Madafferi v The King [No 2] - [2024] VSCA 14

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE KING [NO 2]	Respondent

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JUDGES:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2024
DATE OF JUDGMENT:	29 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 14

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CRIMINAL LAW – Appeal – Practice and procedure – Application for disclosure pursuant to s 317 of the Criminal Procedure Act 2009 – Whether there is legitimate forensic purpose – Whether production is being used as a check on prosecutorial disclosure obligations – Where it is the interests of justice to order production of a narrowed category of documents.

Criminal Procedure Act 2009.

Zirilli v The Queen [2021] VSCA 174; Alister v R (1984) 154 CLR 404; R v Saleam (1989) 39 A Crim R 406; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Polimeni v The King [2022] VSCA 20; Zirilli v The Queen [2021] 287 A Crim R 407; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Szabo v The Queen [2001] 2 Qd R 214; Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661; Mokbel Ruling No 1 [2005] VSC 410; Arico v The Queen [2021] 294 A Crim R 20.

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Counsel
Applicant:		Ms C Boston KC with Mr Cameron
Respondent:		Ms D Karamicov
S 317 Respondent		Mr A Dinelli KC with Mr A Terzic
Solicitors
Applicant:	Galbally Park Lawyers
Respondent:	Commonwealth Director of Public Prosecutions
S 317 Respondent	Minter Ellison

McCANN JR:

In Francesco Madafferi’s appeal against his August 2014 drug conviction, documents have been produced by a number of agencies pursuant to orders of the Court.[1] In August 2022 Mr Madafferi applied for production from [redacted], the ‘s 317 Respondent’.[2] The s 317 Respondent opposes the making of orders.
[1]Pursuant to s 317 of the Criminal Procedure Act 2009.
[2]The identity of the s 317 Respondent is the subject of a non-publication order. They are referred to as ‘the s 317 Respondent’. The detail of the s 317 application is the subject of the same non-publication order made on 2 September 2022, as varied on 31 May 2023.
The principle issue to be determined is whether it is in the interests of justice that the s 317 Respondent be ordered to produce material to the Court. The s 317 Respondent argues that Mr Madafferi has no legitimate forensic purpose for the documents he seeks and that the s 317 Respondent ought not be asked to assist as a check on disclosure by, or to fill in the gaps left by, prosecuting agencies.
In his appeal, Mr Madafferi asserts that his one-time lawyer, Mr Joseph ‘Pino’ Acquaro, provided privileged and/or confidential information about Mr Madafferi to Victoria Police. In the first limb of his ground of appeal, Mr Madafferi argues that, as a consequence of this conduct, his right to a fair trial in 2014 was subverted and that there has been a…

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 2]

Details

AGLC: Madafferi v The King [No 2] [2024] VSCA 14
Case: [2024] VSCA 14
Decision Date: 29 February 2024

CaseChat Overview and Summary

The applicant in this case, Madafferi, appealed against a decision that denied their application for disclosure of certain documents under section 317 of the Criminal Procedure Act 2009. The dispute arose in the context of criminal proceedings, with the applicant seeking the production of documents that were not initially disclosed by the prosecution. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court was required to decide included whether the application for disclosure had a legitimate forensic purpose and whether the production of the documents was being used as a check on the prosecution's disclosure obligations. The court also had to consider whether it was in the interests of justice to order the production of a narrowed category of documents. These issues were critical in determining the extent to which the applicant could access documents that were not initially provided by the prosecution.

In its reasoning, the court found that the application for disclosure did have a legitimate forensic purpose, as the documents sought were relevant to the applicant's defence. However, the court also noted that the application appeared to be used partly as a check on the prosecution's disclosure obligations. Despite this, the court concluded that it was in the interests of justice to order the production of a narrowed category of documents. The court balanced the need for a fair trial with the potential for abuse of the disclosure process.

The final orders of the court were that the application for disclosure was to be allowed in part, with the production of a specified category of documents ordered. The court's decision highlighted the importance of ensuring that criminal proceedings are conducted fairly, while also preventing the misuse of the disclosure process.

Orders