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Madafferi v The Queen

Madafferi v The Queen

Case [2021] VSCA 332 2 December 2021

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SSUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 November 2021
DATE OF JUDGMENT:	2 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 332
JUDGMENT APPEALED FROM:	DPP v Madafferi (Unreported, County Court of Victoria, Judge Mason, 26 August 2014)

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CRIMINAL LAW – Appeal – Bail – Application for bail pending appeal against conviction – Whether exceptional circumstances exist – Non-parole period expired but applicant refused parole – Applicant to have served substantial term of imprisonment before appeal heard – Significant delay in hearing of appeal caused by conduct of the Chief Commissioner of Victoria Police – Prospects of success on appeal of no assistance in establishing exceptional circumstances – Exceptional circumstances not made out – Re Zoudi (2006) 14 VR 580, Cvetanovski v The Queen [2020] VSCA 126 applied – Agresta v The Queen [2020] VSCA 334, Zirilli v The Queen [2020] VSCA 261, Visser v DPP (Cth) [2020] VSCA 327, R v Szabo [2001] 2 Qd R 214, considered – Application for bail refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston and Mr L Cameron	Galbally Parker Lawyers
For the Respondent	Mr L Crowley QC with Ms A Martin	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

EMERTON JA
OSBORN JA:

Introduction

This is an application for bail made under s 310 of the Criminal Procedure Act 2009 pending appeal against conviction.

On 26 August 2014, the applicant was convicted of one charge of trafficking a controlled drug in a commercial quantity, contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced to 10 years’ imprisonment with a non-parole period of seven years.

In March 2020, the applicant applied for leave to appeal his conviction based on matters revealed, in part, in the hearings of the Royal Commission into the Management of Police Informants. Since filing his application for leave to appeal his conviction, the applicant has been engaged in a protracted process of obtaining records from Victoria Police concerning persons involved in his legal representation at the time of his arrest and subsequently.

In August 2021, the applicant became eligible for parole, but parole was refused.

On 7 September 2021, the applicant filed an application for bail on the following grounds:

1. Exceptional circumstances exist which justify a grant of bail; and
2.The applicant is not an unacceptable risk of flight, reoffending or interference with witnesses if granted bail.

The application for bail is supported by two affidavits made by the applicant’s current solicitor, Ruth Angharad Ellis Parker, the first affirmed on 6 September 2021, the second on 10 November 2021. Ms Parker deposes to the difficulties the applicant has experienced and continues to experience in preparing his case for the appeal, his prospects of succeeding in the appeal, and his personal circumstances, including the hardship he is experiencing in prison.

The respondent opposes…

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 Queen

Details

AGLC: Madafferi v The Queen [2021] VSCA 332
Case: [2021] VSCA 332
Decision Date: 2 December 2021

CaseChat Overview and Summary

The matter of Madafferi v The Queen involved an application for bail pending the hearing of an appeal against conviction. The applicant, Madafferi, sought bail due to the significant delay in the appeal hearing, which was exacerbated by the conduct of the Chief Commissioner of Victoria Police. The Victorian Court of Appeal was tasked with determining whether exceptional circumstances existed to justify the grant of bail. The central issue was whether the substantial delay in the appeal, coupled with the applicant having already served a significant term of imprisonment, constituted exceptional circumstances warranting bail.

The court examined several legal principles and precedents to address this issue. It considered the criteria for exceptional circumstances, which were articulated in previous cases such as Re Zoudi, Cvetanovski v The Queen, Agresta v The Queen, Zirilli v The Queen, Visser v DPP (Cth), and R v Szabo. The court noted that the applicant’s prospects of success on appeal were not a relevant factor in establishing exceptional circumstances. Instead, the court focused on the length of time the applicant had already spent in custody and the reasons for the delay in the appeal hearing. Despite the significant delay and the time served, the court found that these factors did not amount to exceptional circumstances. It concluded that the applicant had not demonstrated sufficient grounds to warrant the grant of bail pending the appeal.

Consequently, the Court of Appeal dismissed the application for bail. The reasoning hinged on the established principles that the applicant's prospects on appeal and the length of time served, while relevant, did not constitute exceptional circumstances under the applicable legal standards. The court maintained that the applicant had not satisfied the stringent criteria necessary for bail in such cases. The final orders were that the application for bail was refused, and the applicant remained in custody pending the outcome of the appeal.

Orders