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

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.
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?

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.
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…

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 [No 1]

Details

AGLC: Madafferi v The King [No 1] [2024] VSCA 12
Case: [2024] VSCA 12
Decision Date: 23 February 2024

CaseChat Overview and Summary

The case of Madafferi v The King [No 1] involved the defendant, Madafferi, who had applied for disclosure of documents under section 317 of the Criminal Procedure Act 2009. The application was made in the context of a criminal proceeding, and the applicant sought various documents that the prosecution had in its possession or control. The prosecution raised objections to the disclosure, asserting that certain information was protected by public interest immunity, privacy, or that it fell outside the scope of the orders. The court was tasked with determining the validity of these objections and deciding whether the interests of justice favoured upholding them.

The primary legal issues before the court were whether the objections to disclosure were justified under the relevant statutes and whether the interests of justice required the objections to be upheld. The court had to consider the provisions of the Criminal Procedure Act 2009, the Evidence Act 2008, the Health Records Act 2001, and the Privacy and Data Protection Act 2014 in determining the appropriate course of action. The court needed to balance the defendant's right to a fair trial against the public interest in maintaining the confidentiality of certain information.

The court held that the objections to disclosure were justified, and the interests of justice favoured upholding them. The court found that the information in question was protected by public interest immunity and privacy provisions, and that some of the information fell outside the scope of the orders. The court concluded that the potential harm to the public interest in maintaining the confidentiality of the information outweighed the defendant's right to access it. Therefore, the objections were upheld, and the application for disclosure was dismissed.

No specific orders were made in the judgment as the application for disclosure was dismissed on the grounds of the objections being upheld. The court did not order the production of any documents, as it found that the interests of justice did not require disclosure.

Orders