Barbaro v The King - [2023] VSCA 164

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…

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 [2023] VSCA 164
Case: [2023] VSCA 164
Decision Date: 14 July 2023

CaseChat Overview and Summary

The Barbaro case involved the applicant seeking documents from the Chief Commissioner of Victoria Police under section 317 of the Criminal Procedure Act 2009. The applicant raised objections to certain redactions in the documents provided, contending that the redactions were not justified based on the scope and relevance of the requested information. Additionally, the Chief Commissioner asserted claims of public interest immunity over some of the documents. The applicant argued that the redactions hindered their ability to adequately prepare their case, and requested that the court review the necessity and proportionality of the redactions. The Chief Commissioner, on the other hand, maintained that the redactions were essential to protect sensitive information and that disclosure of the documents in their entirety would cause significant harm.

The court had to determine whether the redactions were appropriate given the scope and relevance of the documents to the applicant's case. The court also had to consider the public interest immunity claims made by the Chief Commissioner and assess whether the redactions were necessary and proportionate. The court was required to balance the applicant's right to access relevant documents against the need to protect sensitive information and the public interest.

The court reviewed the documents and the reasons provided for the redactions, and determined that some of the redactions were justified. The court found that the redactions were necessary to protect sensitive information and that the Chief Commissioner had adequately demonstrated the proportionality of the redactions. However, the court also found that some of the redactions were not justified and ordered that the Chief Commissioner provide a representative sample of the redacted documents to the Court. The court emphasised the importance of balancing the competing interests in the disclosure of documents in criminal proceedings and highlighted the need for proportionality in the application of redactions. The court also noted that the public interest immunity claims made by the Chief Commissioner were not sufficient to justify the redactions in their entirety.

The final orders of the court included the requirement for the Chief Commissioner to provide a representative sample of the redacted documents to the Court, and the court's determination that some of the redactions were not justified. The court's decision provides guidance on the application of section 317 of the Criminal Procedure Act 2009 and the balancing of competing interests in the disclosure of documents in criminal proceedings.

Orders