Madafferi v The King - [2025] VSCA 201

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE KING	Respondent

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JUDGES:	McCann JR
WHERE HELD:	Melbourne
DATES OF HEARING:	11 July 2025, 6 August 2025
DATE OF JUDGMENT:	27 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 201

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CRIMINAL LAW – Application for release from implied undertaking in Harman v Secretary of State for Home Department [1983] 1 AC 280 to enable use of documents for the purpose of immigration proceedings – Application for variation of orders made pursuant to s 43A of the Major Crime (Investigative Powers Act) 2004 to permit release of restricted evidence – Where producing party consents to release from implied and express confidentiality undertakings – Applicant released from Harman undertaking, and provided limited release from express undertaking – Where information restricted pursuant to the Major Crime (Investigative Powers Act) 2004 can only be considered for release in criminal proceedings and is therefore not available for consideration in the immigration proceedings of the applicant – Application for variation refused.

Criminal Procedure Act 2009, s 317; Major Crime (Investigative Powers) Act 2004, s 43A.

Madafferi v The Queen (2021) 287 A Crim R 380; Madafferi v The King [2023] VSCA 178; Madafferi v The King [2024] VSCA 12; Madafferi v The King [No 2] [2024] VSCA 14; Madafferi v The King [2025] VSCA 114; Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner (2014) 45 VR 220; Harman v Secretary of State for Home Department [1983] 1 AC 280; Hearne v Street [2008] HCA 36; Deputy Commissioner of Taxation v Karas [2012] VSC 143; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.

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Counsel
Applicants:		Ms C Boston SC (11 July 2025) Ms S Molyneux (6 August 2025)
Respondent:		Mr J Hannebery KC
Chief Commissioner of Victoria Police:		Mr J Bayly
Solicitors
Applicants:	Ms R Parker, Galbally Parker Lawyers
Respondent:	Commonwealth Director of Public Prosecutions
Chief Commissioner of Victoria Police:	Victorian Government Solicitor’s Office

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MCCANN JR:

Introduction

Since commencing his application for leave to appeal conviction in March 2020, Mr Francesco Madafferi (‘the applicant’) has sought, and the Court has made, a number of orders for the production of documents by the Chief Commissioner of Victoria Police (‘the Chief Commissioner’).
On 20 May 2025 legal representatives for the applicant forwarded to the Court minutes of proposed consent orders, signed by the legal representatives for the applicant, the Commonwealth Director of Public Prosecutions (‘the respondent’) and the Chief Commissioner, seeking that the applicant be released from his Harman undertaking in respect of documents produced. The documents are referred to in that minute of order as ‘the Acquaro Documents’.[1] The release from the applicant’s ‘Harman’ undertaking is sought to allow him to use the Acquaro Documents in his immigration proceedings in the Federal Court.
[1]Issues arose in respect of consistent identification of the documents in respect…

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 Madafferi v The King

Details

AGLC: Madafferi v The King [2025] VSCA 201
Case: [2025] VSCA 201
Decision Date: 27 August 2025

CaseChat Overview and Summary

In Madafferi v The King, the appellant sought permission to use specific documents from criminal proceedings in immigration hearings. The matter was heard by the Supreme Court of Victoria and subsequently appealed to the Court of Appeal. The primary concern was whether the appellant could be released from the obligations of confidentiality imposed by the Harman v Secretary of State for Home Department principle and from an express confidentiality undertaking, in order to use the restricted evidence in his immigration case.

The central legal issues revolved around the applicability of the Harman principle and the provisions of the Major Crime (Investigative Powers) Act 2004. The court had to determine whether the appellant could be discharged from the implied confidentiality obligation and whether restricted evidence under the Major Crime Act could be considered outside of criminal proceedings. Additionally, the court examined whether the producing party's consent to release from the confidentiality undertakings justified a variation of the orders under the Major Crime Act.

The court found that while the appellant could be released from the implied confidentiality undertaking, the information restricted under the Major Crime Act could not be released for use in the immigration proceedings. The court emphasised that such information could only be considered within the context of criminal proceedings, and thus, was not available for immigration hearings. Consequently, the court refused the application for variation of orders under the Major Crime Act, maintaining the confidentiality of the restricted evidence.

The final orders of the court included the release of the appellant from the implied confidentiality undertaking, but did not permit the release of restricted evidence for use in the immigration proceedings. The court's decision underscores the stringent conditions under which restricted information can be used outside of the primary criminal proceedings.

Orders