Saverio Zirilli v The Queen [No 2] - [2021] VSCA 5

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…

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.

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Details

Case: [2021] VSCA 5
Decision Date: 29 January 2021

CaseChat Overview and Summary

The applicant, Saverio Zirilli, sought leave to appeal against his conviction and sentence. The Chief Commissioner of Victoria Police made an application for public interest immunity in relation to materials to be produced to the applicant for leave to appeal. The applicant subsequently applied for costs in relation to the public interest immunity application. The central legal issues were whether the applicant was entitled to the costs of the public interest immunity application, and whether the application was a "proceeding preliminary or incidental" to the appeal. Additionally, the court considered whether the involvement of amici curiae in the proceedings warranted a costs award in their favour.

The court held that the public interest immunity application was incidental to the appeal, and therefore fell within the scope of the Criminal Procedure Act 2009, s 409(c). Consequently, the court lacked the power to award costs to the applicant for the public interest immunity application. Regarding the amici curiae, the court found that their involvement significantly exceeded the scope of the initial request, their submissions were successful and of considerable assistance to the court, and their participation was necessary to the conduct of the proceeding. These factors justified awarding costs to the amici curiae, who were independent counsel requested by the court.

In light of the above, the court determined that the applicant was not entitled to costs in relation to the public interest immunity application. However, the court awarded costs to the amici curiae. These costs were to be paid by the Chief Commissioner of Victoria Police, as the party against whom the costs were awarded.

The court made an order that the Chief Commissioner of Victoria Police pay the costs of the amici curiae, but no costs were awarded to the applicant in relation to the public interest immunity application.

Orders