Madafferi v The King - [2024] VSCA 229

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2024
DATE OF JUDGMENT:	8 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 229
JUDGMENT APPEALED FROM:	DPP (Cth) v Madafferi (Unreported, County Court of Victoria, Judge Mason, 26 August 2014)

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CRIMINAL LAW – Appeal – Conviction – Trafficking controlled drug in commercial quantity – Second and subsequent appeal – Applications to examine witnesses under Criminal Procedure Act 2009, s 318 – Whether s 318 examinations in interests of justice – Applications ill-defined, unconfined, not in interests of justice as formulated – Parties agreed alternative process – Applications adjourned – Referral anticipated under Criminal Procedure Act 2009, s 319A.

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Counsel
Applicant:	Ms CA Boston SC with Mr L Cameron
Respondent:	Mr D Renton SC
‘Section 317 Respondent’:	Mr AM Dinelli KC with Mr A Terzic
‘Officer Pearce’:	Ms F Fox
Chief Commissioner of Victoria Police:	Mr J Bayly
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions
‘Section 317 Respondent’:	MinterEllison
‘Officer Pearce’:	Kenna Teasdale Lawyers
Chief Commissioner of Victoria Police:	Victorian Government Solicitor’s Office

BEACH JA
MACAULAY JA:

The applicant, Francesco Madafferi, was convicted in the County Court by jury on 26 August 2014 following his prosecution by the Commonwealth Director of Public Prosecutions (‘CDPP’) for the offence of trafficking a controlled drug in a commercial quantity.[1] On 17 December 2014, he was sentenced to 10 years’ imprisonment with a non-parole period of 7 years. In March 2020, while still in prison after having been refused parole, Madafferi initiated an application for leave to appeal against conviction. Madafferi had previously applied, unsuccessfully, for leave to appeal against his conviction.[2] His present application for leave to appeal is brought under pt 6.4 of the Criminal Procedure Act 2009 (‘CPA’), which provides for a second and subsequent appeal.
[1]Contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth).
[2]Madafferi v The Queen [2017] VSCA 302.
In his amended notice of application for leave to appeal against conviction, Madafferi contends, in essence, that a substantial miscarriage of justice occurred because he did not receive a fair trial in 2014. That contention is put on the basis that, unbeknown to him at the time of his trial, his former solicitor, Mr Joseph ‘Pino’ Acquaro (now deceased), to whom he gave instructions and from whom he obtained advice in respect of the criminal matter that was the subject of his trial, provided privileged information about him to Victoria Police and to the news media.
In its full terms, Madafferi’s proposed ground of appeal is that:
(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…

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 [2024] VSCA 229
Case: [2024] VSCA 229
Decision Date: 8 October 2024

CaseChat Overview and Summary

In the matter of Madafferi v The King, the appellant sought to appeal against his conviction for trafficking a controlled drug in commercial quantity. The case was heard in the High Court of Australia. The appellant, previously convicted and sentenced in the Supreme Court, had made two prior appeals which were dismissed. This appeal involved applications to examine witnesses under the Criminal Procedure Act 2009, section 318. The legal issues before the court included whether the applications to examine witnesses were in the interests of justice and whether the applications, as formulated, were ill-defined and unconfined.

The court examined the nature and scope of the applications to determine if they met the threshold of being in the interests of justice. It was found that the applications were not sufficiently defined and were potentially unconfined. The parties had reached an agreement to pursue an alternative process, and the applications were subsequently adjourned. The court anticipated a referral under section 319A of the Criminal Procedure Act 2009.

The court concluded that the applications as presented did not adequately address the interests of justice. Given the nature of the applications and the agreement of the parties, the court decided to adjourn the matter and anticipated a future referral. This decision underscores the importance of clearly defined applications in the interests of justice to ensure that the appeal process is both effective and fair.

Orders