Polimeni v The Queen - [2021] VSCA 329

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0079

GIOVANNI POLIMENI	Applicant
v
THE QUEEN	Respondent

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JUDICIAL REGISTRAR:	McCANN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF JUDGMENT:	1 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 329

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CRIMINAL LAW – Appeal – Practice and procedure – Production of documents – Applicant seeks documents from Chief Commissioner of Victoria Police – Whether legitimate forensic purpose – Application refused – Criminal Procedure Act 2009, s 317.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Barreiro	Condello Lawyers
For the Respondent	Ms C Fitzgerald	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

McCANN JR:

Introduction

On 22 March 2013, following a trial, the applicant, Giovanni Polimeni, was convicted of conspiracy to possess a commercial quantity of cocaine. On 15 April 2013, he was sentenced to 18 years’ imprisonment with a non-parole period of

12 years.

His applications for leave to appeal against conviction and sentence were refused by the Court of Appeal on 16 April 2014.[1]
[1]Polimeni v The Queen [2014] VSCA 72.

The conduct of Victoria Police in the use of legal practitioners — former barrister Nicola Gobbo (‘Ms Gobbo’) and now-deceased solicitor Joseph Acquaro (‘Mr Acquaro’) — as police informants has been revealed over the course of a number of reported decisions of this Court and the High Court.[2] Additionally, it is detailed in the Final Report of the Royal Commission into the Management of Police Informants (‘RCMPI’), established to inquire into, inter alia, ‘the number of, and extent to which, cases may have been affected by the conduct of Ms Gobbo as a human source.’[3]
[2]AB v CD & EF [2019] VSCA 28; AB v CD; EF v CD [2018] HCA 58; Orman v The Queen [2019] VSCA 163; Madafferi v The Queen [2021] VSCA 1.
[3]Royal Commission into the Management of Police Informants (Final Report, 30 November 2020) Final Report Summary, The Commission’s Terms of Reference 1, 7.

The RCMPI Final Report refers to a sequence of criminal conspiracies and the associated investigations by Victoria Police, the Australian Federal Police (‘AFP’) and Australian Border Force (‘ABF’) into the ‘Tomato Tins’ drug syndicate cases. The cases share some participants in common and are linked through what is said to be causal motivation, in that the later conspiracies are said to have been motivated by the need to recoup losses caused by the interception of the original shipment of ecstasy concealed in tomato tins in a container aboard the MV Monica. The cases are linked also by the evidentiary trail followed by investigators. The conspiracy to ship cocaine for which the applicant was convicted was prompted by the interception of the tomato tins shipment and was detected by investigators as a consequence of that interception.

On 23 June 2021, the applicant applied for leave to appeal…

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 [2021] VSCA 329
Case: [2021] VSCA 329
Decision Date: 1 December 2021

CaseChat Overview and Summary

Polimeni was appealing against the decision of a single judge to refuse an application under section 317 of the Criminal Procedure Act 2009 to produce documents held by the Chief Commissioner of Victoria Police. The appeal centred on the refusal to grant Polimeni access to certain documents, which he claimed were necessary for a legitimate forensic purpose. The court was tasked with determining the criteria for assessing whether a forensic purpose is legitimate and whether the application met these criteria.

The primary issue before the court was the interpretation and application of section 317 of the Criminal Procedure Act 2009. Specifically, the court had to decide whether Polimeni's application sufficiently demonstrated that the documents he sought were required for a legitimate forensic purpose. The court also had to consider the scope of the term "legitimate forensic purpose" and whether the documents Polimeni sought fell within this scope. Furthermore, the court needed to assess whether the application process and the justifications provided by Polimeni met the statutory requirements.

The court held that the term "legitimate forensic purpose" required more than a general assertion that the documents were necessary for the applicant's case. The court found that Polimeni had not provided specific details about how the documents would assist in his forensic analysis or the investigation. The court concluded that Polimeni's application lacked the necessary specificity and did not demonstrate a legitimate forensic purpose as required by the statute. Consequently, the court upheld the decision of the single judge to refuse the application. The appeal was dismissed, and the orders of the trial judge were affirmed.

Orders