Madafferi v The King
[2023] VSCA 178
•7 August 2023
| 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 |
| DATE OF HEARING: | 19 July 2023 |
| DATE OF JUDGMENT: | 7 August 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 178 |
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CRIMINAL LAW – Application for the release of restricted evidence pursuant to s 43A of Major Crime (Investigative Powers) Act 2004 – Whether the interests of justice require that the certificate documents be made available to the applicant – Where the interests of justice require that certain information be released – Where interests of justice otherwise do not require the release of restricted evidence – Application otherwise dismissed.
Major Crime (Investigative Powers) Act 2004; Criminal Procedure Act 2009.
Jean Ross (a pseudonym)v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254; Madafferi v The Queen (2021) 287 A Crim R 380; Mickelberg v The Queen (No 3) (1992) 59 A Crim R 288; R v Szabo [2000] QCA 194; Zirilli v the Queen [2021] VSCA 2.
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| Counsel | |||
| Applicants: | Ms C Boston with Mr L Cameron | ||
| Respondent/s: | Ms D Karamicov | ||
| Chief Commissioner of Police and Chief Examiner | Ms R Sharp KC with Mr M Reardon | ||
Solicitors | |||
| Applicants: | Galbally Park Lawyers | ||
| Respondent/s: | Commonwealth Director of Public Prosecutions | ||
| Chief Commissioner of Police and Chief Examiner | Victoria Police | ||
MCCANN JR:
Introduction
On 16 May 2023, on application by Francesco Madafferi (‘the applicant’), the Court granted a certificate pursuant to s 43A(1) of the Major Crime (Investigative Powers) Act 2004 (‘the Act’) that it may be desirable, pursuant to that section, that certain restricted evidence identified in the certificate be made available to the applicant or to a legal practitioner representing the applicant. (‘the certificate documents’). The certificate documents were then provided to the Court.
Having certified that it may be desirable that restricted evidence be made available, the Court was asked to determine, pursuant to s 43A(5) of the Act, whether the interests of justice require that the certificate documents be made available to the applicant.
The Act requires that, before making a decision about the release of evidence, the Court hear from the Chief Examiner, the Chief Commissioner of Police (‘the Chief Commissioner’), and in certain circumstances, a witness. It does not require that the person charged be heard. In this case, legal representatives for the Chief Examiner and the Chief Commissioner provided written submissions to the Court and redacted versions of those to the applicant and the Commonwealth Director of Public Prosecutions. Proceedings were conducted in closed session, initially with legal representatives for the applicant present and then without. I heard from counsel on behalf of the applicant in relation to applicable principle, the context of the proceedings and risk, to the extent that they understood and could address the Court. I also heard from counsel for the Chief Examiner and Chief Commissioner.
I have decided that the interests of justice require that the applicant should be informed that [redacted].
Given that the certificate documents themselves contain nothing of relevance to the issues in the appeal, the interests of justice do not require that certificate documents be made available to the applicant or his legal practitioner.
Procedural background
The Applicant’s appeal
On 26 August 2014 the applicant was found guilty of trafficking a commercial quantity of MDMA. On 17 December 2014, the applicant was sentenced to 10 years imprisonment with a non-parole period of 7 years.[1] On 11 March 2020 the applicant submitted an application for leave to appeal against conviction pursuant to s 274 of the Criminal Procedure Act (‘the CPA’).[2] In the alternative he filed an application for a second and/or subsequent appeal pursuant to s 326A of the CPA.[3]
[1]The applicant’s non-parole period expired on the 20 August 2021. The applicant will have completed his sentence on 18 August 2024.
[2]On the 11 March 2020, the applicant also filed an application for an extension of time in which to file his application for leave to appeal.
[3]On 20 October 2017 an application for an extension of time in which to file an application for leave to appeal conviction was refused.
In his applications to appeal his conviction the applicant pursues a single ground as amended by notice dated 5 October 2022:
Ground 1
1.A substantial miscarriage of justice has been occasioned by reason of the subversion of the applicant’s right to a fair trial; and or
2.A fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had 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.
Previous Production to the Applicant
In the case of Madafferi v The Queen (2021) 287 A Crim R 380 the Court rejected public interest immunity claims made by the Chief Commissioner in respect of information provided to police by the applicant’s former solicitor Mr Acquaro.
Subsequent to this decision the Chief Commissioner produced documents pursuant to orders for their production.[4]
[4]Criminal Procedure Act 2009 s 317.
Among the produced documents was material that indicated that [redacted]. The material sought by the applicant is restricted evidence pursuant to the Major Crime (Investigative Powers) Act 2004.
Restricted evidence pursuant to the Major Crime (Investigative Powers) Act 2004
Restricted evidence is defined in section 3 of the Act as:
any evidence, information or thing that is the subject of a direction that is in force under section 43(1).
Section 43(1) is in Part 4 of the Act which provides extensive powers to the Chief Examiner for the compulsory examination of individuals the subject of coercive powers orders issued by the Supreme Court.
Pursuant to s 43(1) the Chief Examiner may make a non-publication direction in respect of:
(a)any evidence given before the Chief Examiner; or
(b)the contents of any document, or a description of any thing, produced to the Chief Examiner; or
(c)any information that might enable a person who has given evidence before the Chief Examiner to be identified; or
(d)the fact that any person has given or may be about to give evidence at an examination
It is relevant to note that s 43(2) of the Act obliges the Chief Examiner to make such a direction where:
… failure to do so would reasonably be expected to prejudice —
(a)the safety of a person; or
(b)the fair trial of a person who has been or may be charged with an offence.[5]
[5]Major Crime (Investigative Powers) Act 2004 s 43(2).
The Act also significantly limits the circumstances in which the Chief Examiner, an examiner, or a police officer can be compelled to produce documents or divulge information acquired in the exercise of functions under the Act.[6] That is, this material cannot be obtained pursuant to a subpoena.
[6]Major Crime (Investigative Powers) Act 2004 s 68(3).
This is all to be understood in the context of the purposes of the Act, being:
(a)to provide for a regime for the authorisation and oversight of the use of coercive powers to investigate and prosecute organised crime offences; and
(b)to combat and reduce the incidence of organised crime offences.[7]
[7]Major Crime (Investigative Powers) Act 2004 s 1.
Whilst the Act places restrictions on the production or release of evidence it also provides a mechanism for the release of restricted evidence to a ‘person charged with an offence before the court’.[8] That mechanism involves a number of steps and is contained in s 43A of the Act.
[8]Major Crime (Investigative Powers) Act 2004 s 43A.
Initially, pursuant to s 43A(1), the Court will issue a certificate to the Chief Commissioner or the Chief Examiner if satisfied 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. An application for such a certificate may be made by the Director of Public Prosecutions, the Chief Commissioner or the person charged.
Pursuant to s 43A(2), if a certificate is granted, the restricted evidence must then be made available to the Court by the Director of Public Prosecutions or Chief Commissioner as the case may be.
If restricted evidence is made available to the Court under this provision, then, pursuant to s 43A(3), the Court must give the following people the opportunity to make submissions to the court about whether the evidence should be made available in whole or in part:
(a)the Chief Examiner; and
(b)the Chief Commissioner; and
(c)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.[9]
[9]Major Crime (Investigative Powers) Act 2004 s 43A(4).
The Court may then make the restricted evidence available to the person charged or their legal practitioner ‘if the interests of justice so require’.[10]
[10] Major Crime (Investigative Powers) Act 2004 s 43A(5).
The process in this instance
On 2 March 2023 the applicant applied to the Court for the release of restricted evidence. The restricted evidence sought is:
[Redacted]
On the 16 May 2023 the Court issued a certificate pursuant to s 43A(1). It was accepted by both the Chief Commissioner and the Chief Examiner that the threshold in that section was satisfied.
On 6 June 2023 the Chief Commissioner and the Chief Examiner provided materials to the Court in compliance with the certificate.
It remained to be determined whether the interests of justice require that the restricted evidence provided to the Court be made available to the applicant in whole or in part.
Submissions of the parties
The Applicant
The applicant did not provide written submissions in respect of either the issue of a certificate or the release of the restricted evidence to them. The basis for their application was referred to as ‘grounds’ in their application of 2 March 2023 and I have had regard to them.
Material that had been provided to the applicant to date by way of disclosure and s 317 order revealed that [redacted].
The applicant asserts that:
[Redacted]
The applicant accepted that the test for release of certificate documents in whole or part to an applicant or his legal practitioner is set out in s 43A(5). The applicant submitted that the use of the word ‘requires’ in that section of the Act does not import a stricter test than ‘the interests of justice’ in s 317 of the CPA. In Zirilli v The Queen it was observed that an order for production pursuant to s 317 was akin to a subpoena.[11] Principles applicable in the consideration of other coercive processes for the production of documents will have relevance to the consideration of what is in the interests of justice to order pursuant to s 317.[12] This includes an assessment of the likelihood that the documents sought by subpoena will provide assistance; whether it is ‘on the cards’. Counsel for the applicant maintained the submission that in determining whether it is in the interests of justice to release the certificate documents I should consider whether it is on the cards that the documents sought will materially assist the applicant.
[11]Zirilli v The Queen [2021] VSCA 2 [101].
[12][2021] VSCA 2 [101], [122].
Counsel for the applicant otherwise agreed that the articulation of the interests of justice test in Jean Ross (a pseudonym) v The Chief Commissioner of Police and the Chief Examiner[13] is applicable in this matter (referred to in further detail at paragraph 46 of this judgment). In particular, counsel drew attention to the applicant’s ground of appeal which relies on the judgment in the matter of R v Szabo,[14] that is:
2.A fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had miscarried.
[13]Jean Ross (a pseudonym) v The Chief Commissioner of Police and the Chief Examiner [2014] VSCA 254 (‘Jean Ross’).
[14][2000] QCA 194.
[Redacted].
Further, as was observed in Jean Ross, the interests of justice encompass the interests of all of the parties engaged in the proceedings and the interests of the public in the proper administration of justice.
Lastly, counsel for the applicant observed that there is no longer a risk to the safety of a person.[15]
The Chief Examiner
[15][Redacted]
On 27 June 2023, having been given the opportunity to do so pursuant to s 43A(3) and (4), the Chief Commissioner and the Chief Examiner provided a single set of confidential written submissions representing their combined position.[16] [Redacted].
[16]On 12 May 2023 the Chief Examiner’s legal unit responded on behalf of both the Chief Examiner and the Chief Commissioner and on 10 July 2023 they further advised they had a single representative and submission.
The Chief Commissioner and Chief Examiner made submissions with the applicant present in Court in relation to the broad considerations in the application of the test in s 43A(5). Submissions in relation to the application of those principles to the particular certificate documents occurred in the absence of the applicant in closed court.
The Chief Commissioner and Chief Examiner submitted that the phrase, the ‘interests of justice’, in the context of criminal proceedings, refers to a fair process in a trial between the Crown and the accused and extends to the public interest in the administration of justice.
The Court was referred to the case of Jean Ross,[17] where the Court of Appeal considered s 43A(5), which by its terms
makes clear that the interests of justice include the interests of the witness and those of the person charged and the Director. Furthermore, the requirement for the court to examine the evidence in the particular case and to receive submissions from the particular witness, and to only make the restricted evidence available if the interests of justice so require, make plain that the interests of justice are those that obtain in the particular case considering the phrase and the requirement legislated in s 43A(5) of the MCIPA.[18]
[17]Jean Ross [2014] VSCA 254.
[18][2014] VSCA 254 [91].
The Chief Commissioner and Chief Examiner submitted that the ‘interests of justice’ test in s 43A(5) is different to the test applicable when considering an order for production pursuant to s 317 of the CPA. The ‘on the cards test’ is speculative and relates specifically to whether documents should be produced to the Court. In this respect, production orders pursuant to s 317 of the CPA are more analogous to the certificate process pursuant to s 43A(1) of the Act. Section 43A(5) of the Act relates to the release of documents already provided to the Court and the word ‘require’ in that section should be understood a connoting something ‘necessary or obligatory, rather than permissive’.[19]
[19][2014] VSCA 254 [72].
In addressing the interests of justice in this case the Chief Commissioner and Chief Examiner submitted that the Court should consider the chronology and timing of relevant facts and events as well as the subject matter and content of the certificate documents and whether they could form part of ‘all relevant circumstances’ contributing to the applicant’s Szabo argument.
Further, the Chief Commissioner and Chief Examiner submitted that the investigative function of the Office of the Chief Examiner is a relevant factor to consider. The investigatory function of the office is in the interests of justice broadly.[20]
[20]Mickelberg v The Queen (No 3) (1992) 59 A Crim R 288.
With particular reference to the certificate documents, counsel stated that none of them can have any relevance to the applicant’s appeal. [Redacted].
In respect of any perception or reasonable suspicion that justice may have miscarried in consequence of [redacted].
[Redacted].
[Redacted].
Consideration
Applicable principle
The certificate material is restricted evidence. The Act explicitly protects restricted evidence from compulsory production by court order.[21] The mechanism and considerations for the release of restricted evidence are set out in s 43A of the Act. It is misconceived to import principles applicable in respect of compelled production by either subpoena or s 317 order. It is also unnecessary; the tests for the granting of a certificate in respect of the restricted evidence and then for the release of certificate material are set out clearly in s 43A of the Act and described in paragraphs 12 to 21 of this judgment above.
[21]Major Crime (Investigative Powers) Act 2004 s 68(3).
Having considered the parties submissions on the framework of s 43A, and the guidance provided by the decision of Jean Ross, the following can be discerned:
•‘in any given case, the nature and content of “the interests of justice” must be derived from the context – statutory or otherwise- that is applicable’;[22]
•‘the interests of justice are those that obtain in the particular case’;[23]
•the interests of justice are inclusive of the interests of the witness, the person charged and the director but broadly extend to the public and their interest in the administration of justice;[24]
•the strength of the case absent the evidence is of little bearing to the determination;[25]
•the word require connotes something more than being merely permissive, it is obligatory or necessary;[26]
•an evaluation of the importance of the evidence in the context of the case is to be made against the importance of avoiding possible prejudice to personal safety,[27] as well as ongoing investigations and future prosecutions.
The subject documents – ‘the certificate material’
[22][2014] VSCA 254 [72].
[23][2014] VSCA 254 [91].
[24]Ibid.
[25][2014] VSCA 254 [85].
[26][2014] VSCA 254 [72].
[27][2014] VSCA 254 [72].
The Chief Commissioner has given broad interpretation to the categories in the certificate made by the Court on 16 May 2023 in the material they have provided. [Redacted].
The certificate material comprises:
[Redacted]
Decision
Within his appeal grounds the applicant asserts that [redacted]. This is the case context in which to assess whether the certificate material should be released.
I have reviewed the certificate material. [Redacted]
Documents forming part of the certificate [redacted]. The interests of justice do not require that these be made available.
[Redacted].
The interests of justice in this case therefore require that this information be released. That information having been provided in the form of this ruling, the interests of justice do not require that any of the irrelevant transcript be released.
The court finds that:
[Redacted]
The Applicant’s application pursuant to s 43A of the Major Crime (Investigative Powers) Act 2004 is otherwise dismissed.
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