Saverio Zirilli v The Queen [No 2]
[2021] VSCA 5
•29 January 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0053
| SAVERIO ZIRILLI | Applicant |
| v | |
| THE QUEEN [No 2] | Respondent |
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| JUDGES: | McLEISH, EMERTON and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 January 2021 |
| DATE OF JUDGMENT: | 29 January 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 5 |
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CRIMINAL LAW – Practice and procedure – Costs – Application for leave to appeal against conviction – Application for public interest immunity by Chief Commissioner of Victoria Police in relation to materials to be produced to applicant for leave to appeal – Whether applicant entitled to costs of public interest immunity application – Whether public interest immunity application ‘proceeding preliminary or incidental’ to appeal – Public interest immunity application incidental to appeal – Court lacks power to award costs to applicant – Criminal Procedure Act 2009, s 409(c).
COSTS – Amici curiae – Confidential submissions and material requiring assistance of amici curiae and circumscribing role of parties – Whether an exceptional case justifying costs award in favour of amici curiae – Amici curiae independent counsel whose services requested by Court – Participation of amici curiae necessary to conduct of proceeding – Involvement of amici curiae significantly exceeded scope of initial request – Submissions of amici curiae successful and of considerable assistance to Court – Costs awarded.
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr A V Chernok with Mr M Murphy | Nicholas James Lawyers |
| For the respondent | Ms C E M Fitzgerald | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
| For the Chief Commissioner of Victoria Police | Ms S M Maharaj QC with 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 |
Introduction
By notice dated 23 March 2020, the applicant, Saverio Zirilli, seeks leave to appeal his 2014 conviction for drug trafficking, pursuant to s 274 of the Criminal Procedure Act 2009.
On 1 April 2020, Mr Zirilli made an application to this Court for orders for the production of documents pursuant to s 317 of the Criminal Procedure Act. On 12 June 2020, Judicial Registrar Irving made orders by consent that the Chief Commissioner of Police produce certain categories of documents. One category comprised documents relating to information exchanged between Mr Zirilli’s former solicitor, Joseph Acquaro, and Victoria Police in relation to Mr Zirilli and certain matters connected with his conviction, within a specified time period.
The Chief Commissioner applied to this Court for a ruling that he not be required to produce to Mr Zirilli materials relating to Mr Acquaro, on the basis that those materials were protected from disclosure by public interest immunity.
Mr Zirilli was represented by counsel briefed to oppose the Chief Commissioner’s application. However, because it was necessary to preserve the subject matter of the public interest immunity application, and the Chief Commissioner claimed confidentiality in respect of certain materials filed in support of his application, the hearing of the application was heard predominantly in closed court. In the circumstances, counsel for Mr Zirilli were not in a position to make full submissions on the Chief Commissioner’s application. In these circumstances, the Court needed the assistance of other counsel to act as contradictor in the application.
On 2 October 2020, the Court therefore made orders requesting, through the Victorian Bar Pro Bono Barristers Court Referral Scheme, the services of senior and junior counsel to act as amici curiae in the application. Orders in the same form were made in a related matter in which the Chief Commissioner applied for a similar ruling, Madafferi v The Queen (‘Madafferi’).[1] The Court’s orders recorded that it was in the interests of the administration of justice that the request be made. The assistance of the amici curiae was sought to:
[1]See Madafferi v The Queen [2020] VSCA 1; Madafferi v The Queen [No 2] [2021] VSCA 4 (‘Madafferi Costs Reasons’).
(a) examine the submissions and materials filed by the Chief Commissioner in support of the application, including confidential submissions and material;
(b) file submissions and any other materials in response; and
(c) to appear and make submissions at the hearing of the application.
Senior counsel and two junior counsel were duly appointed as amici curiae for the application in this matter, as well as the related application in Madafferi.
The amici curiae were provided with access to all of the submissions and materials of the Chief Commissioner, including confidential submissions and materials. By contrast, Mr Zirilli’s legal representatives had access only to the Chief Commissioner’s ‘open’, or non-confidential, submissions and materials.
Following the appointment of the amici, the Chief Commissioner filed further confidential submissions and materials, which the amici were required to review, and to which they filed comprehensive responsive submissions.
The amici appeared and made oral submissions at the hearing of the public interest immunity application on 24 November 2020. As mentioned, the greater part of the hearing comprised submissions in relation to the confidential material, and that part of the hearing was conducted in closed court, with only the amici and the legal representatives of the Chief Commissioner present.
After the hearing, the Chief Commissioner filed or sought to file further material, some of it very lengthy, which the amici were required to review, and to which they again filed comprehensive submissions in response.
On 19 January 2021, the Court made orders in open court refusing the Chief Commissioner’s application, to the extent it related to the existence or non-existence of information as to whether or not Joseph Acquaro was or was not a police informer.
On that occasion, the amici made oral submissions, to which the Chief Commissioner responded, seeking an order that the Chief Commissioner pay their costs of the application. Mr Zirilli also sought his costs and the Court directed the filing of written submissions in that regard.
For the reasons that follow:
(d) Mr Zirilli’s application for costs must be dismissed, as the Court lacks the power to award costs in the application in his favour; and
(e) the amici shall have an order that the Chief Commissioner pay their costs of the application, given the exceptional circumstances of their involvement.
Applicant’s costs
Mr Zirilli’s application for costs raises two issues for consideration. The first is a threshold issue: whether or not the Court has power to make a costs order in Mr Zirilli’s favour. If the Court does have power, the second issue is the merits of the application. In our view, only the threshold issue need be addressed, as it is sufficient to dispose of Mr Zirilli’s application.
Section 24 of the Supreme Court Act 1986 provides:
(1)Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
(2) Nothing in this section alters the practice in any criminal proceeding.
Section 409 of the Criminal Procedure Act 2009 provides:
No costs are to be allowed to a party to—
(a) an appeal under Part 6.3 or 6.4; or
(b) a new trial; or
(c) a proceeding preliminary or incidental to an appeal or new trial.
Mr Zirilli submits that s 409(c) of the Criminal Procedure Act is inapplicable, characterising the Chief Commissioner’s application as not preliminary or incidental to Mr Zirilli’s proposed appeal but rather as a related but distinct proceeding. The proceedings contemplated by s 409(c), it was submitted, are ‘mentions, directions hearings and hearings of leave to appeal’ rather than public interest immunity applications such as that made by the Chief Commissioner. Mr Zirilli emphasised that the Chief Commissioner was not a party to the criminal proceedings between Mr Zirilli and the respondent.
By contrast, the Chief Commissioner submits that s 409(c) of the Criminal Procedure Act is applicable, and so denies the Court power to award Mr Zirilli his costs of the application. This was said to be because the application is ‘a proceeding preliminary or incidental’ to Mr Zirilli’s proposed appeal. The Chief Commissioner characterised his public interest immunity application as, in substance, an ‘ordinary interlocutory application’ as to the admissibility of evidence, analogous to other interlocutory proceedings in criminal matters in which costs may not be awarded to a party.[2] The Chief Commissioner submitted that his status as a non-party to the proposed criminal appeal was irrelevant, because the question is whether the Court could award costs to a party, namely Mr Zirilli, rather than costs against a party.
[2]See, eg, R v Payara (2012) 36 VR 326, 328 [7]–[8] (Nettle JA, Maxwell P agreeing at 327 [2]).
In our view, s 409(c) of the Criminal Procedure Act is not to be read in the restrictive manner Mr Zirilli advocates. There is no principled basis for restricting the meaning of the expression ‘proceeding preliminary or incidental to an appeal’ to mentions, directions hearings and leave to appeal hearings. Mentions and directions hearings are part of the appeal itself, not separate proceedings. As such, costs in respect of them are dealt with and precluded by s 409(a). Leave to appeal hearings are in the same category, because s 3 defines ‘appeal’ to include an application for leave to appeal. In any event, leave to appeal hearings are plainly part of proceedings preliminary to an appeal and so within s 409(c), but the language of that provision is far broader. It includes matters ‘incidental’ to an appeal. That readily includes proceedings in respect of documents sought for the purposes of advancing a party’s case on an appeal or proposed appeal.
As a matter of form, the present application was made in Mr Zirilli’s application for leave to appeal against a criminal conviction under pt 6.3 of the Criminal Procedure Act. Mr Zirilli is a party to the application for leave to appeal and was a party for the purposes of the Chief Commissioner’s application. In form, at least, the Chief Commissioner’s application therefore formed part of the application for leave to appeal, which on any view is a proceeding within s 409(a) or (c). But even as a matter of substance, s 409(c) has the same operation. The making of an application under s 317 is aptly described as a proceeding for the production of documents. Moreover, that proceeding is intimately connected to the criminal appeal in respect of which the documents are sought. The Chief Commissioner’s common law obligation to disclose materials to Mr Zirilli the subject of his application arose in or because of the proposed appeal. Similarly, the order made under s 317 of the Criminal Procedure Act that the Chief Commissioner produce documents to Mr Zirilli applied to documents connected with the proposed appeal. Thus, the Chief Commissioner’s public interest immunity application in respect of that order is properly described as an application in a proceeding ‘incidental’ to the proposed appeal. That suffices to attract s 409(c).
The fact that the Chief Commissioner is not a party to the application for leave to appeal, as distinct from the application regarding the s 317 order, is immaterial. Section 409(c) forbids the making of a costs order to a party to a relevant proceeding, irrespective of whether the order is made against another party or against a third party. Since Mr Zirilli is a party to the proceeding constituted by his s 317 application and therefore a party to the Chief Commissioner’s application in respect of the order made under that section, s 409(c) applies.
Accordingly, in our view, Mr Zirilli’s application fails on the threshold issue and it is unnecessary to address the merits of the application. The Court has no power to order costs in Mr Zirilli’s favour and his application to be paid his costs of the Chief Commissioner’s application must be dismissed.
Amici’s costs
The circumstances and nature of the amici curiae’s involvement have already been described, including in the Court’s earlier reasons in this matter.[3] The amici curiae’s involvement in this matter largely mirrored their involvement in Madafferi.
[3]Zirilli v The Queen [2020] VSCA 2 [75], [79], [134] (‘Reasons’).
For present purposes, it suffices to observe that: (a) the amici were counsel appointed to assist the Court; (b) their involvement significantly exceeded the anticipated scope, to encompass the review of lengthy further confidential material and submissions, the preparation of supplementary submissions, and appearance at unanticipated additional hearings; and (c) the amici’s submissions on the application were ultimately successful and, as recorded in the Court’s reasons in respect of the application, of great assistance to the Court.[4]
[4]Reasons [134].
Principles and submissions
The principles applicable to the making of a costs order in favour of amici curiae were not in dispute and are described in the costs reasons in Madafferi.[5] In short, a costs order in favour of amici curiae may be made in an exceptional case. What constitutes an exceptional case justifying such an order depends on the circumstances, including the nature of the case and the amici curiae’s involvement and contribution.[6]
[5]Madafferi Costs Reasons [19]–[20].
[6]Ibid.
At the hearing, the amici and the Chief Commissioner of Police adopted their respective submissions as to the costs of the amici made in Madafferi.[7] In short, the amici submitted that a costs order in their favour was justified by their appointment at the request of the Court, the unanticipated expansion in the scope of their involvement, and the assistance provided by their submissions. The Chief Commissioner neither opposed nor consented to the application and, whilst accepting that the amici’s submissions had made a valuable contribution, characterised the expanded scope of their involvement as unexceptional.
[7]Ibid [21]–[23].
Conclusion
The amici’s submissions are to be accepted, for much the same reasons as those given in Madafferi.[8] The amici, independent counsel with no other interest in the proceeding, were appointed at the request of the Court and in the interests of the administration of justice. The just determination of the application depended on their involvement. The scope of their involvement significantly exceeded the original request. Under significant time pressure, they produced written and oral submissions which addressed issues of wider legal significance, were of high quality, and provided considerable assistance to the court. In this exceptional combination of circumstances, it is appropriate that the amici curiae have their costs.
[8]Ibid [13]–[16].
Accordingly, an order will be made that the Chief Commissioner pay the amici’s costs of the application, on the standard basis.
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