Barbaro v The King - [2024] VSCA 11

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0116

DOMINIC BARBARO	Applicant
v
THE KING	Respondent

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JUDGE:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2024
DATE OF JUDGMENT:	22 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 11

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbaro v The King

Details

AGLC: Barbaro v The King [2024] VSCA 11
Case: [2024] VSCA 11
Decision Date: 22 February 2024

CaseChat Overview and Summary

The applicant in this case, Barbaro, brought an application to the Court of Appeal, challenging a decision of the County Court of Victoria regarding orders for production made by the Chief Commissioner of Police under s 317 of the Criminal Procedure Act 2009. The Chief Commissioner had produced documents, some of which were redacted on the basis of claims of public interest immunity. Barbaro objected to the redactions and sought the unredacted documents. The County Court had ruled in favour of the redactions, and Barbaro appealed to the Court of Appeal.

The central issue before the Court was whether the redactions made by the Chief Commissioner were justified. Specifically, Barbaro argued that certain redacted information had already been published and therefore could not be subject to claims of public interest immunity. The Court was required to determine the validity of the redactions and whether they were consistent with the relevant statutory provisions and common law principles.

The Court of Appeal considered the statutory framework and case law concerning public interest immunity. It held that the Chief Commissioner’s decision to redact certain information was largely justified, as the redactions were consistent with the requirements of the Criminal Procedure Act and the principles of public interest immunity. The Court noted that while some of the redacted information had been published, the publication did not necessarily negate the immunity claim, especially given the sensitive nature of the information. However, the Court did find that some redactions were excessive and ordered the Chief Commissioner to provide unredacted copies of those parts of the documents.

The Court of Appeal upheld the majority of the redactions but ordered the Chief Commissioner to produce unredacted versions of certain parts of the documents. This decision clarifies the extent to which prior publication affects claims of public interest immunity and underscores the importance of balancing the public interest with the need for transparency in criminal proceedings.

Orders