Zirilli v The King - [2022] VSCA 192

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2022
DATE OF JUDGMENT:	9 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 192
JUDGMENT APPEALED FROM:	[2012] VSC 47 (King J)

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PRACTICE AND PROCEDURE – Jurisdiction of associate judges – Where Court of Appeal made orders under s 317 of Criminal Procedure Act 2009 for production of documents – Where disputes over production of documents referred to associate judge – Whether associate judge permitted to hear and determine referral – Whether ‘slip rule’ available to amend referral order – Judgment of associate judge set aside.

Constitution Act 1975 s 75A(2A); Criminal Procedure Act 2009 s 317; Supreme Court Act 1986 ss 10, 11, 17, 111, 113C, 113O, 113P; Supreme Court (Criminal Procedure) Rules 2017 rr 1.06, 1.14, 1.16; Supreme Court (General Civil Procedure) Rules 2015 r 84.03.

Burrell v The Queen (2008) 238 CLR 218, followed.

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Counsel
Applicant:		Dr M Gumbleton
Respondent:		Mr D Renton SC
Chief Executive Officer of the Australian Criminal Intelligence Commission:		Mr A Berger KC with Ms S Martin
Chief Commissioner of Victoria Police:		Ms S Maharaj KC with Mr J Bayly and Ms K Chan
Chief Commissioner of the Australian Federal Police:		Ms P Mitchell
Solicitors
Applicant:	Nicholas James Lawyers
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)
Chief Executive Officer of the Australian Criminal Intelligence Commission:	Australian Government Solicitor
Chief Commissioner of Victoria Police:	Victorian Government Solicitor
Chief Commissioner of the Australian Federal Police:	Clayton Utz

EMERTON ACJ
BEACH JA
MCLEISH JA:

Background

On 7 December 2011, having pleaded guilty to all charges, the applicant 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). These were all offences under schedule 1 of the Criminal Code Act 1995 (Cth). Each carried a maximum sentence of life imprisonment. On 23 February 2012, King J sentenced the applicant to a total effective term of 26 years’ imprisonment, with a non‑parole period of 18 years.[1]
[1]See DPP (Cth) v Barbaro [2012] VSC 47.
What is now commonly referred to as the ‘Lawyer X’ scandal began to emerge in early 2015 as a result of an inquiry by the Victorian Independent Broad-based Anti-corruption Commission into the way in which Victoria Police had deployed a member of the Victorian Bar, Ms Nicola Gobbo, as an informer while she purported to act as counsel for a number of individuals, including the applicant. That exposure generated the Royal Commission into the Management of Police Informants, which also revealed contact between the applicant’s former solicitor, Mr Joseph Acquaro, and Victoria Police in 2008 and 2014.
On 24 March 2020, the applicant filed an application for leave to appeal his convictions based on the following proposed grounds of appeal:
Ground 1:

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

Details

AGLC: Zirilli v The King [2022] VSCA 192
Case: [2022] VSCA 192
Decision Date: 9 September 2022

CaseChat Overview and Summary

In Zirilli v The King, the appellant sought to appeal against a judgment of an associate judge who had been appointed to determine a dispute over the production of documents in criminal proceedings. The Court of Appeal had ordered the production of certain documents under section 317 of the Criminal Procedure Act 2009. Disputes over the production of those documents were referred to the associate judge for determination. The appellant challenged the legality of the associate judge’s jurisdiction to hear and determine the referral, as well as the availability of the ‘slip rule’ to amend the referral order.

The central legal issues before the court were whether an associate judge has the jurisdiction to hear and determine a referral under section 317 of the Criminal Procedure Act 2009, and whether the ‘slip rule’ could be used to amend a referral order made by a court. The court considered the relevant statutory provisions and case law, including the decision of the High Court in Burrell v The Queen.

The court found that an associate judge does not have the jurisdiction to hear and determine a referral under section 317 of the Criminal Procedure Act 2009. The court held that the statutory provisions conferring jurisdiction upon the associate judge do not extend to the hearing and determination of referrals. The court also held that the ‘slip rule’ could not be used to amend the referral order. The judgment of the associate judge was set aside, and the matter was remitted to the Court of Appeal for further consideration.

The final orders of the court were that the judgment of the associate judge be set aside, and that the matter be remitted to the Court of Appeal for further consideration. The court did not make any orders regarding the production of the disputed documents.

Orders