Madafferi v The King - [2023] VSCA 178

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…

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 [2023] VSCA 178
Case: [2023] VSCA 178
Decision Date: 7 August 2023

CaseChat Overview and Summary

The matter of Madafferi v The King involved the application for the release of restricted evidence pursuant to section 43A of the Major Crime (Investigative Powers) Act 2004. The applicant sought access to certificate documents, which were classified as restricted evidence, to use in the applicant's defence. The case was heard in the Supreme Court of Victoria.

The legal issues at hand revolved around whether the interests of justice necessitated the disclosure of the restricted evidence to the applicant. The court had to balance the applicant's right to a fair trial against the potential harm that could be caused by releasing the evidence. The court considered the nature of the restricted evidence, the context in which it was obtained, and the potential impact of its disclosure on the applicant's defence and on public interests.

The Supreme Court found that while the interests of justice did require the release of certain information contained in the restricted evidence, the overall interests of justice did not require the release of the certificate documents. The court concluded that the potential harm to the investigation and the public interest in maintaining the integrity of the investigative process outweighed the benefits of releasing the restricted evidence. Therefore, the application for the release of the restricted evidence was dismissed.

The court ordered that the restricted evidence remain confidential and that the applicant's access to it was limited to the information already disclosed. The court also emphasised the importance of maintaining the confidentiality of investigative materials to protect the integrity of criminal investigations and to safeguard public interests.

Orders