Barbaro v The King
[2024] VSCA 11
•22 February 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0116 |
| DOMINIC BARBARO | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGE: | McCann JR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2024 |
| DATE OF JUDGMENT: | 22 February 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 11 |
---
CRIMINAL LAW – Orders for production by the Chief Commissioner of Police pursuant to s 317 of the Criminal Procedure Act 2009 – Redacted documents produced by the Chief Commissioner of Police – Objections based on claims of public interest immunity – Challenge by the applicant to those claims – Where certain redacted information had been previously published – Redactions otherwise upheld.
Criminal Procedure Act 2009; Evidence Act 2008; Privacy and Data Protection Act 2014; Health Records Act 2001.
Barbaro v The Queen [2021] VSCA 370; R v Barbaro [2008] VCC 1587; R v Barbaro [2009] VSCA 89; Barbaro v The King [2023] VSCA 164; Goussis v The King [2022] VSCA 255; Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22.
---
| Counsel | ||
| Applicant: | Ms H. Canham | |
| Respondent: | Ms A Martin | |
| Chief Commissioner of Police: | Ms S. Maharaj KC with Ms M Pekevska | |
Solicitors | ||
| Applicant: | Sarah Tricarico Lawyers Pty Ltd | |
| Respondent: | Office of Public Prosecutions | |
| Chief Commissioner of Police: | Victorian Government Solicitor’s Office | |
McCANN JR:
Introduction
In an appeal against conviction brought by the applicant, Mr Dominic Barbaro, the Court ordered the production of documents by the Chief Commissioner of Police (‘the Chief Commissioner’) pursuant to s 317 of the Criminal Procedure Act 2009 (‘CPA’).[1] The documents were produced with redactions concealing information that the Chief Commissioner said was out of scope of the orders or the subject of claims of public interest immunity.
[1]Pursuant to orders made on the 17 December 2021 (as amended on 10 January 2022); Barbaro v The Queen [2021] VSCA 370.
At the request of the parties, in July 2023 the Court inspected a representative sample of the documents to assess and determine the redactions applied to conceal information said to be out of scope of the orders.[2] The Court is now asked to determine Mr Barbaro’s challenge to the redactions representing the Chief Commissioner’s claims of public interest immunity and confidentiality.
[2]Barbaro v The King [2023] VSCA 164.
The issues for determination are whether to appoint a contradictor to assist in the assessment of the claims and whether to uphold the claims.
As I had previously inspected almost all of the subject documents in this matter, I decided to proceed without the assistance of a contradictor. A number of redactions were either amended or removed by the Chief Commissioner during a closed hearing. I have decided to uphold the remaining redactions.
Counsel for the Chief Commissioner informed the Court that the updated documents will be re-produced to the Court and parties. The dates for that re-production remain to be settled.
What follows are my reasons for the procedure adopted and the determination of the claims themselves.
The offending, the conviction, and the appeal
The background of Mr Barbaro’s offending and conviction are set out in detail in the two previous decisions on production in this appeal,[3] as are his grounds of appeal. In brief, Mr Barbaro was arrested in 2006 and charged in relation to a clandestine methamphetamine laboratory. Now notorious former barrister Nicola Gobbo represented him on occasion during the criminal proceedings that resulted in his conviction. Mr Barbaro’s ground of appeal focuses on the use of Ms Gobbo as a police informer during this period.
[3]Barbaro v The King [2021] VSCA 370; Barbaro v The King [2023] 164.
What documents are in issue?
On 17 December 2021 the Court ordered that the Chief Commissioner produce the following documents:
(a)All materials relating to information exchanged between Nicola Gobbo and Victoria Police between 1 September 2004 and 5 June 2009 regarding:
(i) “Mr Cooper” (a pseudonym); and/or
(ii) the applicant.
(b)All materials relating to information exchanged between “Mr Cooper” and Victoria Police between 1 September 2005 and 5 June 2009 regarding:
(i) the applicant; and/or
(ii)payments or other benefits (including comforts) sought by or offered to “Mr Cooper”, directly or indirectly.
(c)To the extent that they are not covered by the above, all materials between 1 September 2004 and 5 June 2009 relating to the decision of “Mr Cooper” to cooperate with the authorities in respect of the prosecution of the applicant and/or Shane Moran and/or Frank Ahec, where they were alleged to be co-offenders with the applicant.
(e)Any affidavits in support of warrants which were relied upon in the brief of evidence against the applicant or used to obtain evidence that was served on the applicant to the extent that they contain information obtained from, or likely to have been obtained from, Nicola Gobbo and/or “Mr Cooper”.
Between February and June 2022 the Chief Commissioner produced a total of 1,021 documents pursuant to these orders. The produced documents were redacted representing the Chief Commissioner’s objections asserted on the bases that the concealed information was either:
(a)Outside the scope of the orders or assessed by the Chief Commissioner to be irrelevant to the applicant’s case; and/or
(b)The subject of a claim of public interest immunity or other restriction.
In July 2023, I inspected a representative sample comprising 99 of the documents. I ruled in respect of the scope redactions. [4]
[4]Barbaro v The King [2023] VSCA 164.
Following this, Mr Barbaro challenged the public interest immunity and privacy redactions applied to 70 documents; 66 of these had been in the original representative sample.
Should the Court seek the assistance of a contradictor?
Mr Barbaro sought, and the Chief Commissioner opposed, the provision of the confidential material upon his counsel providing a confidentiality undertaking. The Chief Commissioner pointed to the risks of inadvertent disclosure of the material and the seriousness of the consequences if that risk eventuated.
Addressing the question of risk, counsel for Mr Barbaro distinguished his case, a criminal appeal, from that of a criminal trial. It was asserted that this is a procedural difference that mitigates the risk of inadvertent disclosure.
The appeal grounds in this case rely upon a substantial miscarriage of justice arising from the previous non-disclosure of information by prosecuting agencies. Counsel for Mr Barbaro argued that the interests of justice are served when those caught up in the criminal justice system believe that the process is fair and the involvement of the applicant’s counsel in the inspection of documents can be seen as one way to support that belief.
In a public interest immunity claim made by the Chief Commissioner in the case of Goussis, [5] the Court appointed the applicant’s counsel as contradictor. In that case, the applicant’s lawyers were provided with the Chief Commissioner’s confidential affidavit upon providing a confidentiality undertaking.
[5][2022] VSCA 255.
The Court observed that:
The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material.[6]
[6][2022] VSCA 255, [23] (Beach JA).
It will be seen that the appropriate procedure to adopt will depend on the specific facts and circumstances of the particular case. Those will include the efficient and timeliness of determination and allocation of judicial resources.
In the particular circumstances of this case, where an extensive inspection of the documents has previously been undertaken by the Court, a review of many of the same documents is not the onerous or time-consuming task it might otherwise be.
There are obvious benefits of having the assistance of a contradictor in a large document inspection and assessment task in an appeal, but because I have already inspected almost all of the subject documents, it would not be a good use of time or resources to halt the proceedings now for inspection by Mr Barbaro’s lawyers to take place. Mr Barbaro started his appeal two and half years ago. Further delay is not needed. I will not order the provision of documents to his lawyers on an undertaking.
Should the information redacted by the Chief Commissioner be protected?
Public Interest Immunity
At common law, a claim of public interest immunity must ‘pass an initial hurdle … to establish that the class of documents in question … are governmental in character.’[7] This initial hurdle at common law is reflected in statute, described as matters of state in the Evidence Act 2008 (the ‘Evidence Act’).
[7] Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 31–2 [35] (Warren CJ); [2006] VSCA 85.
Section 130(1) of the Evidence Act provides that:
(1)If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Section 130(4) of the Evidence Act provides that:
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of subsection to relate to matters of state if adducing it as evidence would—
(a)prejudice the security, defence or international relations of Australia; or
(b)damage relations between the Commonwealth and a State or between 2 or more States; or
(c)prejudice the prevention, investigation or prosecution of an offence; or
(d)prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)prejudice the proper functioning of the government of the Commonwealth or a State.
Once a listed class of documents is established, the initial hurdle is overcome. The common law then directs a balancing exercise be undertaken.
The required balance is captured by s 130(5) of the Evidence Act; the public interest in admitting the information into evidence is weighed against the interest in maintaining confidentiality in relation to that information.
(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.
The principles and process must then be applied in the context of the case. In this case, the public interest in maintaining confidentiality must be balanced against the potential significance of the masked information to the ground of appeal in the applicant’s application, as argued in his written case.
In assessing whether the objections to production made by the Chief Commissioner ought to be upheld on the basis of PII, I first considered whether categories of redaction said to be matters of state satisfies 130(4).[8] In my view, the redactions so categorised passed that hurdle.
[8]A table with the colour codes for categories of redactions used by the Chief Commissioner is annexed to this judgment.
The substance of some of the masked information had been published before. The Chief Commissioner was queried about those entries in closed court. In all but one instance, the Chief Commissioner agreed to remove the redactions or to replace the redacted words with more generic terms.
On further consideration of the single item remaining, I was satisfied on further submissions that the redacted information had not in fact been previously published. That redaction is upheld.
‘Private’ Information
In addition to redacting information the subject of his public interest claims, the Chief Commissioner has redacted information categorised by him as ‘private’ information. He submits that this includes telephone numbers and addresses pursuant to s 186 of the Criminal Procedure Act and information that is protected by the Privacy and Data Protection Act 2014 or the Health Records Act 2001.
The Chief Commissioner is bound by privacy principles outlined in the Privacy and Data Protection Act and the Health Records Act. The principles govern the use, disclosure and access to private information collected by Victoria Police, protecting the private and health records collected about and from members of the public. There are exceptions which allow non-compliance where that is necessary in connection with the conduct of proceedings in any court or tribunal.[9]
[9]Privacy and Data Protection Act s 15.
On review of the information identified as private, there was nothing concealed that was within scope or that appeared of any relevance to Mr Barbaro’s appeal. These objections to production are also upheld.
The Chief Commissioner is to provide a schedule for the reproduction of the documents with redactions lifted and amendments made.
---
ANNEXURE A
Representative Sample Redactions - Colour Coding Table
4
0