this application for leave to appeal pursuant to s 326A of the CPA.

Charges and factual background

The Victoria Police operation which led to the applicant being charged was Operation Kinvo which was conducted by the Purana Taskforce from June 2014. The following is a short summary of the facts relevant to each of Mr Arico’s convictions:[10]

In late December 2010, Witness A and another person agreed to sell a kilogram of cocaine to a man named Toby Mitchell. Witness A purchased one kilogram of cocaine from Mr Arico for $350,000. Witness A had agreed with Mitchell to sell it to him for $375,000. Witness A claims he onsold the drugs but was “ripped off” and received no payment. Witness A repaid the majority of the debt which Mr Arico accepted until Mitchell was shot. Witness A lied that he was responsible, resulting in Mr Arico demanding the final amount.
In 2013 and 2014, various incidents occurred including Witness A’s house being set on fire. Mr Arico met Witness A and said the debt had doubled and if it was not paid, his house would be blown up. In April 2014, Witness A made a statement to police, triggering an investigation. In July 2014, Mr Arico threatened to ‘shoot up’ the homes of Witness A’s mother and brother if the debt was not paid (Charge 1– extortion).
Mr Arico then arranged for a false invoice to be prepared and, in September 2014, visited Witness A’s home and said if he did not sign the sham invoice and acknowledgment of debt, he would shoot him and his wife (Charge 2– extortion). When Witness A swore at Mr Arico to leave, Mr Arico punched him in the jaw and Witness A then signed the sham invoice (Charge 3– intentionally causing injury). When the invoice failed to secure the debt, Mr Arico demanded Witness A’s wife secure a bank loan which she failed to do.
In February 2015, Mr Arico met Witness A not knowing he was wearing a police wire. Witness A gave Mr Arico a sum of police money and, during the conversation, Mr Arico offered to sell Witness A as much of the drug ice as he wanted (Charge 5– traffick large commercial quantity of methylamphetamine).
The police then recorded a phone conversation in which Mr Arico threatened Witness A that if his wife did not see him in seven days, he would make her and her brother suffer (Charge 6– extortion).
Mr Arico was arrested in March 2015, carrying a key to a motor scooter which contained a gun, ammunition and a bottle of 1,4–Butanediol (similar to GHB) (Trial 2, Charge 1– prohibited person in possession of a firearm; Charge 2– possessing a drug of dependence).

[10]Arico v The Queen [2018] VSCA 135, [8]–[41] (Maxwell ACJ and Weinberg JA).

The applicant’s written case summarises the factual background to his second and subsequent application for leave to appeal in relation to Mr Acquaro’s role as a police informer:[11]
[11]Applicant's Written Case, 31 May 2021, [20]–[29].

Joseph ‘Pino’ Acquaro acted for the applicant in respect of numerous legal matters (including criminal, immigration, property and taxation matters) from 2006 until 2016.
The applicant was arrested and charged on 5 March 2015 in respect of the present matters. He immediately instructed Mr Acquaro to act on his behalf, and Mr Acquaro attended upon him at the Melbourne Custody Centre that evening.
Over the course of the following 12 months, the applicant provided instructions to Mr Acquaro and obtained advice from him in respect of the present matters. Mr Acquaro made all forensic and strategic decisions in respect of the applicant’s defence until Mr Acquaro’s untimely death.
Mr Acquaro’s clients (including the applicant) were transferred to Condello Lawyers Pty Ltd on around 1 July 2015, upon that firm commencing trading. The firm’s principal had previously been employed as a solicitor at Mr Acquaro’s firm, and Mr Acquaro remained involved in the matter as a consultant (including instructing at the applicant’s committal hearing in October 2015). At all times, the matter was run as per the strategy which had been devised by Mr Acquaro.
On 15 March 2016, Mr Acquaro was fatally shot outside the Gelobar Café in Lygon Street, Brunswick East. Vincenzo Crupi has been charged with his murder. The applicant understands that Victoria Police seized Mr Acquaro’s computer as part of that homicide investigation.
In November 2016, the applicant was represented at his County Court trial by Anthony Condello (who had previously been employed by Mr Acquaro).
On 21 November 2017, the Court of Appeal delivered judgment in AB v CD [2017] VSCA 338 in respect of registered police informer Nicola Gobbo. The Chief Commissioner, who was represented in that case, did not inform this Court or the applicant that Joseph Acquaro had also operated as a police informer. It is not presently known whether the prosecution was aware of that matter. The Court of Appeal heard the applicant’s proposed appeal on 8 February 2018, and refused the applicant leave to appeal against his conviction on 24 May 2018.
On 5 November 2018 the High Court delivered judgment in AB (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59 in respect of Nicola Gobbo. This was the very month in which the High Court refused the applicant special leave to appeal his convictions (on 14 November 2018). The Chief Commissioner of Police (who was one of the parties to that case) did not inform the High Court or the applicant that Joseph Acquaro had also been a police informer. It is not presently known whether the prosecution was aware of that matter.

The applicant was not granted leave to appear at the Royal Commission into the Management of Police Informants, in circumstances where he did not have significant involvement with Nicola Gobbo.
On 15 January 2021, it was revealed that Mr Acquaro had also been a police informer. This information was revealed in the Court of Appeal’s decision in Madafferi v The Queen [2021] VSCA 1, wherein this Court rejected the Chief Commissioner’s claim of public interest immunity. Inter alia, the Court’s judgment established that there was a series of contacts between Mr Acquaro and police in 2008, and a second series of contacts in the first half of 2014 (when, it is noted, Witness A approached the police and the police investigation in the present matter commenced). On both occasions Mr Acquaro provided information to police about at least one client, and on both occasions he was assessed for suitability as a registered police informer. He was never formally approved as registered police informer, but was given a human source registration number.

As noted above at [8], the applicant contends that his right to a fair trial was subverted so resulting in a substantial miscarriage of justice as, unbeknown to the applicant, his solicitor was a police informer and this meant the legal advice he received was not independent and investigators (and ultimately the prosecution) gained an unfair advantage in his prosecution. Victoria Police failed to disclose to the applicant that his solicitor was a police informer and failed to disclose that they had seized the computer of his solicitor which contained material relating to the applicant. There is a fifth particular about the failure to disclose the police practice of making payments to prosecution witnesses but this particular is not relevant to the disputed categories of material sought in the s 317 application.

Ongoing duty of disclosure

It is appropriate to observe, as the Chief Commissioner does,[12] that the Crown (the relevant prosecuting agency and relevant law enforcement bodies) has an obligation to disclose all relevant material of help to an accused.[13]
[12]Supplementary Submissions of the Chief Commissioner of Police, 22 October 2021.
[13]Cannon v Tahche (2002) 5 VR 317, 340–1 [58] (Winneke P, Charles and Chernov JJA).

As noted later in these reasons, a s 317 order cannot be used to check that the Crown’s obligation to make full disclosure has been discharged.

The duty to make full disclosure is a significant element of a fair trial and a conspicuous aspect of the Crown’s duty to ensure that the case against the accused is presented with fairness.[14] Only the Crown, and not the applicant or the Court, has access to all the material. So, our system of justice relies on the Crown discharging that heavy responsibility.
[14]Roberts (2020) 60 VR 431, 444 [55]–[64] (Osborn and T Forrest JJA and Taylor AJA).

The obligation to disclose is a continuing one and is mandated by a combination of statute, prosecutorial guidelines and judicial authority.[15] The duty to disclose all relevant material continues after the accused has been convicted and subsists even after the appeal process has been exhausted.[16] It extends to the disclosure of information that might cast doubt on the safety of the conviction. In 2015 the Supreme Court of the UK stated that if there appears to be a real prospect that further enquiry will uncover something which may affect the safety of the conviction then there should be co-operation in making it available.[17]
[15]Ibid [57].
[16]R v Ward [1993] 1 WLR 619.
[17]R (Nunn) v Chief Commissioner of Suffolk Police [2015] AC 225, 245 [30], [41]-[42] (Lord Hughes JSC).

Documents relied upon by the parties

The Chief Commissioner relies upon the following documents filed in the proceeding:

(f) Submissions of the Chief Commissioner (objections to scope of the s 317 application) dated 23 August 2021, 22 September 2021 and 22 October 2021.

(g) Affidavit of Timothy McKinney affirmed 23 August 2021 and exhibits.

(h) Supplementary Affidavit of Timothy McKinney affirmed 22 October 2021 and exhibits.

In relation to the Chief Commissioner’s objections to production, Mr Arico relies upon the following documents filed in the proceeding:

(i) Applicant’s written case dated 31 May 2021.

(j) Submissions of the applicant dated 14 September 2021, 25 September 2021 and 29 October 2021.

(k) Affidavit of Theo Magazis sworn 2 June 2021.

(l) Affidavit of Theo Magazis sworn 22 September 2021 and exhibits.

With the agreement of the applicant and the Chief Commissioner, the Court was provided on a confidential basis with Chapter 24 of the submissions of counsel assisting the Royal Commission into the Management of Police Informers concerning police interaction with a lawyer, who acted as an unregistered human source for Victoria Police using the pseudonym ‘Mr McCallum’, and the Chief Commissioner’s response. The applicant was not granted leave to appear at the Royal Commission and was not present for the hearings in respect of ‘Mr McCallum’. It became known that Mr Acquaro was this person when the decision in Madafferi was published in January 2021.

Section 317 of the CPA

Section 317 falls within pt 6.3 of the CPA. That part of the Act deals with appeals and cases stated from the County Court or trial division of the Supreme Court to the Court of Appeal. Section 317 provides:

Production of documents, exhibits or other things
For the purposes of this Part, the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if the Court of Appeal considers that it is in the interests of justice to do so.

The relevant legal principles under s 317

The Chief Commissioner relied on the following legal principles in his objections to producing certain documents:[18]
[18] Submissions of the Chief Commissioner of Police, 23 August 2021, [9]-[13].

(m) An order for production of documents under s 317 is ‘akin to an order for a subpoena for production’[19] and therefore the principles to be followed are broadly identical;
[19] Zirilli v The Queen [2021] VSCA 174, [42(a)].

(n) The power conferred upon the Court under s 317 is discretionary[20] whereby the Court may order production of any documents that are likely to be relevant to any issue that arises from the grounds of appeal in a specific appellate proceeding;
[20] Interpretation of Legislation Act 1984 (Vic) s 45(1).

(o) When documents are sought under s 317 the applicant must (i) identify a legitimate forensic purpose for which access is sought expressly and with precision[21] and (ii) establish that it is “on the cards” that the documents will materially assist [their] case[22] in the sense that there is a reasonable possibility that the documents will materially assist the defence;[23]
[21]R v Saleam (1989) 16 NSWLR 14 at 18; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300 at 323 [96], 327 [119]; State of Victoria v Lane [2012] VSC 328 at [17].
[22]R v Saleam [1999] NSWCCA 86 at [11]; Attorney-General v Chidgey (2008) 182 A Crim R 536 at 551 [64]; Holloway v State of Victoria (2015) 73 MVR 145 at 164 [56]; Madafferi v R [2021] VSCA 1 at [98] and Zirilli v The Queen [2021] VSCA 2 at [85] to [97].
[23] Zirilli v The Queen [2021] VSCA 2 at [95] (‘Zirilli’).

(p) The legitimate forensic purpose test is a higher standard than ‘relevance’,[24] which must be applied in all cases and this won’t be established if the applicant is seeking documents to see whether they are relevant to their case (ie a ‘fishing expedition’);[25]
[24]Attorney-General v Chidgey (2008) 182 A Crim R 536 at 350 [59]; Holloway v State of Victoria (2015) 73 MVR 145 at 160 [47].
[25]Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3, 28-29 at [28] (restated in Messade v Baires Contracting Pty Ltd [2011] VSC 56, 2 at [6] and Woolworths Ltd v Svajcer [2013] VSCA 270, 5-6 at [16] (Nettle, Ashley and Neave JJA)).

(q) An order for production under s 317 ‘should state with reasonable particularity the documents which are to be produced’.[26] Therefore, even if the first two requirements are met, an order ‘will be set aside as abusive if a great numbers of documents are called for and it appears that they are not sufficiently relevant’[27] and will be ‘oppressive’ if producing the documents would be ‘excessively burdensome’;[28]

(r) A section 317 order cannot be used to ‘check’ if the Crown’s obligation to make full disclosure to the accused has been discharged;[29]

(s) A court will not exercise a discretionary power where to do so would be pointless or inutile[30] and, by analogy to discovery in judicial review proceedings, the discretion will only be exercised if the party can show ‘… a good, or at least arguable, case proof of which would be aided by discovery’;[31]

[26]Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574.

[27]Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575.

[28]Di Cesare v Bird & Anor [2021] VSC 25 at [26] (applying Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, 926).

[29]Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661 at 670 [25].

[30]See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 386 ALR 212 at 226 [68].

[31]Australian Society for Kangaroos Inc v Secretary, Department of Environment, Land, Water and Planning [2018] VSC 88 at [21]. See also Moreland City Council v Minister for Planning (2014) 203 LGERA 152 at 158-9 [13]-[14]; WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 567 (Brennan J).

The Chief Commissioner objected to producing certain categories of documents based on the applicant allegedly failing to identify a legitimate forensic purpose, the attempted production being viewed as an impermissible fishing expedition and/or the scope of the documents sought being oppressive.[32] The applicant provided submissions to rebut these arguments for each category of documents which are in contention.
[32]Submissions of the Chief Commissioner of Police, 23 August 2021, 15.

The Chief Commissioner submitted that the s 317 application ought to be read and assessed by the Court in light of the affidavits of Superintendent McKinney.[33] Before addressing each of the disputed categories, I have summarised the background set out by Superintendent McKinney in his affidavits.
[33]Affidavits of Timothy James McKinney, 23 August 2021 and 22 October 2021.

Between August 2019 and 31 December 2020, Superintendent McKinney managed the response of Victoria Police to the Royal Commission into the Management of Police Informants and the current proceedings before the Court of Appeal relating to Nicola Gobbo. Since the conclusion of the Royal Commission, Superintendent McKinney has been managing Taskforce Reset which is implementing the recommendations of the Royal Commission and has the carriage of Court of Appeal matters relating to Nicola Gobbo.

Superintendent McKinney has deposed that ‘[o]ther than these time periods in 2008 and 2014, there was no other time that Mr Acquaro acted as an unregistered human source and spoke to police in that capacity’.[34]
[34]Affidavit of Timothy James McKinney, 23 August 2021, [38].

In his supplementary affidavit, Superintendent McKinney deposed that these were the only periods of informing by Mr Acquaro to Victoria Police as explained in Madafferi. Since the handing down of Madafferi, Victoria Police has not located any further documents that record any other occasion where Mr Acquaro acted as an unregistered human source. Put another way, Superintendent McKinney deposed that it is not the case that Mr Acquaro was informing on the applicant in 2008 and 2014.

Following the hearing on 23 September 2021 of the Chief Commissioner’s objections to the s 317 application, Superintendent McKinney made his supplementary affidavit. The applicant took objection to this affidavit. It is clear that, because a s 317 application is interlocutory,[35] s 75 of the Evidence Act2008 applies. That section states that the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source. The applicant complains that evidence of the source has not been provided for all the hearsay evidence. I consider that Superintendent McKinney’s supplementary affidavit makes clear the source of the hearsay evidence. I consider s 75 has been complied with, thus making the hearsay evidence admissible in this interlocutory proceeding.
[35]Liu v The Age Company Ltd [2011] NSWSC 53, [28] (McCallum J).

McKinney’s supplementary affidavit sets out that, following Mr Acquaro’s murder, officers from Purana Taskforce (the taskforce that investigated the applicant in Operation Kinvo) assisted the homicide squad with search warrants and the initial response to Mr Acquaro’s murder because they had been aware of the previous threats to Mr Acquaro’s life which they were investigating from April 2015. Superintendent McKinney goes on to say that the only police officer who had ongoing involvement with Operation Kinvo (relating to the applicant) and the operation investigating Mr Acquaro’s murder was Detective Senior Constable Cliff Pickett and that Detective Sergeant Butterworth also had some ad hoc involvement in Operation Kinvo as a member of the management team at Purana Taskforce.

Detective Senior Constable Pickett’s role in relation to the investigation of the murder of Mr Acquaro was:

·To draft affidavits in support of search warrants including for Mr Acquaro’s office and home.
·To attend a briefing at the homicide squad and speak to Mr Acquaro’s sister in law who advised him that family members wanted to be present when search warrants were executed.
·Attend the execution of the search warrant at Mr Acquaro’s home at which time Mr Acquaro’s computer (a HP laptop ProBook) was seized.

A copy of Detective Senior Constable Pickett’s statement on 21 August 2021 on his role was exhibited to Superintendent McKinney’s supplementary affidavit. This statement includes that he made three calls to Mr Acquaro on 10 March 2016 and spoke to Mr Acquaro in only one of them. The subject of the conversation was about Mr Acquaro receiving Australian Taxation Office records. Mr Acquaro was unable to speak at that time. Detective Constable Pickett made an arrangement to call Mr Acquaro at another time but did not speak to him again before his murder on 15 March 2016.

Superintendent McKinney’s supplementary affidavit goes on to deal with the inspection of Mr Acquaro’s computer which was conducted by Detective Senior Constable Paul Thomas of the Purana Taskforce and states that Detective Thomas had no involvement in the operation that resulted in the investigation, charging and conviction of the applicant that he is seeking to appeal. That inspection included a search of the files using search terms, one of which was ‘Arico’. This search revealed four documents with the word ‘Arico’ in their title:

·Deed of Confirmation Arico 6 December 2013.doc
·Point for Bail for Arico.docx
·Statutory Declaration Arico 5 December 2013.doc
·Statutory Declaration Arico 5 December 20131.doc (which may be a duplicate of the above file)

None of the four documents were reviewed in detail and none were considered to be of any major importance to the investigation into Mr Acquaro’s murder. Superintendent McKinney states that there is no suggestion that any of the four documents were disseminated to any other area of Victoria Police (including to members investigating the applicant in Operation Kinvo).

The remainder of the documents and images that did not meet the search terms were not reviewed by Detective Senior Constable Thomas and none were disseminated.

Superintendent McKinney goes on to say that Detective Senior Constable Pickett has indicated that Mr Acquaro did not provide him with information or intelligence about the applicant. In respect of Detective Senior Sergeant Shaun Bingham and Detective Inspector Peter Trichias, both were detectives attached to the Purana Taskforce at the commencement of Operation Kinvo. They were both involved in the handover of Witness A from the Crimes Investigation Group to the Purana Taskforce. Detective Senior Sergeant Bingham was involved in Operation Kinvo from 5 June 2014 and left Operation Kinvo on 25 July 2014 when he moved to another Taskforce. Detective Inspector Trichias was involved with Operation Kinvo from 22 June 2014 to 24 October 2015.

Superintendent McKinney’s supplementary affidavit goes on to say that enquiries of both Detective Senior Sergeant Bingham and Detective Inspector Trichias revealed that they had no contact or direct dealings with Mr Acquaro. They also had no knowledge of Operation Kinvo investigators having had contact with Mr Acquaro outside of Mr Acquaro’s formal professional capacity as the applicant’s legal representative or as a victim of the threats against Mr Acquaro that police were investigating. Neither Bingham or Trichias were involved in the investigation into Mr Acquaro’s death in 2016.

I now turn to the disputed categories of documents under the s 317 application.

Category (a)

In category (a) the applicant seeks 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 (the date on which Witness A agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (the date of Mr Acquaro’s death) regarding the applicant and/or Witness A.

The Chief Commissioner agreed to produce a subset of the documents sought in category (a). That subset is the documents and things contained in the appendix to Madafferi but limited to between the dates 22 December 2010 (the date on which Witness A agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (the date of Mr Acquaro’s death) regarding the applicant and/or Witness A. The production of that subset of material formed part of the consent orders I made on 13 August 2021.

As noted earlier, the Chief Commissioner relied on Superintendent McKinney’s affidavits to the effect that, other than in 2008 and 2014, there was no other time that Mr Acquaro acted as an unregistered human source and that Mr Acquaro was not informing on the applicant then.

As noted above, the three police officers named were members of the Purana Taskforce who, to various degrees, were involved in the investigation of the applicant in Operation Kinvo. One of the officers (Detective Senior Constable Pickett) assisted the homicide squad drafting affidavits in support of search warrants following Mr Acquaro’s murder on 15 March 2016, including attending at Mr Acquaro’s office that day where his computer was seized. The other two officers (Detective Senior Sergeant Bingham and Detective Inspector Trichias) did not have any involvement in the investigation into Mr Acquaro’s murder.

The Chief Commissioner submitted that category (a) does not demonstrate a legitimate forensic purpose and is overly broad and oppressive. The Chief Commissioner submitted the category is not sufficiently limited and Victoria Police, at its best current estimate, would need at least six months to review documents to ascertain whether they fall within category (a) and this is oppressive and excessively burdensome.[36] It was also submitted that, considering the Chief Commissioner had agreed to produce a subset of documents relevant to the applicant from the appendix to Madafferi, the remainder of documents sought in category (a) amounts to a ‘classic fishing expedition’.[37]
[36]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.1].
[37]Ibid.

The applicant submitted that this category goes directly to the issue of whether Mr Acquaro was a police informer who provided information to Victoria Police about his current and/or former clients, including the applicant but not limited to him.

The applicant contended that this category of documents is not materially different to one of the categories of documents which was accepted in Madafferi. In Madafferi, the test of legitimate forensic purpose was ‘easily satisfied’ in respect of a request for ‘all documents relating to the question of whether the applicant’s solicitor Joseph Acquaro (deceased) was a police informer’ and that was not determined to be oppressive. The applicant contended that there is no logical reason why this category should be objected to, especially considering it is limited as to time where, in Madafferi, it was not.[38]
[38]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [48].

The applicant also submitted there is no legal authority for limiting production of documents in this case by instead supplying documents requested in Madafferi, especially considering the cases have different applicants and thus different focuses.[39] The relevant time frame in relation to Mr Acquaro’s role in acting for, or advising, the applicant is not 2008 and 2014 (the time frame relevant to Mr Madafferi) but between 22 December 2010 and 15 March 2016. The applicant contended that the request for production should be answered according to its terms, not according to some arbitrary limitation derived from the facts of another case. The applicant further submitted that the Chief Commissioner does not know if there are records in his possession relating to Mr Acquaro that fall within categories (a), (b) and (c)[40] because Victoria Police has not yet reviewed all the documents. Even if the review process would be burdensome, the applicant submitted this request is not oppressive.
[39]Ibid [50].
[40]Affidavit of Timothy James McKinney, 23 August 2021, [65].

Regarding the legitimate forensic purpose test, the applicant submitted this category satisfies this requirement because the documents in question go to the ultimate factual question of whether Mr Acquaro provided information to Victoria Police about current or former clients, including but not limited to Mr Arico.[41] Additionally, it was submitted that it is only necessary for the applicant to demonstrate the documents might ‘[give] rise to a line of enquiry [or cross–examination] which is relevant to the issues’ to satisfy this test.[42] Moreover, considering what is known about Mr Acquaro’s association with Victoria Police, the applicant submitted it is highly likely that the documents sought would confirm facts in dispute. Therefore, to claim this request constitutes a ‘fishing expedition’ is unsustainable[43] and contradicts earlier Court of Appeal decisions in Madafferi and Zirilli where the s 317 applications were made with less evidence to support the belief that Mr Acquaro was an unregistered human source.[44]
[41]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [25].
[42]National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372, 385 (Glass JA); Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350, 374 (Kennedy, Pidgeon and Franklyn JJ); Maronis Holdings Ltd v Nippon Credit Australia Ltd (2000) 18 ACLC 609, 613-14 (Bryson J).
[43]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [28].
[44]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [29].

Consideration and decision on category (a)

There is a clear legitimate forensic purpose to the material in category (a) insofar as it goes to the issue of whether Mr Acquaro was a police informer against the applicant. This is a strong legitimate forensic purpose. I consider there is also a legitimate forensic purpose insofar as it goes to the issue of whether Mr Acquaro was a police informer against other clients given the first three particulars of Mr Arico’s appeal grounds. Some caution is appropriate in relation to this broader forensic purpose as these documents, without evidence on how his trials were directly affected by Mr Acquaro’s actions, seem to me to be less likely to assist the applicant in establishing there was a substantial miscarriage of justice in his trials.[45] Put another way, the broader the forensic purpose the harder it is to demonstrate it is on the cards that access to the particular category of documents will materially assist the applicant.[46]
[45]Edwards v The Queen [2021] HCA 28, [25] (Kiefel CJ and Keane and Gleeson JJ).
[46]ACCC v Pratt [2008] FCA 1373, [29] (Ryan J).

That Mr Acquaro was a police informer against his former client Madafferi was established in the decision of Madafferi. The Chief Commissioner relies on Superintendent McKinney’s affidavits that, other than these time periods in 2008 and 2014, there was no other time that Mr Acquaro acted as an unregistered human source and spoke to police in that capacity and that he did not inform on the applicant. Therefore, the Chief Commissioner reasons that the material in the appendix to the Madafferi decision is the totality of material relating to whether Mr Acquaro was an informer. This was the logic behind the Chief Commissioner agreeing to produce a subset of that material regarding the applicant and/or Witness A between the dates relevant to the convictions of the applicant that are the subject of his application for leave to appeal, that is between 22 December 2010 and 15 March 2016.

It is evident that enquiries of police records in relation to information exchanged between Mr Acquaro and Victoria Police regarding the applicant and/or Witness A were not exhaustive.[47] Because Mr Acquaro was acting for or advising the applicant, these exchanges would include the normal exchanges between a solicitor and the police. These normal exchanges have not been examined.
[47]Affidavit of Timothy James McKinney, 23 August 2021, [65].

Given the decisions of the Court in Orman v The Queen,[48] Cvetanovski and Roberts v The Queen[49] the applicant’s application for leave to appeal would be strong if unbeknown to him his solicitor was assisting the police against him in respect of the charges he was facing.
[48](2019) 59 VR 511; [2019] VSCA 163.
[49][2020] VSCA 277.

I accept the Chief Commissioner’s objection that, as presently drafted, category (a) is overly broad as it would cover all information exchanged between Mr Acquaro and Victoria Police over a period exceeding five years in relation to the applicant and/or Witness A. That information would necessarily include the routine given Mr Acquaro was solicitor for the applicant in the period from 22 December 2010 until 1 July 2015 and as a consultant from that date, which included instructing at the committal until his murder on 15 March 2016. There is no present information from the Victoria Police records examined that suggests Mr Acquaro was informing on the applicant.

Given the above matters I will not order the production of all material in category (a). I have already ordered that the production be confined to a subset of that material set out at [11]. Given the enquiries that have been made in relation to Mr Acquaro’s role as an informer as set out in Superintendent McKinney’s affidavits, I consider that the applicant is seeking the balance of the material in category (a) to see if it is relevant to his case. That would be a fishing exercise which is not permitted. To produce all the material in category (a) would be quite a task and I do not consider, on the material, that there is a reasonable possibility that the documents, apart from the subset already ordered, will materially assist the applicant. In these circumstances it is not in the interest of justice to order the production of the material in category (a) apart from the subset of material already ordered.

Category (j)

In category (j) the applicant seeks 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.

In his submission dated 14 September 2021, the applicant added this further category of documents sought under the 317 application.[50]
[50]Applicant's Amended s 317 Application for Production by CCP, 16 September 2021.

The Chief Commissioner contended that the legitimate forensic purpose for this category has been identified ‘as confirming that Mr Acquaro was a police informer who provided information to Victoria Police about this current and/or former clients’.[51] This was to be contrasted with other categories (a), (b) and (c) where the legitimate forensic purpose contended for by the applicant was whether Mr Acquaro was a police informer about his clients, specifically including the applicant. The Chief Commissioner submitted it is now an established fact, following the decision in Madafferi, that Mr Acquaro was an informer and this negated the need to produce the documents in category (j).
[51]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [70]-[71].

Despite the Chief Commissioner not accepting the legitimate forensic purpose contended for by the applicant for the material in category (j), the Chief Commissioner decided to take a ‘pragmatic’ approach and provide ‘the Appendix documents which contain references to the applicant and/or his offending, Witness A and any matters relevant to Mr Acquaro’s general unregistered human source status (for example, general documents relating to the reasons why Mr Acquaro was speaking to police, the registration documents and the dates on which Mr Acquaro had meetings), subject to public interest immunity and relevance redactions’.[52] That pragmatic approach would be not to limit the documents provided to any lesser time frame than the full time frame of the documents covered in the appendix. That is, the additional material to be provided would not be limited to the period between 22 December 2010 and 15 March 2016.
[52]Further Submissions of the Chief Commissioner of Police, 22 September 2021, [3].

The Chief Commissioner also submitted that the disclosure of information regarding Mr Acquaro in the Zirilli proceedings was due to the fact that Mr Madafferi and Saverio Zirilli were co-accused. In Madafferi, redactions in the appendix documents were objected to but the Chief Commissioner contends they were largely endorsed by Associate Justice Irving on 23 July 2021.[53] The Chief Commissioner thus submitted that any objections to redactions of the appendix documents in this case ‘could be handled similarly by the court’.[54]
[53]Order of the Court of Appeal, Judicial Registrar Irving, 26 July 2021.
[54]Further Submissions of the Chief Commissioner of Police, 22 September 2021, [4].

The applicant submitted that the legitimate forensic purpose of this category goes to the ultimate factual question of whether Mr Acquaro provided information to Victoria Police about current or former clients, including but not limited to Mr Arico. The applicant submitted that, in light of what is said about the contents of these documents in Madafferi, it is reasonably possible that the documents in the appendix to that decision will materially assist, regardless of whether the documents relate to Mr Acquaro providing information about Mr Arico. The applicant also submitted that the production of this category is consistent with the Court of Appeal’s decision in Zirilli where documents ordered for production were not limited to those relating to the applicant himself.[55]
[55]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [72].

The applicant submitted that it is ‘absurd’ to deny that the applicant has a legitimate forensic purpose in seeking production of documents merely because documents have already been produced in Madafferi to establish Mr Acquaro’s role as an informer.[56] The applicant further submitted the Chief Commissioner has not identified authority for this position, cannot ‘concede the issues away’ and that this proposition would lead to ‘absurd results’.[57] The applicant further submitted that the documents sought aim to establish not only whether Mr Acquaro was an informer, but the details of how and when he informed on not only Mr Arico but other legal clients and are probative to a pattern of conduct relevant to Mr Arico’s case in various aspects.[58] The applicant further submitted that the fact of and circumstances of Mr Acquaro’s informing ‘is relevant to the question of whether Mr Acquaro provided independent advice to the applicant, or whether his interests were aligned with those of the police’ and that relates to ground 1(a) of this appeal.[59] The applicant also submitted that, in redacted transcripts provided by the Chief Commissioner, Mr Acquaro refers to Mr Arico as being grouped with Mr Madafferi and, therefore, ‘the CCP’s attempt to distinguish Mr Zirilli’s access to the Madafferi documents on the basis that he was a co-accused is artificial’.[60] Finally, the applicant submitted that the Chief Commissioner’s attempt ‘to argue that previous courts have not permitted applicants to access information in relation to Mr Acquaro’s informing on other clients is misleading’ as evinced by the ruling in Madafferi and the fact that many redactions in that case were in fact resolved in the applicant’s favour.[61]
[56]Applicant’s Submissions on Item 1(k) and Other Matters, 25 September 2021, [14].
[57]Ibid [14(a)-(e)].
[58]Ibid [15].
[59]Ibid [16].
[60]Ibid [17].
[61]Ibid [18].

In his further response dated 22 October 2021, the Chief Commissioner submitted that though it is correct that a non-party cannot make any factual concessions before the Court, the applicant and respondent cannot ignore the factual findings of the Court of Appeal in Madafferi and Zirilli. Moreover, while the Court’s powers under s 317 are discretionary, ‘the Court of Appeal’s findings and conclusions on the issue of whether Mr Acquaro was informing by two differently constituted Courts ought respectfully to be given weight’.[62] The Chief Commissioner further submitted that Superintendent McKinney’s supplementary affidavit demonstrates there is ‘very little’ evidence listed in the appendix to Madafferi which is relevant to the applicant.[63] The Chief Commissioner also refers to parts of the judgment in Madafferi which set out details of Mr Acquaro’s informing.[64] Additionally, it was submitted that the assertion by the applicant that Mr Acquaro had been involved in a ‘pattern of behaviour’ directly contrary to the applicant’s interests regarding search and telecommunication warrants was ‘entirely speculative’ and ignores evidence at para 63 of Superintendent McKinney’s first affidavit. Namely, that police had reviewed the affidavit in support of the search warrant executed on 5 March 2015 and the affidavits in support of telecommunications warrants listed in the trial exhibit list.[65] There is no reference to Mr Acquaro or any human source in the affidavits.
[62]Supplementary Submissions of the Chief Commissioner, 22 October 2021, [14].
[63]Ibid.
[64]Ibid [15].
[65]Ibid.

The Chief Commissioner further submitted the applicant’s contention, that how and when Mr Acquaro informed on other legal clients, would be logically and legally probative of the fact he also informed on the applicant was merely an attempt to ‘mask that the request for documents is a fishing expedition’.[66] Additionally, the applicant submitted this information would be probative as tendency evidence and by way of coincidence reasoning or to support an inference that late night telephone calls between Mr Acquaro and Victoria Police were not innocent and legitimate communication.[67] The Chief Commissioner referred to Superintendent McKinney’s supplementary affidavit to assert that conversations between members of Victoria Police, for example between Detective Senior Constable Pickett and Mr Acquaro, did not reveal any improper police conduct.The Chief Commissioner also submitted it is open for the applicant to make arguments about the independence or otherwise of Mr Acquaro’s legal advice but he has failed to provide any sworn affidavits in support of these assertions, meaning this ‘wide–ranging’ category does not pass the ‘on the cards’ test and equates to a fishing expedition.[68] Finally, the Chief Commissioner submitted that if Mr Arico were to receive the entirety of the documents in the appendix to Madafferi, this would lead to a perverse result as Mr Madafferi did not have access to the full range of documents even after challenging the relevance redactions which were upheld by Associate Justice Irving.[69]
[66]Ibid [18].
[67]Applicant’s Submissions on Item 1(k) and Other Matters, 25 September 2021, [15(a)-(d)].
[68]Supplementary Submissions of the Chief Commissioner, 22 October 2021, [19].
[69]Ibid [21].

Consideration and decision on category (j)

I have previously ordered by consent the production of material within the appendix in Madafferi regarding the applicant and/or Witness A and limited to between the dates of 20 December 2010 (being the date on which Witness A allegedly agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (the date of Mr Acquaro’s death).[70] This subset of material from the appendix would be relevant to whether Mr Acquaro may have informed on the applicant as opposed to anyone else.
[70]Order 13 August 2021.

There is a clear legitimate forensic purpose in the applicant having the material from the appendix in Madafferi so far as it related to him and/or Witness A between those dates. That purpose would be to find out if his solicitor informed on him. As noted earlier, this is a strong legitimate forensic purpose.

The applicant identified the legitimate forensic purpose in having produced all the material in the appendix in Madafferi as confirming that Mr Acquaro was a police informer who provided information to Victoria Police about his current and/or former clients.[71] This was not limited to the applicant.
[71]Applicant’s Response to Chief Commissioner’s Submissions, 14 September 2021, [70]-[71].

That Mr Acquaro was a police informer is relevant to the first three particulars of the applicant’s ground that his right to a fair trial had been subverted resulting in a substantial miscarriage of justice. As noted earlier, those first three particulars are that his right to a fair trial was subverted because:

(t) legal advice he received was not independent, in circumstances where his solicitor was an informer for Victoria Police; and/or

(u) investigators (and ultimately the prosecution) gained an unfair advantage by reason of the applicant’s solicitor being a police informer; and/or

(v) investigators failed to disclose to the applicant that his solicitor had acted as a police informer.

In seeking an order for the production of all the material in the appendix to the Court of Appeal decision in Madafferi, the applicant relied on the fact that the Court of Appeal in Zirilli ordered the production of the documents in the appendix in the Madafferi decision.

The applicant contended that it is reasonably possible that having all the material and details will assist him. The applicant also contended that because Mr Acquaro informed against Mr Madafferi, this is probative of a tendency on the part of Victoria Police to encourage or permit Mr Acquaro to do so. The applicant also contended that coincidence reasoning could be applied to support an inference that privileged information obtained by Victoria Police was obtained from Mr Acquaro.

The Chief Commissioner did not accept the applicant’s asserted legitimate forensic purpose in the ordering for production of all the appendix documents as opposed to the subset of documents identified in the consent order which related to him and/or Witness A. The Chief Commissioner also noted that Mr Acquaro acting as a police informer (against Mr Madafferi) is a fact now established by the Court of Appeal decisions in Madafferi and Zirilli.

The Court of Appeal in Madafferi noted that the material in the appendix established that Mr Acquaro was an informer for Victoria Police against Mr Madafferi in 2008 and 2014.[72] The Court of Appeal noted that the documents in the appendix fell into three categories: firstly documents recording interactions between Mr Acquaro and Victoria Police in 2008 and 2014 and steps taken to register him as an informer; secondly evidence given to the Royal Commission about those events and thirdly documents recording actions taken by Victoria police as part of Operations Safranines, Shreddar and Palindrome about Mr Madafferi on the basis of information provided by Mr Acquaro.[73]
[72][2021] VSCA 1, [100].
[73][2021] VSCA 1, [58].

The Chief Commissioner questioned whether the third category of document in the appendix identified by the Court of Appeal in Madafferi would have any bearing on the applicant and his charges as these operations were entirely related to Mr Madafferi. The Chief Commissioner contended that the applicant’s reliance on the Court of Appeal decision to grant Mr Zirilli access to the documents in the appendix to the Madafferi decision was misplaced as Mr Zirilli and Mr Madafferi were co-accused arising from the same police operation. Given Madafferi and Zirilli were co-accused and the charges arose out of the same police operation, the Chief Commissioner had earlier conceded in Madafferi that the appendix documents also had to be disclosed to Zirilli.

Finally, the Chief Commissioner submitted that if Mr Arico were to receive the entirety of the documents in the appendix to Madafferi, this would lead to a perverse result as Mr Madafferi did not have access to the full range of the material after relevance redactions applied by the Chief Commissioner and the outcome of the hearing challenging the redactions heard by Associate Justice Irving.

The Chief Commissioner adopted a pragmatic approach as set out at [65].

In my view, while the applicant has a legitimate forensic interest in Mr Acquaro’s informing on another client or clients, this is unlikely to contribute to any significant degree to an assessment of the issues the court must determine on the application if the applicant does not point to the way his trials were affected by Mr Acquaro’s behaviour. It seems to me that Mr Acquaro’s behaviour towards other clients, but not the applicant, is unlikely to determine whether there was a substantial miscarriage of justice in his trials unless the applicant can specify this.

The Court of Appeal decisions in Madafferi and Zirilli note that the appendix documents establish that Mr Acquaro was a police informer against Madafferi in 2008 and in 2014. The decision in Madafferi provides a detailed summary about Mr Acquaro’s informing against Madafferi.[74] The Court of Appeal stated that the appendix documents revealed that Mr Acquaro was a police informer while he acted for Madafferi in 2008 (although he said nothing damaging or disloyal to Madafferi at that time) and again in 2014 shortly after he ceased acting for Madafferi, who was about to face trial.[75] The Court of Appeal stated that the 2014 transcripts of conversations between Mr Acquaro and Victoria Police revealed that Mr Acquaro disclosed to the police not only purported problems he knew of in the prosecution case against Madafferi but other matters that could be used to put pressure on Madafferi.[76] The Court went on to note that there was discussion between the police and Mr Acquaro indicating a shared desire for Madafferi to be ‘locked up’ and whether it would suit Mr Acquaro for an application to be made to revoke Madafferi’s bail.[77]
[74]See paras 53, 54, 56, 58-73, 100, 104.
[75]See para 100.
[76]See para 105-106.
[77]See para 106.

Having all the appendix documents would enable the applicant to put the most detailed summary of Mr Acquaro’s informing against Mr Madafferi in any revised written case. Given the level of detail in the Court of Appeal decision in Madafferi and the willingness of the Chief Commissioner to provide extra information and details to the applicant, it is hard to see that the applicant would be disadvantaged in any way by relying on the Court of Appeal’s summary of Mr Acquaro’s informing against Mr Madafferi.

As noted earlier, the Chief Commissioner is willing to provide some additional material to that covered by the consent order. Those additional documents and information would not be confined by a limited time frame. The Chief Commissioner can be expected to confer with the applicant on what further material would assist the applicant. This will provide an additional opportunity for the parties to discuss, with the possibility of resolving the dispute on category (j). It occurred to me that, even if there was an order requiring production of some or all of the material in category (j), it would be necessary to consider the redactions sought by the Chief Commissioner as has occurred in other applications, so prolonging the resolution. If it is required, I will make an order to that effect relating to some additional material and a process to address any redactions sought. An order may not be necessary given the Chief Commissioner’s willingness to provide that additional information and the fact that discussions might identify further detail that would assist the applicant.

Accordingly, I decline to order the production of the material in category (j) at this stage. As noted above I have already ordered a subset of material in this category be produced. The applicant is at liberty to continue to agitate this category if the additional detail required by him is not forthcoming from the Chief Commissioner after further discussions.

Category (b)

In category (b) the applicant seeks all materials relating to Mr Acquaro’s representation of the applicant between 2006 and 2016.

After correspondence with the Chief Commissioner, the applicant narrowed this category by limiting it to all materials from 2006 to 2016.[78]
[78]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [52].

The Chief Commissioner accepted that representation of the applicant by Mr Acquaro appears to be central to the applicant’s notice of appeal.[79] The Chief Commissioner objects to the production of this category on the bases that a legitimate forensic purpose has not been demonstrated and the category is overly broad and oppressive. The Chief Commissioner contended that it amounts to a fishing expedition. The Chief Commissioner also stated that he does not, as a matter of course, hold documents relating to the legal representation of those Victoria Police investigates.[80] Therefore, the Chief Commissioner submitted it is not known whether the documents in question exist.[81] The affidavit of Superintendent McKinney included the suggestion that the applicant approach the Office of Public Prosecutions and the Court Registry in relation to formal records relating to Mr Acquaro’s legal representation of the applicant.[82]
[79]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.3].
[80]Affidavit of Timothy James McKinney, 23 August 2021, [44].
[81]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.3].
[82]Affidavit of Timothy James McKinney, 23 August 2021, [67].

At the hearing on 23 September 2021 both parties were content to rely on their written submissions.

The applicant contended that there is an obvious legitimate forensic purpose to the request, namely ascertaining whether his legal representative Mr Acquaro was a police informer who provided information to Victoria Police about current and former clients, including the applicant. The applicant contended that this category is expressed with reasonable particularity. The applicant also contended it is reasonably possible that the documents sought will materially assist the applicant on his appeal and any ‘burden’ on Victoria Police is reasonable. The applicant submitted that it is illogical to apply notions of ordinary investigative methods when Victoria Police had departed from them by encouraging legal representatives to inform on their clients. Given the Chief Commissioner has accepted that the applicant’s representation is central to the issues on the applicant’s appeal, the applicant submitted the objection to producing this category of material should be dismissed.[83]
[83]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [55].

Consideration and decision on category (b)

It is common ground that the representation of the applicant by Mr Acquaro is central to the application. Given the time span of the category, 10 years between 2006 and 2016, and that ordinarily Victoria Police does not hold documents relating to the legal representation of those it investigates, to carry out the task of producing the documents would be very onerous. The nature of the documents would substantially relate to the fact of representation of the applicant by Mr Acquaro over a 10–year period. I do not consider there would be a reasonable possibility that these documents, if produced, would materially assist the applicant in making out his ground of appeal relating to his representation by Mr Acquaro.[84] I consider the request for material in category (b) amounts to a fishing expedition. As a result I decline to order production of the material in category (b) as I do not consider it is in the interest of justice to do so.
[84]Grounds (a),(b) and (c).

Category (c)

In category (c) the applicant seeks all materials including but not restricted to Call Charge Records relating to telephone contact between Mr Acquaro and Victoria Police including but not limited to Peter Trichias, Shaun Bingham and Cliff Pickett between 1 January 2014 and 15 March 216.

The Chief Commissioner submitted similar concerns for this category as were submitted for category (a), namely, a lack of legitimate forensic purpose and a lack of particularity resulting in the request being ‘oppressive’. The Chief Commissioner noted that this category would cover situations where Mr Acquaro may have had contact with Victoria Police in circumstances where he was representing a client (as opposed to acting as an unregistered human source in 2008 and 2014). It was also submitted there is significant overlap between categories (a) and (c).[85] Additionally the Chief Commissioner contended that in Madafferi it was established that Mr Acquaro was an unregistered human source only from February to March 2008 and March to May 2014.[86] The Chief Commissioner reiterated his ongoing duty of disclosure regarding any documents which he located about Mr Acquaro’s role as an informer in 2008 and 2014 which are relevant to the applicant, his offending or Witness A.[87]
[85]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.2].
[86]Ibid.
[87]Ibid [8.5].

The applicant submitted the same response to the Chief Commissioner’s concerns about category (c) as were submitted for category (a). In summary, the applicant contended there was an obvious legitimate forensic purpose as any contact between Mr Acquaro and the police within the date range would support the hypothesis that Mr Acquaro continued to inform on his clients during that period in which he represented the applicant in the matters the subject of the appeal.[88] Additionally, the applicant submitted that the scope of category (c) is sufficiently narrowed by reference to the date range of 1 January 2014 to 15 March 2016 and by kind as it only relates to telephone contact. The applicant submitted that this category was expressed with reasonable particularity. Therefore, the applicant contended, it is far narrower than requests to the Court of Appeal allowed in Madafferi and Zirilli and any burden in complying is reasonable. It was also submitted that the overlap between (a) and (c) is not a valid concern as it ‘is perfectly normal for subpoenas to include multiple discrete, but overlapping categories’ as demonstrated in Madafferi.[89]
[88]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [58].
[89]Madafferi [2021] VSCA 1, [19] (Emerton, Weinberg and Osborn JJA).

The applicant initially submitted that disclosures made by the Chief Commissioner’s solicitors, about the fact that an unidentified Purana Taskforce member (subsequently identified as Detective Constable Thomas) had manually reviewed Mr Acquaro’s computer and extracted information prior to Mr Arico’s first trial strengthens the legitimate forensic purpose of this category.[90]
[90]Applicant’s Submissions on Item 1(k) and Other Matters, 25 September 2021, [7].

Consideration and decision on category (c)

Categories (a) and (c) overlap to some extent but category (c) is confined to the shorter period of 1 January 2014 to 15 March 2016 and it is not confined by reason of the subject matter of the call. I do not consider there is a reasonable possibility that the production of the documents in category (c) would assist the applicant in his leave application and this category amounts to a ‘fishing expedition’. The purpose behind this category would be to discover what telephone contact there had been between Mr Acquaro and Victoria Police between 1 January 2014 and 15 March 2016 in circumstances where Mr Acquaro was a practising solicitor until at least 1 July 2015 representing clients charged with criminal offences and thereafter as a consultant (including to the applicant) until his murder on 15 March 2016. The circumstances also include that fact that Mr Acquaro informed on Mr Madafferi, one of his clients, in 2008 and 2014 and that there was no indication from police material that he informed on the applicant. I do not consider it is in the public interest to order the production of the material sought in category (c) in those circumstances.

Category (d)

In category (d) the applicant seeks 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).

The Chief Commissioner submitted that the applicant’s written case did not identify why the seizure of the computer is relevant and that the alleged legitimate forensic purpose is merely that it is ‘likely’ Mr Acquaro’s computer contained privileged information about Mr Arico. It was submitted this purpose is insufficient as it does not demonstrate what impact this may have had on the investigation or prosecution of the applicant.[91] It was also submitted that, currently, there is no suggestion that documents on Mr Acquaro’s computer contained information that would have had an impact on the investigation that resulted in the charging of the applicant. The Chief Commissioner sought further time to make enquiries about this issue at the objections hearing on 23 September 2021[92] and provided additional material after the hearing in a supplementary affidavit of Superintendent McKinney.[93]
[91]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.4].
[92]Affidavit of Timothy James McKinney, 23 August 2021, [53].
[93]Affidavit of Timothy James McKinney, 22 October 2021.

Superintendent McKinney’s supplementary affidavit provided the following information on the seizure of Mr Acquaro’s laptop computers and phones as part of the investigation into his murder. Following Mr Acquaro’s murder in March 2016, search warrants were executed at Mr Acquaro’s home and main office. The Purana Taskforce, including Detective Senior Constable Pickett, assisted the homicide squad with the search warrants and initial police response. This was because they were aware of the previous threats against Mr Acquaro in 2014.

In May 2016 Detective Senior Constable Thomas partly reviewed Mr Acquaro’s HP ProBook laptop in relation to the murder investigation. Detective Thomas had no involvement in relation to Operation Kinvo. Superintendent McKinney’s affidavit notes that the brief of evidence for Operation Kinvo, for the applicant’s charges, was served in April 2015 which was prior to the partial review of Mr Acquaro’s HP ProBook laptop.

The search terms used by Detective Thomas included ‘Arico’ though the applicant was not a specific target of the investigation into Mr Acquaro’s murder. The search revealed four documents as set out at [43].

Detective Thomas reviewed the four documents but they were not relevant to the murder investigation. Superintendent McKinney’s affidavit goes on to say that there is no suggestion that any of the four documents were disseminated to any other area of Victoria Police, including the members of Operation Kinvo. The remainder of the material on Mr Acquaro’s computer did not meet the search terms so they were not reviewed by Thomas.

Victoria Police has not reviewed the contents of Mr Acquaro’s seized computer in response to the s 317 application due to concerns it has over its legal authority, given the computer was seized pursuant to a search warrant obtained to investigate Mr Acquaro’s murder and concerns about breaching legal professional privilege (‘LPP’).

According to Superintendent McKinney’s supplementary affidavit, three phones and a Samsung notebook were also seized from Mr Acquaro’s premises in relation to the murder investigation. These devices were analysed by the E–Crime Unit and the analysis was reviewed by Detective Thomas. Superintendent McKinney’s supplementary affidavit goes on to say that, based on enquires of Taskforce Reset, none of the material on those devices was considered relevant to the murder investigation or the investigation into the applicant.

The applicant submitted there are two, discrete legitimate forensic purposes for this category. First, it is reasonably possible that information contained on Mr Acquaro’s computer goes to the ultimate factual question of whether Mr Acquaro provided information to Victoria Police about his clients. Secondly, even if the computer’s contents do not evince disloyal conduct, ‘it is highly likely to have contained privileged material concerning the applicant’, considering the applicant and Mr Acquaro’s ongoing professional relationship. The applicant submitted that it is the failure to disclose the seizure of the computer — rather than any potential impact this seizure may have had on the investigation — that has given rise to the substantial miscarriage of justice.[94]
[94]Applicant’s Response to Chief Commissioner’s Submissions, 14 September 2021, [63].

In his submissions dated 29 October 2021, the applicant challenged the admissibility of various parts of Superintendent McKinney’s supplementary affidavit on the basis of admissibility.[95] The applicant also stated the affidavit contained ‘numerous inadmissible, illogical or otherwise unpersuasive assertions’ which went beyond what was sought at the directions hearing.[96]
[95]Applicant’s Submissions in Response to CCP’s Supplementary Materials, 29 October 2021, [18]-[22].
[96]Ibid [2].

The applicant also submitted that Superintendent McKinney’s supplementary affidavit confirms the review of Mr Acquaro’s computer occurred prior to the applicant’s trials and the computer was searched by Detective Thomas for documents specifically relating to Mr Arico[97] as well as confirming there were telephone calls between Detective Pickett and Mr Acquaro. The applicant therefore submitted that the contents of Superintendent McKinney’s supplementary affidavit result in it being ‘on the cards’ that the production of documents in categories (d) and (k) would materially assist the applicant in his appeal.[98]
[97]Ibid [14].
[98]Ibid [17].

Consideration and decision on category (d)

Given that the computers and phones from Mr Acquaro’s office and home were seized and examined in connection with the murder investigation, and not in connection with the investigation of the applicant, I consider there is a disclosure issue in relation to the material on those devices. That is, whether material on those devices is relevant or possibly relevant to an issue in this application or which could possibly raise a new issue.

But for the Chief Commissioner’s concerns about his ability to inspect the material on the computers and phones to carry out his disclosure obligations, I would not have been minded to make an order under s 317 of the CPA in relation to this category of documents. Ordinarily this issue would first be considered as a disclosure one by the prosecution (police and the DPP). Without an order of the Court under s 317 of the CPA, I accept that Victoria Police face legal difficulties in examining Mr Acquaro’s computer in relation to this application for leave to appeal.

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.

Given the legal difficulty faced by Victoria Police in examining the material on Mr Acquaro’s computers and phones to carry out its disclosure obligations in relation to the applicant, I will make an order under s 317 of the CPA in relation to this category of material insofar as it relates to the applicant. The order will be limited to the applicant as, otherwise, I consider it would be a fishing expedition to obtain documents about others. I consider there is not a reasonable possibility that material about others on Mr Acquaro’s computers and phones would assist the applicant in establishing that there was a substantial miscarriage of justice in his trials.

I direct that the applicant and Chief Commissioner confer and submit agreed appropriate terms for a production order in relation to category (d) to enable the Chief Commissioner and DPP to carry out their disclosure obligations to the applicant. Those agreed terms will need to address the devices covered and the issue of any LPP and the procedures to address it, should it arise.

Lastly on category (d), the Chief Commissioner advised me at the hearing on 23 September 2021 that police seized a letter from Mr Acquaro’s premises when it was searched. The letter was written by Mr Acquaro to the Department of Immigration on behalf of the applicant supporting his application for citizenship. The Chief Commissioner advised he was willing to provide a copy of that letter to the applicant if it was ordered by the Court. In the event that an order is required to enable a copy of the letter be provided to the applicant, I will order that.

Category (k)

In category (k) the applicant seeks 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).

Category (k) was added by the applicant’s submissions dated 25 September 2021. The applicant explained that category (k) was closely related to category (d).

In his supplementary submissions dated 22 October 2021, the Chief Commissioner submitted his objections to this new category are consistent with his objections to (d) as the applicant has failed to articulate a sufficient legitimate forensic purpose. In response to the applicant’s further submissions on the legitimate forensic purpose for (d) and (k), the Chief Commissioner referred to the case of Kev v The Queen[99] and ultimately stated it is difficult to see how a legitimate forensic purpose could be established. It was submitted that ‘at its highest the material appears to be a “red herring” designed to distract the real task before the Court’[100] as the applicant’s trials ‘turned primarily on the evidence of Witness A’ and the brief of evidence in the applicant’s matter was served before the search of Mr Acquaro’s computer by Detective Thomas who was not involved in Operation Kinvo.[101]
[99][2015] VSCA 26, [82] (Weinberg JA and Santamaria JA).
[100]Supplementary Submissions of the Chief Commissioner, 22 October 2021, [6].
[101]Applicant’s Submissions in Response to CCP’s Supplementary Materials, 29 October 2021, [24].

Further, the Chief Commissioner rejected any assertion by the applicant that Mr Acquaro informed on Mr Arico due to the discrete period of time that Mr Acquaro acted as an unregistered human source.[102] Superintendent McKinney’s supplementary affidavit also noted Victoria Police’s belief that some of the references to ‘Arico’ in the appendix documents to the Madafferi decision in fact relate to a relative of the applicant rather than the applicant.
[102]Royal Commission into the Management of Informants.

The Chief Commissioner further submitted there is no basis for the applicant’s assertion that it was very likely Victoria Police obtained the applicant’s privileged information stored on Mr Acquaro’s computer.[103] Moreover, it was submitted that Superintendent McKinney’s supplementary affidavit makes it clear that that the requests for documents arising from categories (d) and the newly added (k) are mere fishing expeditions against the backdrop of the applicant being convicted on the weight of Witness A’s evidence.[104] The Chief Commissioner submitted that, in the event that orders for production of documents in these categories were made, this may raise issues of LPP relating to documents on Mr Acquaro’s computer and may require LPP waivers and amicus curiae to review the computer which would ultimately be ‘highly oppressive’.[105]
[103]Supplementary Affidavit of Timothy James McKinney, 22 October 2021, [9].
[104]Ibid [10].
[105]Ibid [11].

Based on Victoria Police’s failure to disclose this information relating to the applicant, the applicant submitted it is reasonably possible that the documents in category (k) will assist in establishing ground (d) of the applicant’s appeal. Namely, that investigators failed to disclose that they had seized the computer of the applicant’s solicitor which contained materials relating to the applicant. The applicant explained the inclusion of both category (d) and the additional category (k) in stating ‘while item (d) is framed so as to capture materials relating to the applicant that were seized during the search (including materials on Mr Acquaro’s computer), item (k) is framed so as to capture materials recording how those documents were subsequently reviewed and/or used by Victoria Police’.[106]
[106]Applicant’s Submissions on Item 1(k) and Other Matters, 25 September 2021, [9].

In his submission dated 29 October 2021, the applicant rejected the argument that the request for documents acted as a ‘red herring’ as well as the factual bases for this claim. The applicant further submitted that the ‘tenor of the CCP’s submission is that, because the trial turned on the evidence of Witness A … there could not, in principle, be a miscarriage of justice, even if it were revealed that significant privileged information was disseminated to investigators’.[107] The applicant submitted this was contrary to the High Court’s finding in CDPP v Strickland and is illogical.[108] The applicant also submitted that the Chief Commissioner’s assertion that Mr Acquaro could not have been informing on Mr Arico due to the discrete dates within which he acted as an unregistered human source is illogical. This was because Superintendent McKinney stated that the Chief Commissioner has not yet undertaken a review of its holdings and thus cannot know whether documents exist which evince Mr Acquaro informing outside of 2008 and 2014 on the applicant.[109]
[107]Applicant’s Submissions in Response to CCP’s Supplementary Materials, 29 October 2021, [28].
[108]Ibid [29].
[109]Applicant’s Response to the Chief Commissioner’s Submissions, 14 September 2021, [40]-[44].

Consideration and decision on category (k)

Superintendent McKinney’s affidavit outlines that Detective Senior Constable Thomas reviewed Mr Acquaro’s HP ProBook laptop in relation to the murder investigation using search terms that included ‘Arico’. The search revealed four documents with ‘Arico’ in the title. They were not regarded as relevant to the murder investigation and Superintendent McKinney goes on to say that there is no suggestion that the four documents were disseminated to any other area of Victoria Police including members of Operation Kinvo. None of the material on the Samsung notebook and three phones was considered relevant to the murder investigation and Detective Senior Constable Thomas did not disseminate it to other parts of Victoria Police.

Given the explanation by Superintendent McKinney in his supplementary affidavit relating to the seizure of Mr Acquaro’s computers and phones following his murder, I do not consider that there is a reasonable possibility that the material sought in this category will materially assist the applicant. I consider this amounts to a fishing exercise which is not permitted. Therefore, it is not in the public interest to order the production of the material in category (k).

Category (e)

In category (e) the applicant seeks all material relating to an alleged threat received by Victoria Police in relation to Anthony Condello and the conveying of that threat to Mr Condello shortly prior to the commencement of the applicant’s first trial.

The Chief Commissioner submitted that ‘no explanation has been provided about the legitimate forensic purpose’ of the documents sought in this category. It was also submitted that when the Chief Commissioner requested clarification on this point, the applicant only offered ‘broad allegations’ about Victoria Police’s improper use of lawyers as unregistered human sources which did not demonstrate what impact this threat could have had on the investigation and prosecution of the applicant.[110] The Chief Commissioner contended that this category ought be rejected in circumstances where no legitimate forensic purpose is identified. It was also submitted that this category would not meet the definition of ‘fresh’ evidence under s 326B of the CPA considering the fact that the death threat to Mr Condello was known prior to the applicant’s trials.[111] The Chief Commissioner further submitted that there is no basis for the assertion that pressure was exerted on Mr Condello and the Chief Commissioner noted that Mr Condello has not provided an affidavit to the effect that pressure was exerted on him.[112]
[110]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.5].
[111]Ibid.
[112]Ibid; Affidavit of Timothy James McKinney, 23 August 2021, [58].

The applicant submitted that it is ‘on the cards’ that the documents in this category will materially assist the applicant on his appeal as the conveying of the threat to Mr Condello evinces ‘a broader pattern of conduct, including the exertion of improper pressure on Mr Condello’ during Mr Arico’s 2016 trial.[113] The applicant reasons that Victoria Police is known to have engaged in improper and unlawful conduct through the use of lawyers as informers against their clients which was described by the High Court and Victorian Court of Appeal as ‘reprehensible’ and ‘egregious’. As such, it is a reasonable possibility that conveying the death threat to Mr Condello was to put improper pressure on him during the applicant’s trial.
[113]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [65].

As noted earlier, the Chief Commissioner filed additional material after the directions hearing on 23 September 2021 in relation to this category. Superintendent McKinney’s supplementary affidavit[114] stated that the threat to Mr Condello did not mention Mr Arico or Mr Acquaro and was therefore not relevant to the applicant’s trial in 2016.
[114]Supplementary Affidavit of Timothy James McKinney, 22 October 2021, [46].

Consideration and decision on category (e)

I am not satisfied the applicant has demonstrated a legitimate forensic purpose for the production of the material in this category. I agree that there is no concrete ground for the suggestion that conveying the death threat to Mr Condello was motivated to put pressure on him as solicitor for the applicant. I do not consider from the material before the court that there is a reasonable possibility that documents in this category will materially assist the applicant in his application. I consider the applicant is seeking documents to see if they are relevant to his case and this is not permitted as it is fishing. Accordingly, I decline to order the material in category (e) be produced as I do not consider it is in the public interest to do so.

Category (i)

In category (i) the applicant seeks 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).

The Chief Commissioner submitted that this category similarly lacks a legitimate forensic purpose as category (e) other than to ‘to determine the extent to which any unlawfully or improperly obtained information was used to further investigative objectives’. So, the Chief Commissioner submitted this category is a fishing expedition.[115] Further, it was submitted that the Chief Commissioner has undertaken a review of the affidavits in support of telecommunication and search warrants used in the investigation of the applicant, as set out in Superintendent McKinney’s supplementary affidavit, and there is no reference to Mr Acquaro or any human source. Instead, the documents predominantly contain information provided in Witness A’s statements. The Chief Commissioner contended there is no legitimate forensic purpose for this category of documents.
[115]Submissions of the Chief Commissioner of Police, 23 August 2021, [15.6].

The applicant submitted the legitimate forensic purpose is the same as category (a), namely it was directed at the issue whether Mr Acquaro informed on the applicant. The applicant contended the affidavits sought will further this purpose. It was also submitted that, if Victoria Police relied upon information from Mr Acquaro as an alleged police informer in applying for warrants, any resulting evidence would have been improperly obtained.[116] The applicant also submitted that the Chief Commissioner’s claim that this category amounts to a fishing expedition is unsustainable considering the Court of Appeal’s confirmation in Madafferi and Zirilli that Mr Acquaro was a police informer and that Victoria Police ‘conferred with, and sought the approval of, Mr Acquaro when it intended to make applications that were adverse to Mr Acquaro’s clients’ interests, such as applications to revoke bail’.[117]
[116]Applicant's Response to Chief Commissioner's Submissions, 14 September 2021, [68].
[117]Madafferi [2021] VSCA 1, [73].

Consideration and decision on category (i)

In relation to this category I consider the applicant is seeking documents to see if they are relevant to his case. This is a fishing expedition which is not permitted. There is no solid basis to suggest that Mr Acquaro informed on the applicant. In light of the information provided by Superintendent McKinney in his affidavits, I am not satisfied there is a real possibility that the documents in this category will materially assist the applicant in his application for leave to appeal. As a result, I decline to order the production of material in category (i) as it is not in the public interest to do so.

Conclusion

In accordance with these reasons I will make an order for production of some material covered by category (d) but otherwise I have refused the application to order production of the other contested categories of material sought in the s 317 application.

In relation to category (j), I have decided that I will not make an order at this stage. Rather I will allow the parties to discuss further what additional detail the applicant wishes to have in connection with Mr Acquaro informing on Madafferi as the Chief Commissioner indicated he is taking a pragmatic approach to the provision of additional detail/information from that category. The applicant has liberty to apply for a decision on category (j) if the outcome of those discussions does not result in the additional detail/information sought by the applicant being obtained.

The parties are directed to confer and provide draft orders that give effect to this decision. The parties should also give consideration to whether an order is required for the production of Mr Acquaro’s letter to the Department of Immigration on the applicant’s behalf.

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ANNEXURE A

The applicant’s updated s 317 application as at 24 September 2021

Pursuant to section 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 materials relating to Mr Acquaro’s representation of the applicant, ~~whether~~ between 2006 and 2016 ~~or at any other time~~.

(c)All materials (including but not restricted to Call Charge Records and aides such as tables in respect of same) relating to telephone contact between Mr Acquaro and Victoria Police (including but not limited to Peter Trichias, Shaun Bingham and Cliff Pickett) between 1 January 2014 (being the year wherein Witness A approached police) and 15 March 2016 (being the date of Mr Acquaro’s death).

(d)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).

(e)All materials relating to an alleged threat received by Victoria Police in relation to Anthony Condello, and the conveying of that threat to Mr Condello shortly prior to the commencement of the applicant’s trials.

(f)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.

(g)All materials relating to the decision of Witness A to cooperate with the authorities and/or give evidence at the applicant’s trial.

(h)All materials relating to payments made and/or benefits provided to Witness A.

(i)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).

(j)All documents or things identified in the appendix to the decision in Madafferi v The Queen, whether or not those documents or things concern the applicant or Witness A.

(k)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).

[2021] VSCA 353

15 December 2021