D'Aloia v The King - [2022] VSCA 265

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0106

BRUNO D’ALOIA	Applicant
v
THE KING	Respondent

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JUDGES:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2022
DATE OF JUDGMENT:	5 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 265
JUDGMENT APPEALED FROM:	[2005] VCC 234 (Judge Hogan)

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CRIMINAL LAW – Application for leave to appeal conviction and second appeal against conviction – Applicant seeks documents from the Chief Commissioner of Police – Whether there is legitimate forensic purpose in production of documents from the date range sought by the Applicant – Sufficient certainty that the documents from the date range sought will likely materially assist the Applicant – Whether production of affidavits in support of warrants obtained ought be limited and include only those where there is evidence of illegality or impropriety – Legitimate forensic purpose in the production of affidavits – In the interests of justice to order production sought by the Applicant – Application granted.

Criminal Procedure Act 2009, s 317.

Polimeni v The Queen [2022] VSCA 20.

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Counsel
Applicant:	Mr C Mandy SC with Ms A Wong
Respondent:	Ms R Verdon
Chief Commissioner of Victoria Police:		Ms K Argiropoulos with Ms E A Frawley
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Chief Commissioner of Victoria Police:		Victorian Government Solicitor’s Office

McCANN JR:

Introduction

On 30 March 2005, following pleas of guilty in the County Court, Bruno D’Aloia (‘the applicant’) was convicted of the following offences:
(a)Trafficking in a drug of dependence (Cannabis L) (two counts).
(b)Cultivating a commercial quantity of a narcotic plant (Cannabis L).
(c)Trafficking in a large commercial quantity of a drug of dependence (MDMA).
On 14 October 2005, he was sentenced to a total effective sentence of 13 years with a non-parole period of 9 years.[1]
[1]The applicant has served his term of imprisonment and is now at liberty.
The applicant previously filed an application for leave to appeal against his conviction for the offence of trafficking in a large commercial quantity of MDMA, which he later abandoned before it was heard.[2] On 13 November 2006, the Court of Appeal allowed the applicant’s appeal against sentence and re-sentenced him to the same term of imprisonment.
[2]By way of a notice of abandonment filed on 7 June 2006.
In March 2021, the Office of Public Prosecutions informed the applicant that his case (and the above convictions) may have been affected by the conduct of Nicola Gobbo, prompting further enquiries by the applicant.
The applicant’s present application for leave to appeal against his conviction for trafficking in a large commercial quantity (MDMA) is made pursuant to s 326A of the Criminal Procedure Act 2009 (‘CPA’) as a second appeal. He has also applied for leave to appeal his remaining convictions pursuant to s 274 of the CPA, which is accompanied by an application for an extension of time.
The applications for leave to appeal contain a single ground asserting a…

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 D'Aloia v The King

Details

AGLC: D'Aloia v The King [2022] VSCA 265
Case: [2022] VSCA 265
Decision Date: 5 December 2022

CaseChat Overview and Summary

In the matter of D'Aloia v The King, the applicant sought leave to appeal against his conviction and sentence, and also filed a second appeal. The central issue was whether the documents requested from the Chief Commissioner of Police, spanning a specific date range, were necessary for a legitimate forensic purpose. The applicant argued that the production of these documents was crucial for his appeal, while the Crown opposed the application, contending that the requested documents were not relevant. The court had to determine whether there was a legitimate forensic purpose for the production of these documents, and if there was sufficient certainty that they would materially assist the applicant.

The court considered the need for a legitimate forensic purpose in the production of documents and affidavits. It was noted that the production of documents should not be limited solely to cases where there is evidence of illegality or impropriety. The court also examined whether the interests of justice required the production of the documents sought by the applicant. In this case, the court found that the documents from the specified date range were necessary for the applicant's appeal, as there was sufficient certainty that they would likely assist him. The court also concluded that the production of affidavits in support of warrants obtained should not be limited to cases where there is evidence of illegality or impropriety, but rather should be considered in the context of a legitimate forensic purpose.

The court granted the application for leave to appeal and ordered the production of the requested documents and affidavits. The court found that the documents and affidavits would assist the applicant in his appeal and that it was in the interests of justice to order their production. The decision emphasised the importance of considering the legitimate forensic purpose in the production of documents and affidavits, and the need to balance the interests of justice with the rights of the parties involved.

No further orders were made in relation to the second appeal as the application for leave to appeal was granted, and the necessary documents and affidavits were ordered to be produced.

Orders