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Madafferi v The Queen

Madafferi v The Queen

Case [2021] VSCA 1 15 January 2021

Appeal

Public Interest Immunity

Criminal Procedure

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0045

FRANCESCO MADAFFERI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	EMERTON, WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2020
DATE OF JUDGMENT:	15 January 2021; First revision 5 February 2021 to remove redactions at [112] and [114].
MEDIUM NEUTRAL CITATION:	[2021] VSCA 1

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant seeks documents from Chief Commissioner of Victoria Police that would reveal whether applicant’s former solicitor was police informer – Whether documents protected by public interest immunity – Whether applicant has a legitimate forensic purpose in seeking production of documents – Legitimate forensic purpose established – Former solicitor now deceased – Whether disclosure of former solicitor’s status would result in ‘chilling effect’ deterring potential informers – No allegation of risk to safety of solicitor’s family or associates – Public interest in disclosure – Chief Commissioner’s public interest immunity claim rejected – Criminal Procedure Act 2009, s 317; Evidence Act2008, s 130.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Madafferi	Ms C A Boston with Mr L Cameron	Condello Lawyers
For the Director of Public Prosecutions (Cth)	Mr M R Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Ms M Pekevska and Ms K Chan	Mr M Hocking, Victorian Government Solicitor
As Amici Curiae	Mr C T Carr SC with Ms R Shann and Ms K E Foley

EMERTON JA
WEINBERG JA
OSBORN JA:

Introduction

This is an application by the Chief Commissioner of Victoria Police for a ruling that he not be required to produce documents to the applicant pursuant to a proposed order under s 317 of the Criminal Procedure Act 2009 (the ‘PII application’). The Chief Commissioner argues that any relevant documents or information in his possession are protected from disclosure by public interest immunity.

The Chief Commissioner is not a party to the proceeding in which the PII application is made, which is an application for leave to appeal a 2014 conviction for drug trafficking. The application for leave to appeal has been brought by Francesco Madafferi (‘Madafferi’), principally prompted by revelations that his former barrister, Ms Nicola Gobbo (‘Gobbo’), was a registered informer with Victoria Police. Madafferi has made a request for documents concerning interactions between his former solicitor, Joseph ‘Pino’ Acquaro (‘Acquaro’), which has generated the PII application. Madafferi believes that Acquaro was also a police informer at certain relevant times, and that, accordingly, he did not receive independent legal advice from both his solicitor and his barrister.

The Commonwealth Director of Public Prosecutions (‘CDPP’) is the respondent to the application for leave to appeal, but has not taken an active part in the PII application.

For the reasons that follow, we have determined that documents revealing that Acquaro gave information to Victoria Police in 2014 are not protected by public interest immunity. We therefore decline to make the…

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 1
Case: [2021] VSCA 1
Decision Date: 15 January 2021; First revision 5 February 2021 to remove redactions at [112] and [114

CaseChat Overview and Summary

The appellant in this case sought leave to appeal against his conviction for various drug offences. The primary issue before the court was whether documents held by the Chief Commissioner of Victoria Police, which may have revealed whether the appellant’s former solicitor was an informer for the police, were protected by public interest immunity. The appellant argued that the disclosure of these documents would assist in his appeal, as it would help to establish whether there was any impropriety in the conduct of his former solicitor.

The court considered the principles governing public interest immunity and whether the appellant had a legitimate forensic purpose in seeking the documents. The court found that the appellant had established a legitimate forensic purpose as the former solicitor was now deceased, and there was no allegation of a risk to the safety of the solicitor’s family or associates. The court also considered the public interest in disclosure, and rejected the Chief Commissioner’s claim of public interest immunity. The court held that the documents should be disclosed to the appellant.

The court further held that the disclosure of the former solicitor’s status as an informer would not result in a ‘chilling effect’ deterring potential informers, as there was no evidence to suggest that such a disclosure would have that effect. The court found that the public interest in ensuring that justice is done in individual cases outweighed any potential detriment to the public interest in maintaining a confidential informers’ scheme. The court granted the appellant leave to appeal against his conviction, subject to certain conditions.

Orders