Madafferi v The King [No 1]

[2024] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE KING [NO 1]	Respondent

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JUDICIAL OFFICER:	McCann JR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF JUDGMENT:	23 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 12

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CRIMINAL LAW – Application for disclosure pursuant to s 317 of the Criminal Procedure Act 2009 – Objections to disclosure on the bases of public interest immunity, privacy, or that the information is outside the scope of the orders – Where the interests of justice favour upholding objections.

Criminal Procedure Act 2009; Evidence Act 2008; Health Records Act 2001; Privacy and Data Protection Act 2014.

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Counsel
Applicant:		Ms C Boston SC with Mr L Cameron
Respondent:		Ms D Karamicov
Commissioner of the Australian Federal Police		Mr R Knowles KC with Ms P Mitchell
Solicitors
Applicant:	Galbally Parker Lawyers
Respondent:	Commonwealth Director of Public Prosecutions
Commissioner of the Australian Federal Police	Clayton Utz

McCANN JR:

Background

1. On 26 of August 2014 the applicant, Mr Francesco Madafferi, was found guilty by jury of drug trafficking. He has appealed this conviction. His single ground of appeal relates to the conduct of his one-time lawyer, Mr Joseph ‘Pino’ Acquaro and Victoria Police.[1] The ground includes a particular relating to communication by Mr Acquaro and Victoria Police with the media.

   [1]The applicant has sought an extension of time in which to appeal pursuant to s 274 and also leave to appeal for a second time pursuant to s 326A of the Criminal Procedure Act.

2. On 24 November 2023 the Court made orders by consent for the production of documents by the Commissioner of the Australia Federal Police (‘the Commissioner’) pursuant to s 317 of the CPA. The Commissioner produced documents on 12 December 2023 with redactions representing his objection to revealing the information concealed. The objections were raised on the bases of scope and/or relevance, privacy and public interest immunity. There were some concessions made by Mr Madafferi and some agreement between the parties to the application. The objections that remained for determination are upheld.

What are the documents in dispute?

1. In summary, the following category of documents were required to be produced:

   Any and all notes, recordings, written records, emails, text messages, PROMIS entries, information reports or similar documents in relation to Mr Madafferi held by the AFP documenting contact between any member of the AFP/CDPP involved in the investigation of Operations Inca - both MDMA and cocaine - Zanella, Cardinia, and Bootham/Moko and/or the prosecution of Mr Madafferi and the section 317 respondent, but only to the extent that the substance of that contact is linked to any information that may have been shared between the s 317 Respondent and Joseph 'Pino' Acquaro, in the time frame 12 February 2008 to 26 August 2014.

2. A closed affidavit of Assistant Commissioner Hilda Sirec dated 15 January 2024 annexed the 27 produced documents in redacted form. An open affidavit of the Assistant Commissioner of the same date annexed a schedule of those documents describing pinpoints and the basis for each of the redactions.

3. Mr Madafferi made concessions in respect of private and/or out of scope material. His lawyers also agreed to give an undertaking in respect of a telephone number. The dispute that remained related to the public interest immunity claims and redactions in documents 20 and 24 said by the Commissioner to be concealing material that is out of scope.

Public Interest Immunity

1. In the present case, s 131A of the Evidence Act 2008 (‘the Act’) dictates that a public interest immunity objection is to be determined in accordance with s 130 of that Act. The principles governing the determination of such an objection reflect those applicable at common law.[2]

   [2]Ryan v State of Victoria [2015] VSCA 353.

2. Section 130 of the Evidence Act describes the task for the Court in determining an objection to production in a series of steps. Section 130(1) contains the threshold requirement and relevant balancing act, requiring first that the evidence to be adduced must be properly categorised as relating to ‘matters of state’, from which the Court will then determine whether public interest weighs in favour of preserving confidentiality or in favour of disclosure.

3. The exercise in determining whether the relevant material is properly categorised as relating to matters of state is informed by a non-exhaustive list of considerations outlined in s 130(4). The balancing exercise is likewise informed by a non-exhaustive list of matters required to be considered, as outlined in s 130(5). This balancing exercise compares the potential significance of the relevant information to the applicant’s case, as argued in their written case, weighed against the public interest in maintaining confidentiality of said information as it relates to matters of state.

4. The public interest in the administration of justice requires that a party have access to evidence that is relevant to the issues in their case. It is relevance that is to be balanced against any harm that might be caused by the release of the information the subject of the claim.

Does the disputed material relate to a matter of state?

1. The Commissioner’s public interest immunity claims fall into three categories; information which, if it were released, would:

   (a)prejudice the safety of the specified persons (‘PII claim 1’);

   (b)damage international law enforcement partnerships (‘PII claim 2’); and

   (c)prejudice the security of AFP personnel (‘PII claim 3’).

2. The confidential affidavit of the Assistant Commissioner of 15 January 2024 sets out in detail and with precision each of those claims of public interest immunity, as well as the material she says falls outside the scope of the orders.

3. This material substantiates each claim as a matter of state for the purpose of s 130(4).

What is the potential significance of the material to Mr Madafferi’s case?

1. A consideration of the potential significance of any of the redacted material to Mr Madafferi’s case involves a review of his amended ground of appeal and his written case. On 5 October 2022 Mr Madafferi amended his ground of appeal to include an explicit reference to his former lawyer ‘Mr Acquaro’ and a particular asserting that information was provided to the media by Victoria Police and Mr Acquaro.

2. In a written case revised on 7 December 2022 it is stated that media coverage in the months prior to the trial prompted the applicant’s lawyers to unsuccessfully seek a stay. It is then argued that this was in circumstances where the trial judge and Mr Madafferi were unaware that Mr Madafferi’s former lawyer, Mr Joseph Acquaro, had been liaising with members of the media to create negative attention with the ultimate aim in having the applicant convicted and subsequently deported.

3. The applicant submits that, in light of his revised interim written case, it is reasonably possible that the materials sought would materially assist the applicant in his appeal.

4. The applicant’s legitimate forensic purpose is to establish the extent to which:

   (a)Mr Acquaro acted upon his aim to create negative media, to damage the applicant’s prospects at trial;

   (b)[redacted] were involved in assisting Mr Acquaro’s efforts to achieve that aim, including by providing information to the AFP; and

   (c)The AFP was involved in assisting Mr Acquaro’s efforts to achieve his aim, including by providing information to him and the media.

5. In assessing what material might be relevant to the applicant’s case, I have considered the matters explicitly raised by the applicant in oral and written submissions. I have also considered the grounds of appeal developed in the revised written case.

Should the Commissioners claims of Public Interest immunity be upheld?

1. I have decided that the redacted information in the Commissioner’s Claim 2 and pressed by the Mr Madafferi is not relevant to the matters raised in his appeal. There is no need to engage in the balancing exercise. The objections in Claim 2 are upheld.

2. Having reviewed the documents that are covered by Claim 1, I am satisfied that the redacted portions contain information that is of relevance. The safety concerns that are raised are significant and the public interest in protection against the risk of harm weighs in favour of maintaining the confidence. The objections covered by Claim 1 are maintained.

Is the redacted information in documents 20 and 24 out of scope?

1. Mr Madafferi maintains his challenge in respect of the portions of documents 20 and 24 that are said by the Commissioner to be out of scope. I am satisfied, having read the redacted portions and the confidential affidavit, that those redacted portions, although referring to the s 317 Respondent, are completely unrelated to the applicant or any of the investigations that resulted in charges against him. They are out of scope and, in my assessment, irrelevant.

Conclusion

1. All of the Commissioner’s disputed objections to production are upheld.

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