Barbaro v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0116

DOMINIC BARBARO	Applicant
v
THE KING	Respondent

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JUDGES:	Judicial Registrar McCann
WHERE HELD:	Melbourne
DATE OF HEARING:	Determination on the papers
DATE OF JUDGMENT:	14 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 164

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CRIMINAL LAW – Orders for production of documents pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Victoria Police – Objections to redactions – Determination of redactions based on scope and relevance – Further claims of public interest immunity – Representative sample provided to Court.

Criminal Procedure Act 2009, s 317.

Zirilli v The Queen [2021] VSCA 174.

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Counsel
Applicants:		Ms C. Boston Ms H. Canham
Respondent:		--
Chief Commissioner of Police:		Ms S. Maharaj KC Mr J. Bayly
Solicitors
Applicants:	Sarah Tricarico Lawyers
Respondent:	Office of Public Prosecutions
Chief Commissioner of Police:	Victorian Government Solicitor’s Office

MCCANN JR:

Introduction

On 10 September 2021, the applicant, Dominic Barbaro (‘the applicant’) applied for leave to appeal against his conviction pursuant to s 274 of the Criminal Procedure Act (2009) (‘CPA’). He has sought an extension of time in which to file this application.
On 15 October 2008 the applicant pleaded guilty to conspiracy to traffic in a commercial quantity of a drug of dependence. On 15 December 2008 he was sentenced to 2 years and 9 months’ imprisonment, with 2 years suspended for a period of 3 years.[1] He successfully appealed this sentence and on 4 May 2009, and was re-sentenced to 2 years’ imprisonment, with 15 months suspended for a period of 3 years from the date of sentence.[2]
[1]R v Dominic Barbaro [2008] VCC 1587.
[2]The Queen v Dominic Barbaro [2009] VSCA 89.
This is the applicant’s first appeal against conviction. He has served out the sentence imposed.
The applicant relies upon a single ground of appeal; that there has been a substantial miscarriage of justice occasioned due to Victoria Police’s use of Nicola Gobbo as an informer.[3]
[3]See Annexure A for the particulars of the applicant’s ground of appeal.
On 10 September 2021, the applicant also applied for the production of documents pursuant to s 317 of the CPA on the part of the Chief Commissioner of Victoria Police (‘the Chief Commissioner’). The Chief Commissioner contested this application. On the 23 December 2021, the Court ordered the production of documents.[4] The documents to be produced have been redacted.
[4]Barbaro v The Queen [2021] VSCA. The categories of document for production are contained in Annexure B.
The Court is asked to consider the appropriateness of the redactions applied to the documents by reviewing a representative sample of the documents produced. The ruling in respect of those redactions is contained in Annexure D to this judgment. What follows is a brief procedural history of the production process and an outline of the principles applicable and the approach to be adopted in the review process.
Pursuant to the s 317 order, the Chief Commissioner has produced documents on the following occasions:
(a)176 Documents on 23 February 2022;
(b)214 Documents on 23 March 2022;
(c)56 Documents on 11 May 2022;
(d)5 Documents on 30 May 2022;
(e)261 Documents on 1 June 2022;
(f)288 Documents on 15 June 2022; and
(g)26 Documents on 22 June 2022.
In summary, between February and June 2022, the Chief Commissioner has produced a total of 1,021 documents with redactions concealing both;
(a)information the Chief Commissioner asserts is confidential or restricted and would be the subject of a public interest immunity claim; and
(b)information the Chief Commissioner asserts is outside the scope of the orders or assessed by the Chief Commissioner to be irrelevant to the applicant’s case.
Accompanying each instance of production was a letter from the Chief Commissioner outlining the documents produced and providing a table detailing the colour coding system employed in the redactions applied to the documents produced. This table is contained in Annexure C of this judgment.[5]
[5]It is noted that there was an inconsistent use of the colour coding between the electronic and hard copy representative sample. The colour coding indicated in the table is the colour coding in the hard copy.
In applying redactions to conceal information outside the scope of the s 317 orders or irrelevant to the Applicant’s case, the Chief Commissioner has not considered whether any of that information would also be confidential and the potential subject of a claim of public interest immunity.[6]
[6]Chief Commissioner of Victoria Police, ‘Production letter from Victorian Government Solicitor’s Office’ 16 June 2023, [7].
On 16 August 2022 and 29 August 2022, the applicant filed notice of their challenges to the redactions of a total of 622 of the documents produced by the Chief Commissioner.

Representative Sample

On 5 April 2023, by consent the parties were ordered to each identify 50 documents they sought to include in a representative sample. The applicant filed an index of documents for their representative sample on 21 April 2023. The Chief Commissioner filed their index on 28 April 2023.
There were efforts by the applicant and the Chief Commissioner to further narrow the representative sample. The Court understands that the focus of these discussions was the lifting of the scope or relevance redactions from a portion of the representative sample documents to be followed by inspection and reconsideration by the applicant. These discussions were ultimately unsuccessful.
Accordingly on 2 June 2023, the Court requested that the Chief Commissioner provide the representative sample in the manner proposed by the Chief Commissioner in his correspondence of 26 May 2023.
On 16 June 2023 the Chief Commissioner produced the representative sample containing 99 documents, 50 of which were selected by the Chief Commissioner and 49 selected by the Applicant. Of the 50 initially selected by the applicant, one document appeared twice, with the Chief Commissioner providing only one copy of that document in order to avoid duplication. The representative sample included the following:
(a)13 transcripts;
(b)32 Informer Contact Reports (ICR);
(c)one Source Management Log (SML);
(d)53 Diary entries and other documents.

Relevant legal principle

In Zirilli v The Queen,[7] Irving JR, as he then was, was asked to review and rule on the redactions applied to a representative sample of documents produced pursuant to s 317 orders.[8] He also considered the applicable principle and approach to be adopted.
[7]Zirilli v The Queen [2021] VSCA 174.
[8]Orders for production in Zirilli were made against the Chief Commissioner of Victoria Police, the Commissioner of the Australian Federal Police, and the CEO of the Australian Criminal Intelligence Commission.
Neither the applicant nor the Chief Commissioner took issue with the Court observing the principle enunciated and the approach adopted by Irving JR in that case. These can be summarised as follows:
(a)before the Court will make an order under s 317 of the CPA, an applicant must satisfy the Court of the applicant’s legitimate forensic purpose for which the documents or categories of documents are sought and that it is ‘on the cards’ that the documents will materially assist the applicant’s case;
(b)a fishing expedition is not allowed and mere relevance is not sufficient;
(c)the Court may only make a s 317 order for production of documents if it is in the interests of justice to do so;
(d)production under s 317 of the CPA is akin to an order for a subpoena for production (subpoena duces tecum);
(e)care should be taken in drafting the terms of the order: Commissioner for Railways v Small;
(f)the terms of the s 317 order will dictate the scope of the documents required to be produced and, as in all criminal cases, it is appropriate to adopt a liberal reading to the terms of the order;
(g)a non-party ought not be required to form a judgment as to whether their documents are material to questions that arise between the parties, about which the non-party has necessarily limited knowledge;
(h)this does not mean that issues of relevance may not be appropriately considered by a non-party that is subject to obligations of disclosure separate to or over and above its obligations to comply with a s 317 order;
(i)similarly, the Court should not be required to wade through masses of documents for the purpose of endeavouring to determine whether any of them are relevant, especially while the case is still at the stage when it is difficult or perhaps impossible for the Court to know what may become relevant and what may not;
(j)the producing entity seeking to redact information bears the onus of demonstrating that the information does not fall within the scope of the s 317 order; and
(k)the underlying guiding principle for the Court in determining whether documents or parts of documents are required to be produced will be what is required to do justice between the parties.[9]
[9][2021] VSCA 174, [59] (footnotes omitted).
Irving JR also observed that, ‘in [his] view use of the term “relevance” as a basis of redaction or non-production of documents under a s 317 order is apt to divert attention from the terms of the order and should be avoided in favour of the terms like “out of scope” or “beyond the terms of the order”.’[10]
[10][2021] VSCA 174, [60].
Lastly, the Applicant’s observation in their written submissions has been noted; that documents falling outside the scope of the s 317 orders made in the present case are otherwise subject to the Chief Commissioner’s general obligations of disclosure.

Determination on the representative sample

Thirty-three of the documents listed were not reviewed. These were documents selected by the applicant and Chief Commissioner and then subsequently revealed by the Chief Commissioner to have been published by the Royal Commission into the Management of Police Informants (‘RCMPI’) in unredacted form.
Adopting the approach in Zirilli and in accordance with principle, the Court reviewed the remaining documents in the representative sample. The rulings in respect of each of the documents reviewed are contained in the table in Annexure D.
The numbering used in the table is the numbering used by the applicant and Chief Commissioner’s in the indices to their representative sample selections (these appear in the left hand column of the table; APP 1, APP 2 etc.). In the representative samples produced to the Court, the Chief Commissioner had applied new document identification numbers. These have not been reproduced in the table in Annexure D. The original document identification numbers are retained. These are the numeric identifiers with which the applicant is familiar.
The task of the Court was to identify any redactions inappropriately applied to material or information that appeared to be in scope or otherwise disclosable. It was not the task of the Court to come to a conclusion about whether the information revealed in the documents was within or outside the scope of the orders.
During the review, some inconsistency in the application of redactions was identified and is noted in the table in Annexure D. In general, however, the review of the representative sample revealed that the large majority of redactions concealed material was either out of scope of the s 317 orders or otherwise not disclosable. There were several instances, identified in the table, where information concealed by a redaction coded as representing a privilege claim warranted further review by the Chief Commissioner and I have indicated where that is the case.
In their written submissions dated 20 June 2023, the Chief Commissioner submitted that, in the event, any redacted portions of documents were considered by the Court to be within the scope of the s 317 orders they would review as quickly as possible to assess whether any claim of privilege applied and then reproduce the documents in a form where any such claim was identified and the information was otherwise unredacted. It is expected that the Chief Commissioner will now attend to this in respect of the redactions identified in the Annexure D table.
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ANNEXURE A

The Applicant’s Grounds of Appeal

Ground 1:
A substantial miscarriage of justice has been occasioned due to Victoria Police’s use of Nicola Gobbo as an informer. In particular:
(a)legal advice the applicant received was not independent, in circumstances where his barrister was an informer for Victoria Police; and/or
(b)investigators (and ultimately the prosecution) gained an unfair advantage by reason of the barrister for the applicant and “Mr Cooper” (a pseudonym) being a police informer; and/or
(c)investigators failed to disclose to the applicant that his barrister was a police informer; and/or
(d)investigators failed to disclose to the applicant that his barrister also acted for the primary prosecution witness against him; and/or
(e)investigators failed to disclose to the applicant that Victoria Police had made payments to the primary prosecution witness, “Mr Cooper” (a pseudonym), as was subsequently revealed in Cvetanovski v The Queen [2020] VSCA 272; and/or
(f)investigators failed to disclose to the applicant that “Mr Cooper” had himself originally been arrested due to the improper or unlawful conduct of Victoria Police and Ms Gobbo; and/or
(g)the plea negotiations were infected as a result of the above matters; and/or
(h)a fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice has miscarried.

ANNEXURE B

Documents to be produced by the Chief Commissioner of Victoria Police – Per Orders on 17 December 2021

(a)All materials relating to information exchanged between Nicola Gobbo and Victoria Police between 1 September 2005 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 provided to Mr Cooper, directly or indirectly

(c)To the extent that they are not covered by the above, all materials between 1 September 2005 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
(d)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 be have been obtained from, Nicola Gobbo and/or Mr Cooper

ANNEXURE C

Representative Sample Redactions - Colour Coding Table

ANNEXURE D
Representative Sample Documents Rulings
Party Selection No.	Document Code	Document Description	Basis for Challenge	Comments
Produced 23 Feb 2022
Chief Commissioner’s Selections
CCP 1.	VPL.4223.0003.0059	(b) 20060915 O'BRIEN p.208-209	Appears to form part of relevant entry	Redactions conceal material that is out of scope and privileged (blue and red)
CCP 2.	VPL.4223.0003.0174	(b) 20080613 FLYNN p.57	Basis for redaction unclear	Redactions conceal out of scope material and privileged information (red)
CCP 3.	VPL.4223.0004.0020	20060313 - FLYNN, p.220-237	Basis for redaction unclear	Document is diary entries including entries relating to Operation Posse The redacted material is out of scope of the orders, private information (pink) and privileged information (red)
CCP 4.	VPL.4223.0004.0139	20060201 - O'BRIEN, p.47	Basis for redaction unclear	Redactions conceal out of scope material and privileged information (red, yellow, green, pink and blue)
CCP 5.	VPL.4223.0004.0187	20060406 - O'BRIEN, p.109-114	Basis of redaction unclear	Redactions conceal out of scope material and privileged information (red, pink, blue and green)
CCP 6.	VPL.4223.0011.0869	20060530-OG, p.216-219	Appears to form part of relevant entries	Redactions conceal information that is out of scope and privileged. The redacted material on p219 at time 1748 warrants review by the Chief Commissioner. It is currently redacted as privileged (blue)
CCP 7.	VPL.4223.0005.0593	Statement 06	Basis of redaction unclear	This document is a witness statement that has presumably been disclosed as a part of a brief of evidence. It appears that redactions have been applied recently and it may well be that it has been produced in un-redacted form previously. It may be in the public domain. I am uncertain of the value of any of the redactions if that is the case. I am asked to rule on the scope. All the redactions are applied to information that is outside the scope of the order which is privileged (red) or private (pink)
Applicant’s Selections
APP 1.	VPL.4223.0004.0109	20050927 - O'BRIEN, P.297-299	Appears to form part of relevant entry	Diary entries in ink, difficult to decipher, but it appears that the redactions conceal material that is out of scope or privileged (blue, yellow, red and pink)
APP 2.	VPL.4223.0003.0113	(b) 20070511 FLYNN p.78-81	Appears to form part of relevant entry	These are diary entries, redacted as out of scope. To the extent that the handwriting was decipherable, it appears that the entry at 14:15 on diary page 79 relates to Mr Cooper. I am unable to determine if the information relating to Mr Cooper is within scope, and so rule that the redaction applied to the entry at that time stamp should be lifted. All other redactions conceal material that is out of scope or privileged (blue)
APP 3.	VPL.4223.0004.0109	20050927 - O'BRIEN, P.297-299	Appears to form part of relevant entry	Note* - APP 3 was a duplicate selection of APP 1, see comments above.
APP 4.	VPL.4223.0004.0155	20060224-27 - O'BRIEN, p.71-76	Basis of redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and pink)
APP 5.	VPL.4223.0004.0223	20060806 - O'BRIEN, p.176	Appears to form part of relevant entry	Redactions conceal material that is out of scope
APP 6.	VPL.4223.0004.0226	20070117 - ROWE, p.95-96	Appears to form part of relevant entry	Redactions conceal material that is out of scope
APP 7.	VPL.4223.0005.0023	Canteen payments	Basis of redaction unclear	Redactions conceal material which includes material that is out of scope or privileged (red and pink)
Produced 23 March 2022
CCP’s Selections
CCP 8.	VPL.4223.0006.0005	INFORMATION REPORT 281-011005	Basis for redaction unclear	Redactions conceal material that is out of scope or privileged (pink)
CCP 9.	VPL.4223.0006.0112	INFORMATION REPORT 544-200306	Basis for redaction unknown	Redactions conceal material that is out of scope or privileged (pink)
CCP 10.	VPL.4223.0009.4707	11792958-ICR043	Basis for redaction unclear
CCP 11.	VPL.4223.0009.4883	21803838-ICR004	Basis for redaction unclear
CCP 12.	VPL.4223.0009.4974	21803838-ICR015	Basis for redaction unclear
CCP 13.	VPL.4223.0009.5030	21803838-ICR020	Basis for redaction unclear
CCP 14.	VPL.4223.0009.5402	21803838-ICR052	Basis for redaction unclear
CCP 15.	VPL.4223.0009.5471	21803838-ICR062	Appears to form part of relevant entries
CCP 16.	VPL.4223.0009.5915	21803838-ICR092	Basis for redaction unclear
CCP 17.	VPL.4223.0009.6328	21803838-ICR113	Appears to form part of relevant entry
Applicant’s Selections
APP 8.	VPL.4223.0009.4037	11792958-ICR001	Basis for redaction unclear
APP 9.	VPL.4223.0009.5106	21803838-ICR027	Appears to form part of relevant entries
APP 10.	VPL.4223.0009.5324	21803838-ICR048	Appears to form part of relevant entries
APP 11.	VPL.4223.0009.5443	21803838-ICR056	Appears to form part of relevant entries
APP 12.	VPL.4223.0009.5448	21803838-ICR057	Appears to form part of relevant entries
APP 13.	VPL.4223.0009.6386	21803838-ICR115	Appears to form part of relevant entry
APP 14.	VPL.4223.0009.6193	21803838-ICR107	Appears to form part of relevant entry
APP 15.	VPL.4223.0009.6234	21803838-ICR109	Appears to form part of relevant entry
APP 16.	VPL.4223.0009.6278	21803838-ICR111	Appears to form part of relevant entry
Produced 11 May 2022
Chief Commissioner’s Selections
CCP 18.	VPL.4223.0010.1314	OPS RCMPI STATEMENT	Basis for redaction unclear	Redactions conceal out of scope and privileged information (pink, yellow, blue and green)
CCP 19.	VPL.4223.0011.2316	20070606to07-DSA, p.213-227	Not listed in the Notification of Applicant’s Challenges to Production	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 20.	VPL.4223.0010.3783	D02684-00 OP POSSE – AHEC	Basis for redaction unclear	An affidavit produced in response to category (d) of the orders in Annexure B. The document is redacted for scope and/or privilege (blue). The category of production ordered provides that the Chief Commissioner must produce “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”.” I am unable to determine whether any of the information deposed in the affidavit was obtained from Nicola Gobbo or Mr Cooper. In the circumstances, the material concealed by out-of-scope redactions should be revealed. Material concealed by blue redactions should remain concealed.
CCP 21.	VPL.4223.0004.0207	20060423 - O'BRIEN, p.130-134	Basis for redaction unclear	Redactions conceal out of scope and privileged material (blue)
CCP 22.	VPL.4223.0010.3705	PTF UPDATE 2006-05-01	Basis for redaction unclear	Redactions conceal out of scope and privileged material (red)
Applicant’s Selections
APP 17.	VPL.4223.0005.0784	POLICE ASSISTANCE PROVIDED	Appears to form part of relevant entries	Redactions conceal out of scope material as well as material subject to a claim of privilege (yellow). Content is replicated across APP 17 and APP 18, with differing redactions applied to each, see below.
APP 18.	VPL.4223.0005.0824	REQUEST FOR INFORMER REWARD	Appears to form part of relevant entries	Pages of this document reproduce Document APP 17 with differing material redacted. Yellow redactions applied in Document APP 17 are lifted in this document. Material redacted on page 9 of APP 18 appears unredacted in Document APP 17. Other redactions conceal out of scope material and/or privileged material (pink, green and yellow)
APP 19.	VPL.4223.0010.3621	Mr Cooper LETTER	Basis for redaction unclear	Redactions conceal material that is out of scope or privileged. (blue, pink and yellow)
APP 20.	VPL.4223.0010.3867	VP068 OP POSSE – Mr Cooper	Basis for redaction unclear	An affidavit produced in response to category (d) of the orders in Annexure B. The document is redacted for scope and/or privilege (blue). The category of production ordered provides that the Chief Commissioner must produce “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”.” I am unable to determine whether any of the information deposed in the affidavit was obtained from Nicola Gobbo or Mr Cooper. In the circumstances, the material concealed by out-of-scope redactions should be revealed. Material concealed by blue redactions should remain concealed.
APP 21.	VPL.4223.0009.5115	21803838-ICR028	Basis for redaction unclear
APP 22.	VPL.4223.0009.5601	21803838-ICR072	Appears to form part of relevant entries
Produced 1 June 2022
Chief Commissioner’s Selections
CCP 23.	VPL.4223.0011.0035	20051024to20051027-OPS, p.238-246	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 24.	VPL.4223.0011.0642	20060328-OSW, p.1-6	Appears to form part of relevant entries	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 25.	VPL.4223.0011.0764	20060429to0501-OSW, p.97-100	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 26.	VPL.4223.0011.1020	20060625to29-OSW, p.264-265, p.271-272	Appears to form part of relevant entries	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 27.	VPL.4223.0011.1142	20060816-OG, p. 11-18	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 28.	VPL.4223.0011.1434	20080830- OG, p.17-18	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 29.	VPL.4223.0011.1463	20051227-OB, p.260	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 30.	VPL.4223.0011.3744	20081020-OSW, p.6-7	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 31.	VPL.4223.0011.3876	20060418-OG, p.150-151	Basis of redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 32.	VPL.4223.0011.4021	20070122-OG, p.197-201	Basis of redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 33.	VPL.4223.0011.4283	20080123to25-OPS, p.5-13	Basis of redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 34.	VPL.4223.0009.4069	11792958-ICR003	Basis of redaction unclear - 4075
CCP 35.	VPL.4223.0009.4697	11792958-ICR042	Basis of redaction unclear
CCP 36.	VPL.4223.0009.4530	11792958-ICR029	Basis of redaction unclear
CCP 37.	VPL.4223.0009.4802	11792958-ICR049	Appears to form part of relevant entry
CCP 38.	VPL.4223.0009.5642	21803838-ICR074	Appears to form part of relevant entry
CCP 39.	VPL.4223.0009.5216	21803838-ICR037	Basis of redaction unclear
CCP 40.	VPL.4223.0009.4589	11792958-ICR034	Appears to form part of relevant entry
Applicant’s Selections
APP 23.	VPL.4223.0011.0061	20051102to20051104-OPS, p.249-253	Basis of redaction unclear	Redactions conceal material out of the scope and/or privileged (blue)
APP 24.	VPL.4223.0011.0481	20060223-OG,p.12-17	Appears to form part of relevant entries	Redactions conceal material that is out of scope and/or privileged (blue)
APP 25.	VPL.4223.0011.1439	20051201to02-OB, p.204-207	Appears to form part of relevant entry at .1439	Redactions conceal material that is out of scope and/or privileged (blue)
APP 26.	VPL.4223.0011.2436	20070622to23-OF, p,126-129, p.134-135, p.139-158	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
APP 27.	VPL.4223.0011.4463	20080819-OG, p.2	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
APP 28.	VPL.4223.0011.4464	20080820to21-OG, p.3-6	Appears to form part of relevant entry	Redactions conceal material that is out of scope and/or privileged (blue)
APP 29.	VPL.4223.0009.4095	11792958-ICR006	Appears to form part of relevant entry at 4097
APP 30.	VPL.4223.0009.4265	11792958-ICR017	Basis of redaction unclear
APP 31.	VPL.4223.0009.4319	11792958-ICR019	Appears to form part of relevant entry at 4097
APP 32.	VPL.4223.0009.4578	11792958-ICR033	Appears to form part of relevant entry
APP 33.	VPL.4223.0009.5286	21803838-ICR045	Basis of redaction unclear
APP 34.	VPL.4223.0009.5193	21803838-ICR035	Basis of redaction unclear
Produced 15 June 2022
Chief Commissioner’s Selections
CCP 41.	VPL.4223.0011.0608	20060320-OPS, p.34-40	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue, pink, yellow)
CCP 42.	VPL.4223.0011.0859	20060525to28-OG, p. 207-212, p.214	Appears to form part of relevant entries	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 43.	VPL.4223.0011.0999	20060616to19-OG, p.272-281	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 44.	VPL.4223.0011.1225	20060908-OG, p.73-74	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue)
CCP 45.	VPL.4223.0008.0870	08-21803838-020206	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue, pink and yellow)
CCP 46.	VPL.4223.0008.2144	14-21803838-200306	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue, pink and yellow)
Applicant’s Selection
APP 35.	VPL.4223.0008.0001	01-21803838-160905	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and pink)
APP 36.	VPL.4223.0008.6425	21-21803838-260406B	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and yellow)
APP 37.	VPL.4223.0010.0001	21803838SML	Appears to form part of relevant entries	It is noted that several passages are masked by solid redactions. The indicative shaded redactions in the rest of the document conceal material that is out of scope and or privileged.
APP 38.	VPL.4223.0011.0493	20060223to24-OSW, p. 250-252, p. 254-257	Basis for redaction unclear from .0494 onwards	Redactions conceal material that is out of scope and/or privileged (blue)
APP 39.	VPL.4223.0011.1247	20060917to20060922-OPS, p.284-301	Basis for redaction unclear	Redactions conceal material that is out of scope or privileged (red, blue and pink)
APP 40.	VPL.4223.0011.1582	20061114to16-DSA, p.218-231	Appears to form part of relevant entries	Redactions conceal material that is out of scope and/or privileged (blue)
APP 41.	VPL.4223.0011.1763	20070304to06-DSA, p.138-170	Appears to form part of relevant entries from .1787 onward	The redactions from the page range identified by the Applicant conceal material that is out of scope and/or privileged (blue)
APP 42.	VPL.4223.0011.2131	20070417to18-DSA, p.212-235	Basis for redaction unclear	Redactions coded blue in the hard copy at the bottom of page 213 warrant review by the Chief Commissioner. The remaining redactions cover material that is out of scope and/or privileged (blue)
APP 43.	VPL.4223.0011.2612	20070705to08-OF, p.28-63	Appears to form part of relevant entries at .2626 and .2635	Redactions conceal material that is out of scope and/or privileged (blue)
APP 44.	VPL.4223.0011.4360	20080313-OW, p.28-33	Appears to form part of relevant entries from .4643	The reference given as a starting point by the applicant was unclear in the context of the various numbering systems, so the entire document was reviewed. Redactions conceal material out of scope and/or privileged (blue)
APP 45.	VPL.4223.0011.4544	20081203to07-OW, p.1-13	Appears to form part of relevant entries at .4547 to .4548	Redactions conceal material out of scope and/or privileged (blue)
Produced 22 June 2022
Chief Commissioner’s Selections
CCP 47.	VPL.4223.0008.4950	26-21803838-280706	Basis for redaction unclear	Redactions conceal material that is out scope and/or privileged (blue, red and yellow)
CCP 48.	VPL.4223.0008.8776	43-21803838-230807	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and yellow)
CCP 49.	VPL.4223.0009.1152	40-21803838-030707	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue, red and yellow)
CCP 50.	VPL.4223.0009.2647	39-21803838-150607	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and red). I suggest that two of the red redactions on page 148 of the transcript warrant review by the Chief Commissioner.
Applicant’s Selections
APP 46.	VPL.4223.0008.3567	17-21803838-200406	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and pink)
APP 47.	VPL.4223.0008.4092	23-21803838-090606A	Basis for redaction unclear	Redaction for scope only at 3283-3284 conceal the name Mr Cooper and should be lifted. The remaining redactions conceal material that is out of scope and/or privileged (blue, red and yellow)
APP 48.	VPL.4223.0008.8114	30-21803838-150906B	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue and red)
APP 49.	VPL.4223.0009.0308	34-21803838-050307	Basis for redaction unclear	Page 290 of the transcript contains mention of the name Barbaro. Scope redactions should be lifted from the page up until the last transcription attributed to Ms Gobbo. The remaining redactions conceal material that is out of scope and privileged (blue and red)
APP 50.	VPL.4223.0009.2998	42-21803838-170707	Basis for redaction unclear	Redactions conceal material that is out of scope and/or privileged (blue, red and yellow)

[2023] VSCA 164

14 July 2023