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

1. 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.

2. 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.

3. The offending in respect of all three charges occurred between February and June 2007.

4. 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.

5. 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.

6. 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 of his legal representative and Victoria Police during his criminal cases.

7. Although the subject of a published case study, the applicant did not have access to the source material and evidence upon which this case study was based.

8. Disclosure material was provided to the Office of Public Prosecutions (‘OPP’) by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’) from February through to December 2021.

9. By consent orders made on 27 April 2022 (‘the s 317 orders’), the Chief Commissioner was directed to produce the following:

   (a)All informer contact reports, information reports and source management logs, recording Ms Nicola Gobbo’s informing on the applicant between 16 September 2005 and 13 January 2009;

   (b)All statements made by any member of Victoria Police to the Royal Commission into the Management of Police Informants with respect to the applicant;

   (c)All police notes, whether in physical or digital form and whether contained in day books, diaries, loose leaf paper, personal diaries, notebooks or digital devices (such as iPads):

   (i) Of any source handlers receiving information from Ms Gobbo about the applicant between 16 September 2005 and 13 January 2009; and

   (ii) Of any police member receiving information from Ms Gobbo in relation to the applicant relevant to any of the applicant’s convictions after September 2005.

   (d) All email correspondence between any police members, or any police members and Ms Gobbo, discussing Ms Gobbo’s informing and conveying of information obtained from her in relation to the applicant relevant to any of the applicant’s convictions after September 2005;

   (e) Any affidavits in support of warrants which were relied upon to obtain evidence that was served on the applicant in the proceedings leading to the convictions that are the subject of his application for leave to appeal, to the extent that those affidavits contain information relating to the applicant that was obtained from Ms Gobbo;

   (f) Any transcripts of audio or video recordings which document Ms Gobbo informing on the applicant to any police member between 16 September 2005 to 13 January 2009; and;

   (g)      The applicant’s complete LEAP history.

The documents

1. On 2 May 2022, the Chief Commissioner produced documents pursuant to the s 317 orders, including some with redactions representing objections to production.

2. By way of a notice dated 27 June 2022, the applicant pressed for the production of the unredacted versions of three documents produced (‘the redacted documents’). These documents consisted of one handwritten diary entry (‘document one’), one informer contact report (‘document two’) and one typed diary entry (‘document three’).

3. In support of his objections, the Chief Commissioner filed the following:

   (a)Open and confidential submissions dated 21 July 2022; and

   (b)Open and confidential affidavits of Detective Inspector Scott Wallace dated
   26 July 2022.

4. The applicant filed submissions in response dated 25 August 2022 in relation to the redacted documents.

Submissions of the Chief Commissioner

1. The Chief Commissioner indicated that the redacted documents were all part of the disclosure material he had provided to the OPP, which included the same redactions. His objections with respect to the redacted portions are made on the following bases:

   (a)Document one – relevance;

   (b)Document two – relevance and public interest immunity (‘PII’);

   (c)Document three – scope and PII.

2. It should be noted that document three contains the same information as document two, but is contained in a diary entry rather than an informer contact report.

Submissions of the Applicant

1. The applicant’s legal representatives had not seen the redacted portions nor the confidential submissions or affidavit filed by the Chief Commissioner. They had seen the open versions of those materials. Consequentially, he submitted that while his legal representatives had a broad understanding of the principle forming the basis for each objection/redaction, they were unable to respond or assist the Court without having seen the redacted portions.  

The appointment of a contradictor

1. In the recent case of Goussis v The King,[1] Beach JA determined that there should be a contradictor in a dispute concerning redactions applied by the Chief Commissioner to documents produced pursuant to orders under s 317 of the CPA. His Honour also decided that the contradictor in that case should be the applicant’s lawyers, upon them giving the appropriate undertakings. In considering how the Chief Commissioner’s PII claim ought to be dealt with, his Honour stated:

   The authorities dealing with the question of how claims of confidence, public interest immunity and the like are to be dealt with in the course of a proceeding show that sometimes it is appropriate for the Court to resolve the issues without a contradictor; sometimes amicus curiae are appointed; and sometimes the other party’s legal representatives, on appropriate undertaking as to confidentiality, are permitted to see the material. The appropriate course to be taken requires a proper examination of the specific facts of the case, all of its circumstances, the importance of the issue, the likelihood of any claimed risk eventuating if information is provided to a third party and the seriousness of the consequences should any such risk eventuate.[2]

   [1][2022] VSCA 255.

   [2]Ibid [23].

2. In light of this recent decision, the parties in this matter were asked to advise the Court of their position in respect of the appointment of a contradictor. Prior to the hearing date, the applicant’s lawyers indicated in correspondence to the registry that they would seek permission to view the unredacted portions themselves (upon appropriate undertakings). It was submitted that this course would allow them to make submissions in relation to the Chief Commissioner’s PII claims.

3. For his part, the Chief Commissioner advised that he would oppose this request.

4. At the hearing on 7 December 2022, the Chief Commissioner informed the Court that he was content to provide the applicant’s legal representatives with a copy of document one only, upon the provision of an undertaking. He maintained his objection to the applicant’s legal representatives viewing unredacted versions of documents two and three.

5. Upon making an undertaking, counsel for the applicant received and considered document one and ultimately abandoned their claim in respect of it. The applicant maintained his request for his legal representatives to be appointed as the contradictor to hear the objections to the remaining two redacted documents. 

6. Submissions from counsel for the applicant were heard in open court and submissions from counsel for the Chief Commissioner were heard in closed court.  Counsel for the respondent was present at the commencement of the hearing, but sought to be excused during closed court portions and played no active role in the hearing as a whole.

Submissions of the Applicant

1. In essence, the applicant submitted that the remaining contested documents should be provided to his legal representatives on the same undertaking provided in respect of document one. It was contended that his legal representatives would then be able to make informed submissions in response to the claims of relevance and PII.  In support of this submission, the applicant relied on the recent judgment in Goussis,[3] in particular, the passage cited in para [17] of these reasons as well as the following:

   ... all other things being equal, in circumstances where there have been issues about material not being disclosed by Victoria Police to accused who have been convicted of serious offending and sentenced to substantial terms of imprisonment, it is important for … [an] applicant [...] to believe that the processes used to determine his application for leave to appeal are as fair as circumstances permit.[4]

   [3][2022] VSCA 255.

   [4]Ibid [29].

2. It is noted that submissions made on behalf of the applicant were necessarily brief and lacking in detail, given his legal representatives had not viewed the two subject documents.

Submissions of the Chief Commissioner

1. In closed court, counsel for the Chief Commissioner made oral submissions which supplemented the open and confidential material filed with the Court. I note in broad terms, that in addition to emphasising the sensitivity of the information contained in documents two and three, the Chief Commissioner brought the Court’s attention to certain factual matters and submitted that they amplified the issues recognised by Beach JA in Goussis at para [25] of that judgment and expounded by the High Court in Commonwealth v Northern Land Council[5] and in Jackson v Wells:[6]

   … difficulties are likely to arise where counsel appearing in, and advising their clients in respect of, protracted and complex proceedings acquire information which they are not free to use or to pass on to their clients. During the heat of battle an unwitting disclosure may occur. Frank and full advice becomes impossible. I am aware of cases in which, for reasons such as these, experienced counsel have declined to receive information which they are not free to share with their clients. It seems to me merely common sense to conclude that the fewer people who have access to confidential information the less is the risk of unauthorised disclosure. Weighing the assistance likely to be obtained from counsels [sic] submissions against the sensitivity of the material, it seemed better not to accede to Mr Robert’s suggestion. -

   [5](1993) 176 CLR 604.

   [6](1985) 5 FCR 296.

Consideration

1. Having read documents two and three in both redacted and unredacted form, it is apparent to me why the applicant harbours a distinct interest in them. I disagree with the Chief Commissioner’s submissions with respect to relevance and find that the information in those documents is of relevance to the applicant’s grounds of appeal as they are currently broadly drawn. 

2. However, I accept the Chief Commissioner’s submission that the information is sensitive in nature and that there is a potential risk to safety, such that the claim of PII in respect of the information would need careful, even anxious, consideration. In this task, I accept that I would need to consider whether the information would not only be relevant, but of substantial assistance to the applicant. 

3. Given the breadth of the applicant’s grounds of appeal, I am not persuaded that this exercise should be conducted either by myself or with the assistance of an amici appointed for the purpose. Should the subject matter of the documents place the applicant’s lawyers in a difficult position, I ultimately conclude that any potential impact would be likely confined and that his legal representatives would be able to simply and effectively navigate such difficulties.

4. On 7 December 2022, and for these reasons, I announced my order that documents two and three be provided to the applicant’s legal representatives upon them providing an undertaking.

5. Following the announcement of this decision, the applicant’s counsel gave an appropriate oral undertaking,  took receipt of unredacted versions of documents two and three and shortly thereafter abandoned the claim in respect of both documents.

6. Therefore, no further hearing by the Court of the Chief Commissioner’s PII claim is required. 

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