| 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…
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- AGLC
- Madafferi v The King [No 1] [2024] VSCA 12
- Case
- [2024] VSCA 12
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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