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Polimeni v The Queen

Polimeni v The Queen

Case [2022] VSCA 20 1 March 2022

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0079

GIOVANNI POLIMENI	Applicant
v
THE QUEEN	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	1 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 20
JUDGMENT APPEALED FROM:	[2021] VSCA 329 (McCann JR)

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether applicant has a legitimate forensic purpose in seeking production of documents – Whether it is in interests of justice to order production of documents – Whether request for documents is fishing – Not in the interests of justice to order production of documents – Application refused – Criminal Procedure Act 2009, s 317.

PRACTICE AND PROCEDURE – Review of judicial registrar’s decision refusing application under s 317 of Criminal Procedure Act 2009 – Review/appeal conducted by way of hearing de novo – Extension of time within which to appeal – Supreme Court Act 1986, ss 11 and 113M – Supreme Court (General Civil Procedure) Rules 2015, rr 3.04, 84.03, 84.05, 84.06 and 84.08 – Supreme Court (Criminal Procedure) Rules 2017, rr 1.09 and 1.18 – Application for review refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Mandy QC with Mr J Barreiro	Condello Lawyers
For the Respondent	Mr L Crowley QC	Commonwealth Director of Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Mr J Bayly	Victorian Government Solicitor’s Office

BEACH JA:

On 23 March 2013, following a 13-day trial in the County Court, the applicant was convicted of one charge of conspiracy to possess a commercial quantity of an unlawfully imported border-controlled drug, namely cocaine, contrary to ss 11.5(1) and 307.5(1) of the Criminal Code (Cth). On 15 April 2013, he was sentenced to 18 years’ imprisonment with a non-parole period of 12 years. On 16 April 2014, this Court refused applications for leave to appeal against conviction and sentence.[1]
[1]Polimeni v The Queen [2014] VSCA 72.

On 15 June 2021, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a second application for leave to appeal against conviction. The application contains one proposed ground of appeal as follows:

1.Fresh and compelling evidence establishes there has been a substantial miscarriage of justice.
PARTICULARS
1.1Nicola Gobbo acted, and was encouraged to act, in contravention of her professional duties and obligations.
1.2Information gathered as a consequence of those contraventions informed the investigation of, and subsequent proceedings against, the applicant.
1.3The Commonwealth Director of Public Prosecutions and the Australian Federal Police failed to disclose Ms Gobbo’s involvement to the applicant, subverting his right to a fair trial.
1.4Thus, there was a fundamental irregularity that went to the root of the trial: Wilde v The Queen;[2] OKS v Western Australia.[3]

[2](1988) 164 CLR 365, 373.

[3](2019) 265 CLR 268, 281.

On 9 July 2021, 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 Polimeni v The Queen

Details

AGLC: Polimeni v The Queen [2022] VSCA 20
Case: [2022] VSCA 20
Decision Date: 1 March 2022

CaseChat Overview and Summary

In the matter of Polimeni v The Queen, the applicant sought leave to appeal against his conviction for criminal offences. The application was made under section 317 of the Criminal Procedure Act 2009, and the applicant sought various documents from the Chief Commissioner of Victoria Police. The case was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the applicant had a legitimate forensic purpose for seeking the production of the documents. The court also had to determine whether it was in the interests of justice to order the production of the documents and whether the request amounted to a fishing expedition.

The court examined the applicant's reasons for seeking the documents and concluded that they did not have a legitimate forensic purpose. The court found that the request was not narrowly tailored to the issues on appeal and that the applicant's reasons for seeking the documents were speculative and not directly related to the appeal. Furthermore, the court found that ordering the production of the documents would not be in the interests of justice, as it would not assist in the fair determination of the appeal. The court also noted that the request appeared to be a fishing expedition, as the applicant was seeking a broad range of documents without any specific relevance to the appeal.

In light of the above findings, the court refused the applicant's application for leave to appeal and also refused the application for review of the judicial registrar's decision. The court held that the applicant had not demonstrated that it was in the interests of justice to order the production of the documents. The court also noted that the application for review was made outside of the prescribed time limits and that an extension of time was not warranted.

No orders were made as the application for leave to appeal and the application for review were both refused. The applicant's conviction for the criminal offences remains unchanged.

Orders