Zirilli v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE QUEEN	Respondent

---

JUDGE	IRVING ASJ
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 August 2021
DATE OF JUDGMENT:	10 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 305

---

CRIMINAL LAW – Orders for production of documents pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Victoria Police and the CEO of the Australian Criminal Intelligence Commission – Whether documents protected by public interest immunity – Where production objected to on the basis of public interest immunity – Where production objected to on the basis that the information is not relevant to the proceeding – Where production objected to on the basis of lacking legitimate forensic purpose – Where production objected on the basis of dealing with information under the Telecommunications (Interception and Access) Act 1979 (Cth) – Where documents with redactions were produced – Criminal Procedure Act 2009, s 317.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A V Chernok with Mr M P Murphy	Nicholas James Lawyers
For the Director of Public Prosecutions (Cth)	Ms A Martin	Director of Public Prosecutions (Cth)
For the Commissioner of the Australian Federal Police	Ms C Pierce	Clayton Utz
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Ms M Pekevska and Ms K Chan	Victorian Government Solicitor
For the CEO of the Australian Criminal Intelligence Commission	Ms S Martin	Legal Services Branch, Australian Criminal Intelligence Commission

IRVING ASJ:

On 24 March 2020, Mr Zirilli filed an application for leave to appeal three convictions for serious offences, for which he plead guilty. His single ground of appeal is that a substantial miscarriage of justice has occurred in circumstances where defence counsel was secretly used as a police informer to secure his convictions.[1]
[1]The circumstances surrounding the relevant offending and Mr Zirilli’s subsequent arrest, trial and sentencing were set out in Zirilli v The Queen [2021] VSCA 2, [1]–[30]. I adopt that summary for the purpose of this ruling.

In June and July 2020, the Court made orders under s 317 of the Criminal Procedure Act 2009 (‘CPA’) requiring the Chief Commissioner of Victoria Police, the Commissioner of the Australian Federal Police (‘AFP’) and the CEO of the Australian Criminal Intelligence Commission (‘ACIC’) to produce documents described by categories in each order.[2]
[2]The orders made were amended on 6 October 2020 (AFP and Chief Commissioner), 15 October 2020 (AFP only). The effect of these amendments was to extend the time for various steps to be taken but not to amend the categories of documents sought.

This ruling addresses claims of public interest immunity (‘PII’) made by each of the producing individuals in relation to parts of, or entire, documents. Additionally, this ruling addresses the CEO of the ACIC’s objections to producing parts of some documents on the basis of statutory prohibitions against disclosure.

The Commonwealth Director of Public Prosecutions (‘CDPP’) is the respondent to Mr Zirilli’s application for leave to appeal. The CDPP does not object to the PII and statutory prohibition claims. She did not take an active part in the PII claims hearing and did not file written submissions.

Legal principles

Public interest immunity

The legal principles relevant to PII claims were not in dispute. The Victorian Court of Appeal set out the principles in two recent decisions and I respectfully adopt what the Court has said in those decisions for the purpose of this ruling.[3]
[3]Madafferi v The Queen [2021] VSCA 1, [27]–[43]; Zirilli v The Queen [2021] VSCA 2, [120]–[127].

The person claiming PII and seeking a non-disclosure ruling bears the burden of making good that claim.[4]
[4]Zirilli v The Queen [2021] VSCA 2, [120].

Section 130 of the Evidence Act 2008 (‘Evidence Act’) reflects the principles relating to PII claims at common law and if any differences exist between the common law and s 130, they are of no practical significance.[5]
[5]Madafferi v The Queen [2021] VSCA 1, [31].

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.

Section 131A of the Evidence Act gives s 130 an extended operation such that the principles apply equally to various forms of coercive document production including orders pursuant to s 317.[6]
[6]See s 131A(2) of the Evidence Act 2008.

Section 130(4) sets out, non-exhaustively, the matters and circumstances in which information or a document may be taken for the purposes of s 130(1) to relate to matters of state. Relevantly, these include that if adducing evidence of the information or document would, ‘prejudice the prevention, investigation or prosecution of an offence’ or ‘disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State’.[7]
[7]See ss 130(4)(c) and 130(4)(e) of the Evidence Act 2008.

Section 130(5) sets out the matters the Court is required to take into account, without limiting the matters the Court may take into account, for the purposes of s 130(1).

Telecommunications (Interception and Access) Act 1979 (Cth)

Section 63 of the Telecommunications (Interception and Access) Act1979 (Cth) (‘TIA Act’) prohibits disclosure[8] of ‘lawfully intercepted information’, information obtained by intercepting a communication in contravention of s 7(1) of the TIA Act and ‘interception warrant information’.
[8]By way of communication to another person, make use of, record or give in evidence in a proceeding.

‘Lawfully intercepted information’ is defined in s 6E of the TIA Act as including information obtained by intercepting a communication passing over a telecommunications system.

‘Interception warrant information’ is defined broadly in s 6EA of the TIA Act. It includes 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 telecommunications service ‘ to which an interception warrant relates.

A person may give lawfully intercepted information (other than foreign intelligence information) or interception warrant information in evidence in an exempt proceeding: s 74(1) and s 74(3) of the TIA Act.

If the information is given in evidence in an exempt proceeding under ss 74 or 75 of the TIA Act, that information or any part of that information may later be given in evidence in any proceeding: s 75A TIA Act.

Exempt proceedings are defined in s 5B of the TIA Act.

Having set out the legal principles relevant to claims of PII and the statutory prohibitions contained in the TIA Act, I note turn to the applications before the Court made by the Commissioner of the AFP, the CEO of the ACIC and the Chief Commissioner of Victoria Police.

For reasons which will become shortly evident, it is convenient to first address the submissions of Mr Zirilli, who having not seen the redacted material, was limited in the assistance he could provide to the Court.

Mr Zirilli’s submissions

Mr Zirilli’s legal representatives were provided with redacted versions of the documents produced by the CEO of the ACIC, the Commissioner of the AFP and the Chief Commissioner of Victoria Police.

The redactions to the documents reflected the various claim for confidentiality made by each of those producing parties.

Mr Zirilli’s legal representatives submitted, and I accept, that he was limited in the submissions he was able to make in relation to individual redactions because he was not privy to the redacted information.

In these circumstances, his submissions were necessarily directed to issues of legal principle rather than the particulars of individual redactions.

Mr Zirilli says his appeal is based on the proposition that the conduct of Victoria Police and Ms Gobbo represents a far-reaching abuse of process and is a profound interference by the executive in the administration of justice. Mr Zirilli says the available information suggests Ms Gobbo was not only informing on her own clients and their co-accused and co-conspirators, but also that she was instrumental in obtaining the evidence of some of her clients against others. Had Mr Zirilli been aware that Ms Gobbo was a police informer at material times, he says he would have sought and been granted a permanent stay of the proceedings against him.

Mr Zirilli submits that, in response to his application for leave to appeal, the CDPP argues that neither it, nor the AFP, knew Ms Gobbo was a police informer, or that the information which gave rise to the investigation and which continued to be provided by her, had come from that source.

Mr Zirilli expects the information sought will assist him to ascertain how Ms Gobbo’s or Mr Acquaro’s roles informed the investigation into Mr Zirilli and his co-accused, ie that it is ‘on the cards’ the information sought may ‘materially assist’ Mr Zirilli in the conduct of his appeal.

The information will confirm at least what information was known to what agency, when and how was it assessed, used and disseminated.

Mr Zirilli submits that under the terms of s 130(5) of the Evidence Act 2008, the Court must consider ‘the likely effect of adducing evidence of the information or document, and the means available to limit its publication.’ Mr Zirilli says there are means readily available to limit the publication of the information, including appropriate undertakings by counsel or court suppression orders.

Where Mr Zirilli made additional submissions relevant to the claims of a particular producing party, I have summarised those submissions in the relevant section of this ruling below.

I now turn to the three producing parties and their respective PII claims, as resisted by Mr Zirilli.

Australian Federal Police

Mr Zirilli challenges PII claims relating to 5 documents described as ‘Full Objection Documents’ in the affidavit of AFP Assistant Commissioner Bruce Giles sworn 8 September 2020. The 5 documents are AFP intelligence documents dated:

(a) 21 August 2007, classified ‘Highly Protected’ spanning 8 pages;

(b) 5 October 2007, classified ‘Highly Protected’ spanning 9 pages;

(c) 2 February 2009, classified ‘Highly Protected’ spanning 16 pages;

(d) March 2009, classified ‘Highly Protected’ spanning 62 pages; and

(e) March 2009, classified ‘Protected’ spanning 53 pages.

The AFP objects to production of the Full Objection Documents on the basis that the documents reveal sensitive police methodologies.

The AFP rely on the open and confidential affidavits of Assistant Commissioner Giles both sworn on 8 September 2020, in which Assistant Commissioner Giles deposes the following.

Assistant Commissioner Giles has over 32 years of experience as an AFP member. The majority of his career has been working against organised crime, with a particular focus on drugs, fraud and people smuggling, in addition to counter-terrorism, international operations and international capacity development programs. He has had several overseas postings through which he has gained an appreciation of the value of the AFP’s cooperative relationships with international law enforcement partners and the impact these relationships have on preventing, deterring, investigating and disrupting organised crime activities in Australia and abroad.

Assistant Commissioner Giles further deposes to the functions of the AFP by reference to the Australian Federal Police Act 1979 (Cth) and the Ministerial Direction issued under that Act and dated 12 May 2014 (which remains in force). These functions, he says, include assisting and cooperating with international organisations in relation to the provision of police services and preventing, deterring, disrupting and investigating serious and organised criminal activities impacting on the interests of the Australian community.

Assistant Commissioner Giles describes the criminal organisations’ methods of operating and geographical reach as ‘constantly evolving’.[9] To meet the challenges posed by serious and organised crime, the AFP’s response requires, according to Assistant Commissioner Giles, a coordinated national and increasingly international approach harnessing collective resources, capabilities, expertise and knowledge. Preserving these methodologies and maintaining these relationships, he says, are critical to the effectiveness of the AFP.
[9]Affidavit of Assistant Commissioner Giles sworn 8 September 2020, [40].

In relation to the AFP’s PII claims over the Full Objection Documents, Assistant Commissioner Giles’ evidence is that:

(f) each of the documents was prepared by AFP intelligence, a unit within the AFP which provides a consolidated picture of transnational serious organised crime and national security threats;

(g) intelligence reporting is an ongoing and continuous process and information may remain sensitive notwithstanding the arrest and prosecution of the individuals to whom that intelligence relates;

(h) Full Objection Documents 1 and 2 were prepared during the course of the AFP’s investigation into the 4.5 tonne MDMA importation and subsequent activities of the criminal syndicate;

(i) Full Objection Documents 3, 4 and 5 were each prepared after the conclusion of the investigation;

(j) the Full Objection Documents themselves reveal sensitive police methodology because they disclose:

(i) the way the AFP collects, collates, assesses, questions and attempts to validate criminal intelligence;

(ii) the value of specific information and the weight intelligence officers place on that information;

(iii) the assumptions, predictions and recommendations made by intelligence officers;

(iv) the areas of interest, priorities, understanding and knowledge gaps at a particular point in time and may thus support inferences about the nature and extent of AFP capabilities, including vulnerabilities; and

(k) the information within the Full Objection Documents would assist organised crime groups and persons of interest to police to evade detection and impede the efforts of the AFP and partner agencies to prevent, disrupt and investigate serious criminal activity.

Assistant Commissioner Giles elaborates and supplements his evidence in his confidential affidavit. Given his extensive relevant experience, I have accorded his evidence significant weight.

On 28 September 2020, the AFP filed supplementary submissions. Those submissions adopted the AFP’s submissions of 8 September 2020 and included additional submissions in relation to categories of PII that are not relevant to the contested PII claims over the Full Objection Documents.

On 13 October 2020, Mr Zirilli filed submissions in reply to the AFP’s two sets of submissions. In addition to the matters outlined above at paragraphs 20–29, he submits that:

(l) the suggestion by the AFP that the information may support inferences as to the nature and extent of [AFP] capabilities is ‘a bridge too far’;[10] and

(m) ‘Intelligence analysis by the AFP is hardly a matter of great secrecy’.[11]

[10] Applicant’s submissions filed 13 October 2020, [14].

[11]Ibid [16].

On 1 February 2021, Ms Philippa Mitchell swore an affidavit exhibiting correspondence between the solicitors acting for the AFP and Mr Zirilli on the subject of redactions to the Full Objections Documents. It is useful to set out some aspects of that correspondence.

On 9 November 2020, Ms Mitchell, as solicitor for the AFP, wrote to Mr Zirilli’s solicitor seeking clarification of the term ‘information’ referred to in Mr Zirilli’s submissions. The letter stated:

(n) the AFP had identified the Full Objection Documents as containing information falling within the scope of the s 317 order because they contained a passage referring to the interception by the Australian Customs Service (‘Customs’) of the container MEDU1250218;

(o) in each instance, the relevant passage was extracted and provided to Mr Zirilli in correspondence from the AFP;

(p) in each instance, the relevant passage constituted a small fraction of the total information in the document — with the remaining information falling outside the scope of the s 317 orders;

(q) the AFP had reviewed the documents and is not aware of any information that may have originated from Ms Gobbo beyond the passages referring to Customs interception of container MEDU1250218;

(r) insofar as Mr Zirilli seeks the information contained in the Full Objection Documents to ascertain how Ms Gobbo’s conduct as human source informed the progress of the investigation into Mr Zirilli and his co-accused, Full Objection Documents 1 and 2 were created for the purpose of advancing investigations in Operation Bootham-Moko and Operation Inca and were created on 21 August 2007 and 5 October 2007 respectively; and

(s) Full Objection Documents 3, 4 & 5 were created in early 2009 — after Mr Zirilli and most of his co-accused had been charged. They were not prepared for the purpose of advancing the investigations. They were prepared for the purpose of assessing the impact of the operations and providing strategic advice on future activities of the AFP and its partner agencies.

By letter dated 27 January 2021, Ms Larre, solicitor for Mr Zirilli, responded to Ms Mitchell’s letter stating that:

(t) Mr Zirilli seeks access to the redacted parts of the Full Objection Documents on the basis that access is necessary to understand how the AFP used the ‘information’;

(u) Mr Zirilli contends that it continues to be ‘on the cards’ that information in the AFP’s possession may ‘materially assist’ him ‘even if there is no direct nexus between certain information and Ms Gobbo’s conduct as a Victoria Police human source’;

(v) any information which impacted upon the investigation of the relevant offences is material; and

(w) each of the Full Objection Documents is dated prior to Mr Zirilli’s plea of guilty.

By letter dated 1 February 2021, Ms Mitchell replied, stating:

(x) the information contained in the balance of each document falls outside the scope of the relevant s 317 orders;

(y) the Court must be satisfied that Mr Zirilli has established a legitimate forensic purpose to access the balance of the documents before it becomes necessary to adjudicate the AFP’s PII claims;

(z) Mr Zirilli’s argument that gaining access to the Full Objection Documents will assist him to understand how the AFP received, evaluated and used the information contained in the bill of lading is without merit as it is based on a misunderstanding of what was in fact communicated to the AFP and the circumstances surrounding Customs’ interception of container MEDU1250218;

(aa) the AFP has reviewed the balance of the Full Objections Documents and is not aware of any information that may have originated from Ms Gobbo. The only information in the documents identified as originating from Victoria Police is the observations of Victoria Police surveillance operatives contained in some of the documents; and

(bb) Mr Zirilli’s desire to gain access to the documents in their entirety is akin to ‘fishing’.

I pause here to note that the category of documents identified in the s 317 order made on 16 June 2020 is:

All documents relating to information exchanged with Victoria Police (VicPol), the Australian Customs Service (now Australian Border Force) (Customs) and the Australian Crime Commission (now the Australian Criminal Intelligence Commission) (ACC) 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.

The AFP have made a PII claim over the Full Objection Documents, although it appears from the correspondence above that the AFP also assert that, other than the extracted passage already provided to Mr Zirilli, the documents are not within the scope of the s 317 orders.

There is no disagreement in this case that the documents the subject of the AFP’s PII application are correctly characterised as relating to matters of state. Section 130 is clearly enlivened.

The competing public interests in this aspect of the case are:

(cc) on the one hand, the public interest in protecting methods used by police to prevent, investigate and prosecute offences; and

(dd) on the other, the interest in disclosing information that a person asserts may assist them in seeking to quash a conviction.

Full Objection Document 1, dated 27 August 2007, describes the attempted importation of MDMA in shipping container MEDU125021; the subject of Operation Bootham/Moko. It describes some steps in the investigation and persons of interest to police, including Mr Zirilli. How and when Mr Zirilli became a person of interest is not explained. The document does not identify the source of the information it refers to nor when the information came to be known by the AFP, ie the document does not identify what, if any, of the information was provided by or exchanged with Customs or Victoria Police. Neither Ms Gobbo nor Mr Acquaro are mentioned in the document.

Full Objection Document 2, dated 5 October 2007, is a revised and updated version of Full Objection Document 1. Mr Zirilli is named in the document as a person of interest, although how and when he became a person of interest is not discussed. Again, the document does not identify the source of the information or whether it was the subject of exchange with another agency or when the information came to be known by the AFP. Neither Ms Gobbo nor Mr Acquaro are mentioned in the document.

Full Objection Document 3, dated 2 February 2009, focuses on Operation Inca, including a chronology of events and persons of interest to police, including Mr Zirilli. It identifies Mr Zirilli as having direct involvement in the drug importation that was the subject of Operation Bootham/Moko. Neither Ms Gobbo nor Mr Acquaro are mentioned in the document. As with full Objection Documents 1 and 2, the source of the information contained within the document is not identified, nor is there reference to the information being the subject of exchange between agencies.

Full Objection Document 4, dated March 2009, is a revised and expanded version of Full Objection Document 3. Mr Zirilli is mentioned however the source of the information contained in the document is not identified. As with the other Full Objection Documents, the source of information is not disclosed.

I turn now to the matters I am required under s 130(5) to take into account in undertaking the ‘balancing exercise’ inherent in s 130(1).

Firstly, 130(5)(a) directs enquiry into the importance of the information in Mr Zirilli’s appeal. I have had regard to the issues raised by Mr Zirilli’s appeal and the central importance he places on the ‘who knew what, when and how’ questions. I have read the contents of the Full Objection Documents in their unredacted form. In my view, the redacted material would not assist Mr Zirilli to identify information exchanged between agencies or sourced from or due to the actions of Ms Gobbo or Mr Acquaro. I am not satisfied that there is a reasonable possibility that the information contained in them would materially assist Mr Zirilli in his appeal.

Regarding s 130(5)(b), in this case, the party seeking the production of the information, Mr Zirilli, was the accused in the original prosecution who is now seeking to overturn convictions carrying a lengthy sentence.

For the purposes of s 130(5)(c), the nature and seriousness of Mr Zirilli’s offences were canvassed comprehensively in Zirilli v The Queen.[12] I adopt that summary.
[12][2021] VSCA 2, [1]–[8].

The Full Disclosure Documents contain significant amounts of information and provide an insight into how the AFP compiles and assesses intelligence material. I accept Mr Zirilli’s submission that the fact that the AFP conduct intelligence analysis is well understood. This, however, does not mean that the content and methods of that analysis are well understood. Criminal organisations would gain benefit from publication of this information. I am not satisfied the available means of limiting publication, such as undertakings by counsel or suppression orders, would completely ameliorate the risks involved in disclosure — s 130(5)(d).

Lastly, regarding s 130(5)(e), excluding the relevant paragraphs contained in the documents that were extracted and provided to Mr Zirilli, it is undisputed the substance of the information under consideration has not already been published.

Against these considerations, I am satisfied that disclosure would reveal sensitive police methodologies and there is a significant public interest weighing against disclosure of such information.

The public interest factors favouring non-disclosure outweigh those in favour of disclosure. The AFP’s PII claims in relation to the Full Disclosure Documents is upheld.

ACIC

The CEO of the ACIC disclosed 21 documents in response to the s 317 orders made by consent on 6 July 2020. Revised redacted versions of those 21 documents were produced to the Court on 22 February 2021.

The CEO of the ACIC has requested the Court uphold objections to disclosure on three grounds. The first ground was relevance. The objections to production based on relevance were the subject of an earlier ruling of this Court.[13]
[13]Zirilli v The Queen [2021] VSCA 174.

The second ground is PII. Mr Zirilli does not dispute the CEO’s claims for PII as far as they relate to staff members’ names or other personal details. This has limited the contested claims to those contained within document 5 and documents 13 to 19.

Ground three raised by the CEO of the ACIC is the statutory prohibition contained within s 63 of the TIA Act. This ground is limited to footnote 7 in document 9, document 11 at page 10, document 12 at pages 105 and 123, and the entirety of document 20.

The CEO of the ACIC maintains the material the subject of the PII claims in documents 5 and 13 to 19 contain information regarding the ACIC’s investigative methods as well as human source material. The CEO of the ACIC claims PII to protect disclosure of law enforcement methodology, disclosure of which, it says, could prejudice investigations. In relation to document 5, the CEO of the ACIC is also concerned to protect the confidential source of information.

The CEO of the ACIC relies on the open and confidential affidavits of Mr Jason Leigh Halls both sworn 15 March 2021. Mr Halls deposes to being a senior ACIC officer with direct responsibility for overseeing the collection and analysis of highly sensitive criminal intelligence information in Victoria, South Australia, Tasmania and Western Australia. Accordingly, I consider his opinions carry substantial weight.

Mr Halls’ open evidence is that:

(ee) the ACIC’s functions, set out in s 7A of the Australian Crime Commission Act 2002 (Cth) (‘ACC Act’), include to undertake, when appropriately authorised, special ACIC investigations;

(ff) a ‘special investigation’ means an investigation relating to federally relevant criminal activity. This includes serious and organised crime involving an offence against the law of the Commonwealth or Territory or State when it contains a federal aspect;

(gg) the ACIC is also an interception agency with the meaning of chapter 2 of the TIA Act;

(hh) the ACC Act contemplates and mandates cooperation between the ACIC and other law enforcement agencies;

(ii) in 2006–2007, the ACIC was authorised to conduct a special investigation under the Australian Crime Commission Special Investigation Authorisation and Determination (High Risk Groups) 2005;

(jj) the purpose of that authorisation was to collect and analyse criminal information and intelligence relating to federally relevant criminal activities, to identify and apprehend persons involved and to reduce the incidence and effect of those activities;

(kk) that activity included the unlawful importation of illegal drugs into Australia;

(ll) as part of that authorisation, the ACIC was involved in the relevant joint investigations with Victoria Police and Customs from approximately April or May of 2007. This led to the identification of shipping container MEDU1250218;

(mm) the ACIC also signed a joint agency agreement with Victoria Police, the AFP and Customs to facilitate a controlled delivery of narcotics contained within that shipping container;

(nn) the ACICs investigations consisted of several areas of investigation, only one of which involved this instance of narcotics importation; and

(oo) the ACIC withdrew from the joint investigation in early October 2007 to concentrate of other unrelated areas of investigation.

Mr Halls’ evidence is that document 5 is an internal ACIC document consisting of an application for authority to conduct a controlled operation under the Crimes Act 1914 (Cth) in another ACIC operation, ie not the joint operations conducted with Victoria Police, the AFP and Customs which led to the identification of the shipping container MEDU1250218 or the controlled delivery. In Mr Halls’ view, there is only one paragraph in document 5, being a statement of general information, that may fall within the scope of the s 317 orders. Given that the balance of the document is beyond the scope of the orders and the single paragraph within this scope is a statement of general information, Mr Halls’ opinion is that document 5 is unlikely to materially assist Mr Zirilli and thus is not a document of importance in the proceeding.

In relation to the affidavits contained in documents 13 to 19, being affidavits in support of applications for telecommunications services warrants, Mr Halls’ evidence is that:

(pp) the affidavits were prepared for warrants involving persons other than Mr Zirilli;

(qq) the affidavits were prepared on the basis that the information was only to be made available to the eligible issuing officer and are therefore not drafted to protect sensitive material and law enforcement methodologies;

(rr) the affidavits contain sensitive and confidential information, the disclosure of which would potentially reveal sensitive law enforcement methodology, including secret means of collecting, correlating, analysing and disseminating criminal information and intelligence;

(ss) the ACIC must also protect covert sources of information; and

(tt) public disclosure of this information could seriously jeopardise the success of future intelligence operations by allowing criminal groups to deploy strategies to avoid or frustrate operations and investigations.

The CEO of ACIC submits that:

(uu) there is not a reasonable possibility the information the subject of the PII claims would materially assist Mr Zirilli in his appeal;

(vv) much of the material in documents 5 and 13 to 19 does not fall within the scope of the s 317 orders and is therefore unlikely to be relevant to Mr Zirilli’s defence;

(ww) non-disclosure of this material would not harm the public interest in the administration of justice;

(xx) police methods of operation has long been regarded as a traditional head of public interest attracting PII;

(yy) there is substantial public interest in not disclosing document 5 and the relevant pages of documents 13 to 19. This is based on the imperative not to educate criminals about the specific methodologies used by the ACIC (to the extent they are not already generally known) to ensure work that is so much in the public interest is not impeded or frustrated; and

(zz) in relation to the relevant pages of documents 13 to 19, the public interest in non-disclosure is a based first on the likelihood the material is subject to statutory prohibitions and second, that to disclose this material would be inconsistent with the reluctance of Courts to allow an applicant to go behind a warrant.

While the CEO of the ACIC relies on PII as the primary basis of his objection to disclosure of documents 13 to 19, he also points out that they are documents concerning applications for interception warrants and contain interception warrant information as defined by s 6EA of the TIA Act, the disclosure of which is prohibited by s 63A of the TIA Act (unless previously disclosed in an exempt proceeding). Mr Halls’ evidence is that the information contained in the documents has not previously been disclosed in an exempt proceeding.

The CEO of the ACIC says there would be little utility in allowing disclosure, as Mr Zirilli may ultimately be prevented through the operation of the TIA Act from using them in evidence.

Addressing first, the objection founded in PII.

It was not contested and I accept that the PII materials relate to matters of state. Again, s 130 the Court’s discretion is enlivened.

The competing public interests in this aspect of the case are:

(aaa) on the one hand, the public interest in protecting methods used by police to prevent, investigate and prosecute offences and, in relation to document 5, the additional public interest in protecting confidential sources of information; and

(bbb) on the other hand, the interest in disclosing information that a person asserts may assist them in seeking to quash a conviction.

I refer to Mr Zirilli’s submissions above at [20]–[29].

I turn now to the mandatory factors in s 130(5) of the Evidence Act 2008, adopting what I have said above in relation to s 130(5)(b) and (c).

Dealing with document 5 first, and the importance of the information in the proceeding: s 130(5)(a). As noted above, document 5 is an internal ACIC document. It is an application for authority to conduct a controlled operation not connected to the joint operations conducted with Victoria Police, the AFP and Customs which led to the identification of the shipping container MEDU1250218 or the controlled delivery. The document does not mention Mr Zirilli, Ms Gobbo or Mr Acquaro. Having regard to the content of the redacted information in document 5, I do not consider there to be a reasonable possibility that its contents would materially assist Mr Zirilli in his appeal. Accordingly, I am satisfied the redacted information in document 5 is not important in the proceeding.

Section 130(5)(d) requires that I consider the likely effect of adducing evidence of the information or document, and the means available to limit its publication. I am satisfied that the material contains sensitive law enforcement methodology, which, if adduced in evidence would provide criminals with information that would assist them to evade those methodologies in future. I am also satisfied that disclosure may identify covert sources of information. I am not satisfied the available means of limiting publication, such as undertakings by counsel or suppression orders, would completely ameliorate the risks involved in disclosure.

The substance of the information or document has not already been published: s 130(5)(e).

I am satisfied that the PII claims made by the CEO of ACIC in relation to document 5 fall within well recognised categories of PII and that there is significant public interest in the non-disclosure of this information.

In balancing these considerations, I am satisfied that the public interest in preserving the confidentiality of the material contained in document 5 is not outweighed by the public interest in disclosure.

Documents 13 to 19 consist of telecommunications warrants, applications for those warrants and affidavits sworn in support of the warrant applications. The warrants and applications were the subject of the Court’s earlier relevance redactions rulings. The CEO of the ACIC claims of PII only to each of the affidavits in support of the warrants.

Each of the affidavits in question reference various operations conducted by the ACC relating to a number of criminal syndicates suspected of manufacturing and trafficking commercial quantities of controlled drugs. The affidavits are variously dated June, July (x 3), September (x 2) and December 2007. Mr Zirilli is not the subject of any of the warrant applications. Mr Zirilli is mentioned in a number of the affidavits as being a person of interests in investigations the subject of some investigative operations, including Operation Inca. Very little of the information in each affidavit falls within the scope of the s 317 orders.

Moving to a consideration of the s 130(5) matters, I adopt what I have said above in relation to s 130(5)(b) and (c). In relation to s 130(5)(d) for documents 13 to 19, I am again satisfied that the material contains sensitive law enforcement methodology, which if adduced in evidence, would provide criminals with information that would assist them to evade those methodologies in future. I am not satisfied the available means of limiting publication, such as undertakings by counsel or suppression orders, would completely ameliorate the risks involved in disclosure.

The substance of the information in documents 13 to 19 has not already been published: s 130(5)(e).

I am satisfied that to the extent that the information within each affidavit falls within the s 317 orders, it is of importance in the proceeding; s130(5)(a).

In relation to the affidavit forming part of:

(ccc) document 13, the relevant information is located in paragraphs 136 and 137;

(ddd) document 14, the relevant information is contained within the first two sentences of paragraph 16, and in paragraphs 17 and 18;

(eee) document 15, the relevant information is contained within the first, second and fourth sentences of paragraph 24, and paragraphs 25 and 26;

(fff) document 16, the relevant information is contained within paragraphs 136 and 137;

(ggg) document 17, the relevant information is contained within the first sentence of paragraph 94;

(hhh) document 18, the relevant information is contained within paragraphs 35 and 37; and

(iii) document 19, the relevant information is contained within the last sentence of paragraph 17 along with paragraph 17(c), and paragraph 46.

Each of these parts of documents 13 to 19 goes to either information exchanged between the relevant agencies within the relevant dates in the s 317 order and pertaining to shipping container MEDU1250218 or to the identification and subsequent surveillance of Mr Zirilli by the ACC between 21 May 2007 and 1 July 2007. The CEO of the ACC has conceded that Mr Zirilli has a legitimate forensic purpose in seeking this information by providing his consent to the making of the s 317 order.

I note that in relation to these documents the CEO of ACIC also raises an objection on the basis of the statutory prohibitions contained within the TIA Act. I note that the Court is not a person for the purposes of s 63 of the TIA Act and so it cannot be an offence for the Court to receive the lawfully intercepted information or the interception warrant information or to grant access to that information to the applicant.[14]
[14]Kizon v Palmer (No 2) [1988] FCA 312; 82 FCR 310, per Northrop & Branson JJ.

The purpose of the prohibition contained in s 63 of the TIA Act is to both protect privacy and to assist law enforcement.[15] I note that to the extent that the purpose is to assist law enforcement, the statutory prohibition contained in s 63 stands in addition to a PII claim. Ordinarily, a court will not exercise its discretionary power to order access to documents produced under compulsion of court order given the manifest intention of s 63 of the TIA Act.
[15]Ibid.

Finally, the submission of the CEO of the ACIC that even if Mr Zirilli is granted access to the information, he will be unable to adduce the information in evidence because of prohibitions contained in the TIA Act is not to the point. The information may materially assist Mr Zirilli in the prosecution of his appeal even if he may not adduce it in evidence. What use is made of the information is a matter for Mr Zirilli and his legal representatives.

In balancing these considerations, I am satisfied that the public interest in disclosing the information within documents 13 to 19 referred to in paragraph 88 above outweighs the public interest in maintaining confidentiality in that information.

I turn now to the objection raised by the CEO of the ACIC under the provisions of the TIA Act.

The CEO of the ACIC submits that the portions of documents 9, 11 and 12 the subject of his statutory prohibition claim disclose the existence of warrants within the definition of interception warrant information in s 6EA of the TIA Act which have not previously been given in evidence in an exempt proceeding.

The CEO of the ACIC submits that documents 12 and 20 contain or disclose lawfully intercepted information (within the meaning of s 6E of the TIA Act) or interception warrant information which has not previously been given in evidence in an exempt proceeding.

Mr Zirilli’s legal representative sought and received confirmation that the relevant lawfully intercepted information was not relied upon in the original proceedings the subject of Mr Zirilli’s appeal. Otherwise, Mr Zirilli’s legal representative did not seek to challenge the CEO of the ACIC’s submissions on the application of the provisions of the TIA Act.

I have read the relevant documents or parts of those documents and agree that the redacted information falls within the statutory definitions of interception warrant information and/or lawfully intercepted information under the TIA Act. I accept the evidence of Mr Halls that the ACIC has made inquiries of its partner agencies to identify any lawfully intercepted information or interception warrant information held by the ACC that has previously been given in evidence and that the relevant parts of documents 9, 11, 12 and 20 have not been given in evidence in an exempt proceeding.

The relevant documents or parts of documents either do not fall within the terms of the s 317 orders or do not mention Mr Zirilli. I am not satisfied that the material the subject of the CEO of the ACIC’s statutory prohibition claims would materially assist Mr Zirilli in the prosecution of his appeal.

Accordingly, the claims made by the CEO of the ACIC on the basis of statutory prohibitions are upheld.

Chief Commissioner of Victoria Police

The Chief Commissioner produced documents pursuant to the s 317 order identifying his PII claims according to a colour code. Mr Zirilli has limited his challenge to the Chief Commissioner’s PII claims in the red and orange categories. Those categories are:

(jjj) red category — maintaining anonymity of police informers/ witnesses/ undercover police; and

(kkk) orange category — risk to a person’s safety.

On 9 October 2021, Mr Zirilli filed submissions in reply to the Chief Commissioner’s PII claims. He submits in relation to the:

(lll) red category — the identity of other police informers ought to be disclosed if they were also co-accused/co-conspirators. Mr Zirilli’s case would be supported if the information reveals that, by Ms Gobbo’s dealings, a co-accused was informing ‘against others’ during the investigative and prosecution stage of the matter or that the AFP or CDPP were aware of a co-accused informing; and

(mmm) orange category — Mr Zirilli expects these redactions to relate to informers who are protected by the red category redactions and so relies on its submissions in relation to that category.

The representative sample index provided by the Chief Commissioner’s legal representatives to the Court on 25 January 2021 identifies 27 documents containing either red or orange category redactions, or both.

The Chief Commissioner relies on the open and confidential affidavits of Acting Commander Mahoney affirmed on 15 September 2020 in support of his PII claims in this proceeding. Acting Commander Mahoney has over 30 years of significant and extensive experience in the investigation of serious crime and I accordingly afford his opinion significant weight.

In relation to the red category (redactions relating to police informers, witnesses or undercover police), Acting Commander Mahoney deposes:

(nnn) the term ‘informer’ applies both to a person who makes a statement and gives evidence against a criminal associate and registered human sources. The former are aware that their identity will be known by the person against whom they are informing and accept the risks involved. The latter provide information on a confidential basis on the understanding their identity and the fact they are the source of the information will remain confidential;

(ooo) witnesses who are not registered human sources generally require police protection or protection within the prison system once it becomes publicly known the person is becoming a Crown witness. The risk to their safety increases exponentially as those in the criminal world seek to stop the person from giving further information, becoming a witness or as a form of retribution;

(ppp) Victoria Police operates on the presumption there does not need to be an expressed or established threat known by police for a witness to be in need of protection;

(qqq) there is a public interest in protecting the identity of persons who provide information to police on a confidential basis and those who ‘turn against’ their criminal associates and make statements. This is based on the ‘chilling effect’ that disclosure would have on potential informers;

(rrr) information from the community is an important source of intelligence and so a reduction in that source would have a detrimental impact on Victoria Police’s functions; and

(sss) disclosure of sources of confidential information has the capacity to adversely impact on the ability of other investigative agencies throughout Australia to collect information from informers.

In relation to the orange category (redactions to prevent risk to a person’s safety), Acting Commander Mahoney’s evidence is:

(ttt) there are matters where the document refers to approaches made to persons by police for assistance;

(uuu) if these approaches were revealed, Acting Commander Mahoney believes it would be likely to give rise to a belief the person approached had in fact assisted police, even if the person declined the approach and provided no assistance, putting that person’s safety in jeopardy and their life at risk; and

(vvv) the same risk applies to a person involved in criminal activity who assists police by providing statements or giving evidence against other criminals or informing against criminals.

Acting Commander Mahoney’s confidential affidavit supplements and elaborates on the evidence contained in his open affidavit.

In relation to the red and orange categories, the Chief Commissioner submits:

(www) the public interest in protecting information which might reveal the identity of a confidential police informer is well established: Jarvie v The Magistrates Court of Victoria [1995] 1 VR 84;

(xxx) it is based on the need to ensure anonymity so that ‘these wells of information’ don’t dry up (also known as the chilling effect) and also on the need to protect informers’ personal safety;

(yyy) at common law, the position of undercover police operatives is closely analogous to that of confidential informers;

(zzz) the public interest considerations that militate against disclosing the names of informers and undercover police also militate against identifying ’handlers’ of confidential informers; and

(aaaa) the public interest against disclosure extends to other witnesses whose personal safety may be endangered by the disclosure of their identity.

Subject to the matters raised below, on the basis of Acting Commander Mahoney’s evidence and the submissions of the Chief Commissioner, I am satisfied that the red and orange categories of redactions relate to matters of state and there is significant public interest in preserving confidentiality in relation to the information.

Acting Commander Mahoney concedes that notwithstanding the best efforts of Victoria Police in carrying out the redaction application process, some errors and inconsistencies may exist. Where inconsistencies or errors are obvious on their face, I have considered the information redacted as not properly falling within the relevant category.

Acting Commander Mahoney draws some distinctions between, on the one hand, confidential information provided by informers and registered human sources and on the other, witnesses who, knowing the risks to their safety, provide statements to police and/or give evidence. While acknowledging the risks to the safety of witnesses who have given statements or indeed evidence in criminal
proceedings, I am not satisfied that references to persons who have given witness statements or testimony is confidential information that is not otherwise in the public domain. I also note that the affidavit material that the Chief Commissioner relies upon does not provide details of any specific risk to any particular individual.

In relation to the red category, Mr Zirilli submits:

(bbbb) the identity of other police informers ought to be disclosed if they were among the co-accused/co-conspirators;

(cccc) if a co-accused was informing against others during either the investigative or prosecution phase of Mr Zirilli’s matters as a result of Ms Gobbo’s dealings, this will provide support to his appeal; and

(dddd) if the AFP or CDPP were aware of co-accused informing, this will assist Mr Zirilli’s to meet the argument that neither the AFP nor the CDPP were aware of Ms Gobbo’s activities, particularly where the evidence did not form part of the hand up brief.

Mr Zirilli relies upon his red category submissions in relation to the orange category, on the basis that he expects these redactions also relate to the informers protected by the red category.

Mr Zirilli submits:

(eeee) in relation to information the subject of the red category redactions, there are a number of means available to limit publication of this information including suppression orders, the use of pseudonyms and undertakings by counsel; and

(ffff) there is already information in the public domain which goes some way towards identifying other police informers co-opted by Ms Gobbo.

The competing public interests in this aspect of the case are identical to those identified in Madafferi v The Queen[16]:

(gggg) on the one hand, the public interest in maintaining confidence in the ability of police to protect avenues of information and intelligence, including the ability of police to protect police informers (whether actual or perceived); and

(hhhh) on the other hand, the interest in disclosing information that a person asserts may assist them in seeking to quash a conviction.

[16][2021] VSCA 1, [29].

I turn now to the matters identified in s 130(5) of the Evidence Act 2008 that I must take into account for the purpose of the balancing exercise in s 130(1).

In relation to s 130(5)(b) and (c), I refer to my comments at paragraphs 55 and 56 above.

I accept that, to the extent that the redacted information bears on the question of the source of information known by the agencies other than Victoria Police who involved in the investigation and prosecution of the offences, the information is important in the proceeding. The same is true of any information from which it may be inferred that Ms Gobbo assisted Victoria Police to convince a person to become a witness: s 130(5)(a).

The chilling effect of adducing evidence that would identify police informers is well known and accepted by courts and the means available to limit publication of that information cannot completely ameliorate the risks of those effects: s 130(5)(d).

Where it is apparent on the face of the document that a reference to a person is a reference to a person who has given a witness statement or evidence in a proceeding, I am not satisfied that the information is confidential: s 130(5)(e).

My rulings in relation to each red and orange PII claim are contained in Annexure A.

Documents redacted by the Royal Commission into the Management of Police Informers

The Chief Commissioner produced documents categorised as 2958 Informer Contact Report (‘ICR’) and 3838 ICRs. The Chief Commissioner applied redactions to these documents consistent with the process used in the Royal Commission into the Management of Police Informants (‘RCMPI’) to redact these document prior to their intended publication on the RCMPI website. Redactions to these documents in this proceeding are not colour coded nor is any redaction labelled to identify the corresponding redaction category. The Chief Commissioner has filed an open affidavit of Detective Acting Inspector Scott Wallace sworn 1 April 2021 setting out the basis of these redactions and the process followed in the RCMPI relevant to these redactions.

Detective Acting Inspector Wallace’s evidence is as follows:

(iiii) the ICRs and source management logs (‘SML’) produced by the Chief Commissioner in this proceeding are the versions of those same documents which were intended to be published by the RCMPI on its website, subject to any further PII claims by the Chief Commissioner in the RCMPI proceedings;

(jjjj) the Chief Commissioner made PII claims by reference to the following categories:

(i) personal and/or health information;

(ii) information relating to police informers, witnesses or covert police members;

(iii) information covered by extant suppression orders;

(iv) information redacted to comply with statutory obligations of confidentiality;

(v) information redacted to avoid prejudice to investigations or prosecutions;

(vi) information relating to compulsory hearings or other law enforcement agencies;

(vii) information relating to police training, equipment, tactics and methodology; and

(viii) information redacted to prevent risk to a person’s safety.

The Chief Commissioner has not identified the basis upon which individual redactions were applied to the documents produced in this proceeding, other than to say the redactions were not applied on the basis of relevance. In his affidavit, Detective Acting Inspector Scott Wallace says if the Chief Commissioner had to review the redactions in order to identify the head of PII claimed, production of the documents in this proceeding would have been considerably delayed.

Detective Acting Inspector Scott Wallace says further that the process followed to redact information in these documents when produced to the RCMPI involved the work of the Victoria Police Human Source Landow Liaison Office and the Human Source Disclosure Teams. When external solicitors and junior counsel representing the Chief Commissioner at the RCMPI were reviewing and assessing the validity of the PII claims, he says, the proposed redactions were only shaded rather than redacted. Through a subsequent process of consultation between the Chief Commissioner and the solicitors assisting the Commission, some proposed redactions were accepted by the Commission and others were rejected.

I accept the redactions applied to the ICRs and SMLs previously produced in the RCMPI have been the subject of a genuine and rigorous process to assess the appropriateness of the Chief Commissioner’s PII claims to those documents. I have no reason to believe the redactions applied to these documents as produced in this proceeding are anything other than appropriately applied. That said, without an identification of the particular basis for the individual redactions, it is not possible for the Court to formally rule on these PII redactions.

Conclusion

I have upheld the Commissioner of the AFP’s PII claims in relation to each of the Full Objection Documents.

I have also upheld the CEO of the ACIC’s PII and statutory prohibition claims other than in relation to the paragraphs or part paragraphs of documents 13 to 19 identified in paragraph 88.

The PII claim rulings I have made on the representative sample documents provided by Mr Zirilli and the Chief Commissioner of Victoria Police are attached to these reasons at Annexure A.

- - -

ANNEXURE A

ANNEXURE A – PII CLAIM RULINGS ON THE REPRESENTATIVE SAMPLE DOCUMENTS PROVIDED BY MR ZIRILLI AND THE CHIEF COMMISSIONER OF VICTORIA POLICE

Item	Title	Redacted Doc ID	Unredacted Doc ID	Ruling on PII redactions
REPRESENTATIVE SAMPLES CHOSEN BY THE CHIEF COMMISSIONER OF POLICE
TOMATO TINS PACKAGE
Audio transcript
2	40-21803838-030707	VPL.4048.0004.4116	VPL.4006.0005.0484	VPL.4048.0004.4166 – ORANGE redactions allowed VPL.4048.0004.4315 - RED redaction allowed VPL.4048.0004.4342 - RED redaction allowed VPL.4048.0004.4343 – All RED redactions allowed except last RED redaction VPL.4048.0004.4344 – Remove all RED redactions VPL.4048.0004.4345 – Remove first three RED redactions. Fourth, fifth and sixth RED redaction allowed. Remove redaction from last four lines of the seventh RED redaction VPL.4048.0004.4346 – First three RED redactions allowed. Remove fourth RED redaction. VPL.4048.0004.4347 – RED redactions allowed
4	46-11792958-170308	VPL.4048.0004.0470	VPL.4006.0005.0001	VPL.4048.0004.0519 – RED redactions allowed

2958 ICRs
10	ICR 2	VPL.2000.0003.0761	VPL.4006.0005.1100	Basis of redaction unspecified
11	ICR 10	VPL.2000.0003.0844	VPL.4006.0005.1112	Basis of redaction unspecified
12	ICR 025	VPL.2000.0003.1205	VPL.4006.0005.1131	Basis of redaction unspecified
13	ICR 039	VPL.2000.0003.1352	VPL.4006.0005.1144	Basis of redaction unspecified
14	ICR 46	VPL.2000.0003.1442	VPL.4006.0005.1160	Basis of redaction unspecified
3838 ICRs
15	ICR 41	VPL.2000.0003.1977	VPL.4006.0005.1170	Basis of redaction unspecified
16	ICR 48	VPL.2000.0003.2043	VPL.4006.0005.1179	Basis of redaction unspecified
17	ICR 53	VPL.2000.0003.2139	VPL.4006.0005.1205	Basis of redaction unspecified
18	ICR 56	VPL.2000.0003.2162	VPL.4006.0005.1214	Basis of redaction unspecified
19	ICR 63	VPL.2000.0003.2196	VPL.4006.0005.1219	Basis of redaction unspecified
20	ICR 67	VPL.2000.0003.2227	VPL.4006.0005.1228	Basis of redaction unspecified
21	ICR 73	VPL.2000.0003.2344	VPL.4006.0005.1245	Basis of redaction unspecified
22	ICR 77	VPL.2000.0003.2402	VPL.4006.0005.1261	Basis of redaction unspecified
23	ICR 82	VPL.2000.0003.2461	VPL.4006.0005.1270	Basis of redaction unspecified
24	ICR 86	VPL.2000.0003.2532	VPL.4006.0005.1283	Basis of redaction unspecified
25	ICR 89	VPL.2000.0003.2589	VPL.4006.0005.1297	Basis of redaction unspecified
26	ICR 97	VPL.2000.0003.2738	VPL.4006.0005.1317	Basis of redaction unspecified
27	ICR 114	VPL.2000.0003.3079	VPL.4006.0005.1343	Basis of redaction unspecified
28	ICR 119	VPL.5000.0503.1720	VPL.4006.0005.1368	Basis of redaction unspecified

DIARIES
30	2006.288. Diary of DSgt Anderson dated 20061013 – p 40, 46-47	VPL.4002.0024.0051	No VPL number allocated	VPL.4002.0024.0053 - Remove ORANGE redactions from lines 2 & 3 of page
33	2007.237. Diary of Officer Fox dated 20070701 – p 257-272	VPL.4002.0044.1397	No VPL number allocated	VPL.4002.0044.1410 – RED redactions allowed
34	2007.240 Diary of Officer Fox dated 20070704 – p 1-28 HSDT-AFP	VPL.4002.0044.1448	No VPL number allocated	VPL.4002.0044.1472 – RED redaction allowed
35	2007.251. Diary of Officer Fox dated 20070716 – p 153-165 HSDT-AFP	VPL.4002.0025.0945	No VPL number allocated	VPL.4002.0025.0954 – remove first and second ORANGE category redactions VPL.4002.0025.0955 – Remove ORANGE redaction
37	2007.276. Diary of Officer Fox dated 20070823 – p 22-30 HSDT-AFP	VPL.4002.0025.1104	No VPL number allocated	VPL.4002.0025.1105 – First ORANGE redaction allowed. Remove second ORANGE category redaction
38	2007.287. Diary of Officer Fox dated 20070903 – p 4, 6-7 HSDT-AFP	VPL.4002.0025.1169	No VPL number allocated	VPL.4002.0025.1171 – ORANGE redactions to first dot point allowed. Remove ORANGE category redaction from second dot point.
41	2007.322. Diary of Officer Fox dated 20071029 – p 3-7 HSDT-AFP	VPL.4002.0025.1325	No VPL number allocated	VPL.4002.0025.1328 – RED and ORANGE redactions allowed
42	2007.330. Diary of Officer Fox dated 20071108 – p 63-64, 67-69 HSDT-AFP	VPL.4002.0025.1372	No VPL number allocated	VPL.4002.0025.1374 – remove first RED category redaction from first dot point at entry 1711. Remove first and second RED category redactions from second dot point entry 1711
43	2007.335. Diary of Officer Fox dated 20071114 – p 14-23 HSDT-AFP	VPL.4002.0044.2009	No VPL number allocated	VPL.4002.0044.2012 – ORANGE redaction allowed VPL.4002.0044.2017 – Remove ORANGE redactions
45	2007.351. Diary of Officer Fox dated 20071206 – p 66, 69-72 HSDT-AFP	VPL.4002.0025.1488	No VPL number allocated	VPL.4002.0025.1489 – Remove RED redactions VPL.4002.0025.1490 – Remove RED redactions VPL.4002.0025.1491– Remove RED redaction
47	2008.082. Diary of Officer Fox dated 20080620 – p 17-18	VPL.4002.0027.0754	No VPL number allocated	VPL.4002.0027.0754 – Remove ORANGE redactions
49	2008.060. Diary of Officer Fox dated 20080526 – p 2-11 HSDT-AFP	VPL.4002.0027.0596	No VPL number allocated	VPL.4002.0027.0602 – remove first ORANGE category redaction on this page and first ORANGE category redaction from second dot point and ORANGE category redaction from third dot point. RED redaction allowed
50	2008.006. Diary of Officer Peter Smith dated 20080129 – p 17-31	VPL.4002.0027.0581	No VPL number allocated	VPL.4002.0027.0585 – Remove RED redactions

51	2008.003. Diary of Officer Peter Smith dated 20080113 – p 15-32	VPL.4002.0044.2190	No VPL number allocated	VPL.4002.0044.2202 – RED redactions allowed VPL.4002.0044.2206 – Remove RED redactions
52	2008.103. Diary of Officer Wolf dated 20080805 – p 10-11 HSDT-AFP	VPL.4002.0027.0042	No VPL number allocated	VPL.4002.0027.0043 – ORANGE redactions allowed
DISSEMINATION PACKAGE
60	022.1. ICR3838-68 – Diary of OBRIEN – Dated 26.02.07 to 04.03.07	VPL.4002.0038.0870	VPL.4006.0005.1403	VPL.4002.0038.0873 – First ORANGE redaction allowed. Remove second ORANGE redaction
61	117 Diary of Officer GREEN dated 20080820 – p3 - AMENDED	VPL.4002.0036.0001	VPL.4006.0005.1398	VPL.4002.0036.0001 – Remove ORANGE redactions
REPRESENTATIVE SAMPLES CHOSEN BY THE APPLICANT
TOMATO TINS PACKAGE
Audio transcript
D1	45-11792958-300108	VPL.4048.0004.2338	VPL.4006.005.1422	VPL.4048.0004.2375 – RED redaction allowed VPL.4048.0004.2532 – RED redaction allowed
D3	11792959-040808	VPL.4048.0004.6539	VPL.4006.0005.2040	VPL.4048.0004.6689 – RED redaction allowed VPL.4048.0004.6690 – RED redactions allowed VPL.4048.0004.6692 - RED redactions allowed VPL.4048.0004.6773 – RED redactions allowed VPL.4048.0004.6777 – RED redactions allowed VPL.4048.0004.6780 – RED redactions allowed VPL.4048.0004.6787 – RED redactions allowed VPL.4048.0004.6790 – RED redactions allowed VPL.4048.0004.6793 – RED redactions allowed VPL.4048.0004.6921 – RED redactions allowed VPL.4048.0004.6952 – RED redactions allowed VPL.4048.0004.6971 – RED redactions allowed
2958 ICRs
D5	ICR 001	VPL.2000.0003.0741	VPL.4006.0005.2578	Basis of redaction unspecified
D6	ICR 014	VPL.2000.0003.0897	VPL.4006.0005.2598	Basis of redaction unspecified
3838 ICRs
D7	ICR 114	VPL.2000.0003.3079	VPL.4006.0005.1343	Basis of redaction unspecified
D8	ICR 118	VPL.5000.0502.0289	VPL.4006.0005.2633	Basis of redaction unspecified
Diaries
D11	Diary of Officer Fox dated 6 September 2007	VPL.4002.0025.1185	VPL.4002.0025.1185 – Sixth dot point, remove RED redaction from words “because heard” and “had turned dog”. Remove RED redaction from 10^th dot point. All other RED redactions allowed.
D20	Diary of Officer Green dated8 August 2008	VPL.4002.0027.0044	VPL.4002.0044.2830 – ORANGE redactions allowed VPL.4002.004.2832 – First ORANGE redaction allowed. Remove other ORANGE redactions
D21	Diary of Sandy White dated 8 August 2008	VPL.4002.0027.0050	VPL.4002.0027.0052 – RED redactions allowed
D22	Diary of Officer Green dated 9 August 2008	VPL.4002.0027.0053	VPL.4002.0027.0053 – ORANGE redaction allowed VPL.400.0027.0054 – RED redactions allowed
D23	Diary of Officer Green dated 13 August 2008	VPL.4002.0027.0077	VPL.4002.0044.2850 – RED redactions allowed
D24	Diary of Officer Green dated 14 August 2008	VPL.4002.0027.0079	VPL.4002.0044.2852 – Remove first ORANGE category redaction. RED redactions allowed.

Actions

Download as PDF Download as Word Document

Citations

Zirilli v The Queen [2021] VSCA 305

Most Recent Citation

Zirilli v The King [2022] VSCA 192

Cases Citing This Decision

5

Binse v The King [2025] VSCA 158

Madafferi v The King [2025] VSCA 114

Arnautovic v The King [2023] VSCA 284

Cases Cited

3

Statutory Material Cited

0

Zirilli v The Queen [2021] VSCA 2

Madafferi v The Queen [2021] VSCA 1

Zirilli v the Queen [2021] VSCA 174

[2021] VSCA 305

10 November 2021