Madafferi v The Queen

[2022] VSCA 189

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON ACJ and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2022
DATE OF JUDGMENT:	2 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 189

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CRIMINAL LAW – Non-publication order – Non-publication order necessary to protect safety of non-party.

Open Courts Act 2013, s 18(1)(a).

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Counsel
Applicant:		Ms G Schoff QC with Ms C Boston
Respondent:		Mr T Wood
Respondent to the s 317 application:		Mr A Dinelli with Mr A Terzic
Chief Commissioner of Victoria Police:		Ms S Maharaj QC with Ms K Chan
Solicitors
Applicant:	Galbally Parker Criminal Lawyers
Respondent:	Mr S  Bruckard, Solicitor for Public Prosecutions (Cth)
Respondent to the s 317 application:	Minter Ellison
Chief Commissioner of Victoria Police	Victorian Government Solicitor

EMERTON ACJ
BEACH JA:

1. We have before us today an application by the respondent to an application under s 317 of the Criminal Procedure Act 2009 (‘CPA’) for an order under s 17 of the Open Courts Act 2013 that there be no disclosure of the grounds of the s 317 application and his or her name, identity or occupation (or material which may lead to such identification). The non-publication order is to apply throughout Australia for a period of five years.

2. On 29 August 2022, the Court made an interim non-publication order pending the hearing of the application for a non-publication order today.

3. The s 317 respondent seeks the non-publication order on the basis that it is necessary in order to protect his or her safety or, alternatively, that it is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably allowable means under s 18(1)(a) of the Open Courts Act.

4. The application for the non-publication order is supported by an affidavit made by the solicitor for the s 317 respondent on 31 August 2022 which outlines in some detail the s 317 respondent’s fears for their safety and that of their family, and the reasons for those fears if there were to be a disclosure of their identity and the allegations in the s 317 application.

5. The s 317 application seeks production, among other things, of any notes, recordings, emails, text messages or other documents, documenting contact between the s 317 respondent and the applicant’s former solicitor, members of Victoria Police, members of the Australian Federal Police and employees of the Commonwealth Director of Public Prosecutions between February 2008 and December 2015.

6. The grounds for the s 317 application include allegations about the relationship between the s 317 respondent and the police. These grounds imply, in effect, that the s 317 respondent was a ‘snitch’ or an accessory to police informant activity.

7. Having regard to the allegations that are made in the s 317 application, we consider that the fears of the s 317 respondent for their safety and the safety of family members are both genuine and well founded.

8. We have no hesitation in making the non-publication order that is sought. It is necessary to protect the safety of a number of persons, and the s 317 respondent in particular.

9. In determining that a non-publication order is necessary, we have had regard to the vital importance of the principle of open justice.  However, we consider that the specific circumstances of this case make it necessary to displace that principle.

10. We observe that the non-publication order does not in any way inhibit the applicant in the preparation of his application for leave to appeal, or otherwise prejudice his case. Nor will it impede the hearing and determination of any application the s 317 respondent may wish to make to object to the production of the materials sought in the s 317 application or the applicant’s ability to resist such an application.

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