Zirilli v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON P, BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 December 2022
DATE OF JUDGMENT:	31 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 64
JUDGMENT APPEALED FROM:	[2012] VSC 47 (King J)

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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.

Criminal Procedure Act 2009 s 317; Evidence Act 2008 s 130; Telecommunications (Interception and Access) Act 1979 (Cth) ss 5B, 6EA, 63(2), 74(3).

Director of Public Prosecutions (NSW) v Serratore (1995) 38 NSWLR 137; Eastman v The Queen (1997) 76 FCR 9; PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240, discussed; Kizon v Palmer (No 1) (1997) 72 FCR 409; Kizon v Palmer (No 2) (1998) 82 FCR 10; Commissioner, Australian Federal Police v Samsonidis (2007) 158 FCR 276; Ryan v State of Victoria [2015] VSCA 353, referred to.

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Counsel
Applicant:		Dr M Gumbleton
Respondent:		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).
[2]DPP (Cth) v Barbaro [2012] VSC 47, [107] (King J).
The applicant’s convictions arose from conduct that was the subject of two Australian Federal Police (‘AFP’) operations between 2006 and 2008 concerning the importation of illegal drugs: Operation Bootham/Moko (charge 1) and Operation Inca (charges 2 and 3).
Charge 1 related to a shipment of tomato tins from Italy containing 15,193,798 MDMA tablets, with a total net weight of over 4.4 tonnes — 2,900 times the commercial quantity. The tomato tins arrived on a shipping container referred to as ‘MEDU1250218’. The so-called ‘tomato tins importation’ was intercepted by law enforcement authorities at the Port of Melbourne and the shipping container was the subject of a ‘controlled operation’ by the AFP. The conspirators, of whom there were a large number, took a series of steps over many months seeking to gain possession of the container. Ultimately, they abandoned that plan and moved on to other drug enterprises.
The failure of the tomato tins importation meant that the persons who had played leading roles in arranging for the shipment assumed responsibility for meeting the very large debt that the conspirators owed to the Italian suppliers of the drugs. This gave rise to further attempts to import drugs.
Charge 2 related to the trafficking of 1,200,000 MDMA tablets. The same Italian suppliers who had provided the MDMA in the tomato tins shipment supplied this second consignment. Police seized a total of 480,000 MDMA tablets with a pure weight in excess of 50 kilograms — more than 100 times the commercial quantity.
Charge 3 arose from the applicant’s attempt to take possession of a quantity of cocaine which had been smuggled into Australia from Colombia concealed in a shipment of coffee beans. The shipment was intercepted by law enforcement authorities and found to contain 99.9 kilograms of the pure drug — 50 times the commercial quantity. The applicant was alleged to have aided and abetted his co-offenders in the commission of that particular offence.
In early 2015, what is now commonly referred to as the ‘Lawyer X scandal’ became public. The scandal concerned the way in which Victoria Police (‘VicPol’) had deployed a member of the Victorian Bar, Nicola Gobbo, as an informer while she acted as counsel for various individuals, including the applicant. It was subsequently revealed that there had also been undisclosed contact between the applicant’s former solicitor, Joseph Acquaro, and VicPol. It is notorious that Ms Gobbo was involved in alerting her handlers at VicPol to the identity of container MEDU1250218, having been given the bill of lading for safekeeping by one of her clients.
On 24 March 2020, the applicant filed an application for leave to appeal his convictions pursuant to s 274 of the Criminal Procedure Act 2009 (‘CPA’). The applicant advances two grounds of appeal:
Ground 1: A substantial miscarriage of justice has occurred in relation to Count 1, in circumstances where the executive deliberately and knowingly used an officer of the Court to secure a conviction against the Applicant.
Ground 2: A substantial miscarriage of justice has occurred in relation to Counts 2 and 3, in circumstances where the integrity of the pleas of guilty are vitiated by reason of their connection to Count 1.
On the same date, the applicant sought production pursuant to s 317 of the CPA of certain documents held by VicPol, the Commissioner of the AFP and the CEO of the Australian Criminal Intelligence Commission (‘ACIC’).
The basis for the applicant’s proposed appeal is that the conduct of VicPol and Ms Gobbo represents a far-reaching abuse of process and a profound interference by the executive in the administration of justice. The applicant says that had he been aware that Ms Gobbo was a police informer at material times, he would have sought a permanent stay of the proceedings against him.
One of the difficulties faced by the applicant in his proposed appeal is that he was charged with Commonwealth drug offences and was prosecuted by the Commonwealth Director of Public Prosecutions (‘CDPP’) following an investigation by the AFP. The CDPP and the AFP have denied any knowledge that Ms Gobbo was a police informant, or that particular information or assistance to the investigation was provided by her.
However, the applicant anticipates that the documents sought from the AFP and ACIC will reveal, or assist to reveal, what information provided by Ms Gobbo was known to the various law enforcement agencies, when and how it was assessed, the value or weight attributed to it, and how it was used or acted upon.
On 16 June 2020, the Court made an order under s 317 of the CPA (‘AFP production order’) requiring the AFP to produce the following:
a)All documents relating to information exchanged with [VicPol], the Australian Customs Service (now Australian Border Force) (Customs) and the Australian Crime Commission (ACC) [now ACIC] between 21 May 2007 and 21 August 2008, pertaining to shipping container MEDU125021 [sic] containing tomato tins, which arrived at the Melbourne docks on 28 June 2007 on board the vessel MV Monica from Naples, Italy, or a possible shipment of border controlled drugs matching such a description.
…
b)All documents relating to the attendance of Nicola Gobbo and Joseph Acquaro at the AFP Headquarters on 8 August 2008.
On 6 July 2020, the Court also made an order under s 317 (‘ACIC production order’) directing the CEO of ACIC to produce the following: [3]
a)All documents recording the information that was exchanged with [VicPol], the Australian Customs Service (now Australian Border Force) (Customs) and the [AFP] between 21 May 2007 and 21 August 2008, pertaining to shipping container MEDU1250218 containing tomato tins, which arrived at the Melbourne docks on 28 June 2007 on board the vessel MV Monica from Naples, Italy, or a possible shipment of border controlled drugs matching such a description.
…
b)All information, material and other documents relating to the identification and subsequent physical and electronic surveillance of the applicant by the Australian Crime Commission during Operation Lavernock between 21 May 2007 and 1 July 2007.
[3]The AFP and ACIC production orders were varied on 6 October 2020. The variation orders were subsequently vacated on 15 October 2020.
On 12 June 2020, the Court had made an order under s 317 of the CPA in similar terms in respect of documents sought from VicPol. Those documents are not the subject of the present dispute.[4]
[4]See Zirilli v The King [2022] VSCA 192, [26] (Emerton ACJ, Beach and McLeish JJA).
In response to the AFP production order, the AFP produced approximately 87 documents, many of which were in redacted form. The AFP objected to producing parts of five documents (referred to as the ‘partial objection documents’) and the whole of a further five documents (referred to as the ‘full objection documents’). The AFP asserted that the partial and full objection documents contained information relating to ‘matters of state’ and were protected by public interest immunity (‘PII’) under s 130 of the Evidence Act 2008 (‘Evidence Act’).
On 13 October 2020, the applicant challenged the PII claims advanced by the AFP in respect of the full objection documents only.
In response to the ACIC production order, ACIC identified 21 documents. ACIC objected to producing some of the documents (in whole or in part) on three grounds: first, the information was not relevant and fell outside the scope of the ACIC production order; secondly, the information was protected by PII; and, thirdly, parts of some of the documents contained ‘interception warrant information’, the disclosure of which is prohibited by s 63 of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’).
The objections to production by the AFP and ACIC were initially heard and determined by Irving AsJ. However, this Court subsequently determined that the referral to his Honour (in his capacity as an Associate Judge, rather than in his former capacity as a Judicial Registrar) was made without power. His Honour’s reasons were discharged and the orders were set aside, with the result that the objections to production made by each of the AFP and ACIC must now be determined anew.[5]
[5]Ibid [59].
We conducted an oral hearing of ACIC’s objections to production on 16 December 2022. The AFP was content for its objections to be determined on the basis of the written submissions and supporting material that had been filed in advance of the hearing before Irving AsJ.

Public interest immunity

As both the AFP and ACIC object to producing documents (or parts thereof) on the ground of PII, it is convenient to briefly set out the applicable principles.
Section 130(1) of the Evidence Act provides:
If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence.
Although s 130(1) is directed to the admissibility of evidence, its operation is extended by s 131A to include various forms of compulsory disclosure, such as ‘a process or order of a court that requires the disclosure of information’. This includes an order made under s 317 of the CPA.[6]
[6]Zirilli v The Queen [2021] VSCA 2, [121] (McLeish, Emerton and Weinberg JJA).
Section 130(4) sets out the circumstances in which information or a document relates to ‘matters of state’. Relevantly, this includes where the information or document would, if disclosed, prejudice the security, defence or international security of Australia, or the prevention, investigation or prosecution of an offence.
In performing the balancing exercise required by s 130(1), the Court must consider the factors listed non-exhaustively in s 130(5). These factors are as follows:
(a)      the importance of the information or the document in the proceeding;
(b)     if the proceeding is a criminal proceeding—whether the party seeking


to adduce evidence of the information or document is a defendant or the


prosecutor;
(c)      the nature of the offence, cause of action or defence to which the


information or document relates, and the nature of the subject matter of


the proceeding;
(d)     the likely effect of adducing evidence of the information or document,


and the means available to limit its publication;
(e)      whether the substance of the information or document has already been


published;
(f)      if the proceeding is a criminal proceeding and the party seeking to


adduce evidence of the information or document is a defendant—


whether the direction is to be made subject to the condition that the


prosecution be stayed.
In performing the balancing exercise under s 130(1), the Court may inform itself as it sees fit, and may inspect any document in question.[7]
[7]Evidence Act ss 130(3)–(4).
The general principles governing PII under s 130 of the Evidence Act are well-established. Section 130(1) is a re-statement of the common law doctrine of PII and the common law authorities continue to inform the application of the statute.[8] In Ryan v State of Victoria,[9] the Court accepted that ‘[b]oth the common law and s 130 require two broad stages of analysis: first, the assessment of the character of the information (as … relating to a matter of state), and secondly, a weighing or balancing exercise to assess the [competing] public interest[s]’.[10]
[8] Madafferi v The Queen [2021] VSCA 1, [31] (Emerton, Weinberg and Osborn JJA); Ryan v State of Victoria [2015] VSCA 353, [58] (Tate JA, Santamaria and Ferguson JJA agreeing at [177]–[178]) (‘Ryan’); DPP (Cth) v Brookman (Ruling No 3 – AGD PII) [2020] VSC 819, [8] (Jane Dixon J) (‘Brookman Ruling No 3’).
[9][2015] VSCA 353.
[10]Ibid [59] quoting New South Wales v Public Transport Ticketing [2011] NSWCA 60, [42]–[43] (Allsop P, Hodgson JA, Sackville AJA agreeing at [118]–[119]). See generally Ryan [2015] VSCA 353, [53]–[94] cited with approval in Smith v Thompson (No 2) [2021] VSC 632, [23]–[26] (Ierodiaconou AsJ); Brookman Ruling No 3 [2020] VSC 819, [8]–[10]; Gardiner v A-G(Vic) [2020] VSC 224, [44]–[46] (Richards J); DPP v Asling (Ruling No 1) [2017] VSC 37, [19] (Kaye JA).
Disclosure is justified where the applicant has a legitimate forensic purpose in the pursuit of the information or documents in question.[11] A legitimate purpose will be demonstrated where the Court considers that it is ‘on the cards’, that is, there is ‘a reasonable possibility’[12] that the documents, if disclosed, would materially assist the defence.[13]
[11]Brookman Ruling No 3 [2020] VSC 819, [163].
[12]State of Victoria (Department of Justice) v Lane [2012] VSC 328, [18] (Kyrou J).
[13]Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, 323–4 [96], 327 [119] (Bell J); Australian Crime Commission v Magistrates’ Court of Victoria (2007) 173 A Crim R 572, 580 [18] (Smith J); DPP v Selway (No 2) (2007) 16 VR 508, 514 [10] (Cummins J); Alister v The Queen (1983) 154 CLR 404, 414 (Gibbs CJ).
The public interest in the proper administration of justice requires that evidence necessary to elucidate facts be available. However, ‘the Court is not required to ensure … that [the applicant] has access to any and all material that could have some possible relevance to arguments it may wish to put’.[14]
[14]DPP (Cth) v Brookman (Ruling No 4 — AFP PII) [2020] VSC 818, [119] (Jane Dixon J). See also Jarvie v Magistrates’ Court of Victoria at Brunswick [1995] 1 VR 84, 90–1 (Brooking, Southwell and Teague JJ).
In Eastman v The Queen,[15] a PII claim was upheld in respect of information relating to sensitive police methodologies as well as to police informants and criminal intelligence assessments in a murder trial. In concluding that the disclosure of such information was precluded, the Full Court of the Federal Court of Australia stated:
The administration of justice would be impaired if, by withholding the documents, an accused would be denied a fair trial. The question therefore arises in the balancing exercise whether the documents contain evidence material to the accused’s defence …
If the document does not contain material evidence, the need for the balancing exercise does not arise and, in the public interest, the documents should not be discovered.
As to the test to be applied in determining whether there is or is likely to be evidence which is material, Gibbs CJ in Alister said:
Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.
… the applicants for production were required to show a basis for a rational inference of a likelihood that the documents would go substantially to proof of their innocence of the charge against them.[16]
[15](1997) 76 FCR 9 (von Doussa, O’Loughlin and Cooper JJ).
[16]Ibid 63–4 (citations omitted) quoted in Ryan [2015] VSCA 353, [60].

AFP documents

The full objection documents are five ‘AFP Intelligence’ documents classified as ‘highly protected’ or ‘protected’ dating from 2007 and 2009. They are exhibited to a confidential affidavit sworn by Assistant Commissioner Bruce Giles on 8 September 2020.
Each of the full objection documents contains a passage in the section headed ‘Background’ as follows:
On 28 June 2007, the Australian Federal Police (AFP) commenced Operation Bootham/Moko following Australian Customs Service (Customs) Sea Cargo identification of shipping container MEDU1250218, being a 20 foot sea cargo container, consigned to FJ Tytherleigh Logistics (Aust) Pty Ltd. Initial paperwork indicated the container was sent from FJ Tytherleigh Logistics Srl, Italy. Subsequent paperwork identified the consignor as Romina S.R.L. Via D. Alghieri, 55 S. Egidio M. Albino 84010 Italy, and the consignee as Trans Global Food Brokers 1 Kakla Rd Balwyn North 3104 Australia, and that FJ Tytherleigh Logistics was the freight forwarding company handling the transfer of the container from Naples to Melbourne.
The first full objection document is dated 21 August 2007, that is, approximately two months after the identification of shipping container MEDU1250218 and the discovery of its contents. It comprises an initial analysis of the information relating to the tomato tins importation. Although the applicant is identified as a person of interest and the document specifies telecommunications services that he is known to use and places him in a group of associates believed to be involved in the tomato tins importation, it says nothing about when or why the applicant became a person of interest other than that he and Pasquale Barbaro are ‘Griffith-based Italian organised criminal figures linked to the importation of drugs in past years’, who travelled between Melbourne and Griffith during the relevant period.

The second full objection document is dated 5 October 2007. It appears to be a revised and expanded version of the first full objection document. Both documents were prepared during the course of the AFP’s investigations. Neither says anything about information derived from VicPol or Ms Gobbo or from which it could be inferred that information was derived through VicPol from Ms Gobbo.
The third full objection document is dated 2 February 2009, and concerns Operation Inca, to which charges 2 and 3 relate. Operation Inca, and the conduct giving rise to charges 2 and 3, was not concerned with the identification or contents of container MEDU1250218, and largely took place after the period specified in the AFP production order.
The third full objection contains a chronology of events commencing with the tomato tins importation and identifies persons of interest to police in relation to ongoing criminality, including the applicant. The applicant is described as having direct involvement in the tomato tins importation (that being the subject of Operation Bootham/Moko). However, the third full objection document is concerned largely with events occurring subsequently and overseas (those matters being the subject of Operation Inca). The applicant is mentioned only briefly in relation to overseas travel undertaken by him in March 2008. That information is in the public domain and is referred to in Visser v Director of Public Prosecutions (Cth).[17] The third full objection document says nothing about information derived from VicPol or Ms Gobbo or from which it could be inferred that information was derived through VicPol from Ms Gobbo.
[17][2020] VSCA 327, [6] (McLeish, Emerton and Osborn JJA).
The fourth and fifth full objection documents appear to be revised and updated versions of the third full objection document.
The third, fourth and fifth full objection documents were prepared after the conclusion of the AFP’s investigations. Each states that container MEDU1250218 was identified by the Australian Customs Service (‘Customs’). Beyond that, none of them identifies any of the information they contain as being provided by or exchanged between the three agencies named in the AFP production order.

Applicant’s submissions and AFP’s response

In written submissions filed by the applicant, he submitted that he has a legitimate forensic purpose in seeking the production of the full objection documents and that it is ‘on the cards’ that they may be material to his application for leave to appeal and the appeal. He submitted that the AFP had failed to address in its submissions the six matters which the Court must consider under s 130(5) of the Evidence Act when performing the balancing exercise, and that, whatever might be said about the merits of his proposed appeal, the conduct of VicPol and Ms Gobbo was ‘a profound and unprecedented derogation from fundamental principles of criminal justice’ and ‘[a] transparent and comprehensive examination of the subject matter of these proceedings could not be more critical’.
Additionally, the applicant disputed that the full objection documents could support inferences as to the nature and extent of the AFP’s capabilities. He submitted that in any case, the Court could limit the publication of the full objection documents, if disclosed, including by making suppression orders under the Open Courts Act 2013, and/or by requiring the applicant to give undertakings not to disclose information contained in them.
Following the filing of the applicant’s written submissions, there was an exchange of correspondence between the AFP and the applicant which resulted in the disclosure of a single passage from each of the full objection documents.
In response to the applicant’s submissions, the AFP wrote to the applicant on 9 November 2020, enclosing redacted versions of the full objection documents and explaining that the full objection documents had been identified as responsive to the AFP production order only because each document contains a passage referring to the interception by Customs of the container MEDU1250218. That is the passage set out in [32] above. In each case, the AFP advised, the passage forms a ‘small fraction’ of the total information in the document, and the remaining information falls outside the scope of the AFP production order.
The AFP letter confirms that the AFP is not aware that any information in the full objection documents originated from Ms Gobbo. The first and second full objection documents were created for the purpose of advancing investigations into Operation Bootham/Moko and Operation Inca. The third, fourth and fifth full objection documents were created after the applicant and his co-accused had been charged in order to assess the impact of the investigations and provide strategic advice on the future activities of the AFP and its partner agencies.
By letter in reply dated 27 January 2021, the applicant requested access to the balance of the information in the full objection documents, maintaining his position that it was ‘on the cards’ that the information in the AFP’s possession would be of material assistance to him ‘even if there is no direct nexus between certain information and Ms Gobbo’s conduct’.
By letter dated 1 February 2021, the AFP declined to provide the balance of the information contained in the full objection documents, stating that the applicant had not established a legitimate forensic purpose to access that information, particularly in circumstances where ‘the uncontroversial paragraph’ in each of the documents had been provided to him. The AFP confirmed that it had reviewed the balance of each of the documents and was not aware that any information in that material originated from Ms Gobbo. It characterised the applicant’s conduct as ‘fishing’.

AFP’s submissions

The AFP objects to producing the full objection documents on the basis that their disclosure would prejudice both the security, defence or international relations of Australia, and the prevention, investigation or prosecution of an offence (ss 130(4)(a) and (c) of the Evidence Act).
Unsurprisingly given the AFP’s focus on illegal importations and transnational crime, the full objection documents are largely concerned with transnational investigations. The AFP submits that the disclosure of the full objection documents may cause damage to the AFP’s relationships with foreign law enforcement agencies, which are necessary for the identification and interception of attempts to import illegal drugs into Australia. Furthermore, the documents outline methodologies used by the AFP to investigate criminal conduct of this kind, such that their disclosure would undermine its ability to conduct law enforcement operations.
In an open affidavit sworn by Assistant Commissioner Giles on 8 September 2020 (‘AFP open affidavit’), Mr Giles deposed that the full objection documents were prepared by a unit within the AFP known as ‘AFP Intelligence’. AFP Intelligence prepares and collates information regarding transnational serious organised crime and national security threats. Mr Giles deposed that the full objection documents reveal AFP methodologies with respect to collecting, assessing and validating criminal intelligence, and they reveal the weight placed by intelligence officers on criminal intelligence, as well as the assumptions, predictions and recommendations made by them. Mr Giles deposed, further, that the full objection documents may expose vulnerabilities within the AFP and its partner agencies that can be exploited by organised crime groups and persons of interest. According to Mr Giles, ‘[i]ntelligence reporting is an ongoing and continuous process … especially so where, as here, the reporting in questions [sic] relate to the activities of criminal syndicates and their associates’.
To the extent that the full objection documents reveal sensitive police methods, the AFP also relies (albeit faintly) on s 47 of the Surveillance Devices Act 2004 (Cth) (‘SDA’). Section 47 of the SDA provides, relevantly, that a person may object to the disclosure of information if its disclosure ‘could reasonably be expected to reveal details of surveillance device technology or methods of installation, use or retrieval of surveillance devices’.

Discussion

The AFP production order requires the production of documents containing a very limited category of information: information exchanged by the AFP with VicPol, Customs and ACIC between 21 May 2007 and 21 August 2008 in relation to shipping container MEDU1250218.
We have considered the contents of the full objection documents in their unredacted form. To our eyes, aside from the extracted passage, they contain nothing about or relating to communications between the AFP and VicPol, Customs or ACIC concerning container MEDU1250128 during the relevant period. Most of the information in the full objection documents relates to the period after the container was identified, seized and used in an unsuccessful controlled operation and Operation Bootham/Moko was overtaken by Operation Inca. The time period in the AFP production order alone takes the majority of the information in the full objection documents well outside the terms of the AFP production order.
However, as the narrative in the full objection documents concerning the tomato tins importation is not limited to the extracted passage,[18] we cannot exclude the faint possibility that some of the information in the full objection documents, when combined with other information, could be of some assistance to the applicant in his proposed appeal. We will therefore consider the PII claim in relation to the full objection documents generally.
[18]See [32] above.
We are satisfied that full objection documents relate to ‘matters of state’ for the purpose of s 130(4) of the Evidence Act. We are therefore concerned with the balancing exercise in s 130(1) requiring the weighing of the competing public interests: the public interest in the applicant obtaining information in the full objection documents for the purpose of advancing his proposed appeal and the public interest in preserving the confidentiality of sensitive police matters.
In carrying out the balancing exercise, s 130(5)(a) of the Evidence Act requires consideration of the importance of the PII information to the applicant’s proposed appeal. We have had regard to the issues raised by the applicant’s appeal and the central importance he places on establishing ‘who knew what, when and how’. Having regard to the way in which the proposed grounds of appeal are framed, the focus of this inquiry is the tomato tins importation. In our view, the redacted material (assuming for present purposes that some of it falls within the AFP production order) would not assist the applicant to identify whether information about container MEDU1250218 was exchanged between the various agencies and, if so, whether it was sourced from or due to the actions of Ms Gobbo. In our view, the full objection documents do not contain evidence material to the applicant’s appeal.
Against this, we are satisfied that disclosure of the full objection documents would reveal sensitive police methodologies, especially as they pertain to relationships with agencies in other countries. The AFP’s evidence in support of its claim for PII is persuasive. We accept Mr Giles’ evidence with respect to the nature, gravity and likelihood of the risks to the public interest if disclosure of the full objection documents was ordered. They contain sensitive information about co-operation with agencies in other countries and provide an insight into how the AFP compiles and assesses intelligence material. The fact that it is well known that the AFP conducts intelligence analysis does not mean that the content and methods of that analysis are well understood. Mr Giles has deposed that criminal organisations may gain benefit from the publication of this information and we are not in a position to doubt this assessment.
For the purpose of ss 130(5)(b) and (c), we note that the party seeking production was the accused in the prosecution who is now seeking to overturn convictions for serious offences.[19] With the exception of the extracted passage provided to the applicant, it is not in dispute that the substance of the information under consideration has not already been published (s 130(5)(e)). Furthermore, we do not consider that the available means of limiting publication, such as the giving of confidentiality undertakings by the applicant’s counsel or the making of suppression orders, would sufficiently ameliorate the risks involved in disclosure (s 130(5)(d)).
[19]As to the nature and seriousness of the offences, see [1] to [6] above.
Given that the full objection documents could not be of material assistance to the applicant to establish that the conduct of VicPol and Ms Gobbo caused a substantial miscarriage of justice in the conduct of his prosecution, the public interest factors favouring non-disclosure therefore significantly outweigh those in favour of disclosure. We have reached this conclusion despite the seriousness of the convictions against which the applicant now seeks to appeal and the lengthy prison sentence that he is currently serving.
The objections to production on the basis of PII made by the AFP with respect to the full objection documents will be upheld.

ACIC documents

ACIC’s objections to production relate to parts of seven documents (referred to as ‘Documents 13 to 19’), each of which concerns either a ‘telecommunications service warrant’ or a ‘named person warrant’ issued under pt 2-5 of the TIA Act. The warrants were not directed to the applicant or telecommunications services used by him.
Once again, the ambit of the ACIC production order is very narrow. It calls for production of documents containing information that was exchanged with VicPol, Customs and the AFP between 21 May 2007 and 21 August 2008 pertaining to shipping container MEDU1250218.
Documents 13 to 19 are extracts from the affidavits filed in support of the warrants. The relevant parts, identified by Irving AsJ as responsive to the ACIC production order, are as follows:
(a)in relation to Document 13, paragraphs 136 to 137;
(b)in relation to Document 14, the first two sentences of paragraph 16 and paragraphs 17 to 18;
(c)in relation to Document 15, the first, second and fourth sentences of paragraph 24 and paragraphs 25 to 26;
(d)in relation to Document 16, paragraphs 136 to 137;
(e)in relation to Document 17, the first sentence of paragraph 94;
(f)in relation to Document 18, paragraphs 35 and 37; and
(g)in relation to Document 19, the last sentence of paragraph 17 together with paragraph 17(c) and paragraph 46.[20]
[20]Zirilli v The Queen [2021] VSCA 305, [88] (Irving AsJ).
In oral argument, ACIC submitted that we should accept that these are the only parts of Documents 13 to 19 that fall within the ACIC production order and that its objections should be determined in that context. Having reviewed the documents in their entirety, we are of the view that Irving AsJ was generous in his assessment of which parts of the ACIC documents fell within the ACIC production order. Accordingly, we are content to proceed on the basis that the only relevant parts of the ACIC documents are those identified by Irving AsJ as set out in [61] above.
There is considerable overlap in the material in the seven ACIC documents that have been produced. Thus, the material in paragraphs 136 and 137 of Document 13 is the same, or substantially the same, as the material in paragraphs 136 and 137 of Document 16, paragraph 37 of Document 18 and paragraph 46 of Document 19. The material in Document 15 is substantially the same as the material in Document 14.
The material falls into two categories:
(a)A brief and very general report of the events surrounding the tomato tins importation: certain persons seen to be arriving at Melbourne airport on 27 June 2007; the receipt of information from Customs that a container had been unloaded that ‘exhibited signs of highly suspicious cargo’; the subsequent discovery of four and a half tonnes of MDMA; and the making of arrangements for the controlled delivery of the container.
(b)An intercepted phone conversation on 29 June 2007 between two conspirators, neither of whom is believed to be the applicant, in which one of them expresses frustration at having to remain awake for so long.
In our view, this material is innocuous. It is neither helpful to the applicant nor so sensitive that its release would prejudice ACIC’s ability to carry out its functions. It simply shows that there was surveillance of the applicant and some of his associates around the time of the tomato tins importation and that Customs had alerted ACIC to the existence of container MEDU1250218.
When asked by the Court whether ACIC would be prepared, in the interests of resolving the dispute over production, to make available to the applicant an aide-mémoire setting out the relevant parts of the documents, counsel for ACIC, having first taken instructions, submitted that it was not possible to do so due to the statutory prohibition on the disclosure of information obtained under warrant in the TIA Act. Counsel did not suggest that the release of the material would, in and of itself, cause harm to or compromise the operations of ACIC and that it should not be made available to the applicant for that reason.
Accordingly, it is convenient to first consider whether the TIA Act prevents the release of the ACIC material, even if entirely innocuous, to the applicant.

TIA Act

Section 7(1) of the TIA Act prohibits the interception of communications passing over a telecommunications system. Section 7(2) then provides that s 7(1) does not apply to certain interceptions, including those lawfully effected under relevant provisions of the Australian Security Intelligence Organisation Act 1979 (Cth) and the SDA.
Part 2-5 provides for the issue and execution of warrants authorising agencies, such as ACIC, to intercept telecommunications. Under s 40, an agency may apply for an ‘interception warrant’.[21] Section 41 provides that the application must be in writing in the prescribed form and accompanied by an affidavit. Section 42 prescribes the matters which must be set out in the affidavit.
[21]TIA Act s 5(1) (definition of ‘interception warrant’).
Section 46(1) permits an eligible judge or a nominated member of the Administrative Appeals Tribunal to issue a warrant in respect of a telecommunications service if satisfied that:
(a)the application for the warrant complies with the requirements of ss 40–42;
(b)there are reasonable grounds for suspecting that a particular person is using or likely to use a telecommunications service;
(c)the information that would likely be obtained from intercepting that service would be likely to assist in connection with the investigation by the applicant agency of a serious offence in which the person is involved or is likely to communicate with a person who is involved; and
(d)the warrant should issue having regard to each of the matters listed in s 46(2), which includes:
(i)the privacy of any person(s) that would likely be interfered with as a result of the telecommunications interception;
(ii)the gravity of the conduct constituting the offence being investigated;
(iii)how much the information obtained under warrant would be likely to assist the investigation; and
(iv)to what extent investigative methods, other than intercepting telecommunications, have been used or are available to the applicant agency.
Section 46A(1) permits a warrant in respect of a person to be issued on similar terms.
Part 2-6 of the TIA Act contains provisions limiting the communication, use and recording of information obtained pursuant to or about an interception warrant.

Under s 63(1), a person must not communicate to another, make use or make a record of, or give in evidence in a proceeding of ‘lawfully intercepted information’ (‘LII’) or information obtained in contravention of s 7(1). Pursuant to s 63(2), a person must not communicate ‘interception warrant information’ (‘IWI’) to another, or make use or make a record of, or give IWI in evidence in a proceeding.
LII is defined in s 6E to mean information obtained by intercepting a communication passing over a telecommunications system. IWI is defined in s 6EA to mean information about the application for, issue of, existence or non-existence of, or expiry of an interception warrant, as well as ‘any other information’ that is likely to enable the identification of the telecommunications service or a person specified in an interception warrant as a person using, or likely to use, the telecommunication service subject of the warrant.
A person who contravenes either ss 7(1) or 63 is guilty of an indictable offence punishable on conviction by imprisonment for a period not exceeding 2 years.[22]
[22]Ibid s 105.
Section 74(3) permits IWI to be given in evidence in an ‘exempt proceeding’. The precise terms of s 74(3) are as follows:
A person may give interception warrant information in evidence in an exempt proceeding.
Under s 75A, where IWI has been given in evidence in an ‘exempt proceeding’, it may be later given in evidence in any proceeding.
An ‘exempt proceeding’ is exhaustively defined in s 5B and includes, relevantly, ‘a proceeding by way of a prosecution for a prescribed offence’: s 5B(1)(a).
A ‘proceeding’ is defined as a proceeding in a federal, State or Territory court or before a body empowered to hear examinations.[23] A ‘prescribed offence’ means certain offences,[24] ‘serious offences’[25] or any other offence punishable by at least three years’ imprisonment.[26] The offence may be an offence against a Commonwealth or State or Territory law.[27]
[23]Ibid s 5(1) (definition of ‘proceeding’).
[24]These include offences (among others) against Division 307 of Schedule 1 to the Criminal Code Act 1995 (Cth) and ss 7(1) or 63 of the TIA Act and offences relating to criminal organisations.
[25]TIA Act s 5D.
[26]Ibid s 5(1) (definition of ‘prescribed offence’).
[27]Ibid s 5(1) (definition of ‘offence’).
A ‘proceeding by way of a prosecution’ is expressly stated to include:
(a)a proceeding with a view to the committal of a person for trial for the offence;[28] and
(b)a proceeding by way of a bail application or review of a decision to refuse or grant bail.[29]
[28]Ibid s 6J.
[29]Ibid ss 5B(1)(l)–(n).
However, the TIA Act does not expressly state that a ‘proceeding by way of a prosecution’ includes an application for leave to appeal or an appeal if leave is granted.

ACIC’s submissions

In ACIC’s submission, the relevant parts of Documents 13 to 19 fall within the definition of IWI in s 6EA(1)(a), being information about an application for, issue of or existence of an interception warrant. Section 63 prohibits the use or communication of such information and s 74(3) provides no exception, as an appeal is not an ‘exempt proceeding’ for the purposes of s 5B. In any event, s 74(3) does not permit the ‘use’ of IWI.
The principal argument advanced by ACIC is that an ‘exempt proceeding’, relevantly, ‘a proceeding by way of a prosecution’, does not include an application for leave to appeal or an appeal. Although the TIA Act now expressly includes bail and committal proceedings as proceedings ‘by way of a prosecution’ in the definition of an exempt proceeding, it does not expressly include appeal proceedings. According to ACIC, to interpret the statute broadly to include an appeal in the definition of an exempt proceeding would be at odds with the general law concept of a prosecution, which is concerned only with the instituting and conduct of a prosecution at trial,[30] and does not extend to the ‘distinct step’ of an appeal.[31]
[30]Citing PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240, 250 [29] (French CJ, Gummow Hayne and Crennan JJ); Byrnes v The Queen (1999) 199 CLR 1, 25 [49] (Gaudron, McHugh, Gummow and Callinan JJ).
[31]Citing Bond v The Queen (2000) 201 CLR 213, 222–3 [24], [26], [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
ACIC submitted further that while an application for leave to appeal or an appeal may be ‘connected to’, ‘arise out of’ or be ‘related to’ a prosecution, these are ‘broad words of connection’ that should not be read into the TIA Act.
In support of its submissions, ACIC relied on the decision of the New South Wales Court of Appeal in Director of Public Prosecutions (NSW) v Serratore.[32] In that case, the court held that a bail proceeding was not a proceeding by way of a prosecution, and therefore not an exempt proceeding for the purpose of s 74(3) of the TIA Act.[33] Cole JA observed that ‘[t]he legislature did not enact that an exempt proceeding is a proceeding associated with, or ancillary to, or in consequence of, a prosecution for a prescribed offence’.[34] Kirby P considered that Parliament had deliberately not used ‘broad words of connection’ and that it was not appropriate to read broad words into the TIA Act so as to expand the types of proceedings that could be considered to be ‘by way of’ a prosecution, even if that resulted in inconvenient outcomes.[35] According to his Honour, a strict reading of the Act was necessary to preserve the balance created by the legislature between individual privacy and law enforcement imperatives.[36]
[32](1995) 38 NSWLR 137 (Kirby P, Cole JA and Santow AJA) (‘Serratore’).
[33]Serratore prompted the amendment of s 5B of the TIA Act to include bail proceedings in the definition of an exempt proceeding.
[34]Serratore (1995) 38 NSWLR 137, 152F.
[35]Ibid 146D.
[36]Ibid 147E.
ACIC further submitted that even if the documents were produced to the applicant, he would be prevented from making use of them in the sense of inspecting, reviewing and considering them with a view to making a forensic decision as to how they should best be deployed in prosecuting his appeal. Section 74(3) does not operate to permit the applicant to ‘make use of’ the IWI, even if it can be given in evidence in an exempt proceeding. Section 74(3) only permits IWI to be given in evidence and does not permit any other use. This is because the exceptions in pt 2-6 are precise about what they permit: ‘communicating’ IWI (e.g. s 63E); ‘making a record’ of IWI (e.g. s 72); communicating and making use of the information (e.g. s 63B). Some sections permit all modes of dealing (e.g. s 63AE). In ACIC’s submission, ‘an exception that (only) permits the giving of information in evidence is not to be read broadly to impliedly permit other modes of dealing’, such as communicating or making use of IWI. According to ACIC, Parliament was specific in its drafting of pt 2-6, and precisely identified what it sought to prohibit and permit in relation to dealing with IWI and LII, resulting in an ‘unusually strict’ and tightly controlled scheme, which is to be interpreted with particular deference to the text of the statute.[37]
[37]Ibid 147D–F (Kirby P), citing John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81, 97 (Kirby P).
In this regard, ACIC relies on Kizon v Palmer (No 2),[38] in which the Full Federal Court set aside a subpoena, stating that ‘even if the documents the subject of the subpoena were made available to the appellant, the appellant and his legal advisers would be unable to make use of the designated warrant information contained therein or give such evidence in the proceeding in this Court’.[39] ACIC submits that construing s 74(3) in this narrow way achieves the policy of the TIA Act, which is to preserve the balance between individual privacy and law enforcement imperatives.[40]

CDPP’s submissions

[38](1998) 82 FCR 310 (Northrop, French and Branson JJ).

[39]Ibid 325C (Northrop and Branson JJ, French J agreeing at 325G). In that case, the court was concerned with an earlier version of the TIA Act which provided at s 6EA for ‘designated warrant information’. The text of s 6EA has remained the same save that ‘designated warrant information’ has been replaced with ‘interception warrant information’.

[40]Citing Commissioner, Australian Federal Police v Samsonidis (2007) 158 FCR 276, [48]–[49] (Jessup J).

The only matter upon which the CDPP sought to be heard was whether an appeal was a ‘proceeding by way of a prosecution’. The CDPP submitted that a proceeding by way of a prosecution should be construed to include an application for leave to appeal and an appeal against conviction. In his submission, to restrict a proceeding by way of a prosecution to a trial for a criminal offence is contrary to Parliament’s intention as it would have the result that the words ‘by way of’ have no work to do.
The CDPP also relied on Serratore as the only appellate authority in which the phrase ‘proceeding by way of a prosecution’ has been considered.[41] In Serratore, Kirby P described a prosecution as ‘a proceeding on a charge of criminal offence designed to lead to a conviction with consequent criminal punishment’.[42] It pertains to the establishment of a person’s guilt or innocence. In the CDPP’s submission, this is an essential characteristic of a ‘proceeding by way of a prosecution’. An application for bail (or the review of a decision to grant or refuse bail) does not have this characteristic.
[41]As a result, the CDPP submitted, the references in ACIC’s submissions to other cases were ‘a distraction’ and did not assist the Court to determine whether an appeal proceeding is an exempt proceeding for the purposes of s 5B of the TIA Act.
[42]Serratore (1995) 38 NSWLR 137, 147C.
The CDPP submitted that, in contrast, an appeal against conviction is the logical culmination of a prosecution: it is the proceeding by which the very result of the trial process is either upheld or set aside. An appeal arises ‘by way’ of the prosecution of an offence and could not exist without it. In this sense, it was submitted, an application for leave to appeal and an appeal share the same ‘ultimate object’ as a trial, being to finally determine the guilt or innocence of a person.

Discussion

Although it is tolerably clear that the relevant parts of Documents 13 to 19 fall within the definition of IWI, counsel for ACIC made lengthy oral submissions as to the meaning of IWI for the purpose of s 6EA, having regard to the decisions in Kizon v Palmer (No 1),[43] Kizon v Palmer (No 2),[44] and Commissioner, Australian Federal Police v Samsonidis.[45]
[43](1997) 72 FCR 409. See ibid 413–48 (Lindgren J).
[44](1998) 82 FCR 310. See ibid 313E (Northrop and Branson JJ).
[45](2007) 158 FCR 276. See ibid 289–90 [47] (Jessup J).
We are satisfied that the disputed passages in Documents 13 to 19, all of which are contained in confidential affidavits prepared in support of warrant applications, are IWI, and that the prohibition in s 63(2) of the TIA Act is engaged. However, these passages can be adduced in evidence in an ‘exempt proceeding’: s 74(3).
As to whether an appeal (or application for leave to appeal) is an ‘exempt proceeding’, the starting point must be the words of the statute itself. Section 5B specifies exhaustively what is captured as an ‘exempt proceeding’. It includes numerous proceedings arising ‘under’ an Act or law, as well as proceedings ‘for’ certain purposes and the proceedings ‘of’ certain statutory bodies or persons.
The words ‘by way of’ appear in a number of paragraphs. Section 5B defines as ‘exempt proceedings’, proceedings ‘by way of’: a coroner’s inquest (s 5B(1)(da)); a bail application (s 5B(1)(l)); a review of a decision to refuse a bail application (s 5B(1)(m)); and a review of a decision to grant a bail application (s 5B(1)(n)).
In ordinary usage, the words ‘by way of’ mean ‘via’ or ‘so as to pass through’, as in ‘he travelled to Sydney by way of Albury’; they also mean ‘as a form of’ or ‘constituting’, as in ‘he gave me flowers by way of apology’. Textually, a proceeding ‘by way of a prosecution’ for an offence could reflect either meaning: a proceeding that arises ‘via’ a criminal trial; or a proceeding that is a form of criminal prosecution in the sense that it forms part of the prosecution of a criminal offence.
In our view, the second meaning is to be preferred. It focuses on the substance of the proceeding in question by asking whether it is properly described as a prosecution. That is consistent with a narrow statutory purpose of treating proceedings in the nature of a prosecution as exempt proceedings. This narrower construction serves to confine the exemption in a way that is consistent with the legislature’s evident concern about protecting against intrusions into privacy. The first meaning would yield a more diffuse operation. It would be apt to embrace proceedings that merely ensue from a criminal trial, even if they have a quite different character. Confiscation proceedings would be one example. The fact that they, like many other proceedings that have some connection with a prosecution, are itemised elsewhere in the definition of ‘exempt proceeding’ itself tells against the first construction.
If a ‘proceeding by way of a prosecution’ is a proceeding that forms part of a prosecution, whether it includes an appeal against conviction will depend on what is embraced in a criminal prosecution.
As previously discussed, in Serratore, Kirby P stated that a prosecution for a prescribed offence is ‘a proceeding on a charge of criminal offence designed to lead to a conviction with consequent criminal punishment’.[46]
[46](1995) 38 NSWLR 137, 147C.
In a different context,[47] in PT Garuda Indonesia Ltd v ACCC,[48] the majority of the High Court considered what was included in a ‘prosecution for an offence’:
In ordinary parlance, ‘prosecution’ identifies the instigation and conduct of a curial proceeding which commences with an accusation of a crime and involves the trial of that accusation concluding with a conviction or acquittal, and may include a committal proceeding.[49]
[47]The Court was here concerned with the Foreign State Immunities Act 1985 (Cth).
[48](2012) 247 CLR 240.
[49]Ibid 250 [29] (French CJ, Gummow, Hayne and Crennan JJ), citing Shepherd v Griffıths (1985) 7 FCR 44, 51–3 (Jenkinson J).
We consider Kirby P’s description in Serratore to be apposite, as it is directed to the statutory provision with which we are concerned. In our view, for the purposes of s 5B(1)(a), a prosecution for a prescribed offence is a curial proceeding to determine whether an accused person is guilty of the crime(s) with which they have been charged and therefore liable to criminal sanctions. It is an adversarial process framed by rules establishing the burden and standard of proof. The process of establishing whether a person is guilty of a crime and liable to criminal sanctions follows a path from the laying of charges to (in most instances) a committal and then, in the absence of a plea, a trial. An appeal against conviction sits on that continuum: it is the point at which a verdict or finding of guilt (and any consequential punishment) ultimately stands or falls. Whether a person stands convicted of a crime following a criminal trial and remains liable to be punished depends on whether the person has exhausted their rights of appeal.
We see appeal proceedings as fundamentally different from bail proceedings, which do not form part of the process of determining guilt and imposing punishment. When it is invoked, an appeal is the culmination of a criminal prosecution. It is not a proceeding that is merely ‘associated with’, ‘ancillary to’, or ‘in consequence of’ a prosecution for a prescribed offence.
In so holding, we are conscious that appeals are creatures of statute.[50] At common law, the powers of courts to interfere with jury verdicts in criminal cases is limited.[51] It was not until 1907 that statutory provision was made in England by the Criminal Appeal Act 1907 (UK) for a court of criminal appeal to be established so as to afford relief ‘on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice’. The English statutory reform was largely adopted in common form criminal appeal statutes in all states of Australia.[52] The process of appeal is now well integrated into the criminal process,[53] albeit that leave to appeal is required in most cases.
[50]Grierson v The King (1938) 60 CLR 431, 435–6 (Dixon J). See also Gipp v The Queen (1998) 194 CLR 106, 145–6 [117] (Kirby J); Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225 (Rich, Dixon, Evatt and McTiernan JJ); State Rail Authority (NSW) vEarthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588, 609 [72] (Kirby J); Eastman v The Queen (2000) 203 CLR 1, 11 [14] (Gleeson CJ); Conway v The Queen (2002) 209 CLR 203, 228 [68]–[69] (Kirby J); Nudd v The Queen (2006) 225 ALR 161, 178 [57] (Kirby J); Perara-Cathcart v The Queen (2017) 260 CLR 595, 613 [40] (Kiefel, Bell and Keane JJ).
[51]CDJ v VAJ (1998) 197 CLR 172, 196–7 [95]–[96] (McHugh, Gummow and Callinan JJ). See also D O’Connor, ‘Criminal Appeals in Australia Before 1912’ (1983) 7 Criminal Law Journal 262.
[52]Visser v The King [2023] VSCA 10, [31] (Emerton P, Priest, McLeish, T Forrest and Kennedy JJA). In Victoria, a right of appeal against conviction was first introduced by the Criminal Appeal Act 1914, the relevant provisions of which were replicated in the Crimes Act 1915 and its successors: at [32]–[34].
[53]See, eg, CPA ss 3(1), 275–7; Supreme Court (Criminal Procedure) Rules 2017 r 2.10.
Furthermore, so far as the reception of evidence is concerned, a sharp distinction between a criminal trial and an appeal is not always evident. Reliance on ‘fresh’ or ‘new’ evidence in criminal appeals, while limited, is far from unknown. Further and subsequent appeals against conviction based on the existence of fresh evidence are expressly provided for in pt 6.4 of the CPA. Indeed, the applicant’s proposed appeal is based on the existence of fresh evidence in the form of VicPol’s use of Ms Gobbo as an informer. Fresh evidence is proposed to be led as a complete defence to the case prosecuted by the Crown.
Section 75A permits evidence given pursuant to ss 74 or 75 in an exempt proceeding (such as a criminal trial) to later be given in evidence ‘in any proceeding’. This would apparently allow evidence given at trial to be given again on appeal. However, it does not provide for fresh or new evidence to be given on appeal.
It is tolerably clear that the IWI extracts could have been led in evidence had the prosecution of the applicant gone to trial. Accordingly, had the applicant known about Ms Gobbo’s role as a police informer, he could have called for the IWI for the purpose of leading it in evidence in his defence at trial. However, the applicant was unaware of Ms Gobbo’s conduct and the need to find out how, exactly, that conduct might affect the trial of the charges he was facing. In seeking to bring the appeal that is the subject of this proceeding, the applicant is, in effect, seeking to run the defence that he could have run at trial but did not, because Ms Gobbo’s role as a police informer had not at that time been disclosed. He is responding, anew, to the prosecution of the charges against him.
We consider that the applicant’s proposed appeal is a proceeding by way of a prosecution for the offences for which he currently stands convicted. It is an ‘exempt proceeding’ in which IWI may be adduced in evidence.
We reject the proposition that s 74(3) would not permit the applicant to ‘use’ the IWI in order to make a forensic decision about whether, and if so how, to use it. In order for the IWI to be given in evidence, the person giving it must first have access to it. That must include reading it and considering whether, and if so, how to exercise the right conferred by s 74(3). The argument advanced by ACIC would mean that the only persons who could adduce IWI in evidence would be those otherwise authorised to access and use the IWI. Including in the present context, that would be very one-sided and grossly unfair. We see no basis for adopting such a narrow construction of the exemption.

We have therefore concluded that ACIC’s objection to providing the relevant parts of Documents 13 to 19 based on the prohibition in s 63(2) of the TIA Act is not made out.
ACIC has correctly emphasised the very strict scheme of the TIA Act. We do not consider that the construction that we favour derogates from the protections imposed, which are themselves subject to exceptions. The detailed scheme for the release of information obtained under warrant in the TIA Act is a response to the severe intrusion into privacy involved in communications intercepts. In the case of IWI, the severity of the restriction on dissemination also seems to be directed to ensuring that the targets of interception warrants are not alerted to the existence of the warrants or to other confidential police matters that may be set out in the supporting materials. However, the legislature has determined that IWI and LII may be disclosed in criminal proceedings, which, for the reasons given, must be taken to include any appeal.

ACIC’s objection based on PII

ACIC also objected to producing the relevant parts of Documents 13 to 19 on the basis that they are protected from disclosure by PII.
In the present case, ACIC says that the documents sought by the applicant contain ‘matters of state’ being information that, if disclosed, is likely to prejudice:
(a)the security, defence or international relations of Australia (s 130(4)(a));
(b)the prevention, investigation or prosecution of an offence (s 130(4)(c)); or
(c)the proper functioning of the Commonwealth or State government (s 130(4)(f)).
It submitted that police methods have long been regarded as a ‘traditional head of the public interest’ attracting PII.[54]
[54]See, eg, R v Roberts (2004) 9 VR 295 regarding police procedures and practices in relation to undercover operations.
In a confidential affidavit, Jason Halls, the National Manager of the South Operations of ACIC, has deposed that the warrant applications, together with their accompanying affidavits forming part of Documents 13 to 19, do not relate to the applicant or the interception of his telecommunications services. The documents detail the status of investigations, including the use of particular modes of surveillance. Although many people involved in criminal activity would be aware that law enforcement agencies use electronic surveillance, this knowledge, combined with other details, could undermine the effectiveness of police methodologies.
According to Mr Halls, Documents 13 to 19 also detail material intercepted under a warrant and information obtained from human sources or undercover officers, as well as identifying persons the subject of ongoing surveillance. While there has been a significant passage of time since the events detailed in the relevant parts of the documents, many of the methodologies deployed are still used by ACIC and other law enforcement agencies. According to Mr Halls, ‘the passage of time does not remove the risks associated with the disclosure of this information’.
ACIC submitted that the Court should accord significant weight to the evidence of Mr Halls because he is a senior government officer with relevant experience and expertise to depose to the likely damage that would arise from disclosing the contents of the documents.
In oral argument, ACIC submitted further that if authorities cannot be confident that what they have disclosed in seeking a warrant will be protected, this will have a detrimental effect on future applications for warrants. A deponent to an affidavit in support of an interception warrant may be less candid in the evidence that they give. This, in turn, may compromise the ability of an agency to satisfy the requirements of ss 40–42 of the TIA Act.
For his part, the applicant repeated the submissions that he made in respect of the PII claims advanced by the AFP.[55]

Discussion

[55]See [39] to [40] above.

Although ACIC advances its claims of PII in respect of the entire contents of the documents in question, we are concerned only with the relevant extracts of Documents 13 to 19 as identified in [61] above.
We have read Documents 13 to 19 and we are satisfied that, in the context in which they appear, the extracts relate to ‘matters of state’ for the purpose of s 130(4) of the Evidence Act. Section 130(1) is engaged. We are asked to consider whether the public interest in the administration of justice, which favours disclosure, is outweighed by the public interest in preserving the secrecy of the relevant extracts.
The difficulty with ACIC’s reliance on Mr Halls’ evidence is that it is not clear how it relates to the extracts. In fact, it is difficult to see how the extracts themselves disclose police methodologies, let alone how they detail or reveal information obtained from human sources or undercover officers, or material intercepted under a warrant, or identify persons the subject of ongoing surveillance. Nor do the extracts, viewed in isolation, shed light on how ACIC engaged with other law enforcement agencies.
The applicant was not the target of any of the warrants to which the affidavits containing the extracts relate. In closed court, counsel for ACIC noted that some passages were, at the time that written submissions were filed and served, thought to relate to the applicant. However, ACIC has subsequently concluded that this is no longer the case.
This means that there is no particular security reason to keep the extracts confidential. It also means that the extracts can be of no material assistance to the applicant in the prosecution of his appeal. There is no real public interest on either side of the ledger.
However, ACIC also argues that if it is required to produce the relevant extracts of Documents 13 to 19, it might become generally known that material of this kind can be obtained by compulsory order of the Court, enabling persons such as the applicant to ‘go behind’ a warrant. This would hinder the ability of an agency to obtain a warrant, given that s 42 of the TIA Act prescribes the matters that must be included in an affidavit accompanying an application for a telecommunications service or named person warrant.
We agree that the release of IWI in the form of affidavit material prepared on a confidential basis in support of an application for a warrant may have a ‘chilling effect’ on persons preparing such affidavits, resulting in the provision of less information than would otherwise be the case. We accept that an authority seeking a warrant may refrain from detailing, in an accompanying affidavit, all the matters that it might otherwise wish to include. This is contrary to the public interest in effective law enforcement, particularly where (as in this case) the documents sought are likely to be of little or no material assistance to the party seeking production.
As to the factors we are required to consider under s 130(5) of the Evidence Act, we repeat what we have said above about the importance of the documents to the application for leave to appeal, and the nature and seriousness of the offences of which the applicant was convicted.[56] For the purpose of s 130(5)(d), we consider that the available means of limiting publication will not completely ameliorate the risks involved in disclosure, such as the ‘chilling effect’ result. As to s 130(5)(e), we note that the relevant parts of Documents 13 to 19 have not previously been published.
[56]See [54]–[56] above.
Although the risks involved in producing the documents under consideration may be slight, we are satisfied that the balancing exercise required by s 130(1) of the Evidence Act leads to the conclusion that the public interest in preserving the secrecy of the extracts outweighs those in favour of disclosure. The objections to production made by ACIC on the basis of PII will be upheld.

Conclusion

We have concluded that:
(a)the objections to production made by the AFP and ACIC on the basis of PII should be upheld; and
(b)the objections to production made by ACIC on the basis of the statutory prohibition should not be upheld.
We will make orders accordingly.

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[2023] VSCA 64

31 March 2023