Madafferi v The King
[2025] VSCA 201
•27 August 2025
| 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 of which the applicant sought release. That controversy was resolved as this matter progressed but for convenience, the documents from which the applicant seeks a release from his implied and express undertakings are referred to as the ‘Acquaro Documents’ throughout this judgment.
It is to be recalled that the information contained in documents produced in these appeal proceedings, including the Acquaro Documents, have been the subject of strenuous litigation of public interest immunity claims and other restriction. There are a number of decisions of the Court in relation to the documents in this appeal.[2]
[2]Madafferi v The Queen (2021) 287 A Crim R 380; [2021] VSCA 1; 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.
A review of just some of the authority on the Harman undertaking and a release from it set out below reveals that the consent of the producing party will favour release, but is not in itself determinative. The Court of Appeal registry requested that the applicant file an application for the release from undertaking (‘the application’) with supporting affidavit material.[3]
[3]All material provided to the Court in respect of the Harman undertaking application is listed at paragraph [7] below.
The determination of the applicant’s application for release presented the following significant preliminary issues:
(a)Identifying the documents the subject of the application for release;
(b)Identifying when those documents were produced, the form in which they were produced, and pursuant to what order;
(c)Identifying what other undertakings, court orders or statutory impediments to release might apply to any of those documents; and
(d)Ascertaining the attitude of parties relevant to the releases required.
Following the exchanges of correspondence with Court registry, the filing of further affidavit material and written submissions, as well as the conduct of directions hearings, the Court was ultimately provided with the assistance required to identify and review the documents sought to be released and disentangle and address each of the barriers to their release.
The material to which I have had regard in considering the release of the Acquaro Documents for use in the applicant’s immigration proceedings are:
(a)Minutes of proposed consent orders, dated 20 May 2025 and signed by the applicant, respondent and Chief Commissioner agreeing to the release of the applicant from his implied Harman undertaking;
(b)Application dated 27 May 2025 filed by the applicant seeking his release from his implied Harman undertaking;
(c)Affidavit of solicitor for the applicant, Ms Ruth Parker (‘Ms Parker’) in support of the application for release deposed on 27 May 2025;
(d)Index C, exhibited to the affidavit of Ms Parker of 27 May 2025, being a document prepared by the Chief Commissioner listing the documents the subject of the release application;
(e)Minutes of proposed consent orders dated 4 June 2025 signed by the applicant, respondent and the Chief Commissioner agreeing to the release of the applicant from his implied Harman undertaking;
(f)Correspondence from the applicant dated 4 June 2025 informing the Court that the Office of the Chief Examiner raised the concern that six of the Acquaro Documents contained information restricted pursuant to the Major Crime (Investigative Powers) Act 2004 (‘the MCIPA’);
(g)Confidential submissions of the Chief Commissioner of Police on s 43A of the MCIPA filed on 7 July 2025;
(h)Confidential submissions of the respondent on s 43A of the MCIPA filed on 8 July 2025;
(i)The Acquaro Documents as listed in Index C and provided by the applicant on 10 July 2025;
(j)Oral submissions made by the parties at a directions hearing on 11 July 2025;
(k)Updated Index C provided by the respondent on 30 July 2025, identifying dates for production for each of the documents and the order, obligation or request prompting the production, as well as those documents listed but not provided to the applicant;
(l)Affidavit of Ms Parker of 5 August 2025 in which she deposed inter alia to the provision of express undertakings by her and the applicant’s previous solicitors and exhibiting the updated Index C provided to the Court by the respondent on 30 July 2025;
(m)Oral submissions made by the parties at directions on 6 August 2025;
(n)Finalised list of the Acquaro Documents provided on 11 August 2025; and
(o)Draft limited release from the express undertaking previously given by the applicant on 18 February 2021 dated 11 August 2025.
The documents
It will be seen that identifying the Acquaro Documents has presented difficulty and required some effort. I am satisfied that the list provided to the Court on 11 August 2025 are those documents in respect of which release is sought.
The production orders
According to the table provided by the respondent on 30 July 2025, those documents listed were produced pursuant to the ongoing duty of disclosure, in response to requests from the applicant, in consequence of an application by the applicant for production pursuant to s 317 of the Criminal Procedure Act 2009 or in compliance with the following orders made under that section:
(a)Order of Judicial Registrar Irving, as his Honour then was, of 16 February 2021;
(b)Orders of Judicial Registrar Irving of 26 July 2021;
(c)Order of Judicial Registrar McCann of 7 March 2022;
(d)Order of Judicial Registrar McCann of 31 May 2022; and
(e)Order of Judicial Registrar McCann of 5 June 2023.
The express undertaking given by the Applicant’s practitioners
The documents ordered to be produced on 16 February 2021 were produced to the Court on 18 February 2021. Production of the Acquaro Documents to the applicant pursuant to the above orders occurred between 30 July 2021 and 1 October 2024.[4] The applicant and respondent’s legal practitioners’ handling and use of the documents produced pursuant to the orders of 16 February 2021 and 5 June 2023 were, at that time, and remain, subject to an explicit undertaking given by them on 25 May 2020 (‘the May 2020 undertaking’).
[4]Index C provided to the Court on 30 July 2025.
The relevant portion of that undertaking is in the following terms:
I will not use the documents produced by the Chief Commissioner of Police in this proceeding under section 317 of the Criminal Procedure Act 2009 (Vic) (the documents) or any part of them, or any information contained in them other than for the purposes of this proceeding. The term ‘use’ includes but is not limited not, not allowing, disclosing or providing access to the documents or contents of the documents to anyone other than those involved in this proceeding for the purpose of this proceeding.
The applicant’s legal practitioner Ms Parker, has deposed that she entered into such an undertaking but did so after May 2020, only having been retained in this matter on 10 February 2021. Ms Parker’s undertaking was given on 18 February 2021. She now seeks a release from that express undertaking to allow the provision of the documents to the applicant’s immigration lawyers. Ms Parker has also deposed that the Chief Commissioner has informed her that they would agree to vary the terms of the undertaking to allow the documents to be shared for the purpose of the immigration proceedings.
Resolution of a release from the express undertaking
The terms of a limited release from confidentiality undertaking given by the applicant’s current practitioners has been prepared and was provided to the Court on 11 August 2025. A release in appropriate terms will resolve this restriction in respect of the use of the documents. The exact terms of this release will need to be further considered.
The Major Crime (Investigative Powers) Act 2004 (‘the MCIPA’)
In correspondence on 4 June 2025, the applicant alerted the Court to the fact that, included in the documents the subject of their request, are six documents containing information restricted by the MCIPA. The information restricted in this way was released to the applicant following the ruling in Madafferi v The King [2023] VSCA 178 (‘the MCIPA Ruling’).
In addition to seeking a release from his Harman undertaking, the applicant seeks a variation of the MCIPA Ruling to allow that information to also be released.
In relation to this issue the Court received the following:
(a)Confidential submissions of the Chief Commissioner of Police on s 43A of the MCIPA filed on 7 July 2025; and
(b)Confidential submissions of the respondent on s 43A of the MCIPA filed on 8 July 2025.
The applicant did not seek to file anything in reply to these submissions.
By way of background, on 16 May 2023 the applicant applied to this Court to have restricted evidence made available to him pursuant to s 43A(5) of the MCIPA. On 7 August 2023 the Court allowed limited information to be made available to him in the form of an unredacted version of the ruling in respect of his application.[5]
[5]Madafferi v The King [2023] VSCA 178.
Section 43A provides a framework by which restricted information collected pursuant to the MCIPA may, in limited circumstances, be used in extant criminal proceedings. The certification permitted by s 43A is available only where a person is charged with an offence before the court.
Pursuant to s 43A(1), if a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.
Following certification in respect of the restricted evidence and an assessment conducted of the evidence, a court might release restricted evidence to the person charged where the court assesses that the interests of justice so require. That assessment is to be made in the context of the criminal proceeding.[6]
[6]Jean Ross (a Pseudonym) v The Chief Commissioner of Police and the Chief Examiner (2014) 45 VR 220; [2014] VSCA 254, [72].
The context for the assessment and release of evidence restricted by the MCIPA in Madafferi v The King [2023] VSCA 178 was these criminal proceedings. It is clear from authority that the assessment of whether justice requires the release of restricted evidence is to be conducted on a case-by-case basis. The release of the information restricted under the MCIPA was in the context of, and for, the applicant’s purpose in this appeal proceeding and remains limited to that.
Further, it is clear from the legislative provisions that the evidence restricted by the MCIPA can only be considered for release in criminal proceedings and would therefore not be available for consideration in the immigration proceedings of the applicant.
Determination in respect of information restricted by the MCIPA
The information restricted under the MCIPA will need to be redacted or removed from any of the materials in respect of which the applicant is released from his undertakings.
Having determined the issue of information restricted by the MCIPA and described broadly the manner in which the express undertakings given should be resolved, I turn finally to the application before the Court; that is the application that the applicant be released from their implied Harman undertaking.
The Harman Undertaking
Applicable principle
The Harman undertaking derives its name from the case Harman v Secretary of State for Home Department [1983] 1 AC 280. The undertaking is implied and is given by the parties to the Court that documents compelled to be produced in litigation will not be used for a purpose other than that for which they were produced.
It was reformulated by the High Court in 2008 in the case of Hearne v Street:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits.[7]
[7]Hearne v Street [2008] HCA 36, [96] (emphasis added).
A release from this obligation to the court can only be given by the court. Modification or release from the obligation is not exercised lightly.[8]
[8]Deputy Commissioner of Taxation v Karas [2012] VSC 143, [23].
Where the undertaking applies, there are a number of factors to consider in respect of a release from it. A non-exhaustive list of them was included by Wilcox J in his judgment in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217:
they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.[9]
[9]Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, [26].
It was recognised by Lords Scarman and Roskill in Harman that:
The party for whose benefit the obligation was imposed may waive or accept or consent to the breach of, or non-compliance with, the implied undertaking.[10]
[10]Harman v Secretary of State for Home Department [1983] 1 AC 280, 310, 313 (Lord Scarman), 322, 326 (Lord Roskill).
The Acquaro Documents and the release from the undertaking
I discern that the relevant considerations regarding a release of the Harman undertaking are an assessment of :
(a)The nature of the document;
(b)The circumstances under which the document came into existence;
(c)Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(d)The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
(e)The circumstances in which the document came into the hands of the applicant for leave;
(f)The likely contribution of the document to achieving justice in the second proceeding; and
(g)The attitude of the author of the document and any prejudice the author may sustain.
I have reviewed the Acquaro Documents.
I am satisfied that the nature of the documents, the circumstances in which they came into existence, and the circumstances in which they came into the possession of the applicant gives rise to the implied undertaking.
The likely contribution of the document to achieving justice in the second proceeding is deposed to by Ms Parker. She concedes a lack of expertise in the area of immigration law such that she is guided by the applicant’s lawyers in those proceedings. She deposes that they inform her that the documents have a contribution to make in the case that the applicant will advance. I accept that she has been so advised and that the Acquaro Documents will be of assistance.
Some of the documents contain highly sensitive information such that the producing authority, the Chief Commissioner, has required an express undertaking being given by the applicant and respondent to the Court prior to the release of the documents to them.
Having required such an undertaking, their attitude to the release of both the implied and express undertakings is of significant weight but not solely determinative of a release from the Harman undertaking. In this case, the producing agency not only consents to a release from the implied undertaking, but is willing to consent to a limited release from the form of the express confidentiality undertaking previously given to allow the use of the Acquaro Documents in the second proceeding. Beyond the acquiescence in respect of the implied undertaking, the attitude of the Chief Commissioner in respect of this express undertaking is also of significance. As observed earlier, the Acquaro Documents have only come to be in the possession of the applicant following considerable litigation by the Chief Commissioner to protect the contents of those documents and so I attribute considerable weight to their agreement to the releases that they have provided.
Summary of determinations
In relation to the documents subject to the Harman undertaking, the Court releases the applicant from that undertaking in relation to the ‘Acquaro Documents’ for the sole purpose of their use in his immigration proceedings.
In relation to the express undertaking given by the applicant’s legal practitioners, the Court will order a release upon the applicant’s legal practitioners entering a fresh undertaking. The form of release drafted and provided to the Court on 11 August 2025 should be updated to include the name and court reference number for the applicant’s immigration proceedings in which they are to be used, noting they are to be used for no other purpose.
The parties are to draft a release in similar terms in respect of the implied Harman undertaking and orders giving effect to this ruling. The orders and undertakings are to refer to the documents contained in the version of Index C provided to the Court on 11 August 2025 with the index annexed as a schedule to the orders and release.
To the extent that the documents contain information that is relevantly restricted by the Major Crime (Investigative Powers)Act2004 or any other Act or order, the documents are to be redacted before they are shared.
Draft orders along with the releases described above to give effect to this ruling are to be prepared and provided to the Court within 7 days.
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