Madafferi v The King - [2025] VSCA 191

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2025
DATE OF JUDGMENT:	21 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 191
JUDGMENT APPEALED FROM:	DPP (Cth) v Madafferi (Unreported, County Court of Victoria, Judge Mason, 17 December 2014)

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CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Facts underlying proposed ground of appeal in dispute – Need to resolve factual disputes underlying proposed ground of appeal – Application for reference determination pursuant to s 319A of the Criminal Procedure Act 2009 – Referral of factual issues and matters to Trial Division for reference determination – Appropriate terms of referral.

Criminal Procedure Act 2009, s 319A.

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Counsel
Applicant:		Ms CA Boston SC with Mr LDJ Cameron and Ms SC Molyneux
Respondent:		Ms D Karamicov and Ms A Martin
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Mr M de Crespigny, Commonwealth Solicitor for Public Prosecutions

EMERTON P
BEACH JA:

On 26 August 2014, the applicant was convicted on one charge of trafficking a controlled drug in a commercial quantity, contrary to s 302.2(1) of the Criminal Code (Cth). He was sentenced to 10 years’ imprisonment with a non-parole period of seven years.[1] On 20 October 2017, this Court refused the applicant an extension of time within which to seek leave to appeal against his conviction.[2] In March 2020, while still in prison after having been refused parole, the applicant filed a second application for an extension of time to file a notice of application for leave to appeal against conviction,[3] together with an application for leave to appeal against conviction.
[1]DPP (Cth) v Madafferi (Unreported, County Court of Victoria, Judge Mason, 17 December 2014).
[2]Madafferi v The Queen [2017] VSCA 302 (Priest, Hansen and Coghlan JJA).
[3]That application was granted on the papers by an order made in May 2020 by a senior registry lawyer acting pursuant to a delegation made by the Registrar under r 1.06(2) of the Supreme Court (Criminal Procedure) Rules 2017.
While the basis upon which the applicant now seeks leave to appeal against his conviction and the applicant’s proposed ground of appeal has evolved over time, the applicant presently seeks leave to appeal under s 274, alternatively under s 326A, of the Criminal Procedure Act 2009 (‘the Act’). His proposed ground of appeal is as follows:
Ground 1:
(a) A substantial miscarriage of justice has been occasioned by reason of the subversion of the applicant’s right to a fair trial; and/or
(b) A fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice has miscarried.
In particular, unbeknownst to the applicant at the relevant time:
(i) the applicant provided instructions to, and was given advice by, a solicitor, Mr Acquaro, who both at the time of his retainer, and after it was…

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 191
Case: [2025] VSCA 191
Decision Date: 21 August 2025

CaseChat Overview and Summary

Madafferi v The King involved the appellant, who had been convicted of certain criminal offences, seeking leave to appeal against that conviction. The dispute in the case centred around the facts that underpinned the proposed ground of appeal. In order to determine whether leave to appeal should be granted, the court had to resolve these factual disputes. The matter before the court was an application for a reference determination under section 319A of the Criminal Procedure Act 2009. This section allows for the referral of factual issues and matters to the Trial Division for a reference determination. The court's task was to determine the appropriate terms of referral.

The court held that in order to grant leave to appeal, it was necessary to resolve the factual disputes underlying the proposed ground of appeal. The court found that the matters in dispute were such that they could not be resolved without a reference determination. Accordingly, the court referred the factual issues to the Trial Division for a reference determination. The court carefully considered the terms of the referral, ensuring that the Trial Division would have all the necessary information to make an informed determination on the factual issues. The court's decision was based on a thorough analysis of the relevant statutory provisions and the unique circumstances of the case.

Orders