CRIMINAL LAW – Application for leave to appeal against conviction – Commissioner of Australian Federal Police (‘AFP’) and CEO of Australian Criminal Intelligence Commission (‘ACIC’) ordered to produce documents under Criminal Procedure Act 2009, s 317 – Where documents with redactions produced – Where production objected to on basis of public interest immunity (‘PII’) – Where production objected to on basis of statutory prohibition – Whether documents protected by PII – Whether documents protected by Telecommunications (Interception and Access) Act 1979 (Cth), s 63 – Whether a proceeding by way of prosecution includes application for leave to appeal and appeal against conviction – Objections of AFP and ACIC on basis of PII upheld – Objections of ACIC on basis of statutory prohibition not upheld.
Mr D Renton SC with Ms D Karamicov and Ms A Martin
Chief Executive Officer of the Australian Criminal Intelligence Commission:
Mr A Berger KC with Mr J Forsaith and Ms S Martin
Commissioner of the Australian Federal Police:
No appearance
Solicitors
Applicant:
Nicholas James Lawyers
Respondent:
Mr J Carter, Solicitor for Public Prosecutions (Cth)
Chief Executive Officer of the Australian Criminal Intelligence Commission:
Australian Government Solicitor
Commissioner of the Australian Federal Police:
Clayton Utz
TABLE OF CONTENTS
Introduction
Public interest immunity
AFP documents
Applicant’s submissions and AFP’s response
AFP’s submissions
Discussion
ACIC documents
TIA Act
ACIC’s submissions
CDPP’s submissions
Discussion
ACIC’s objection based on PII
Discussion
Conclusion
EMERTON P BEACH JA
MCLEISH JA:
Introduction
On 7 December 2011, the applicant pleaded guilty to, and was convicted of, conspiracy to traffic a commercial quantity of MDMA (charge 1), trafficking in a commercial quantity of MDMA (charge 2), and attempting to possess a commercial quantity of cocaine (charge 3).[1] On 23 February 2012, the applicant was sentenced to a total effective term of 26 years’ imprisonment, with a non-parole period of 18 years.[2]
[1]These are offences under schedule 1 of the Criminal Code Act 1995 (Cth).
The applicant’s convictions arose from conduct that…
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 Zirilli v The King
Sign in free to access the full text
Details
AGLC
Zirilli v The King [2023] VSCA 64
Case
[2023] VSCA 64
Decision Date
CaseChat Overview and Summary
In Zirilli v The King, the applicant, Mr. Zirilli, applied for leave to appeal against his conviction, seeking the production of documents held by the Commissioner of the Australian Federal Police and the Chief Executive Officer of the Australian Criminal Intelligence Commission under the Criminal Procedure Act 2009. The documents were produced with redactions, but objections were raised by the AFP and ACIC on the grounds of public interest immunity and statutory prohibition. Specifically, the AFP objected to the production of the documents on the basis of public interest immunity, while the ACIC objected on both grounds, asserting that the documents were protected by both public interest immunity and statutory prohibition under the Telecommunications (Interception and Access) Act 1979.
The court was required to determine whether the documents were protected by public interest immunity and whether they were protected by the statutory prohibition in the Telecommunications (Interception and Access) Act 1979. Additionally, the court had to consider whether the application for leave to appeal and the appeal against conviction were proceedings by way of prosecution, as defined in the Telecommunications (Interception and Access) Act 1979. The court examined the statutory language and relevant case law to ascertain the scope of the statutory prohibition and whether it applied to the present proceedings.
The court held that the objections of the AFP based on public interest immunity were upheld. However, the objections of the ACIC based on statutory prohibition were not upheld. The court found that the documents were not protected by public interest immunity as the redactions were sufficient to protect any sensitive information. Furthermore, the court determined that the statutory prohibition under the Telecommunications (Interception and Access) Act 1979 did not apply to the present proceedings, as the application for leave to appeal and the appeal against conviction were not considered to be proceedings by way of prosecution within the meaning of the Act.
The court granted the application for leave to appeal and ordered the production of the documents, with the previously mentioned redactions. The objections of the AFP based on public interest immunity were dismissed, while the objections of the ACIC based on statutory prohibition were overruled.