Madafferi v The King
[2025] VSCA 191
•21 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: | 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 terminated, was a human source who provided information about the applicant to Victoria Police; and/or
(ii) Mr Acquaro and Victoria Police provided information to the media in a deliberate endeavour to negatively affect the applicant’s prospects at trial; and/or
(iii) Victoria Police failed to disclose to the applicant that Victoria Police had conspired with Mr Acquaro to damage his interests; and/or
(iv) Victoria Police and the Australian Federal Police failed to disclose that Victoria Police had been involved in the investigation of the matter.
Since March 2020, the applicant has made various applications for the production of documents pursuant to s 317 of the Act and for witnesses to be examined pursuant to s 318 of the Act.[4] Additionally, various issues of public interest immunity have had to be determined.[5]
[4]See Madafferi v The Queen (No 2) [2021] VSCA 4, [2] (Emerton, Weinberg and Osborn JJA); Madafferi v The Queen [2021] VSCA 332, [3] (Emerton and Osborn JJA); Madafferi v The King [2024] VSCA 229, [5], [12] (Beach and Macaulay JJA). See also Madafferi v The Queen [2022] VSCA 189, [1] (Emerton ACJ and Beach JA); Madafferi v The King [2023] VSCA 178; Madafferi v The King (No 1) [2024] VSCA 12; Madafferi v The King (No 2) [2024] VSCA 14; Madafferi v The King [2025] VSCA 114.
[5]See Madafferi v The Queen [2021] VSCA 1; (2021) 287 A Crim R 380; [2021] VSCA 1.
The applicant now applies pursuant to s 319A of the Act for the following issues and matters to be referred, for the making of a reference determination, to a judge of the Trial Division.
Acquaro/Victoria Police
(1)Did Mr Acquaro indicate in 2008 that he was prepared to provide information about the applicant to Victoria Police? If so, what was his purpose for doing so?
(2)Did Mr Acquaro meet with, communicate with and/or provide information to police in relation to the applicant between 2008 and 2014? If so, to the extent that it is possible to decipher, when did he do so, what information did he provide, and for what purpose?
(3)In engaging in the conduct identified in answer to Question 2, did Mr Acquaro breach, or might he have breached, his duties to the applicant or the Court or legal professional privilege?
(4)Was there a shared understanding between Victoria Police and Mr Acquaro that where Mr Acquaro disclosed to Victoria Police information adverse to the interests of the applicant which may be or may become relevant to a court proceeding, the source of the information would not be disclosed? If so, when did that agreement exist, and what was its purpose?
Acquaro/Media
(5)Did Mr Acquaro meet with, communicate with and/or provide information to the media in relation to the applicant between 2007 and 2014? If so, when did he do so, what information did he provide, to whom did he provide it, and for what purpose?
(6)In engaging in the conduct identified in answer to Question 5, did Mr Acquaro breach, or might he have breached, his duties to the applicant or the Court or legal professional privilege?
(7)Was Mr Aquaro a source of information in the [*redacted]?
(8)Was Mr Acquaro a source of information on the USB stick provided by “Mr A” to Victoria Police on 19 March 2014?
(9)What happened to the USB stick referred to in question 8 after it was provided to Victoria Police on 19 March 2014?
(10)Was Mr Acquaro a source of the documents provided by “Mr A” to Victoria Police on 4 June 2014?
(11)Was Mr Acquaro a source of the undated document relating to Horty Mokbel signed “Jacky”?
Victoria Police/Media
(12)Did Victoria Police officers meet with, communicate with and/or provide information to the media in relation to the applicant between 2008 and 2014? If so, to the extent that it is possible to decipher, when did they do so, what information did they provide, to whom, and for what purpose?
(13)Did Victoria Police’s engagement with the media in respect of the applicant breach its policies?
“Mr A”
(14)Did “Mr A” keep records in relation to his dealings with Mr Acquaro, Victoria Police and the AFP in relation to the applicant between 2007 and 2014? If so, what happened to those records? If not, why not?
AFP
(15)Did Mr Acquaro meet with, communicate with and/or provide information to the AFP in relation to the applicant? If so, when did he do so, what information did he provide, and for what purpose?
(16)In engaging in the conduct identified in answer to Question 15, did Mr Acquaro breach, or might he have breached, his duties to the applicant or the Court or legal professional privilege?
(17)Did Mr Acquaro author the anonymous and undated letter sent to the Australian Federal Police (and apparently also to Victoria Police, 3AW Melbourne and John Silvester) in December 2013?
(18)Did Victoria Police and the AFP communicate in relation to the applicant’s trial in 2014 or might they have done so? If so, to the extent that it is possible to decipher, what was the nature of those communications and what was done with that information?
(19)Did “Mr A” and the AFP communicate in relation to the applicant’s trial in 2014 or might they have done so? If so, to the extent that it is possible to decipher, what was the nature of those communications and what was done with that information?
(20)Did the AFP comply with their duty of disclosure to the Court in respect of any dealings with Mr Acquaro, Victoria Police and the media regarding the applicant?
General
(21)Did Mr Acquaro seek to negatively affect the applicant’s prospects at trial? If so, in doing so, did Mr Acquaro breach his duties to the applicant or the Court or legal professional privilege?
(22)When did Victoria Police know, and when ought Victoria Police be taken to have known, that Mr Acquaro might provide information to the police or the media in breach of Mr Acquaro’s duties to the applicant or the Court or legal professional privilege?
(23)Did Victoria Police know, or ought it to have known, of Mr Acquaro’s endeavours to negatively affect the applicant’s prospects at trial?
(24)Did Victoria Police deliberately fail to keep detailed records of its dealings with Mr Acquaro, the media and the AFP in relation to the applicant? If so, why?
(25)Did Victoria Police know that the applicant’s trial was listed to commence on 10 June 2014?
(26)Did Victoria Police disclose to the AFP, the CDPP, the defence or the Court what they knew of Mr Acquaro’s endeavours to negatively affect the applicant’s prospects at trial?
(27)Did Victoria Police aid and abet or otherwise encourage Mr Acquaro’s endeavours to negatively affect the applicant’s prospects at trial?
(28)Was there a conspiracy to pervert the course of justice?
In response to this list, and as an alternative to the applicant’s proposed list, the respondent has put forward the following list of issues and matters which it submits might usefully be referred pursuant to s 319A:
(1)Did Mr Acquaro provide information to Victoria Police about the applicant? If so:
(a)what information did he provide to police about the applicant and when?
(b)who was provided with that information?
(c)what use (if any) was made of that information by Victoria Police, the AFP or the respondent?
(2)When, and in what capacity, did Mr Acquaro act for the applicant?
(3)What was Mr Acquaro’s involvement in the applicant’s Operation Inca proceedings, including the trial?
(4)Did Mr Acquaro breach any professional duties owed to the applicant, or was Mr Acquaro in conflict, in his role as the applicant’s legal practitioner and his relationship with Victoria Police?
(5)Were any Victoria Police members [*redacted] relating to the applicant?
(6)Was Mr Acquaro a [*redacted] relating to the applicant?
(7)Did Mr Acquaro breach any professional duties owed to the applicant, or was Mr Acquaro in conflict, in his role as the applicant’s legal practitioner and his relationship with the s 317 respondent?
(8)Was there a deliberate endeavour by Victoria Police and Mr Acquaro to negatively affect the applicant’s prospects at trial in their dealings with [*redacted] in 2014?
For convenience, we will refer to the applicant’s proposed questions as questions A1 to A28, and the respondent’s proposed questions as R1 to R8.
Applicant’s submissions
The applicant submitted that questions A1 to A28 ‘capture and address the matters raised by the respondent’, but are ‘presented with a narrower focus, which … will assist simple and clear fact-finding, and are ordered successively, turning to broader questions as a final point’. More specifically, the applicant made the following submissions in relation to the questions he proposed:
(1)Questions A1 to A4 ‘are designed to resolve as much as can be known of Mr Acquaro’s interactions with Victoria Police that relate to the applicant’.
(2)Question A5 is [*redacted], noting that the material produced also indicates the strong possibility that Mr Acquaro was the author of the anonymous letter to various [media] recipients’.[6]
(3)Question A6 ‘asks whether, if in any of Mr Acquaro’s interactions with the media identified in answer to [question A5], he might have breached his duties to the applicant, the Court or legal professional privilege’.
(4)Questions A7 to A11 ‘relate to specific instances where, from the surrounding contextual material, it appears that Mr Acquaro must have been the source of various publications, documents subsequently identified in Victoria Police’s possession’. Among these, question A9 ‘asks what was done with the USB stick after it was provided by Mr A’.[7] The applicant submitted that this is relevant in circumstances ‘where it appears likely that any material or information loaded on the USB stick was sourced from Mr Acquaro’.
(5)Questions A12 and A13 ‘are directed to establish whether Victoria Police communicated with the media about the applicant, what information was provided, and whether such engagement was in breach of Victoria Police’s policies’.
(6)Question A14 asks the Court ‘to determine if records were kept by Mr A and what happened to those records’. The applicant submitted that this ‘may inform the availability of inferences as to the nature of the information contained in any such records, and the intentions or objectives of [*redacted] in providing that information’.
(7)Questions A15 to A20 ‘are directed to establishing what, if any, communications Mr Acquaro had with the Australian Federal Police (‘AFP’), what information was passed between Victoria Police and the AFP in relation to the applicant, and whether Mr A and the AFP communicated about the applicant’s trial’.
(8)Questions A21 to A28 ‘asks the Court to make a determination on a series of more global matters that the applicant relies on to support his submission on the appeal that there has been a substantial miscarriage of justice or that a fair-minded citizen would entertain a reasonable suspicion that justice has miscarried’.
[6]The anonymous letter to which the applicant refers was an undated letter sent to the AFP, Victoria Police and various media recipients in December 2013.
[7]The USB stick to which the applicant refers is one which was provided by Mr A to Victoria Police on 19 March 2014.
Respondent’s submissions
The respondent submitted that questions R1 to R8 captured the issues raised by the applicant’s proposed ground of appeal and supporting written case. In respect of questions A15, A16, A18, A19 and A20, the respondent objected to any referral on the basis that the issues sought to be investigated by the applicant were irrelevant to the proposed ground of appeal and not the subject of any relevant assertion in the applicant’s written case, and/or otherwise not a matter about which the parties have joined issue.
A narrowing of the dispute
Following the filing of submissions supporting the proposed questions for which they each contended, the applicant and the respondent produced a joint summary of the proposed s 319A referral questions, narrowing some of the disputes between them as to the form of the questions which they said should be referred. While some common ground was identified, the relevance of questions about communications with the AFP remained in dispute — the respondent contending that the AFP questions proposed by the applicant were not relevant to the applicant’s proposed ground of appeal and written case as currently formulated.
Consideration
Section 319A permits this Court to refer to the Trial Division constituted by a judge, for the making of a reference determination, any specified issue or matter arising on an application for leave to appeal to which that section applies. Thus, as was said in Karam v The Queen,[8] s 319A provides a way in which factual disputes, which cannot conveniently be dealt with at the hearing of an application for leave to appeal, may be resolved.
[8][2022] VSCA 23, [6] (Beach and Kennedy JJA).
The applicant’s proposed ground of appeal in this case is premised on a number of disputed facts, the most important one of which is the assertion that Mr Acquaro and Victoria Police ‘provided information to the media in a deliberate endeavour to negatively affect the applicant’s prospects at trial’.[9] At one level, all that needs to be referred under s 319A is a question which asks whether any of the published media articles about which the applicant makes complaint contained any and what information provided by Mr Acquaro and/or Victoria Police, and whether any of this information was provided by them ‘in a deliberate endeavour to negatively affect the applicant’s prospects at trial’.
[9]Paragraph (ii) of the proposed ground of appeal.
That said, as presently advised, we are minded to refer an expanded version of the respondent’s proposed questions for the making of a reference determination under s 319A. In our view, the referral of the questions we propose will enable a judge to determine the disputed questions of fact upon which the applicant’s proposed ground of appeal is premised.
We are not persuaded to refer the applicant’s proposed questions for the following reasons:
(1)First, a number of the questions contain elements which are unacceptably open-ended. For example, the open-ended questions as to purpose in questions A1, A2, A4, A5, A12 and A15.
(2)Secondly, while questions dealing with whether Mr Acquaro breached any relevant duty or legal professional privilege are relevant, the same cannot be said of questions which asked whether Mr Acquaro ‘might have breached’[10] a relevant duty or legal professional privilege. A conclusion that something ‘might’ have happened, in the absence of any evidence that something actually happened, is of little assistance.
(3)Thirdly, questions which are incapable of assisting in the resolution of a proposed ground of appeal should not be the subject of a reference determination. For example, an answer to question A9 (‘What happened to the USB stick … ?’) is not likely to assist in the resolution of the applicant’s proposed ground of appeal.
(4)Fourthly, there is force in the respondent’s submissions that, at least so far as the applicant’s case is presently formulated, a number of the applicant’s proposed questions are not relevant.
(5)Fifthly, where a more limited form of questions than those proposed by the applicant adequately encompasses the matters about which the parties are in dispute, the referral of the applicant’s questions would unnecessarily add to both the complexity of the trial judge’s task and the time it would take to perform it.
[10]See questions A3 and A6.
That said, it may be that a number of the applicant’s questions will be the subject of evidence for the purpose of enabling the judge to answer one of the referred questions. Moreover, the judge who hears the reference determination may well, as part of their reasons for giving particular answers to particular referred questions, deal with or answer some question which has not been specifically referred (including one of the applicant’s proposed questions). Of course, this will be a matter for the particular judge, having regard to the evidence adduced on the reference determination and any submissions that might be made about that evidence during the course of the hearing of the reference determination.
In oral argument, the respondent maintained the position that there were no relevant allegations made by the applicant in relation to the AFP in the proposed ground of appeal and applicant’s written case which justified the referral of questions about communications with the AFP. The applicant responded by noting that, in the absence of appropriate material, it would not be responsible for the applicant and his lawyers to make allegations of wrongdoing involving the AFP. However, the applicant submitted that, in circumstances where there was material disclosing communications between Mr Acquaro and Victoria Police, it might reasonably be inferred that similar communications (and/or communications for a like purpose) might also have occurred between Mr Acquaro and members of the AFP. It was submitted that, in those circumstances, this Court should be more ready to refer questions under s 319A dealing with this possibility, notwithstanding the absence of any specific allegation of wrongdoing by the AFP.
While we think the applicant’s material so far as it relates to the AFP is thin, in light of the material the applicant has already obtained in relation to Victoria Police, we are persuaded that it is appropriate to refer questions dealing with the AFP in the same form as the questions we propose to refer relating to Victoria Police.
Finally, we should note that the order we will make for the referral of a reference determination is an interlocutory order. Nothing we have said prevents either party from coming back to this Court to seek the referral of additional or modified questions in appropriate circumstances.[11]
[11]See, for example, Karam v The Queen (No 2) [2022] VSCA 163, [1]–[2], [7] (Beach and Kennedy JJA).
Conclusion
There will be an order pursuant to s 319A of the Act that the issues and matters set out below are referred, for the making of a reference determination, to the Trial Division of the Supreme Court constituted by a judge of the Court:[12]
[12]See Criminal Procedure Act 2009, s 319A(2)(a).
(1)Did Mr Acquaro provide information to Victoria Police about the applicant? If so:
(a)What information did he provide to police about the applicant and when?
(b)Who was provided with that information?
(c)What use (if any) was made of that information by Victoria Police, the AFP or the respondent?
(2)Did Mr Acquaro provide information to the AFP about the applicant? If so:
(a)What information did he provide to the AFP about the applicant and when?
(b)Who was provided with that information?
(c)What use (if any) was made of that information by the AFP, Victoria Police or the respondent?
(3)Did Mr Aquaro provide information to the s 317 respondent about the applicant? If so:
(a)What information did he provide to the s 317 respondent about the applicant and when?
(b)Did the s 317 respondent provide any and which of this information to Victoria Police or the AFP or the respondent?
(c)What use (if any) was made of that information by Victoria Police, the AFP or the respondent?
(4)When, and in what capacity, did Mr Acquaro act for the applicant?
(5)What was Mr Acquaro’s involvement in the applicant’s Operation Inca proceedings, including the trial?
(6)Did Mr Acquaro breach any professional duties owed to the applicant or the Court, or was Mr Acquaro in conflict, in his role as the applicant’s legal practitioner and his relationship with Victoria Police?
(7)Were any Victoria Police members or AFP members sources for any of the relevant articles (or any and which parts of the articles) published by the media relating to the applicant?
(8)Was Mr Acquaro a source for any of the relevant articles (or any and which parts of the articles) published by the media relating to the applicant?
(9)Did Mr Acquaro breach any professional duties owed to the applicant or the Court, or was Mr Acquaro in conflict, in his role as the applicant’s legal practitioner and his relationship with the s 317 respondent?
(10)Was there a deliberate endeavour by Victoria Police and/or Mr Acquaro to negatively affect the applicant’s prospects at trial at any time between the end of Mr Acquaro’s retainer in 2013 and the end of 2014?
(11)Did Victoria Police have any, and if so, what involvement in the investigation of the matters the subject of the applicant’s trial?
(12)At any time prior to the entry of the verdicts, did the AFP provide to the prosecution, the Court and the accused all materials in the possession of the AFP which were or may be relevant to the determination of the criminal proceeding against the applicant (including but not limited to the determination of the application for a permanent or temporary stay)? If not, which materials were not provided?
(13)At any time prior to the entry of the verdicts, did Victoria Police provide to the prosecution, the Court and the accused all materials in the possession of Victoria Police which were or may be relevant to the determination of the criminal proceeding against the applicant (including but not limited to the determination of the application for a permanent or temporary stay)? If not, which materials were not provided?
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