Madafferi v The Queen

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 ruling sought by the Chief Commissioner.

The Chief Commissioner sought a similar ruling that documents concerning Acquaro were protected by public interest immunity in an application for leave to appeal against conviction brought by another of Acquaro and Gobbo’s clients, Saverio Zirilli. This judgment can be read in conjunction with the judgment of the differently constituted Court in that proceeding.[1]
[1]Zirilli v The Queen [2021] VSCA 2 (McLeish, Weinberg and Emerton JJA).

Background

On 26 August 2014, Madafferi 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.[2]
[2]DPP v Madafferi (County Court of Victoria, Judge Mason, 17 December 2014).

Madafferi was arrested and charged with the trafficking offence in August 2008 as part of an investigation by the Australian Federal Police (‘AFP’) known as ‘Operation Inca’. The prosecution case at trial was that, between 12 February 2008 and 7 August 2008, Madafferi trafficked 57,000 MDMA tablets with a total pure weight of 5.643 kilograms and a value of approximately $473,500. The drugs trafficked by Madafferi were alleged to have been imported by Pasquale Barbaro, as head of a drug syndicate, and others. It was not alleged that Madafferi was involved in the importation of the drugs. Police surveillance showed Madafferi in Barbaro’s company as cash and boxes allegedly containing drugs were exchanged. Business records seized from the bedroom of Barbaro and his associate, Sharon Ropa, were said to document the sale of drugs to Madafferi and intercepted telephone calls and text messages were said to reveal coded conversations concerning Madafferi.

Madafferi’s defence at trial was that he was not involved in the trafficking of any drugs.

From 1998 until late 2013, Madafferi was represented by Acquaro and the firm of which he was the principal, Acquaro & Co. Acquaro had originally represented Madafferi in a very drawn out immigration matter that ultimately went to the High Court of Australia. From August 2008, when Madafferi was charged with the trafficking offence, until late 2013, Acquaro conducted his defence to the trafficking charge (the ‘Inca proceeding’).

Madafferi’s solicitors have filed affidavit material deposing to Madafferi’s instructions over the five year period during which Acquaro represented him in the Inca proceeding. Acquaro not only took instructions from, and advised, Madafferi about the conduct of the Inca proceeding, but also introduced Gobbo to him. Madafferi says that he met with Gobbo on a number of occasions in 2008 and 2009 and that he provided instructions to Acquaro and Gobbo and obtained advice from them. They had detailed discussions about the conduct of the Inca proceeding. Madafferi continued to be advised and represented by Acquaro in respect of the Inca proceeding over the following four years.

In late 2013, the relationship between Madafferi and Acquaro broke down and Madafferi ceased to be represented by Acquaro. He was represented by different legal practitioners at his trial in July and August 2014.

On 15 March 2016, Acquaro was shot dead outside the Gelobar Café in Lygon Street, East Brunswick. Vincenzo Crupi has been charged with his murder and will shortly stand trial.

In 2018, it emerged publicly that Gobbo was a registered police informer who repeatedly gave information to Victoria Police about her own clients. Her conduct, and that of members of Victoria Police, has been the subject of the Royal Commission into the Management of Police Informants (the ‘Royal Commission’).

In her opening statement, Commissioner Margaret McMurdo AC made reference to police informers other than Gobbo, including ‘a lawyer, now deceased’. That lawyer was given the pseudonym ‘Mr McCallum’ in the Royal Commission hearings. A number of police officers gave evidence about their dealings with Mr McCallum, who they said had provided information to them. Mr McCallum’s identity remains confidential.

It has not been officially confirmed that Acquaro was a registered police informer, although he has been named as such in numerous newspaper articles and other publications.

On 11 March 2020, Madafferi filed a notice of application for leave to appeal against his conviction on a single ground:

A substantial miscarriage of justice has been occasioned by reason of the subversion of the Applicant’s right to a fair trial, in circumstances where, unbeknownst to the Applicant:
(a)the Applicant provided instructions to, and was given advice by, at least one legal practitioner who was also a registered police informer; and/or
(b)investigators failed to disclose that Victoria Police used information provided by one of those legal practitioners in order to obtain ostensibly inculpatory evidence against the Applicant; and/or
(c)the Australian Federal Police failed to disclose that Victoria Police had any involvement in the investigation of the matter.

In the written case supporting his notice of application for leave to appeal, Madafferi submits that he was denied a fair trial for three reasons. First, he says that he was entitled to have confidence that the legal practitioners taking instructions from him and providing advice to him were acting in his interests as opposed to those of the police. However, unbeknown to him and the jury that was charged with determining his guilt or innocence, at least one of his legal practitioners was a registered police informer. Secondly, it has emerged that it was the conduct of Gobbo which brought the importation of the drugs to the attention of police in the first place, in that Ms Gobbo passed on to Victoria Police a bill of lading which she had received from another of her clients, Rabie ‘Rob’ Karam, and continued to provide information to Victoria Police in relation to the importation throughout their investigation. However, none of this was revealed to his defence at or before trial, denying him bases upon which to challenge the admissibility of evidence. Thirdly, he says that investigators failed to comply with their obligation to disclose that Victoria Police had involvement in the Operation Inca investigations or that Victoria Police and the AFP worked collaboratively in the investigation.

In light of the revelations regarding Gobbo and the unnamed deceased lawyer, Madafferi’s solicitors requested the production of documents from the Victorian Director of Public Prosecutions, the CDPP, the Chief Commissioner, the Chief Commissioner of the AFP, the office of the Chief Examiner and the Independent Broad-based Anti-corruption Commission. They foreshadowed that it might become necessary to seek orders pursuant to s 317 of the Criminal Procedure Act for the production of documents and that the revision of Madafferi’s written case might become necessary following the receipt of such materials.

On 24 May 2020, Madafferi applied for orders that the Chief Commissioner produce documents, exhibits or other things connected with the Inca proceeding, including, relevantly:

1.…
(e)All documents relating to information exchanged between Joseph Acquaro (deceased), and Victoria Police concerning the Applicant, shipment of container MEDU1250218 containing tomato tins on board vessel MV Monica from Naples, Italy; or drug trafficking.
(f)All documents relating to information exchanged between Joseph Acquaro (deceased) and Victoria Police concerning the Applicant.
(g)All documents relating to the question of whether the Applicant’s solicitor Joseph Acquaro (deceased) was a police informer or, in the alternative, a statement from Victoria Police setting out whether Joseph Acquaro was ever a police informer (registered or otherwise), and the time period and circumstances of same.

On 24 July 2020, the Chief Commissioner relevantly applied for an order in the following terms:

The Court notes the general policy of the Chief Commissioner to neither confirm nor deny whether any person was/is a police informer whenever this issue arises and orders that the following information and documents are immune from disclosure on the ground of public interest immunity:
1.1the existence or non-existence of any information pertaining to whether or not Joseph Acquaro was a ‘police informer’, including any confirmation that Mr Acquaro was not a ‘police informer’, that is responsive to orders 1(e), (f) and (g) sought by Francesco Madafferi’s application filed 24 May 2020;
…

The PII application included further proposed orders designed to protect the confidentiality of documents filed and matters raised in the application itself, including that the hearing of the application be conducted in closed court. It was supported by an open affidavit of Detective Acting Superintendent Damien Jackson (‘Jackson’) made on 24 July 2020 deposing that Victoria Police routinely makes application for rulings on the ground of public interest immunity whenever and wherever documents are sought as to the question of whether a particular person is or is not a ‘police informer’ or has or has not ‘exchanged’ information with Victoria Police. It was submitted that the effectiveness of the general policy in protecting the safety of perceived informers, irrespective of whether or not they are in fact informers, depended on consistent application of that policy.

In open submissions in support of the PII application, the Chief Commissioner also outlined the basis for the PII application to be heard in closed court and in the absence of Madafferi and his legal representatives. Relying on AB v CD & EF,[3] he submitted that, in an exceptional case, it may be necessary for a court to resolve a question of public interest immunity without notice to a party such as the convicted person, because notice of an application would itself destroy the immunity.
[3]AB (a pseudonym) v CD (a pseudonym) & EF (a pseudonym); EF (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) & AB (a pseudonym) [2017] VSCA 338, [65] (Ferguson CJ, Osborn and McLeish JJA) (‘AB v CD & EF’).

Anticipating that at least part of the PII application would be heard in closed court and without a contradictor, the Court on its own motion requested assistance from the Direct Pro Bono Referral Scheme between the Supreme Court and Victorian Bar for the services of senior and junior counsel to act as amici curiae.

Amici were duly appointed and given access to all relevant materials, including the plethora of confidential materials filed by the Chief Commissioner, and were briefed to appear at the hearing of the PII application to make oral submissions. They filed and spoke to both open and confidential submissions and responded to the submissions made by the Chief Commissioner.

In the event, part of the PII application was heard in open court and part of it in closed court with only the Chief Commissioner’s legal representatives and the amici present.

Madafferi was represented by counsel who filed written submissions and appeared and made oral submissions in the open hearing. The CDPP, as the respondent to Madafferi’s application for leave to appeal his conviction, was represented by counsel at the open hearing, but made no submissions.

Legal framework

It is common ground that, by reason of s 131A of the Evidence Act 2008, the PII application is to be determined in accordance with s 130 of that Act. Section 130(1) provides:

If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.

Section 130(4)(e) provides that information or a document is taken to relate to ‘matters of state’ if adducing it as evidence would ‘disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State’. There is no dispute that information or documents that would disclose whether Acquaro was a police informer relate to ‘matters of state’.

Likewise, there is no dispute as to the competing public interests in this case. They are:

(a) on the one hand, the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence, including the ability of police to protect informers (whether actual or perceived); and

(b) on the other hand, the interest in disclosing information that a person asserts may assist them in seeking to quash a conviction.

Section 130(5) sets out a list of the matters a court is to take into account for the purpose of the balancing exercise in s 130(1). They are:

(a) the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding―whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused―whether the direction is to be made subject to the condition that the prosecution be stayed.

The construction of s 130 is informed by the common law. In Ryan v State of Victoria,[4] Tate JA recognised that there ‘is considerable support in the authorities for the view that the principles governing public interest immunity under s 130 of the Act reflect those applicable at common law; what differences exist are of no practical significance.’[5] In Attorney General (NSW) vLipton,[6] Basten JA stated that the balancing exercise was not to be constrained by unexpressed rules derived from the general law, however, he did so in the context of a request for documents for a sentence appeal where the respondent had pleaded guilty and in response to a submission that the court was constrained by a common law rule that where non-production was necessary to protect the identity of an informant, the only available exception was the public interest in an accused person properly defending themselves against conviction. In stating that the balancing exercise was not constrained in the manner contended for, like Tate JA, his Honour observed the same result might be expected on either approach.[7]
[4][2015] VSCA 353.
[5]Ibid [58].
[6](2012) 224 A Crim R 117; [2012] NSWCCA 156.
[7]Ibid 187–8 [39].

The common law makes clear that there is a well-recognised public interest in maintaining the anonymity of police informers. There is a significant body of law protecting from disclosure the identities of police informers. The importance of protecting the anonymity of police informers as an aspect of the public interest has been widely accepted.

In Jarvie v Magistrates’ Court of Victoria,[8] Brooking JA considered (albeit in obiter remarks) when the identity of an informer might be disclosed, concluding that a test laid down by Vincent J in Cerrah v The Queen[9] should be understood as requiring it to be demonstrated that ‘there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the defendant in answering the case against him.’[10] Brooking JA said:

The fact that there is good reason to think that disclosure of the informer’s identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.[11]

[8][1995] 1 VR 84 (‘Jarvie’).

[9](Victorian Court of Appeal, Young CJ, Vincent and Crockett JJ, 6 October 1988).

[10]Jarvie [1995] 1 VR 84, 89–90.

[11]Ibid 90.

Having regard to this passage, the amici submitted that the weight that must be given to the public interest in the administration of criminal justice means that the public interest in favour of disclosure will necessarily prevail if there is good reason to think that disclosure may be of substantial assistance to the accused.

Certainly, this is consistent with the following observation by Brooking JA:

It may be suggested that the notion of a balancing of relevant factors pointing in one direction against relevant factors pointing in the other is not consistent with the proposition that identity must be disclosed if there is good reason to think that disclosure may be of substantial assistance to the defendant, and that the question must always be the general one whether the public interest will be better served by disclosure or non-disclosure. On this approach it might be said that the degree of possible prejudice from non-disclosure to which a given defendant may be required to submit may depend on the strength of the considerations favouring non-disclosure. But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combatting the case for the prosecution.[12]

[12]Ibid.

His Honour continued:

To say that in such a case no balance is called for is to say that, whatever the strength of the case in favour of non-disclosure, it cannot prevail. But a balancing has still been carried out, and effect has been given to an overriding principle that the ‘right’ to a fair trial must not be substantially impaired.[13]

[13]Ibid (citations omitted).

Brooking JA’s remarks were taken up by this Court in AB v CD & EF,[14] which reformulated the test in the context of criminal appeals as follows:

[T]he test formulated by Brooking J in Jarvie may be reformulated as requiring it to be demonstrated that there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the Convicted Individuals in seeking leave to appeal and appealing their convictions. [15]

[14][2017] VSCA 338.

[15]Ibid [59] (Ferguson CJ, Osborn and McLeish JJA) (citations omitted).

In broad compass, the Chief Commissioner submits that whether the PII documents are immune from disclosure is to be determined by balancing the relevant public interests, but where disclosure of the identity of an informer is in issue, the test for the limb that favours disclosure is as described in Jarvie and reformulated by this Court in AB v CD & EF.

The Chief Commissioner therefore submits that the reformulated test expressed in AB v CD & EF means that ‘substantial assistance’ must be shown (at a minimum) before an informer’s identity becomes susceptible to disclosure. This may be contrasted with the interpretation advanced by the amici, which requires disclosure once the possibility of substantial assistance has been met.

We consider that any debate about whether the ‘substantial assistance’ test imposes a threshold to be met before disclosure can be contemplated or a trigger requiring disclosure to be made is a sterile one, having regard to the need to carry out a balancing exercise. Where the non-disclosure of evidence may substantially impair the ability of a defendant to answer the prosecution case in a criminal trial, the balance is very likely to favour disclosure, even where the identity of a police informer is in issue. Conversely, where there is no good reason to think that the disclosure of the identity of a police informer may be of substantial assistance to the defence, the balance is unlikely to favour disclosure. It is accepted that there is a strong public interest in protecting the anonymity of police informers, given the importance of intelligence to policing and the ‘chilling effect’ that disclosing identities may have on such intelligence gathering.

The Chief Commissioner asked the Court to follow the approach taken by McHugh JA in Cain v Glass (No 2),[16] in which his Honour held that, having regard to the ‘exalted’ or ‘paramount’ position of the rule protecting the anonymity of informers (referred to as the ‘informer rule’), there is no need to weigh competing public interests when a claim is made that the name of a police informer should be disclosed.[17] We decline to follow his Honour’s decision in that case. Section 130(1) of the Evidence Act by its express terms requires the Court to carry out a balancing exercise. Moreover in AB v CD & EF (which was not governed by s 130(1)), this Court confirmed that the common law authorities did not remove the requirement to carry out the balancing exercise.[18] The High Court upheld this Court’s ultimate decision and had no hesitation in affirming that the identity of the informer should be revealed.[19]
[16](1985) 3 NSWLR 230.
[17]Ibid 248.
[18][2017] VSCA 338, [59] (Ferguson CJ, Osborn and McLeish JJA).
[19]See AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) (2018) 93 ALJR 59; [2018] HCA 58 (‘AB & EF v CD’).

It follows that the task of this Court in the PII application is to balance the competing public interest considerations (the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence and the public interest in disclosing information that a person asserts may assist them in seeking to quash a conviction), having regard to whether there is good reason to think that the disclosure of the PII documents (or any part of them) may provide substantial assistance to Madafferi in his application for leave to appeal and, if leave is granted, in his appeal.

As a final matter, we observe that while the Court is required to balance the public interests which are engaged in the particular circumstances, the Court is only to balance those public interests that are genuinely engaged. A claim for public interest immunity must be ‘articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy’.[20] Insofar as it is appropriate to speak of an onus in this context, we affirm what was said by Kyrou J in Director of Public Prosecutions v Debono:

The onus lies upon the party seeking to prevent disclosure of information or a document to establish that the public interest in preserving the secrecy or confidentiality outweighs the public interest in producing that information or document.[21]
[20]State of Victoria v Brazel (2008) 19 VR 553, 575 [68]; [2008] VSCA 37 (Maxwell P, Buchanan and Vincent JJA).
[21](2012) 225 A Crim R 585, 591 [28]; [2012] VSC 476.

Madafferi’s materials and submissions

Madafferi filed written submissions[22] and relied on three affidavits made by his current and former solicitors: the affidavit of Stefanie Chillico sworn on 10 March 2020;[23] and three affidavits of Kayla Balassone made on 13 November 2020 and 16 November 2020 and 18 November 2020 respectively. The submissions and affidavits were made on a limited basis, as Madafferi’s legal representatives did not have access to confidential materials filed by the Chief Commissioner.
[22]Dated 13 November 2020.
[23]Made in support of Madafferi’s application for an extension of time to file a notice of application for leave to appeal.

In her first affidavit, Ms Balassone has listed the matters in which Acquaro and/or the firm of Acquaro & Co acted or was on the record as having acted for Madafferi, including a very large number of immigration matters and the Inca proceeding, being the proceeding in respect of which Madafferi now seeks leave to appeal against conviction. She deposes that Acquaro & Co represented Madafferi in the Inca proceeding and that, notwithstanding the involvement of other lawyers in the firm, Acquaro had the primary care and conduct of this matter. On the day of Madafferi’s arrest for drug trafficking on 8 August 2008, Madafferi contacted Acquaro and sought advice from him while he was still in the custody of the AFP. Acquaro & Co was thereafter retained to make an application for bail, which was successful, and continued to act on behalf of Madafferi in the Inca proceeding until on or around 12 September 2013. This period included acting in the committal proceedings.

Ms Balassone has exhibited documents from the file maintained by Acquaro & Co in relation to the Inca proceeding that illustrate Acquaro’s involvement in preparing Madafferi’s defence in the Inca proceeding, including:

(c) unsigned additional submissions made in response to the prosecution’s response to the defendant’s original submissions in support of Madafferi’s application that he be discharged at committal, dated 22 December 2010; and

(d) an unsigned defence brief response dated 1 February 2013 (the ‘defence response’).

To her second affidavit, Ms Balassone has exhibited transcript from the Royal Commission hearings and two media articles which make reference to Acquaro’s role as a police informer.[24]
[24]Anthony Dowsley and Patrick Carlyon, ‘How a coffee date with Nicola Gobbo sealed Rob Karam’s fate’, Herald Sun (online, 28 August 2020); Chris Vedelago, ‘Was slain gangland lawyer another informer? Police don’t want to say’, The Age (online, 6 November 2020).

In summary, Madafferi submits that if his solicitor was, unbeknown to him, in fact assisting the police, he would have extremely strong prospects of succeeding on appeal, given the decision of the High Court in AB & EF v CD[25] and the decisions of this Court in Orman v The Queen,[26] Cvetanovski v The Queen,[27] and Roberts v The Queen.[28] Madafferi submits that based on what has been revealed to the Royal Commission, it is well open to infer that his solicitor from approximately 1998 until late 2013, Acquaro, was ‘Mr McCallum’, the lawyer identified as a police informer in the Royal Commission hearings.
[25](2018) 93 ALJR 59; [2018] HCA 58.
[26](2019) 59 VR 511; [2019] VSCA 163.
[27][2020] VSCA 272.
[28][2020] VSCA 277.

Madafferi submits that the public interest in disclosure necessarily involves the fundamental public interest in maintaining public confidence in the integrity of the criminal justice system. Madafferi submits that the words ‘a person asserts may assist’ are necessary because, until the material is disclosed, there is no way for him to know whether the information will assist him in his appeal. Moreover, the words contemplate that further evidence may (and in this case will) ultimately be before the Court upon the hearing of the application for leave to appeal against conviction.

The Chief Commissioner’s materials and primary submissions
The affidavits

In addition to Jackson’s open affidavit, the Chief Commissioner relies on three confidential affidavits of Jackson sworn on 24 July 2020, 13 November and 17 November 2020 respectively, and a confidential affidavit of Acting Commander Scott Mahoney made on 28 September 2020. These confidential affidavits exhibit documents recording or evidencing communications between Acquaro and members of Victoria Police in 2008 and again in 2014, after he had ceased acting for Madafferi. The Chief Commissioner has referred to these documents as the ‘PII documents’ and we will do likewise.

Belatedly, and well after the hearing, the Chief Commissioner filed a fourth confidential affidavit of Jackson sworn on 17 December 2020 exhibiting further PII documents that had not initially been thought to fall within the terms of the request under s 317 of the Criminal Procedure Act. These documents primarily record police action taken on information provided by Acquaro about criminal activity that was then ongoing or had taken place in the relatively short period since Acquaro had ceased acting for Madafferi.

The Court was also provided on a confidential basis with Chapter 24 of the submissions of counsel assisting the Royal Commission concerning police interaction with ‘Mr McCallum’ and the Chief Commissioner’s response to Chapter 24.

The PII documents were created in the context of, or relate to, two discrete sets of interactions between Acquaro and Victoria Police, some years apart. Acquaro had a series of contacts with police in 2008 (while he was acting for Madafferi in unrelated matters such as the immigration matters) and a second series of contacts in the first half of 2014, when he was no longer acting for Madafferi, and shortly before Madafferi’s trial. Madafferi featured only incidentally in the 2008 discussions. However, he featured prominently in the 2014 discussions. By this stage, Acquaro had had a serious falling out with Madafferi, apparently because Acquaro resented his sons being brought under Madafferi’s (criminal) influence.

The 2008 interactions arose as a result of police contacting Acquaro and seeking to elicit information about the so-called ‘gangland killings’. The 2014 interactions arose in the context of ‘shoot-ups’ of the Woodstock pizza shops in Carlton and Moonee Ponds (the ‘Woodstock shootings’) and an article that appeared in The Age newspaper linking these crimes to the Calabrian Mafia. In 2014, Acquaro initiated contact with the police. He described his falling out with Madafferi, expressed his anger about the manner in which Madafferi had drawn his sons into his sphere of influence, and reported that Madafferi was standing over traders at the wholesale fruit and vegetable market in the company of a man with a gun. He also reported a threat to his own life.

In both 2008 and 2014, Acquaro was assessed for registration as a police informer. In his first confidential affidavit,[29] Jackson deposes that, during his first contacts with police in 2008, Acquaro was given human source registration number ‘RFA06/08’. In 2014, he was given the human source registration number ‘F710FDB’. However, both files remained in the assessment phase and did not proceed to formal registration. Acquaro was never formally approved or registered as a human source, essentially because he was considered to be unreliable and prone to leaking to the press.
[29]Sworn 24 July 2020.

Further, in his first confidential affidavit, Jackson deposed that none of the information provided by Acquaro in 2008 was disseminated within Victoria Police. The position with respect to the 2014 interactions was more complex. Some ‘Information Reports’ were generated and circulated within Victoria Police from the second period of contact in 2014. The Chief Commissioner submits that these Information Reports describe exhaustively the dissemination of the information from Acquaro, which he says was extremely limited and had no impact on the Inca proceeding.

However, in his fourth confidential affidavit, Jackson has exhibited internal Victoria Police communications concerning the use of information given by Acquaro about Madafferi’s involvement in the Woodstock shootings and his extortion of traders at the wholesale fruit and vegetable market. Victoria Police investigated the allegations. Madafferi’s alleged standover activity gave rise to ‘Operation Safranines’. The Woodstock shootings were the subject of ‘Operation Shreddar’, and more generally, there was an investigation into organised crime within the Italian community code-named ‘Operation Palindrome’. It is apparent that some of the information obtained in the course of these operations was shared with the AFP.

The PII documents

The PII documents fall broadly into three categories: first, documents recording interactions between Acquaro and Victoria Police in 2008 and 2014 and steps taken by police to register him as an informer; secondly, evidence given to the Royal Commission about those events; and, thirdly, documents recording actions taken by Victoria Police as part of Operations Safranines, Shreddar and Palindrome on the basis of information provided by Acquaro about Madafferi.

The PII documents are listed in the Appendix. For present purposes, it is sufficient to draw attention to the following documents that record or refer to communications between police and Acquaro in March, April and May 2014:

(a)‘Source Contact Reports’ summarising contacts between Acquaro and police on eight occasions in 2014.
Three of these contacts were face to face meetings: on 21 March 2014 (involving police officers ‘X1’ and ‘Y1’), on 4 April 2014 (involving Y1 and police officer ‘Z1’) and on 30 May 2014 (again involving Y1 and Z1).
(b)Transcripts of audio recordings of the three meetings summarised in the Source Contact Reports referred to in (a) above (the ‘2014 transcripts’).
(c)Extracts from records in the Victoria Police ‘Interpose’ database containing the same information as the Source Contact Reports referred to in (a) above, with additional information recorded by members of Victoria Police.
(d)A bundle of ‘Information Reports’ recording the dissemination of selected information provided by Acquaro in 2014 to work units within Victoria Police.

We will refer to the documents in (a), (c) and (d) as the ‘related materials’.

It will be observed that the three face to face meetings took place in the six months leading up to the commencement of Madafferi’s trial in June 2014.

The 2014 transcripts reveal that at the meeting on 21 March 2014 with X1 and Y1, X1 raised the possibility that Acquaro may have a conflict of interest after Acquaro confirmed he had previously acted as the solicitor for both Madafferi and his brother, Tony. Acquaro said he was not conflicted ‘in the sense I’m divulging anything in relation to them and I think it’s pretty obvious what — my relationship is with them or has been with them, ‘cos there’s no longer a relationship anymore … serious falling out’. When later asked by X1 whether there was a professional relationship, Acquaro answered, ‘I don’t have a professional relationship with Tony. I have a professional relationship with Frank … I’ve always said that I’m not going to infringe on my professional capacity’.

However, Acquaro spoke to police about the procedural history of the prosecutions arising out of Operation Inca and who he acted for after the arrests on 8 August 2008. He described the amount of material in the brief and the fact that much of it was generic. He did so in the context of explaining that he fell out with Madafferi in part because Madafferi mistakenly believed that Acquaro was returning the (very large and generic) brief to him. In combination with the dispute about Madafferi’s malign influence over his sons, this resulted in a ‘punch up’ between Madafferi and Acquaro in the Gelobar in August 2013.

As to the conduct of the Inca proceeding by the prosecution, Acquaro told police that Madafferi ‘could have won this case’ because the AFP were ‘amateurish’ and had ‘a couple of young girls who are doing interpretation’. He continued:

Mate, I can ‘expel’ them in about three seconds, and if that’s the case, I can just destroy (inaudible). Thank god I’m out.
…
It’s not going to happen. But I’m telling you, it’s – it’s a problem.
…
He could win that case on that basis. But he’s not gonna win.
…
And as far as I’m concerned, I – I’m not gonna (inaudible).

Later in the conversation, Acquaro gave further details, including that many of the intercepted conversations asserted by the prosecution to be about drugs were actually about pumpkins.

Acquaro told X1 and Y1 that he thought Madafferi would be ‘locked up’. Referring to ‘the Inca matter’, he said that ‘It’s all wrong, it’s all wrong’. When asked what the ‘wash up’ was going to be, Acquaro said:

(Inaudible) they’re all being locked up and Frank’s gonna be locked up too.

After referring to Madafferi’s forthcoming trial, X1 told Acquaro that if Madafferi was to be locked up, that would take him out of the picture to some degree in terms of his (unsavoury) influence over people, in particular, Acquaro’s sons.

During this meeting, Acquaro told the police that a charitable foundation in which Madafferi was involved was a ‘sham’. He also alerted police to an issue with Madafferi’s Australian visa that had not, according to Acquaro, been identified by authorities.

On 4 April 2014, Y1 and Z1 met with Acquaro once more to discuss Madafferi.

The 2014 transcripts show that Acquaro again expressed the view that he was ‘not breaching any confidentiality’ because ‘none of them are my clients’. Y1 told Acquaro that police were keen to send Madafferi to gaol and that they had an analyst ‘chasing up all that immigration stuff further’. Y1 told Acquaro that Acquaro would ‘probably be able to give us the best advice on the situation knowing how the system works’.

The Inca proceeding was discussed, with Acquaro observing, ‘We shouldn’t really talk on it because we don’t want to breach anything’. However, he identified that the prosecution had ‘cut and paste’ part of the brief using the same conversation for one accused as for another, even where the same conversation was relied on as code for different drugs. Acquaro said that he was the only person who knew about this, as he had at one stage acted for ten of those charged. He stated that a lawyer acting for just one of those charged would not pick it up. Y1 opined that it would be a good thing if ‘Frank’ got convicted, hopefully sooner rather than later.

Later, Acquaro referred to his need to ‘get rid of these people’ and he was told by the police that their priority was to lock up ‘the Madafferi boys’ and ‘Frank and Tony as well’. Towards the end of the conversation, Acquaro stated that he felt responsible for creating a monster (namely, Madafferi) to which Y1 responded, ‘All right. Now you can destroy it’.

On 30 May 2014, Y1 and Z1 again met with Acquaro. Acquaro encouraged them to follow up the visa issues. Y1 told Acquaro that police had made enquiries with the immigration department. Acquaro provided further details about a defect in the paperwork and gave Y1 the names of people who worked on the matter for the Australian Government Solicitor.

In this conversation, the Inca proceeding and the question of Madafferi’s liberty were raised in the following exchange:

Y1: Bloody hell. Ummm — all right. Well, ummm, Frank's trial starts the 10th of June —

Acquaro: Yeah (inaudible)
Y1: The 10th of June, if there's no, ummm, delays or hiccups, but they're [sic] probably won't be, I would imagine they want to get on with it straight away.

Acquaro: I don't know what his plans would be.
Z1: Yeah.
Acquaro: It starts on the 8th — there's a mention on in the afternoon, but then it starts on the 11th.

Z1: Yep.
Acquaro: So —
Y1: All right. Well, it's our plan, Pino, to, ummm, interfere with Frank before that comes about, perhaps have bail refused. However, if you feel that's gonna cause more problems for you than it solves, ummm —

Acquaro: (inaudible)
Y1: I'll reconsider.
Acquaro: Because he's the — he's the loose cannon for everybody (inaudible)

Z1: Yep.

Primary submissions

In addition to his open submissions,[30] the Chief Commissioner has filed confidential written submissions[31] and further confidential submissions[32] in reply to the confidential submissions of the amici curiae.
[30]Open submissions dated 24 September 2020 and supplementary open submissions dated 20 October 2020.
[31]Dated 24 July 2020.
[32]Dated 17 November 2020.

The Chief Commissioner submits that an applicant seeking disclosure of information or documents must first establish a legitimate forensic purpose and that the Court is not required to embark on the balancing exercise in s 130 of the Evidence Act if this first threshold is not met. He submits that Madafferi’s claims regarding Acquaro’s conduct towards him do not rise above assertion and that there is no basis for contending that release of the PII documents or any part of them will be of substantial assistance to Madafferi in the conduct of his appeal.

As to the public interest in non-disclosure, the Chief Commissioner emphasises the importance of police informers in criminal intelligence gathering, the longstanding protections given to informers by the law and the ‘chilling effect’ that disclosing the identity of informers may have on the willingness of people to come forward in the future to provide information to police on a confidential basis. In his third confidential affidavit,[33] Jackson deposes to his belief that the ability of Victoria Police to recruit and use human sources is inherently dependent on potential informers believing that their identity will remain confidential and that their personal safety will be of paramount importance to Victoria Police and will be protected. He deposes to the existence of anecdotal evidence that potential informers have specifically referred to Gobbo’s cooperation becoming public as a reason why they are reluctant to provide information to Victoria Police and refers to statistics showing a fall in the number of human sources recruited between May 2019 and May 2020. Generally, Jackson emphasises the reliance by Victoria Police on the use of human sources to provide information in relation to criminal activity, particularly in relation to serious and organised crime. The intelligence gathering methodology involving the cultivation of community contacts, including in the criminal world, and building relationships of trust and confidence, is an important part of deterring, preventing and suppressing criminal activity.
[33]Sworn 17 November 2020.

However, there was no evidence about harm that could come to surviving members of Acquaro’s family or others if his identity as an informer was revealed and senior counsel for the Chief Commissioner expressly disavowed any reliance on such harm as a factor militating against disclosure.[34]
[34]The Chief Commissioner applied for leave to file and rely on a further affidavit of Scott Mahoney after the conclusion of the hearing, in which Mr Mahoney sought to raise the possibility of harm. Leave to file the affidavit was refused.

Amici submissions

The amici curiae presented submissions that were, in substance, opposed to those advanced by the Chief Commissioner.

In addition to their open submissions, the amici filed confidential submissions[35] with a detailed chronology of events and factual matters to which they referred in argument. The amici analysed the content of the PII documents by reference to the events detailed in the chronology, which included police interactions with Gobbo, and later attempts to prevent exposure of those interactions.
[35]Dated 16 November 2020. The amici also filed confidential submissions about the additional PII documents dated 21 November 2020.

The amici distinguish between the PII documents suggesting Acquaro divulged information to police in breach of his professional obligations as a lawyer and other PII documents which do not fall into that category, such as materials showing Acquaro ‘informing’ on persons who were not his clients. They submit that in respect of the material showing Acquaro informing on people who were not his clients, there is a public interest that tends against disclosure.

The amici submit, however, that where the PII documents suggest that Acquaro divulged information in breach of his professional obligations as a lawyer — by providing confidential information about Madafferi and opinions about matters relevant to the Inca proceeding which were founded upon the knowledge obtained in the course of his retainer as Madafferi’s solicitor and provided against Madafferi’s interests — in the absence of considerations of personal safety, there is no public interest in keeping that fact from Madafferi. The amici submit that in those circumstances no balancing exercise is called for or, alternatively, that the balancing exercise is simply not reached, because there is no public interest in preserving anonymity of a lawyer who gives information to police in breach of his or her professional obligations.

The amici submit that while there is material in the PII documents suggesting that Acquaro was willing to assist police to take action against Madafferi as long ago as 2008, some doubt attaches to that material, as other material suggests Acquaro remained solidly in Madafferi’s camp until much later. They acknowledge that none of the material that has been produced shows that any willingness on Acquaro’s part to assist police bore fruit at that time. However, the 2014 communications fall into a different category. The amici submit that Acquaro’s discussions with police, as revealed in the 2014 transcripts, involved breaches of his duties of confidence and loyalty to Madafferi, his former client. Madafferi’s legal proceedings were discussed and Acquaro was asked about and freely gave information that may have been confidential, if not privileged, in relation to the conduct of the Inca proceeding and other matters. Moreover, so the amici submit, it would be open for Madafferi to argue that the general flavour of the discussions between Acquaro and the police indicated a shared desire for Madafferi to be ‘locked up’, as well as an attempt by police to convey the desirability of that outcome to Acquaro, and a cynical show of paying lip service to client confidentiality while in fact disregarding legal ethics and obligations.

According to the amici, the 2014 transcripts reveal two categories of conduct by Acquaro that involved a breach of his duties to Madafferi: first, in providing information to police that was private or confidential to Madafferi that the police did not otherwise know about, and where the provision of such information was adverse to Madafferi’s interests; and, secondly, in conveying to police his views about weaknesses in the prosecution case in the Inca proceeding.

In the first category, Acquaro gave information to police about a ‘sham’ foundation run by the Madafferi family, with Acquaro describing a particular event at the Royal Children’s Hospital that people were forced to attend. Acquaro also discussed Madafferi’s visa status and purported to give the police information about a flaw that he believed ‘no-one’s picked … up’. The amici submit that these are matters that the Court can comfortably find were confidential to Madafferi and were known to Acquaro because of his position as Madafferi’s solicitor.

As to the second type of information, namely, discussions about the weaknesses in the prosecution case in the Inca proceeding, the amici point to Acquaro’s observations about the AFP being ‘amateurish’ and the problems with the interpreting undertaken by ‘a couple of young girls’. Later, in the second meeting on 4 April 2014, Acquaro opined that the prosecution of Madafferi was not being handled properly and gave the example of the pro forma conversation that had been inserted in a number of the briefs. He said he was the only person who knew about this problem because he was the only person who initially represented 10 of the ‘tomato tins’ accused. Expressed in basic terms, Acquaro gave the police a ‘heads up’ about problems and weaknesses in the prosecution case against his former client, adopting a position hostile to Madafferi in respect of a matter in which he had previously been retained. Furthermore, he gave them damaging information about matters that they knew nothing about, telling them that the charitable foundation run by the Madafferi family was a sham and there were problems with Madafferi’s visa.

According to the amici, this is conduct about which Madafferi is entitled to be informed, as it goes to the question of whether he received independent legal advice at the time of his arrest and following, and it raises the possibility that police received an unfair advantage in the Inca proceeding. The amici submit further that it is not at all clear that the information obtained by police from Acquaro did not find its way to the AFP and others.

More broadly, the amici submit that, given the conduct revealed in the 2014 transcripts, there was an appearance that justice may not have been done, raising the argument the Inca proceeding should have been permanently stayed based on the need to maintain confidence in the wider justice system. The conduct was described by senior counsel as raising both an ‘abuse of process argument’ and a ‘fundamental miscarriage of justice argument’.

As to whether the release of the PII documents would have a ‘chilling effect’ that would dissuade informers from coming forward in the future, the amici submit that the threshold question is whether in 2020, in the circumstances of the saturation publicity around ‘Lawyer X’ and the Royal Commission, exposing the identity of a lawyer who has informed on a client (or a former client) has any real deterrent effect. The amici submit that as a result of the Royal Commission, two clear and distinct messages have been sent to potential informers: if you are a regular informer, your confidentiality is highly valued and it is in the public interest to preserve it, and it will be preserved; however, if you are a lawyer and you have breached your professional obligations to a client or ex-client, in the absence of a safety risk, you can expect your identity to be revealed, because the law does not countenance or protect this type of conduct by lawyers.

As to the evidentiary basis for the ‘chilling effect’ outlined in Jackson’s third confidential affidavit, the amici submit that anecdotal evidence that a number of potential human sources have given Gobbo’s fall from grace as the reason they are reluctant to provide information to Victoria Police is inconclusive, because it is not reported whether this led any of them to actually decline to become informers. In any event, the ‘chilling effect’ can be overcome if the prospective handler explains that Gobbo was a special case because she acted as a lawyer for the very people that she informed on and that the factors that led to the disclosure of her identity would not apply to other informers. According to the amici, the statistics that Jackson puts forward about a fall in the number of registered informers are equally inconclusive, as no conclusions can be drawn about the relationship between the numbers and the supposed ‘chilling effect’ of Gobbo’s exposure. There are many confounding variables that make the statistical information unreliable.

Chief Commissioner’s response

The Chief Commissioner submits that the only possible information given by Acquaro relevant to the Inca proceeding was Acquaro’s commentary on the prosecution’s handling of that matter, and the accuracy of the interpretation in particular. However, the substance of Acquaro’s commentary is contained in the defence response filed prior to the trial, which states:

The accused joins issue with the following evidence:
14.1The fealty of the interpretation and translation of the Calabrese dialect into English in phone intercepts, surveillance devices and the transcript of the record of interview. The accused submits that there are substantial and significant inaccuracies in the translations that have been provided.
14.2The admissibility, as against the accused, of a number of utterances by co-accused on the basis that they are merely narrative, not in furtherance of a common purpose, and thereby inadmissible as evidence. The evidence subject to challenge will be identified with particularity in due course.

According to the Chief Commissioner, what Acquaro is recorded as having told the police in 2014 is consistent with Madafferi’s defence, which was filed and served on the prosecution on Madafferi’s behalf, thus waiving any privilege or duties of confidence, if they applied in the first place.

The Chief Commissioner submits that it is doubtful whether any of the information provided by Acquaro was protected by legal professional privilege. While Acquaro had continuing professional obligations to Madafferi that survived the termination of his retainer, it is far from clear whether any of the information that he provided to police was ‘confidential’. Much of the information was not originally communicated in confidence, or connected with the previous retainer or relevant to the subject matter of any subsequent proposed retainer. Even if some of the information was ‘confidential’, the professional rules entitle a lawyer to disclose confidential information for the sole purpose of avoiding the probable commission of a serious criminal offence, or for the purpose of preventing imminent serious physical harm to the client or another person. It is therefore unclear whether disclosure would have been permitted pursuant to one of the exceptions in the rules, given the safety issues applicable to Acquaro.

In any event, so the Chief Commissioner submits, it is difficult to see any basis upon which it could be asserted that the information emanating from Acquaro satisfied the ‘substantial assistance’ test articulated in Jarvie. Even if it is assumed that Acquaro has breached his duty of loyalty to Madafferi, disclosure of Acquaro’s dealings with police in 2014 would not provide any assistance to Madafferi in his appeal. The police did not deliberately or improperly obtain information and there was no improper conduct in securing Madafferi’s conviction. Acquaro’s falling out with Madafferi post-dated the investigation, arrest and filing of charges against Madafferi in 2008 by many years, Acquaro ceased to act for Madafferi before his trial and Madafferi does not allege that Acquaro exerted undue influence on him in the conduct of his defence in the period leading up to his trial. The Crown did not fail to disclose information to Madafferi that might have given rise to a miscarriage of justice. Victoria Police and Acquaro could not be said to have acted in a way that resulted in a fundamental shift in the accusatorial nature of the Inca proceeding.

Importantly, so the Chief Commissioner submits, Acquaro’s commentary on the perceived weaknesses in the prosecution case occurred well after Madafferi was arrested and charged on 8 August 2008. Victoria Police ceased involvement in Operation Inca investigations on 5 October 2007, with the AFP taking over before the offending period and well before Madafferi’s arrest. For this reason alone, the idea that this information could have ‘provided some assistance to the prosecution’ is a mere speculative possibility. Further, there is no connection between Acquaro’s comments in relation to Operation Inca or in relation to Madafferi’s criminal tendencies generally and the quality or independence of Madafferi’s legal representation at trial, and no connection between Acquaro’s comments and the evidence relied upon by the prosecution in securing his conviction, which largely comprised legally intercepted phone calls or SMS messages between Madafferi and others, and calls and text messages between Barbaro and his associates (in the absence of Madafferi).

The Chief Commissioner submits that the context in which Acquaro spoke to police in 2014 is important. Police reports record that Acquaro ‘initiated contact regarding concerns for his sons [who] had become aligned with and [were] committing criminal acts under the direction of Frank and Tony Madafferi’. As the transcripts show, these concerns were the predominant subject of conversation. Acquaro also made a series of complaints to police about Madafferi’s behaviour towards him. He told police that Madafferi had refused to pay legal fees of $200,000 at the conclusion of the immigration matter and that he had sent Acquaro’s parents a letter with two bullets, suggesting that they ‘donate’ $200,000. There was a fight at the Gelobar when Madafferi turned up ‘really angry and agitated’, ‘jumped’ him and ‘knocked him out’. Madafferi and his brother Tony had made a threat to Acquaro’s life and spread the rumour that Acquaro was Lawyer X. Furthermore, Madafferi was ‘collecting money at the market’ and was in the company of an unknown male who was carrying a gun. Acquaro showed police a picture of the gun. The police notes of this meeting state ‘the week Frank goes in something is going to happen. [Acquaro] is alert but not worried.’

The Chief Commissioner rejects the allegation that Acquaro’s comments about the Inca proceeding or Operation Inca could have been disseminated to AFP investigators. He says that the ‘Information Reports’ demonstrate that no information bearing on Madafferi’s offending was shared outside of Victoria Police. The only information authorised for dissemination, on ‘special conditions’ outside Victoria Police was as follows:

Frank Madafferi has a rural type property in French Road Greenvale. This is different to the family home in Hermitage Drive Greenvale.

Discussion

We begin by rejecting the proposition that Madafferi has no legitimate forensic purpose in seeking access to the PII documents.

The classic formulation of whether a party seeking documents has a ‘legitimate forensic purpose’ is whether it is ‘on the cards’ that the documents will materially assist his or her case.[36] Mere speculation that the documents will assist is not sufficient, as this would amount to 'fishing'. Similarly, mere relevance is not sufficient.[37] Madafferi’s application for leave to appeal against his 2014 conviction is based on his not having obtained independent legal advice in the course of preparing and presenting his defence in the Inca proceeding, which commenced with his arrest in August 2008 and concluded with his conviction in August 2014. Acquaro was his solicitor and had primary responsibility for the conduct of his defence for all but the last 10 months of that period. In essence, Madafferi wants to know whether Acquaro passed on information to police about the Inca proceeding and, more generally, whether Acquaro passed on any confidential information about him that was adverse to his interests in the context of the Inca proceeding.
[36]Alister v The Queen (1984) 154 CLR 404, 414; [1984] HCA 85 (Gibbs CJ).
[37]See, eg, Victoria (Department of Justice) v Lane [2012] VSC 328, [19]–[20] (Kyrou J); Holloway v Victoria (Department of Justice) [2015] VSC 526, [51] (Cavanough J).

Madafferi’s belief that Acquaro was a police informer is well founded, given extensive media coverage to that effect, Acquaro’s known involvement with the Calabrian Mafia and his subsequent falling out with some of its members, the description of ‘Mr McCallum’ in the Royal Commission and the evidence given of dealings with Mr McCallum by police officers in the Royal Commission. As a long-time client of Acquaro who had a bitter falling out with him, there is ‘concrete ground’ for Madafferi’s belief that Acquaro may have given information to police about him that was adverse to his interests and that the documents that he seeks may show this. This elevates above mere ‘fishing’ his request for documents relating to Acquaro’s interactions with police concerning him.

As it turns out, the PII documents show that Acquaro was a police informer, while he acted for Madafferi in 2008 (although he said nothing damaging or disloyal to Madafferi at that time) and again in 2014, shortly after he ceased acting for Madafferi, when he did say things that were both disloyal and potentially damaging to Madafferi, who was about to face trial. In our view, it is ‘on the cards’ that some of the PII documents may materially assist Madafferi in his appeal.

We turn to the exercise required by s 130(1) of the Evidence Act of balancing the competing public interests: the public interest in maintaining confidence in the ability of police to protect important avenues of information and intelligence by preserving the anonymity of informers; and the public interest in disclosing information that there is good reason to think may be of substantial assistance to Madafferi in quashing his conviction.

We reject the amicis’ argument that where a lawyer informs on a client, there can be no public interest in non-disclosure and there is therefore no need to carry out the balancing exercise. There may be circumstances in which it is perfectly proper, and indeed necessary, for a lawyer to inform on a client, particularly where the safety of members of the public is at risk. We do accept, however, that where damaging information is disclosed in breach of duty to the client or former client, that fact will usually weigh heavily in favour of disclosure.

As discussed, the additional PII documents show that Acquaro gave police information and expressed opinions about Madafferi’s role in the Woodstock shootings and his standover activities in the wholesale fruit and vegetable market.[38] He also showed police a photograph of a gun that he understood might be used on him. This resulted in investigations into Madafferi, carried out, apparently, by Y1 and other members of Victoria Police. Some information relating to these investigations appears to have been communicated to the AFP. However, we do not consider that Acquaro reporting what he knew about current or ongoing serious criminal activity, particularly threats against himself, involved any breach of duty to Madafferi.
[38]This was information apparently known by Acquaro because of his knowledge of and involvement in the Calabrian community in Melbourne, not because of his previous representation of Madafferi.

In our view, information communicated by Acquaro to police in possible breach of his duties of confidence or loyalty to Madafferi is exposed in the 2014 transcripts. The content of the 2014 transcripts calls into question Acquaro’s compliance with his duties of confidence and loyalty to Madafferi and raises questions about both the independence of the advice that he gave Madafferi in the Inca proceeding and his intention to use information obtained in the course of acting for Madafferi over the years in order to damage Madafferi by assisting the prosecution and, ultimately, to have him ‘locked up’. This information was conveyed to police on the eve of Madafferi’s trial.

We consider that the 2014 transcripts (and the related materials) may be of substantial assistance to Madafferi in his appeal. They reveal that Acquaro disclosed to the police not only purported problems that he knew of in the prosecution case against Madafferi, but other matters that could be used to put pressure on Madafferi, such as his involvement in a ‘sham’ charitable foundation and potential problems with his immigration status. In relation to the Inca proceeding, Acquaro indicated that there were problems with both the interpreting and with the ‘cut and paste’ nature of some of the allegations made against Madafferi. Although the defence response that was filed on Madafferi’s behalf states that Madafferi intended to challenge some of the interpretations, the 2014 transcripts go further. Acquaro boasts of knowing precisely how to defeat the charges, that is, he knows how to ‘destroy’ them. He also purports to have identified a weakness in the prosecution case that only a person who had acted for a number of the Operation Inca defendants would know.

More generally, we accept the submission that it would be open for Madafferi to argue that the general flavour of the discussions between Acquaro and the police indicated a shared desire for Madafferi to be ‘locked up’. The discussion about whether it would suit Acquaro for an application to be made to revoke Madafferi’s bail is particularly egregious, in our view.

These are matters that may reflect on the independence of the advice and representation that Madafferi received from Acquaro in the Inca proceeding. In the circumstances, it is unnecessary for us to say anything further about the arguments advanced by the amici that were more broadly framed by reference to lines of authority concerning abuse of process and the perception of a miscarriage of justice.[39]
[39]See, eg, R v Szabo [2001] 2 Qd R 214; [2000] QCA 194; Zai v Western Australia (2007) 34 WAR 379; [2007] WASCA 150; R v Smith (1975) 61 Cr App R 128; Strickland v CDPP & ACIC (2018) 266 CLR 325; [2018] HCA 53.

In concluding that the 2014 transcripts and the related materials may be of substantial assistance to Madafferi on appeal, we have taken into account that:

(a) most of the discussion recorded in the 2014 transcripts concerned Acquaro’s apparently justifiable disenchantment with Madafferi (given Madafferi’s conduct towards Acquaro’s sons and his threatening conduct towards Acquaro himself);

(b) Acquaro’s falling out with Madafferi post-dated the investigation, arrest and filing of charges against Madafferi in 2008 by many years;

(c) Acquaro ceased to act for Madafferi before his trial;

(d) Madafferi does not allege that Acquaro exerted undue influence on him in the conduct of his defence in the period leading up to his trial; and

(e) statements by Acquaro in the 2014 transcripts may have involved deliberate exaggeration and incidental inaccuracy.

We have also taken into account that Madafferi was represented at trial by lawyers against whom no allegations of impropriety of any kind have been made and that it is not suggested that there is any connection between Acquaro’s comments in relation to Operation Inca or in relation to Madafferi’s criminal tendencies more generally and the quality or independence of Madafferi’s legal representation at trial. Likewise, there is no evidence of any connection between Acquaro’s comments to police and the evidence relied upon by the prosecution in securing his conviction. Victoria Police ceased involvement in Operation Inca investigations on 5 October 2007, with the AFP taking over before the offending period and well before Madafferi’s arrest.

It is not for us to say what competent counsel might do with the information in the 2014 transcripts. Nonetheless, we consider that the 2014 transcripts and the related materials may be of substantial assistance to Madafferi in his appeal.

In the absence of safety concerns, the sole factor weighing against disclosure is the ‘chilling effect’ of revealing the identity of a police informer. There was unchallenged evidence before us about the importance of police informers in modern policing and we accept that revealing the identity of a police informer may deter other people from coming forward to assist police. That is not to say, however, that Acquaro’s exposure as an informer will have that effect. It will be a rare case in which a lawyer informs on a client and it will be understood that where this occurs in breach of the lawyer’s duty to their client, there is likely to be little or no public interest in protecting their anonymity. To the contrary, the public interest in the proper administration of justice will usually weigh in favour of informing the client of the breach. ‘Common or garden’ police informers are in a different position from lawyers,[40] however, and generally the public interest will require their identities to be protected. We consider that the anecdotal evidence of deterrence in Jackson’s third confidential affidavit is to be viewed in this context. Furthermore, we consider the statistical evidence to be of limited value for the reasons outlined by the amici.
[40]Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police [2019] VSCA 154, [94]–[99] (Whelan, Beach and Weinberg JJA).

We note further that lawyers for Mr Crupi, who stands accused of murdering Acquaro, have had access to information exposing Acquaro as a police informer on the basis that it may assist his defence at trial. While we are told that a strict confidentiality regime has been put in place, we consider it to be unlikely that this information, once released to Mr Crupi, will remain confidential. This further lessens the weight to be given to the public interest in non-disclosure in Madafferi’s case.

In carrying out the balancing exercise required by s 130(1) of the Evidence Act, s 130(5), to which we have previously referred at [30], sets out the various matters to which regard must be had.

Having regard to the fact that we are concerned with information sought by a putative appellant in a criminal appeal in which he seeks to overturn a conviction that attracted a lengthy sentence, our conclusion that the information may be of substantial assistance to him in his appeal and the fact that the status of Acquaro as a police informer has been disclosed for the purposes of Mr Crupi’s proceeding and is otherwise widely known, we consider that the public interest in favour of disclosure of the 2014 transcripts and the related materials outweighs the disadvantage of any possible ‘chilling effect’ that may be caused by Acquaro’s exposure as an informant.

It will be a matter for Madafferi’s legal advisers whether, at the end of the day, they make use of the information regarding Acquaro’s dealings with the police in 2014. However, it seems to us to be reasonable to think that Madafferi may make use of the disclosures, in the sense that they may be of substantial assistance to him in his appeal.

Disposition

The 2014 transcripts and the related materials are not protected by public interest immunity.

The release of the 2014 transcripts and the related materials to Madafferi will expose, to at least Madafferi, Acquaro’s role as a police informer in 2014. The identification of Acquaro as a police informer most likely removes the basis for the public interest immunity claim in respect of the remaining PII documents.

As a result, we decline to accede to the PII application insofar as it concerns information and documents concerning or showing:

1.1the existence or non-existence of any information pertaining to whether or not Joseph Acquaro was a ‘police informer’, including any confirmation that Mr Acquaro was not a ‘police informer’, that is responsive to orders 1(e), (f) and (g) sought by Francesco Madafferi’s application filed 24 May 2020;

The Court will hear from the parties as to the remaining orders that are sought.

- - -

Appendix

The Chief Commissioner has identified the following PII documents containing, or relating to, information exchanged between Acquaro and Victoria Police in 2008 and 2014:

(a)A request for assistance made on 13 February 2008 by X1 to the Source Development Unit (the ‘SDU’[41]) to assess Acquaro’s suitability for human source registration. The request contains information obtained by members of the SDU from Acquaro during three meetings in 2008: on 22 February 2008, 6 March 2008 and 25 March 2008.
[41]Later the ‘Human Source Management Unit’.
(b)Transcripts of audio recordings of meetings referred to in (a) between Acquaro and members of the SDU on 22 February 2008 and 6 March 2008.
(c)‘Source Contact Reports’ summarising contacts between Acquaro and police on eight occasions in 2014.
Three of these contacts were face to face meetings: on 21 March 2014 (involving X1 and Y1), on 4 April 2014 (involving Y1 and Z1) and on 30 May 2014 (again involving Y1 and Z1).
(d)Transcripts of audio recordings of the three meetings summarised in the Source Contact Reports referred to in (c) above.
(e)Extracts from records in the Victoria Police ‘Interpose’ database containing the same information as the Source Contact Reports referred to in (c) above, with additional information recorded by members of Victoria Police.
(f)A letter believed to have been sent by Acquaro to a reporter at The Age, which was then forwarded to the Purana Taskforce and included in police records on 29 July 2014.
(g)A bundle of Information Reports recording the dissemination of selected information provided by Acquaro to work units within Victoria Police.
(h)An email chain containing an email between X1 on 3 April 2014 and his superior (Stephen Fontana) describing his contacts with Acquaro on 14 and 21 March 2014. The contacts are described as flowing from an article that appeared in The Age newspaper on 8 March 2014 about the Woodstock shootings.

(i) The statement dated 14 February 2020 of officer ‘Pearce’ (a pseudonym – it is in fact Y1) for the Royal Commission. The statement details five face to face meeting with Acquaro (on 21 March, 2 April, 4 April, 30 May and 4 June 2014) and telephone contacts on 10 May, 5 June (x2) and 10 June 2014.

(j) A document titled ‘Handwritten Notes 6 May 2014’ which appears to record parts of a meeting between X1 (and another officer) and Victoria Police lawyers (Findlay McRae, the Director of Legal Services for Victoria Police, and Shaun LeGrand of the Victorian Government Solicitor’s Office) to discuss ‘legal reps and Human Sources’ and the position of ‘Person A, who was a solicitor who had also provided information or assistance to Victoria Police’. The note records information obtained from Acquaro regarding his representation of Madafferi. The notes in question were made by Mr McRae.

(k) The confidential additional statement of Mr McRae dated 20 January 2020 for the Royal Commission explaining the circumstances of the meeting in (j) above.

(l) Transcript of part of the in camera hearing in the Royal Commission on 29 October 2019, being the cross-examination of ‘Officer Black’ (a pseudonym) concerning his dealings with ‘Mr McCallum’ in 2008 and the request to have him considered for registration in August 2014. ‘Mr McCallum’ was considered unsuitable for registration and ‘deactivated’ on 11 August 2014. Officer Black does not report any direct contact with Acquaro in 2014.

(m) Transcript of part of the in-camera hearing in the Royal Commission on 12 November 2019, being cross-examination of X1 concerning his dealings with ‘Mr McCallum’.

(n) Transcript of the in camera hearing in the Royal Commission on 2 December 2019, being part of the cross-examination of Stuart Bateson, at relevant times the officer in charge of the Security and Organised Crime Intelligence Unit regarding the dealings of other police officers with ‘Mr McCallum’.

(n) Document titled ‘Acquaro, Joseph dated 15 February 2008’, which contains a profile of Acquaro, including known family members and associates, and summarises intelligence holdings in relation to Acquaro, including his representation of Madafferi in the immigration matter.

(o) A ‘target profile’ of Acquaro.

(p) Victoria Police Risk Assessment for Acquaro which, among other things, lists the persons in respect of whom he will provide intelligence, including Madafferi.

(q) A document titled ‘Source Management Comments’ recommending ‘deactivation’ and in which it is observed that —

Source is not compliant with communication protocols with handlers — he’s talking to media re same issues — is a solicitor and information could be subject to professional privilege — is high risk and difficult to manage.

(r) Email from X1 in 2008 identifying possible ‘targets’ to recruit as informers.

(s) Email and attachment dated 13 March 2014 concerning the decision to have X1 facilitate the introduction of Acquaro to the Human Sources Management Unit.

(t) Email regarding property at 75 French Road, Greenvale (an undisclosed second property of Madafferi).

(u) Email regarding ‘Operation Safranines’.

(v) Draft ‘Madafferi affidavit’ prepared by Y1 in the context of ‘Operation Palindrome’. It recorded that Acquaro had advised that Madafferi and another man were standing over stall holders and using a pistol to reinforce their demands.

(w) Information Reports that Madafferi was in possession of a handgun and silencer and that he was in company with a male carrying a firearm.

(x) Email dated 3 June 2014 from Y1 with a three page attachment detailing intelligence that Madafferi was involved in the Woodstock shootings, extortion and use of a body guard ‘armed with a .22 calibre machine pistol’.

(y) Email dated 18 August 2014 about Madafferi’s phone number provided by Acquaro.

(z) Email dated 3 June 2014 from Y1 attaching a document detailing information provided on 21 March 2014 by Acquaro about Madafferi’s involvement in the Woodstock pizza shop shootings, extortion and the use of a gun to enforce his threats.

(aa) Diary notes from 2014 made by Y1, Mr Ashworth, Danielle Valvo, Z1, Detective Senior Sergeant Brett Dawson, Stuart Bateson and Shaun Bingham.

(ab) Documents relating to Operations Safranines, Palindrome and Shreddar.

(ac) Documents concerning an anonymous ‘tip off’ that Madafferi planned to ‘do a runner’ during his trial and documents recording observations of Madafferi at his County Court trial.

(ad) An organisational chart of the Ndrangheta[42] emailed to the AFP.
[42]The Calabrian Mafia.

PII documents referred to in (r) to (ad) above were the supplementary documents exhibited to the fourth confidential affidavit of Jackson.

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15 January 2021; First revision 5 February 2021 to remove redactions at [112] and [114