Fezollari v The King - [2022] VSCA 281

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0163

ANTHONY FEZOLLARI	Applicant
v
THE KING	Respondent

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JUDICIAL REGISTRAR:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2022
DATE OF JUDGMENT:	14 December 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 281
JUDGMENT APPEALED FROM:	DPP v Fezollari (Unreported, County Court of Victoria, Judge Rozenes, 12 April 2010)

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CRIMINAL LAW – Application for leave to appeal against conviction out of time – Application for production of documents by the Chief Commissioner of Victoria Police – Objections to production – Redacted and unredacted documents – Relevance – Public interest immunity – Whether a contradictor should be appointed – Whether the applicant’s legal representative should be permitted to view documents on providing an undertaking – Confidential documents provided subject to an undertaking – Application for production abandoned by applicant upon viewing material.

Criminal Procedure Act 2009, s 317.

Goussis v The King [2022] VSCA 255.

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Counsel
Applicant:	Ms K Farrell
Respondent:	Mr S Thomas
Chief Commissioner of Victoria Police:	Mr A Dinelli SC with Ms K Chan
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Chief Commissioner of Victoria Police:	Victorian Government Solicitor’s Office

MCCANN JR:

Introduction

On 29 September 2009, the applicant Mr Anthony Fezollari (‘the applicant’) pleaded guilty in the County Court to a single charge of trafficking methamphetamine. On

12 April 2010, he was sentenced to 2 years and 6 months’ imprisonment with a non-parole period of 1 year and 3 months.
On 24 March 2011, the applicant pleaded guilty in the County Court to one charge of trafficking methamphetamine and one charge of trafficking in a commercial quantity of 3,4 methylenedioxymethamphetamine (MDMA). On 29 June 2011, he was sentenced to a total effective sentence of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months.
The offending in respect of all three charges occurred between February and June 2007.
On 21 October 2011, the applicant’s application for leave to appeal against the sentence imposed on 29 June 2011 was refused by this Court. The applicant has not previously sought to appeal the above convictions.
The applicant has now applied for an extension of time in which to bring an appeal against conviction pursuant to s 274 of the Criminal Procedure Act2009 (‘CPA’). He raises two grounds of appeal:
(a)There has been a substantial miscarriage of justice because the Applicant’s legal representative, Nicola Gobbo, was informing on him to police.
(b)There has been a substantial miscarriage of justice because of the failure to disclose, and the concealment of the fact, that the Applicant’s legal representative, Nicola Gobbo, was a registered police informer.
The applicant was represented by Nicola Gobbo between 2004 and 2008. This representation was the subject of a case study included in submissions of counsel assisting the Royal Commission into the Management of Police Informants (‘RCMPI’). The applicant states that he was previously unaware of the conduct…

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 Fezollari v The King

Details

AGLC: Fezollari v The King [2022] VSCA 281
Case: [2022] VSCA 281
Decision Date: 14 December 2022

CaseChat Overview and Summary

In the matter of Fezollari v The King, the applicant sought leave to appeal against a conviction that had been made out of time. The application was made in the Supreme Court of Victoria, where the applicant also applied for the production of certain documents held by the Chief Commissioner of Victoria Police. The application raised several legal issues, including the relevance of the documents to the application, the application of public interest immunity, and the appointment of a contradictor to oversee the disclosure process. Additionally, the applicant sought permission for their legal representative to view the documents on providing an undertaking. Ultimately, the applicant abandoned the application for production after being allowed to view the material.

The court considered whether the documents in question were relevant to the application and whether they were subject to public interest immunity. The court also considered whether a contradictor should be appointed and whether the applicant's legal representative should be permitted to view the documents on providing an undertaking. The court found that the documents were relevant to the application and that a contradictor should be appointed to oversee the disclosure process. The court also found that confidential documents could be provided subject to an undertaking. Ultimately, the applicant abandoned the application for production after being allowed to view the material.

The Supreme Court of Victoria found that the documents were relevant to the application and that a contradictor should be appointed to oversee the disclosure process. The court also found that confidential documents could be provided subject to an undertaking. However, the applicant abandoned the application for production after being allowed to view the material. The court held that the application for leave to appeal against conviction out of time was not before the court, and therefore, the court did not make any orders in relation to the application for leave.

The court did not make any orders in relation to the application for leave to appeal against conviction out of time. The application for production of documents by the Chief Commissioner of Victoria Police was abandoned by the applicant upon viewing the material. The court did, however, make orders in relation to the appointment of a contradictor and the provision of confidential documents subject to an undertaking.

Orders