Zirilli v The Queen - [2021] VSCA 305

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE QUEEN	Respondent

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

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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.

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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…

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 Queen

Details

AGLC: Zirilli v The Queen [2021] VSCA 305
Case: [2021] VSCA 305
Decision Date: 10 November 2021

CaseChat Overview and Summary

The case of Zirilli v The Queen involved an application by the applicant for production of certain documents pursuant to section 317 of the Criminal Procedure Act 2009. The applicant sought documents from the Chief Commissioner of Victoria Police and the CEO of the Australian Criminal Intelligence Commission. The documents were objected to on several grounds, including public interest immunity, relevance to the proceeding, legitimate forensic purpose, and dealing with information under the Telecommunications (Interception and Access) Act 1979 (Cth). The primary legal issue before the court was whether the documents were protected by public interest immunity and whether they should be produced in light of the objections raised.

The court examined the principles of public interest immunity and the relevant statutory provisions. It noted that section 130 of the Evidence Act 2008 reflects the principles relating to public interest immunity claims at common law, and that section 131A of the Evidence Act extends the operation of section 130 to various forms of coercive document production. The court also considered the statutory prohibitions on disclosure contained in the Telecommunications (Interception and Access) Act 1979 (Cth). After considering the objections raised by the respondents and the arguments presented by the applicant, the court found that some of the documents were protected by public interest immunity and that their production was not in the public interest. The court also found that some of the documents were not relevant to the proceeding and that their production did not have a legitimate forensic purpose. Additionally, the court found that some of the documents dealt with information under the Telecommunications (Interception and Access) Act 1979 (Cth) and were therefore prohibited from disclosure.

The court ordered that the documents with redactions be produced, but that some of the documents were protected by public interest immunity and could not be produced. The court also ordered that the respondents were not required to produce certain documents on the basis that they were not relevant to the proceeding and that their production did not have a legitimate forensic purpose. Finally, the court ordered that the respondents were not required to produce certain documents on the basis that they dealt with information under the Telecommunications (Interception and Access) Act 1979 (Cth) and were therefore prohibited from disclosure.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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: 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). 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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