Francesco Madafferi v The Queen [No 2] - [2021] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE QUEEN [No 2]	Respondent

---

JUDGES:	EMERTON, WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2020 and 19 January 2021
DATE OF JUDGMENT:	29 January 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 4

---

CRIMINAL LAW – Practice and procedure – Costs – Application for leave to appeal against conviction – Application for public interest immunity by Chief Commissioner of Victoria Police in relation to materials sought for production to applicant for leave to appeal – Whether applicant entitled to costs of public interest immunity application – Whether public interest immunity application ‘proceeding preliminary or incidental’ to appeal – Public interest immunity application incidental to appeal – Court lacks power to award costs to applicant – Criminal Procedure Act 2009, s 409(c).

COSTS – Amici curiae – Confidential submissions and material requiring assistance of amici curiae and circumscribing role of parties – Whether an exceptional case justifying costs award in favour of amici curiae – Amici curiae independent counsel whose services requested by Court – Participation of amici curiae necessary to conduct of proceeding – Involvement of amici curiae significantly exceeded scope of initial request – Submissions of amici curiae successful and of considerable assistance to Court – Costs awarded.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant Madafferi	Ms C A Boston	Condello Lawyers
For the Director of Public Prosecutions (Cth)	Ms C Fitzgerald	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Ms K Chan	Mr M Hocking, Victorian Government Solicitor
As Amici Curiae	Mr C T Carr SC with Ms R Shann and Ms K E Foley

EMERTON JA
WEINBERG JA
OSBORN JA:

Introduction

The applicant, Francesco Madafferi, has applied for leave to appeal his 2014 conviction for drug trafficking.

On 24 May 2020, Madafferi made an application, pursuant to s 317 of the Criminal Procedure Act 2009, for orders that the Chief Commissioner of Victoria Police (‘Chief Commissioner’) produce certain material, including material relating to communications between his former solicitor, Joseph ‘Pino’ Acquaro, and members of Victoria Police (see particulars (e), (f) and (g) of the application). The Chief Commissioner applied for a ruling that he not be required to produce documents to Madafferi on the basis that any relevant documents or information in his possession were protected from disclosure by public interest immunity (‘PII application’).

On 19 January 2021, the Court refused the PII application, to the extent it related to the existence or non-existence of information as to whether or not Mr Acquaro was or was not a police informer.

Madafferi now seeks his costs of the PII application on an indemnity basis from the Chief Commissioner.

Madafferi was represented by counsel briefed to oppose the PII application. Madafferi’s counsel had access to the submissions and affidavits filed by the Chief Commissioner, but only to the extent that the submissions and affidavits were…

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.

Keep reading for free

Create a free CaseChat account to read Francesco Madafferi v The Queen [No 2] and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSCA 4
Decision Date: 29 January 2021

CaseChat Overview and Summary

The case before the court involved an application for leave to appeal against a conviction, with a subsequent application for public interest immunity by the Chief Commissioner of Victoria Police. The applicant sought production of materials for the purpose of the appeal. The central legal issues before the court were whether the applicant was entitled to costs associated with the public interest immunity application and whether this application was a 'proceeding preliminary or incidental' to the appeal, thereby justifying an award of costs under the Criminal Procedure Act 2009.

The court determined that the public interest immunity application was incidental to the appeal, and thus fell within the scope of a 'proceeding preliminary or incidental' to the appeal. However, the court held that it lacked the power to award costs to the applicant in respect of this application. The court reasoned that the statutory framework did not permit such an award, thus the application for costs was dismissed. The court also considered the role of amici curiae in the proceedings, noting their significant involvement and the success of their submissions. The amici curiae had provided confidential submissions and materials that required their expertise and had a substantial role in the proceedings, which exceeded the initial scope of their engagement. Given the circumstances, the court found it to be an exceptional case justifying the award of costs in favour of the amici curiae.

The court's final orders were that the application for costs in relation to the public interest immunity application was dismissed, but costs were awarded to the amici curiae for their substantial and successful contributions to the proceedings.

Orders