Madafferi v The King

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 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 privileged 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;
(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.
In a proceeding in which a person applies for leave to appeal against a conviction, if this Court considers that it is in the interests of justice to do so, the Court may, pursuant to s 318 of the CPA, order any witness who would have been a compellable witness at the trial to attend and be examined before the Court, whether or not the witness was called at the trial. In aid of his application for leave to appeal against conviction, Madafferi has made three applications for orders pursuant to s 318 that, collectively, eight individuals attend at court and be examined.[3] Those individuals are:
(1)‘Officer Pearce’ (a pseudonym), said to be Mr Acquaro’s handler for Victoria Police;
(2)a person referred to as the ‘s 317 respondent’ (or, at other times, ‘Mr A’); and
(3)four Victoria Police officers, who are named, and two officers identified only by pseudonyms, who are each said to know about Mr Acquaro’s recruitment as a human source, his dealings with Victoria Police in relation to Madafferi, and also about various interactions Mr Acquaro and Victoria Police had with the s 317 respondent.
[3]In his written material Madafferi sought to have nine witnesses examined, but in oral submissions revised that number to eight.
The present issue for determination is whether orders should be made under s 318 in respect of any or all of the eight individuals.
Two conditions qualify the court’s power to order that a person attend and be examined before the Court. The first is that the relevant person would have been compellable as a witness at the trial; and the second is that the Court considers that it is in the interests of justice that the person be examined.
Before this Court, the CDPP appeared as the respondent to Madafferi’s applications and the Chief Commissioner of Police, Officer Pearce and the s 317 respondent were each separately represented. There was no dispute about the compellability of the eight witnesses. Therefore, the critical question is whether it is in the interests of justice to order pursuant to s 318 that they be examined.[4]
[4]If this Court makes such an order, it may order that the examination of the witnesses be conducted, in accordance with the rules of court, before any person appointed by this Court for that purpose. This Court may admit as evidence any deposition of a witness taken in such an examination: CPA, s 318(2)‍–‍(3).

Applicable legal principles

Cases in which examinations under s 318 have been considered are relatively few.[5] Madafferi and the CDPP are both correct in their observations about the principles (or lack thereof) that can be gleaned from past cases. That is, there are no ‘hard and fast rules’, but nevertheless the discretion is guided by the basis on which the application is sought and the issues likely to be relevant in the questioning of each witness and, generally, in the appeal.
[5]See Kohari v The Queen [2017] VSCA 33; Peters v The Queen (No 2) (2019) 60 VR 231; [2019] VSCA 292; Baker v The King (2022) 68 VR 76; [2022] VSCA 196. See also R v Masin [1970] VR 379; R v Jeffrey [1967] VR 467 concerning s 574(b) of the Crimes Act 1958, the predecessor of s 318 of the CPA.
We observe, so far as past cases are a guide, that orders have only been granted when the examination is to be of one or two potential witnesses about a very confined question or issue. It may not be correct to say that s 318 could never be used profitably with many witnesses and a wide‑ranging field of inquiry, but the greater the number of witnesses and the wider the scope of inquiry, the less likely it is that the process will serve the interests of justice.
Another consideration that may arise in weighing the interests of justice is the availability of alternative means for pursuing the information sought, and the competing advantages and disadvantages of adopting one means over another.
In that regard, other fact-finding methods are provided in part 6.3 of the CPA.
Pursuant to s 317, the Court may order the production of any documentary exhibit connected with the proceeding. In this proceeding, this Court has already determined a number of applications for discovery pursuant to s 317. A substantial body of documents has been discovered by the Chief Commissioner of Police and made available to Madafferi for inspection in either unredacted or partly redacted form.
Further, under s 319A, the Court may refer, for the making of a reference determination, any specified issue or matter arising on an appeal or an application for leave to appeal to a judge of the Trial Division of the Supreme Court or a judge of the County Court.

Is it in the interests of justice to order s 318 examinations?

Madafferi’s submissions

Without setting out all of the topics on which Madafferi seeks to examine all of the witnesses, it is sufficient to illustrate the nature of the proposed topics by reference to one of his applications. In relation to the application to examine the four named and two unnamed police officers, the subject matter of their proposed examinations is listed as follows:
(a)the recruitment of Mr Acquaro as a human source;
(b)police awareness of Mr Acquaro’s animus towards Madafferi and/or his endeavour to prejudice or otherwise damage Madafferi’s prospects at trial;
(c)contact between Mr Acquaro and Victoria Police in respect of Madafferi and matters relevant to Madafferi’s trial and/or bail;
(d)contact between Victoria Police and the Australian Federal Police in relation to matters bearing upon Madafferi’s trial and/or bail;
(e)contact between police and the Department of Immigration regarding Madafferi which led (in part) to the revocation of his bail during the trial, after the jury retired to consider its verdict on 22 August 2014;
(f)contact between police and the person referred to in these proceedings as the s 317 respondent in relation to Madafferi and/or matters relevant to Madafferi’s trial;
(g)contact between Mr Acquaro and the person referred to in these proceedings as the s 317 respondent in relation to Madafferi and/or matters relevant to Madafferi’s trial;
(h)the failure to comply with the Crown’s obligation of disclosure in respect of matters relating to Mr Acquaro;
(i)police members’ poor record-keeping in respect of Victoria Police contact with Mr Acquaro and the Australian Federal Police;
(j)the contents and location of the USB stick and other materials (including any copies) which the person known as the s 317 respondent handed to Peter Trichias and/or Kenneth Ashworth [ie, two of the named police officers] at the offices of MinterEllison on 19 March 2014.
Madafferi wishes to examine the proposed witnesses to ‘clarify the documentary evidence or fill gaps arising therefrom’. He states that he is not asking that inferences be drawn by the Court hearing the examination. Furthermore, he envisages seeking leave to cross-examine the witnesses, with the prosecution similarly having the opportunity to question witnesses.
In a written reply submission, Madafferi addressed various objections put forward by the CDPP and the other proposed witnesses in their written cases filed in response to his own.
One argument put by the CDPP was that Madafferi himself has caused delay by not bringing on applications for these examinations sooner. Madafferi responded that he alone has been the party pressing for prompt discovery of material and information in this case. It would not have been responsible, he argued, to make applications for s 318 examinations until it was apparent that it was necessary in the interests of justice to do so. That judgment could not be made until discovery was completed.
In that context, Madafferi pointed out that Victoria Police finished producing documents in September 2023, the Australian Federal Police finished doing so on 19 December 2023, the s 317 respondent finalised his position (that is, that he had no discovery) on 21 March 2024 and Madafferi made his applications for these examinations on 24 April 2024. On that basis, Madafferi contends that the CDPP’s argument about delay is devoid of any merit.
Next, Madafferi addressed the argument put by the CDPP that it would be more efficient to proceed directly to a s 319A determination, to avoid the risk of witnesses appearing more than once. He argued that the two processes perform different functions. The s 318 examinations, he submitted, are important for information gathering (somewhat like a committal hearing or a hearing under s 198B of the CPA). On the other hand, a s 319A reference determination is a fact-finding exercise (more akin to a trial).
Madafferi submitted that it is necessary to hold the s 318 examinations before any s 319A procedure is undertaken because, on the current documentary material, he is unable to identify a number of witnesses who he may need to call at a reference determination. Madafferi gave a number of examples of gaps in the evidence where a document indicated that exchanges had occurred between one of the proposed witnesses and an unidentified Australian Federal Police officer. He argued that it is necessary to examine the proposed witness to find out if it is necessary to call that Australian Federal Police officer and, if so, to identify who that officer is. Further, he argued, it would be inefficient and premature to proceed to a s 319A reference determination because, at this stage, there is no indication that he and the CDPP will not be able to agree the relevant facts governing the ultimate appeal. Madafferi contends that ordering a reference determination would cause considerable delay in a proceeding that has already experienced substantial delay.
Madafferi also briefly addressed some of the particular arguments raised by the s 317 respondent and Officer Pearce.
The s 317 respondent had argued that any examination of him must be limited to the same period for which discovery was limited (that is, March 2014 to 26 August 2014), noting that nothing had been discovered by him. Madafferi argued that it was clear from the material that the s 317 respondent had police sources, and had, at the least, had a conversation in May 2014 with a police officer for a story about Madafferi and political donations. Madafferi argued that, since he did not know what else may have been discussed, he ought to be permitted to find out.
In relation to various health needs raised by Officer Pearce, Madafferi said that he is prepared to accommodate those needs by adapting the processes by which Officer Pearce would be examined. However, Madafferi argued that he must be able to reveal Officer Pearce’s identity to other witnesses in order to ask them questions about their interactions with Officer Pearce.
Finally, Madafferi queried why he ought not be permitted to cross-examine the witnesses. In his submission, the approach to questioning should be akin to that taken on a committal or a hearing conducted under s 198B of the CPA — namely, that he be permitted to ask both open-ended questions and leading questions. More broadly, Madafferi contends that cross-examination should be permitted given that the purpose of the examination is the pursuit of justice and the exposure of falsehood.

Madafferi’s ‘fall back’ position

Notwithstanding that his primary position was to seek orders to permit examination of all of the witnesses across the full spectrum of topics identified in his three applications, in his oral submissions Madafferi identified seven questions that he said he needed answers to. These questions correlated with the examples he gave in his written reply submissions of gaps in the evidence arising from the disclosed documents.[6] He clarified that these were the most critical questions. In particular, he submitted that he needed answers to these questions in order to know who he should subpoena at any subsequent s 319A reference determination.
[6]See above [20].
Of the seven questions, six related to the identities of specific Australian Federal Police officers or Victoria Police officers said to have participated in conversations on or around specific dates with one or other of the proposed s 318 examinees. The seventh concerned the whereabouts of a USB stick said to have been provided to Victoria Police by one of the proposed examinees at a specified location on a specific date.
In answer to questions from the Court, Madafferi (through his counsel) stated that he had not previously sent any written request for the identity of the Australian Federal Police and Victoria Police officers to either the Chief Commissioner of Police or the CDPP. He agreed that he could readily set out, in targeted form, questions that seek disclosure of the identities of those police officers and the whereabouts of the USB stick. He added that, as a result of very recent further disclosure, there may be one or two further questions he would now seek answers to.
In answer to questions from the Court, Madafferi indicated that, as a fall-back position, he would co-operate in an alternative process (the ‘alternative process’) whereby:
(a)in letters directed to the appropriate party, he seeks answers to the seven targeted questions;
(b)if necessary, he renews his application for s 318 examinations to obtain specific answers to such of the questions that are not satisfactorily answered in response to his letters;
(c)meanwhile, he confers with the CDPP to identify agreed and disputed facts that are relevant to his proposed appeal; and
(d)having settled on the agreed and disputed facts, with or without any s 318 examinations, he confers with the CDPP to formulate specific factual questions which the Court might refer for determination by a judge pursuant to a s 319A reference determination.

Submissions of the CDPP and the individual proposed witnesses

Contrary to Madafferi’s position, the CDPP contends that it is unlikely that there will be agreement between the parties about all of the relevant facts applicable to the proposed appeal proceeding. In this regard, the CDPP drew attention to the submission made opposing bail dated 8 October 2021, responding to Madafferi’s amended written case as it then stood. The CDPP contends that it would be more efficient to consider a referral pursuant to s 319A.
The CDPP further submitted that the breadth and unconfined nature of the applications to examine each witness will mean that there will be no practical parameters for asking questions. As already noted, in relation to Madafferi’s concern about delay, the CDPP pointed to Madafferi’s own delay in bringing his applications when, in relation to Officer Pearce for example, it took Madafferi two and a half years after he first contemplated making the application to actually do so.
In favour of having a s 319A reference determination, the CDPP argued that such a process would involve a single hearing before one judge; witnesses would only be called once instead of, potentially, twice (that is, first, on a s 318 application and later on a s 319A reference determination); the scope of the fact finding will be defined and therefore confined; and the procedure will have a definite outcome, whereas the proposed ‘gap-filling’ s 318 examinations will not. If Madafferi were to be permitted to examine the proposed witnesses, the CDPP submitted that Madafferi should be limited to leading evidence rather than cross-examining the witnesses.
Officer Pearce and the s 317 respondent supported the CDPP’s position.
At the hearing, following submissions made on behalf of Madafferi, the Court put to each of the CDPP, the Chief Commissioner of Police, Officer Pearce and the s 317 respondent the alternative process that had been discussed with Madafferi, identified above at [28]. No party resisted that proposal.

Consideration

At present, Madafferi’s interim written case in support of his application for leave to appeal his conviction sets out over 90 paragraphs of facts spanning a period from 2008 to 2019 and involving numerous people. His primary position is that he wants to examine eight witnesses concerning wide-ranging and somewhat open-ended topics that are not confined to particular dates or date ranges or, sometimes, even subject matter. In our view, such a process is doomed to be unmanageable. No judge tasked with such examinations will be able to determine the boundaries of relevance if objections are taken, for there is no clear reference point that would determine the meaningful boundaries for such an examination. The process has all the hallmarks of an open-ended fishing expedition of the dragnet variety.
The situation could not be more different to those in which s 318 has been deployed in the past.
We agree with the submission put on behalf of the CDPP that such a process will be unlikely to yield any definite outcome. No findings will be made or inferences of fact drawn. There will simply be a raw transcript of answers to questions given by a variety of witnesses, which may or may not be consistent, across a very wide field of issues. We fear for the potential length of such an enquiry. In oral submissions, Madafferi suggested it would take only two days. Perhaps that estimate was directed to answering the seven questions. Otherwise, we rather think the examinations could take very much longer. In part, this highlights the problem. Given the ill-defined scope of the proposed examinations, it is simply too hard to quantify the time the examinations might take because it is not possible to predict how the questioning might run.
For these reasons, we are far from satisfied that it is in the interests of justice to grant the applications Madafferi has made. We are reinforced in that conclusion because we consider that there is a far more targeted process available by which relevant information can be obtained — one which is more likely to produce an outcome that will serve the end of determining Madafferi’s application for leave to appeal his conviction under pt 6.4 of the CPA. That process is the alternative process we discussed with the parties during the hearing, described above at [28]. It is more likely to produce a meaningful outcome. Section 318 examinations may not be required at all but, if they are, they will be directed to very specific questions of few witnesses for well-defined purposes. The likelihood of witnesses being examined twice is, we expect, substantially reduced. The length of time to be taken for any such examinations will be short.

Conclusion

We do not propose to dismiss Madafferi’s three applications but neither do we intend to grant them on the terms as currently formulated. Instead, we will adjourn the further hearings of his applications and reserve liberty to apply on two days’ written notice to the CDPP and any other relevant party.
We remain open to a more refined application for the examination of those witnesses who Madaferri considers may need to be examined if satisfactory answers are not obtained from questions he may ask by letter delivered to the representatives of the proposed examinees. Of course, we offer no assurance that any order for examinations will be made even if such further refined applications are made. Much will depend on the answers obtained from questions asked of the CDPP and proposed examinees.
Given that the CDPP and proposed examinees indicated their general willingness to cooperate in the alternative process, we expect that responses to Madafferi’s questions will be prompt. It will be a matter for those parties how they respond to the questions, but the fate of any renewed application for s 318 examinations may turn on the utility of those responses.
Otherwise, we will make directions in anticipation that the Court will order a s 319A reference determination to determine such relevant facts as the parties are unable to agree upon or determine for themselves. A draft set of directions for this purpose accompanies these reasons for judgment.
In short, we contemplate that there is likely to be a s 319A reference determination, supplemented, if necessary, by limited orders for s 318 examinations to enable Madafferi to know who he needs to subpoena at the reference determination.
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DRAFT DIRECTIONS

By 4:00 pm on 26 November 2024, the applicant file and serve a final written case in support of his application for an extension of time and application for leave to appeal against conviction.
By 4:00 pm on 18 February 2025, the respondent file and serve a response to the applicant’s written case filed and served pursuant to paragraph 1 of these orders.
By 4:00 pm on 11 March 2025, the applicant is to file and serve a chronological list of facts (footnoted with references to any documents or evidence the applicant relies upon in support of each asserted fact) which the applicant relies upon in support of proposed ground 1, identifying with precision the conduct of Mr Joseph ‘Pino’ Acquaro, Victoria Police and the Australian Federal Police which, whether alone or in combination with other listed facts, the applicant asserts amounted to a miscarriage of justice.
By 4:00 pm on 15 April 2025, the respondent is to file and serve a response to the applicant’s list of facts, identifying with respect to each of the applicant’s asserted facts, whether the fact is admitted in whole or in part, not admitted but not contested, contested in whole or in part or the subject of a qualified contest or admission. To the extent that the respondent asserts the existence of any qualifying or additional fact, that fact should be stated and then footnoted with references to any document or evidence upon which the respondent relies.
By 4:00 pm on 29 April 2025, the parties are to file a chronological list of the facts upon which they agree (to be typed in the list in black) together with the facts which are not agreed but not the subject of any contest (to be typed in the list in blue).
By 4:00 pm on 29 April 2025, the parties are to file and serve lists of issues or matters which they contend should be the subject of a reference, for the making of a reference determination, under s 319A of the Criminal Procedure Act 2009 (the ‘Act’).
By 4:00 pm on 6 May 2025, the parties confer for the purpose of agreeing (if possible) or narrowing the dispute between them as to the issues and matters (or the terms of those issues and matters) which are to be the subject of a referral under s 319A of the Act.
By 4:00 pm on 13 May 2025, the parties are to file and serve written submissions relating to the terms of the issues and matters which they contend should or should not be the subject of a referral under s 319A of the Act.
The applicant’s s 318 applications are otherwise adjourned, with liberty reserved to the applicant to apply on two days’ written notice to the respondent and any other relevant party.

[2024] VSCA 229

8 October 2024