Zirilli v the Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE QUEEN	Respondent

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JUDICIAL REGISTRAR:	IRVING JR
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 March 2021
DATE OF JUDGMENT:	18 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 174

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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 – 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 information being outside the scope of the s 317 orders – Where production objected on the basis of dealing with information under the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth) – Where documents with redactions were produced – Where unredacted documents produced to Court to allow rulings to be made in relation to those redactions – 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	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Ms M Pekevska and Ms K Chan	Mr M Hocking, Victorian Government Solicitor
For the Australian Criminal Intelligence Commission	Ms S Martin
For the Australian Federal Police	Ms P Mitchell (solicitor)	Clayton Utz

IRVING JR:

Saverio Zirilli pleaded guilty and was convicted of the offences of conspiracy to traffick a commercial quantity of MDMA, trafficking in a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine. Mr Zirilli was sentenced for the three offences on 23 February 2012 and received a total effective sentence of 26 years with a non parole period of 18 years.[1]
[1]DPP (Cth) v Barbaro [2012] VSC 47.

On 24 March 2020 Mr Zirilli filed an application under s 274 of the Criminal Procedure Act 2009 (‘CPA’) for leave to appeal his convictions. His application contains one proposed ground of appeal: that a substantial miscarriage of justice has occurred in circumstances where defence counsel was secretly used as a police informer to secure his conviction.

On 12 June 2020 the Court made orders under s 317 of the CPA that the Chief Commissioner of Victoria Police (the ‘Chief Commissioner’) produce certain material to the court. The terms of the orders reflect the discussions and agreement reached between the legal representatives of the parties and the Chief Commissioner. The orders contain a process for the determination of objections by the Chief Commissioner to the production of the whole or parts of documents caught by the order. That process involved the Chief Commissioner and parties filing written submissions in support of their positions, a period of direct consultation to try to resolve any objections by agreement and the Court ruling on any outstanding objections. The categories of documents to be produced under the 12 June 2020 order, other than a category relating to Joseph Acquaro, are listed in Annexure A to these reasons.[2]
[2]On 6 October 2020 the orders of 12 June 2020 were amended at the request and consent of the parties and the Chief Commissioner. The effect of the amending orders was to change ’2017’ to ’2007’ in paragraph 1(a)(iii) of the 12 June 2020 orders and to extend the time for the parties to file written submissions.

On 6 July 2020 the Court made orders under s 317 of the CPA that the Chief Executive Officer of the Australian Criminal Intelligence Commission (the ‘ACIC’) produce certain material to the court. Again, the terms of these orders reflect the agreement and consent of the legal representatives of the parties and the CEO of the ACIC. These orders also contain a process to resolve any ACIC objections to producing either the whole or parts of documents caught by the terms of the orders. That process was broadly identical to the process contained in the 12 June 2020 orders involving the Chief Commissioner, ie, a process of direct consultation followed by the Court ruling on any outstanding objections. The categories of documents to be produced under the 6 July 2020 order are listed at Annexure B to these reasons.[3]
[3]On 10 October 2020 the orders made on 6 July 2020 were amended at the request and consent of the parties and the CEO of ACIC. The effect of the amendment was to extend the time for the CEO of ACIC and the parties to file written submissions.

The Chief Commissioner objects to producing parts of many documents he has identified as being caught by the terms of the orders. The bases of the Chief Commissioner’s objections fall into two broad categories: public interest immunity claims (‘PII’) and that the information is not relevant to the proceeding (‘relevance’). The vast majority of the Chief Commissioner’s objections to production are based on relevance.

The CEO of the ACIC objects to producing parts of documents caught by the terms of the orders. The bases of the CEO of ACIC’s objections are relevance — outside the scope of the s 317 orders (‘relevance’), PII and Statutory Prohibitions, being prohibitions on dealing with information under the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth).

On 25 March 2021 the Court conducted a hearing into the Chief Commissioner’s and the CEO of the ACIC’s relevance objections. The Commissioner of the Australian Federal Police (‘AFP’) was also represented at the hearing as, on 16 June 2020, the court made orders under s 317 of the CPA requiring production of documents from him.[4] The Commissioner of the AFP objects to production of some documents on the basis of PII but not relevance.
[4]On 6 October 2020 and 15 October 2020 the orders made on 16 June 2020 were amended at the request and consent of the parties and the Commissioner of the AFP. The effect of the amending orders was to extend the timetable for written submissions to be filed.

These reasons contain the Court’s rulings on the Chief Commissioner’s and CEO of ACIC’s objections to production of parts of documents on the basis of relevance.

Charges and factual background

Mr Zirilli has filed a written case in support of his application in which he provides the following short summary of the facts relevant to each conviction:

Charge 1 concerns a shipment of tomato cans from Italy. Inside 3,034 cans were 15,193,798 MDMA tablets, with a total net weight of 4,423,870 grams (more than 4.4 tonnes). The pure weight of MDMA was 2,900 times the commercial quantity. It was the contents of this shipment that the Applicant conspired to traffick between 13 June 2007 and 3 October 2007.

The shipment was intercepted by law enforcement. Many steps were taken by the co-conspirators to take possession of the shipment. Ultimately, the shipment was abandoned. The co-conspirators took responsibility for the ensuing debt owed to the European suppliers.

Charge 2 concerned the trafficking of 1,200,000 MDMA tablets between 24 January 2008 and 8 August 2008. The same European suppliers provided the MDMA at a higher price per tablet so the co-conspirators could pay off their debt from the tomato tins seizure. Law enforcement seized 480,000. The seized tablets had a pure weight in excess of 50 kilograms. This portion alone represented more than 100 times the commercial quantity.

Charge 3 concerned an attempt to possess cocaine smuggled from Columbia in coffee beans. The shipment was intercepted and found to contain 99.9 kilograms of pure cocaine. This represented 50 times the commercial quantity. The Applicant aided, abetted, counselled or procured his co-offenders in the commission of this offence.

In Zirilli v The Queen (‘Zirilli’)[5] the Court of Appeal outlined the background to Mr Zirilli’s application for leave to appeal:
[5][2021] VSCA 2, [15]-[30].

Relevantly, Ms Gobbo was registered by Victoria Police as an informer in 2005. She remained so registered until at least 2009. In other words, throughout the entire period of the investigation into the three offences to which Mr Zirilli pleaded guilty, Ms Gobbo was providing information to police, often about her own clients, and in relation to the very matters in which she was acting for them.
In January 2019, Mr Zirilli’s legal representatives wrote to the Commonwealth Director of Public Prosecutions, and to others, requesting information concerning the use that may have been made by law enforcement authorities of the information that Ms Gobbo had conveyed to them. More specifically, Mr Zirilli sought that information in relation to the charges that he himself had faced.
Between February 2019 and March 2020, a considerable body of documentary material relevant to Ms Gobbo’s activities as a police informer, and particularly relevant to her role in having informed on those involved in the tomato tins conspiracy, was provided to Mr Zirilli. Nonetheless, a good deal of material continued to be withheld.
Some of the material supplied has been exhibited to the affidavit of Mr Zirilli’s solicitor, Nicholas Terziovski, affirmed on 15 May 2020, and filed in this proceeding. It reveals that on 5 June 2007, Rabie ‘Rob’ Karam, a major figure in the tomato tins importation, handed Ms Gobbo an envelope containing a bill of lading for safekeeping. Mr Karam was, at the time, on trial for other drug offences. Ms Gobbo appeared as junior counsel in that trial. The bill of lading contained the details of the particular vessel, the MV Monica, by which the tomato tins were being transported to Australia. The bill of lading also identified the particular container on that vessel within which the tomato tins were being shipped.
Later that day, Ms Gobbo photocopied the bill of lading. She then delivered the copy to her Victoria Police handlers. She also provided Victoria Police with additional information concerning the tomato tins importation, and identified a number of those who she said might be connected with it. She referred to the ‘Italian boys from Griffith’, and it soon became apparent that, in context, that meant both Mr Zirilli and Mr Barbaro.
On 19 June 2007, Victoria Police passed on to the Australian Crime Commission (‘ACC’) the information which Ms Gobbo had conveyed to them. On the following day, that information was, in turn, conveyed to the Australian Customs Service (‘ACS’), and from there to the Australian Federal Police (‘AFP’).
For whatever reason, neither the fact that the information given to the AFP came from Ms Gobbo, nor the fact that it emanated from a defence barrister, was communicated to any of the federal agencies involved.
In any event, on 20 June 2007, Victoria Police and the ACC approached the AFP and the ACS with a view to launching a joint investigation into the tomato tins importation. It was understood that this particular drug enterprise was so vast that it warranted the adoption of such an exceptional approach.
On 21 June 2007, there was a second meeting involving Victoria Police, the ACC, the ACS, and the AFP. That meeting took place at the offices of the ACC. It was agreed that Victoria Police and the ACC would continue to provide general intelligence regarding the expected importation. The ACS was to identify the container in which the drugs were concealed, while the AFP was to prepare for a controlled delivery once the container had been seized. Because Ms Gobbo had provided Victoria Police with the bill of lading, federal authorities were soon able to locate the container and inspect its contents.
On that same day, the ACC informed the AFP, for the first time, that the intelligence regarding the tomato tins importation had come from a human source. In addition, the ACC explained that the human source in question was under the control of Victoria Police. The ACC told the AFP that no further details could be provided as Victoria Police were insistent upon protecting the identity of the source.
On 28 June 2007, the ACS opened the container and confirmed that a number of the tomato tins contained MDMA tablets. The AFP were in attendance when that occurred. Effectively, that meant that the shipment had been intercepted, and it only remained for the conspirators to more fully implicate themselves by making efforts to access it.
On 29 June 2007, Victoria Police, the ACC, the ACS, and the AFP signed a joint agency agreement. A federal agent took diary notes of the meeting at which that agreement was reached. Those notes indicate that Victoria Police made it clear that they had a human source who was providing information. The names ‘Barbaro’ and ‘Zirilli’, as well as ‘Karam’ were openly discussed, as were the names of a number of other parties to the conspiracy. The ACC indicated that it had both Mr Karam and John Higgs (another co‑conspirator, and a major figure in the conspiracy) under surveillance in connection with the importation. Victoria Police were described as having acted in a ‘cagey’ manner. A further meeting was scheduled for 1 July 2007.
The diary notes indicate that at the next meeting, a number of matters were discussed. On that same day, an AFP officer attended at the Pacific International Apartments in Little Bourke Street, Melbourne. That officer identified Mr Zirilli as one of the occupants, along with two other males who were sharing the same room. One of those males, Mr Barbaro, had provided a New South Wales address and a mobile phone number, and had paid for the room with a Visa card.
On 2 July 2007, the ACC briefed the AFP that Mr Karam, Mr Higgs, and Ms Gobbo had been seen together at a pizza shop in Brunswick.
There can be no doubt that Ms Gobbo’s information to her Victoria Police handlers contributed significantly to the interception of the drugs contained within the tomato tins. That information also contributed ultimately to the prosecution of some 33 offenders, all of whom were involved to one degree or another in the importation.
There is no dispute that Ms Gobbo, at all relevant times, socialised regularly with Mr Karam and his associates. It is clear that she learned a great deal from them regarding their involvement in the importation of drugs and other trafficking activities.

In his written case Mr Zirilli has reserved his right to seek leave to rely on an additional ground of appeal or to amend his existing ground following the production of material ‘by way of the s 317 procedure’.

Section 317 of the CPA

Section 317 falls within pt 6.3 of the CPA. That part of the Act deals with appeals and cases stated from the County Court or trial division of the Supreme Court to the Court of Appeal. Section 317 provides:

Production of documents, exhibits or other things
For the purposes of this Part, the Court of Appeal may order the production of any document, exhibit or other thing connected with the proceeding if the Court of Appeal considers that it is in the interests of justice to do so.

Documents relied upon by the parties

The Chief Commissioner relies upon the following documents filed in the proceeding:

(a) the open affidavit of Acting Commander Scott Mahoney affirmed 15 September 2020;

(b) the confidential affidavit of Acting Commander Scott Mahoney affirmed 15 September 2020;

(c) the open affidavit of Acting Superintendent Timothy James McKinney sworn 5 February 2021;

(d) the submissions of the Chief Commissioner of Police on redaction of documents produced to the Court dated 15 September 2020; and

(e) supplementary submissions of the Chief Commissioner of Police on relevance redactions dated 31 March 2021.

In relation to the Chief Commissioner’s objections to production Mr Zirilli relies upon the following documents filed in the proceeding:

(f) applicant’s submissions in reply dated 9 October 2020; and

(g) applicant’s submissions in reply dated 18 November 2020.

The CEO of ACIC relies upon the following documents filed in the proceeding:

(h) revised schedule of documents produced by ACIC dated 22 February 2021;

(i) the open affidavit of Jason Leigh Halls sworn 24 September 2020;

(j) the confidential affidavit of Jason Leigh Halls sworn 24 September 2020;

(k) second open affidavit of Jason Leigh Halls sworn 16 March 2021;

(l) second confidential affidavit of Jason Leigh Halls sworn 15 March 2021;

(m) submissions in respect of the CEO of ACIC objections to production dated 24 September 2020;

(n) supplementary submissions in respect of the CEO of ACIC’s objections to production dated 15 March 2021; and

(o) further supplementary submissions in respect of CEO of ACIC’s objections to production dated 31 March 2021.

In relation to the CEO of ACIC’s objections to production Mr Zirilli relies upon the following documents filed in the proceeding:

(p) submissions in reply to CEO of ACIC objections to production dated 30 October 2020; and

(q) the email from the applicant’s legal representative dated 2 November 2021 indicating that the applicant challenges all the CEO and ACIC’s proposed redactions to each of the 21 documents produced.

The respondent did not seek to challenge the objections to production made by the Chief Commissioner or the CEO of ACIC. Accordingly, the respondent filed no written materials nor made any oral submissions at the hearing.

Production of documents by the Chief Commissioner

The Chief Commissioner produced documents responsive to paras 1(a)-(d) of the 12 June 2020 orders (as amended) on 21 May 2020 (referred to as the ‘tomato tins package’) and 1 September 2020.[6] The Chief Commissioner produced a further bundle of documents on 16 September 2020. The latter two bundles make up what the Chief Commissioner has called the ‘dissemination package’.
[6]The Chief Commissioner objected to producing documents sought by paragraph 1(e) of the 12 June 2020 orders on the basis of PII. That PII claim was heard by the Court of Appeal on 24 November 2020. Documents the subject of that paragraph are not the subject of this ruling.

The documents produced included diary notes, information reports (‘IRs‘), transcripts of audio recordings (‘Transcripts‘), informer contact reports (‘IRCs‘) and source management logs (‘SMLs‘).

The Chief Commissioner does not object to production of any parts of the IRCs and SMLs on the basis of relevance. Accordingly, this ruling does not concern the Chief Commissioner’s proposed redactions to those documents, which are the subject of PII claims.

Production of documents by the CEO of ACIC

On 22 February 2021 the CEO of ACIC re-produced 21 documents (which had previously been produced to the Court) with revised redactions in response to the s 317 orders. The unredacted versions of these documents had been produced to the Court on 9 December 2020.

Representative sampling

Mr Zirilli was not provided with the unredacted versions of the documents produced by the Chief Commissioner or the CEO of ACIC. He submitted that in ruling on the Chief Commissioner’s objections to production, the Court ‘ought at the very least inspect a representative sample of the redactions’, and that the Court should appoint an amicus curiae to ‘ensure that some equality of arms is achieved in the litigation of these claims and that the redactions for relevance are properly made in this case’.

In the end both the Chief Commissioner and Mr Zirilli chose representative sample documents from both the tomato tins and dissemination packages. The combined representative sample comprised 67 separate documents. The selected documents spanned the categories of Transcripts, IRs, ICRs and diaries. In relation to each document the Chief Commissioner provided both the proposed redacted version of the document and the unredacted version.

Mr Zirilli submitted that, given that the CEO of ACIC had revised the basis of his objections to production on more than one occasion, the Court should inspect the redacted and unredacted forms of all of the documents produced by the CEO of ACIC.

The CEO of ACIC provided the Court with both the proposed redacted and unredacted versions of each of the 21 documents he produced. Those documents comprised briefing notes, operation investigation plans, reports, joint investigation agreements, diary notes and material related to various warrants.

There was a material difference in the approaches taken by the Chief Commissioner and the CEO of ACIC in their respective objections to production of documents on the basis of relevance.

Given the differences in approach the Court determined that the hearing into the relevance objections should be conducted in a way that allowed each producing entity[7] to hear and, if sought, to respond to the submissions of the other producing entities. At the hearing the Chief Commissioner and the CEO of ACIC agreed to provide each other with copies of any open affidavits and submissions they relied upon. The Chief Commissioner and the CEO of ACIC were each permitted to file supplementary submissions following the exchange of open affidavits and submissions.
[7]The Chief Commissioner, the CEO of ACIC and the Commissioner of the AFP.

CEO of ACIC’s approach to relevance redactions

It is convenient to start with the process that the CEO of ACIC undertook to identify ‘irrelevant’ material as outlined in the open affidavit of Jason Halls sworn on 16 March 2021.

The CEO of ACIC described the methodology employed to identify documents and information that fell within the terms of the s 317 orders. That process was:

(r) with regard to para 1(a) of the s 317 orders:

(i) documents were assessed first for information pertaining to the tomato tins importation or a possible shipment of border-controlled drugs matching this description;

(ii) if that query [was] answered in the positive, the information was then assessed for whether it was evident on its face, or evident to the reviewer, as being information exchanged with Victoria Police, ACS or AFP;

(iii) if that query [was] answered in the positive, the information was assessed for whether the exchange occurred between 21 May 2007 and 21 August 2008;

(iv) if the above three queries were answered in the positive, the information within the document was assessed as relevant; and

(v) if any of the queries were answered in the negative, the information within the document was assessed as irrelevant to paragraph 1(a) of the s 317 orders; and

(s) with regard to paragraph 1(b) of the s 317 orders:

(i) documents were first assessed for whether they contained information relating to Operation Lavernock;

(ii) if that query [was] answered in the positive, the information was then assessed for whether it contained any information evident on the face of the document, or evident to the reviewer as relating to the identification or surveillance of [Mr Zirilli];

(iii) if that query was answered in the positive, the identification or surveillance information was assessed for whether it fell between the dates of 21 May 2007 and 1 July 2007;

(iv) if the above three queries were answered in the positive, the information within the document was assessed as relevant; and

(v) if any of the queries were answered in the negative, the information within the document was assessed as irrelevant to paragraph 1(b) of the s 317 orders.

After following the above process, information that did not fall within the s 317 orders was redacted and marked ‘ACIC Claim – Relevance’.

Mr Hall’s affidavit set out further contextual information relevant to the CEO of ACIC’s identification of irrelevant material. The functions of the ACIC are set out in s 7A of the Australian Crime Commission Act 2002 (Cth). Those functions include to collect, correlate, analyse and disseminate criminal information and intelligence. In carrying out that function the ACIC produces intelligence products to provide intelligence and law enforcement partners with a comprehensive and strategic picture of serious and organised criminal activities in Australia. These products use and analyse intelligence information gathered from various ACIC investigations and intelligence operations, as well as intelligence gathered by partner agencies. Mr Hall states that

it is therefore not uncommon for ACIC documents to contain an amalgamation of intelligence and information garnered from various and disparate investigations, agencies and sources ... [and] for this reason … large portions of the ACIC documents contain[ing] irrelevant material … have been redacted.

Mr Hall states that Operation Lavernock consisted of several areas of investigation, only one of which pertained to the tomato tins importation. The ACIC’s role in the investigation of the tomato tins importation itself was limited to between late May 2007 to early October 2007 — a fraction of the time referred to in order 1(a) of the s 317 orders.

The ACIC identified a small number of references to surveillance events during which Mr Zirilli may have been present or involved. These references were contained within affidavits in support of warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth). The ACIC has made PII and Statutory Prohibition claims over the contents of these affidavits. Those claims are not the subject of this ruling.

The ACIC investigations extended to a number of individuals who were initially suspected of being involved in or peripherally connected with the tomato tins importation but whose involvement was not confirmed and who were not charged or prosecuted. The ACIC has made relevance redactions over the names of these individuals, on the basis that they do not fall within the terms of the s 317 orders.

The Chief Commissioner’s approach to relevance redactions

The Chief Commissioner undertook a different process to identify irrelevant material.

The Chief Commissioner submitted that the approach it took in this case was the same approach it has taken in other appeals involving Nicola Gobbo and that I should be reassured because the Chief Commissioner’s approach has previously been endorsed by the Court of Appeal.

Ms Maharaj submitted that the Chief Commissioner redacted material as irrelevant if it was not directly or indirectly relevant to:

(t) Mr Zirilli in this case;

(u) Mr Zirilli’s co-accused;

(v) the charges the subject of the appeal; and

(w) the police operations related to the charges, being Operations Bootham-Moko and Inca.

Ms Maharaj submitted that the Chief Commissioner took a generous view of relevance, including consulting with the Director of Public Prosecutions to ensure the Chief Commissioner’s view of relevance was properly informed.

It became clear during the course of oral submissions that the Chief Commissioner’s approach was informed by its view of its continuing disclosure obligations as the investigating entity. This led the Chief Commissioner to adopt what Ms Maharaj called a broad approach to the relevance redactions that was not strictly confined to the terms of the s 317 orders or the principles enunciated in the cases. The result, according to Ms Maharaj, was that the Chief Commissioner had produced more than was required of him under the terms of the s 317 orders. The redacted parts of the documents produced contain information that ‘does not fall within the scope of the [s 317] orders or is irrelevant to this application (for example personal or health information relating to an individual).’[8]
[8]Submissions of the Chief Commissioner of Police on redactions of documents produced to the Court dated 15 September 2020, [4].

Acting Commander Scott Mahony is Superintendent in charge of Victoria Police’s Covert Services Division. In this role he is directly responsible for the Human Source Management Unit, the Under Cover Unit and Unit 5 (intelligence gathering research and training). Acting Commander Mahony’s evidence was that the Chief Commissioner has established two dedicated teams to review all documents for production in proceedings before the Court of Appeal relating to Nicola Gobbo. One of those teams is responsible for reviewing the documents to identify and redact irrelevant material. The other team identifies PII claims. Each proposed redaction identified by either team is subject to review by independent counsel briefed by the VGSO on behalf of the Chief Commissioner.

Unlike the CEO of ACIC, the Chief Commissioner did not set out the specific methodology employed by the relevant team to identify relevant and irrelevant material. Acting Commander Mahony states the following in relation to relevance redactions:

The Chief Commissioner objects to the disclosure of redacted parts of the produced documents where disclosure of that material would reveal information that falls outside the scope of the [s 317] Orders and is not relevant to the proceeding. Personal information and/or health information of persons other than [Mr Zirilli] have (sic) also been redacted in the produced documents (for example, dates of birth). Redactions of irrelevant or private information are redacted under the headings ‘Relevance’… [9]
[9]Emphasis added.

The parties submissions on the relevant legal principles

The CEO of ACIC submitted that the following legal principles supported his objection to production of irrelevant material:

(x) the process in respect of an order under s 317 of the CPA has been treated in this Court as being akin to an order for a subpoena for production (subpoena duces tecum);[10]
[10]R v Saleam [1999] NSWCCA 86, [11] (Hunt J, Carruthers and Grove JJ agreeing).

(y) in a criminal case it is appropriate to adopt a more liberal approach in considering whether to enforce or set aside a subpoena.[11] However, a fishing expedition is not allowed;
[11]Carroll v A-G (NSW) (1993) 70 A Crim R 162, 170 (Kirby ACJ); Alister v The Queen (1984) 154 CLR 404, 456 (Brennan J).

(z) a non-party ought not be required to form a judgment as to whether their documents are material to questions that arise between the parties, about which the non-party has limited knowledge;[12]

(aa) it is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery;[13] and

(bb) section 317 of the CPA provides that the Court of Appeal must consider that it is ’in the interests of justice’ to order the production of any document, exhibit or other thing connected with the proceeding. It is critical that the Court consider the precise wording of the order to determine whether production is in the interests of justice, particularly where the order for production is in respect of a non-party that is not obliged to make discovery.

[12]Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; Caltex Refining Company Ltd v Amalgamated Metal Workers Union [1990] FCA 816; Nevro Medical Pty Ltd v McKelvie (No 2) [2000] FCA 1876, [17]; P Dawson Nominees Pty Ltd v Multiplex Ltd (2007) 64 ACSR 53, 57-58 [24]-[28].

[13]Commissioner for Railways v Small (1938) 38 SR (NSW) 564, 573.

The CEO of ACIC submitted that he consented to the s 317 orders ’on the basis of their limited and precise wording’. This reflects the intention of the consenting parties in formulating the s 317 orders to enable the CEO of ACIC to redact information that fell outside the scope of orders 1(a) and 1(b).

The CEO of ACIC identified the task for the Court as, ’assessing whether the material that has been redacted falls outside the scope of the orders and [the Court] is not required to make any other relevance determination.’

Again, the Chief Commissioner took a different approach.

In his supplementary written submissions the Chief Commissioner submitted that:

While [the] authorities do not directly address the question of whether unilateral redactions for relevance is permitted under s 317 of the Criminal Procedure Act 2009 (Vic) (the CPA), the authorities that are binding on the Judicial Registrar indicate that a party producing documents pursuant to [a] compulsory evidence gathering process may redact from those documents information that falls outside the scope of the documents called for, or that is “irrelevant to the proceeding”. While those authorities relate to the production of documents pursuant to orders for discovery in civil proceedings, the principles they enunciate are applicable in any proceeding in which a party is required to produce documents pursuant to a compulsory evidence gathering process.

The Chief Commissioner’s earlier written submissions stated that ’it is permissible to mask parts of documents produced on a subpoena or notice to produce, if the masked parts are outside the scope of the documents called for by the notice or subpoena [or are] irrelevant to issues in the proceedings’.[14] This principle, according to the Chief Commissioner, provides two separate bases on which a person required to produce documents may redact them as irrelevant. First that the information does not fall within the scope of the information required to be produced. Second, that even though the information falls within the scope of the information required to be produced, it is irrelevant to the proceeding and its production would violate some legitimate privacy or confidentiality interest.[15]
[14]First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266, 268 [6].
[15]Telstra Corporation Ltd v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997) [4].

In relation to this second limb, the Chief Commissioner went on to submit that ‘a party is entitled to redact irrelevant parts of a document discovered by it where the party has a legitimate claim on the basis of confidentiality or the like.’[16] In this regard ‘the discovering party is prima facie required to produce for inspection the whole of the document being discovered by it, even where parts of the document are irrelevant.’[17] However, a party will be entitled to redact irrelevant information if ‘it is apparent that there are, or may be, substantial privacy or confidentiality interests which ought to be given protection.’[18] Redaction on this basis must be done with care and ‘ought not create gaps affecting the intelligibility or meaning of the unredacted portions of the document.’[19]
[16]Gunns Ltd v Marr [2008] VSC 464, [30]; Octagon Inc v Hewitt [No 2] [2011] VSC 373, [32]; Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749, [32(d)].
[17]Octagon Inc v Hewitt [No 2] [2011] VSC 373, [32].
[18]Telstra Corporation Ltd v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997) [4]; Menkens v Wintour [2007] 2 Qd R 40, 42 [12]; Gunns Ltd v Marr [2008] VSC 464, [35]; Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749, [32(h)].
[19]Octagon Inc v Hewitt (No 2) [2011] VSC 373, [32]; Telstra Corporation Ltd v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997); Gunns Ltd v Marr [2008] VSC 464, [31]; Orora Ltd v Asahi Holdings (Australia) Pty Ltd [2015] VSC 749, [32(e)].

The Chief Commissioner observed that no court has exhaustively stated what may constitute a sufficient privacy or confidentiality interest justifying redaction on the basis of irrelevance. In the Chief Commissioner’s view personal and health information[20] and contact information[21] are sufficiently sensitive to justify redaction on the basis of irrelevance.
[20]Of the kind protected by the Privacy and Data Protection Act 2014 and the Health Records Act 2001.
[21]That would ordinarily be redacted from a prosecution brief pursuant to s 186 of the CPA.

During the hearing, the Chief Commissioner was invited to make submissions on authorities that seemed to draw a distinction between general discovery where redaction on the basis of irrelevance was allowed and limited or specific discovery by order of the court where the authorities suggested unilateral redactions on the basis of irrelevance were not permitted. In his supplementary submissions the Chief Commissioner submitted that I was bound to follow the principle, said to be propounded in Gunns Ltd v Marr,[22] that irrelevance alone is a sufficient basis for redaction and that to the extent that other authorities diverged from the Victorian authorities, I was required to follow the Victorian authorities. In the Chief Commissioner’s submission it is incumbent on the party seeking access to material redacted as irrelevant to demonstrate that the material is in fact relevant.
[22][2008] VSC 464.

Mr Zirilli’s counsel submitted that:

(cc) on an application to the court for orders under s 317 of the CPA the onus clearly falls on the applicant to make out a legitimate forensic purpose for seeking the material and that it is on the cards that the material would assist the applicant’s case;

(dd) the fact of consent to the s 317 orders is indicative of an agreement or acknowledgement that the applicant does have a legitimate forensic purpose in seeking the material included in the terms of the orders made;

(ee) the court needs to be careful not to conflate questions of legitimate forensic purpose and relevance insofar as the relevant onus is concerned. The onus of establishing the irrelevance of material sought to be withheld rests on the party seeking to withhold the information;

(ff) in the context of criminal proceedings and in the particular circumstances of cases involving Ms Gobbo’s conduct as a police informer, relevance should be construed broadly and not in a way that is narrowly restricted to the terms of the s 317 orders;

(gg) the Chief Commissioner has continuing disclosure obligations that operate distinctly from his obligations to produce documents pursuant to the s 317 orders. It would be erroneous to simply construe the terms of the s 317 orders as delimiting relevance because there are other obligations that continue to operate in terms of disclosure of material to Mr Zirilli;

(hh) it is not necessary to establish that the information sought to be withheld is both irrelevant and confidential or private; and

(ii) the methodology used by the CEO of the ACIC to determine relevant information within documents is broadly correct but care should be taken not to read the terms of the s 317 orders too restrictively when considering relevance.

Neither the respondent nor the legal representative of the Commissioner of the AFP sought to make submissions on the relevant legal principles.

Applicable principles

Under the terms of the s 317 orders agreed by the parties and the producing entities, the task of the Court is to rule on objections to production raised by a producing entity and/or any redaction applied by a producing entity.

The Court can only undertake this task informed by the legal principles applicable to the making of orders under s 317 of the CPA and the compulsory production of documents. The Court has not been asked to and nor is it appropriate in this process for the Court to assess whether a producing entity, in any other capacity including as a law enforcement agency, has fulfilled any obligations of disclosure beyond those imposed by the s 317 orders. Nor should the Court’s ruling on relevance redactions to documents produced pursuant to s 317 orders be taken as limiting the scope of any disclosure obligation on a producing entity that arises from a source outside s 317 of the CPA.

It appears to me that the principles contended for by the Chief Commissioner raise practical problems of application in the task the Court has been asked to undertake in the context of the s 317 orders. First, Mr Zirilli has not finalised his written case, which means that it is simply not possible for the court to make a conclusive assessment of what material is likely to be relevant to an issue in the case. Second, Ms Maharaj submitted that the Chief Commissioner’s assessment of relevance was informed by consultation with the Director of Public Prosecutions. The Court is not privy to the content of those discussions and they are not alluded to in the evidence before the Court. Third, the principal authority that I am urged to follow is concerned with relevance redactions in the context of civil inter-party discovery.[23] That decision, at least in part, refers to principles arising in lines of cases in the Federal Court of Australia, Australian State Supreme Courts and beyond.[24] This is perhaps unsurprising given that the rules of the various courts relating to discovery are often in almost identical terms. Those cases and others citing them take divergent views about whether it is permissible for a discovering party to unilaterally redact documents on the basis of relevance. The Chief Commissioner has exhorted me not to follow cases from other courts which diverge in opinion from the principal authority notwithstanding that these cases rely on many of the same cases as the principal authority.
[23]Ibid.
[24]See, eg, Harris Scarfe Limited (receivers and managers appointed) (in liq) v Ernst and Young & Ors (2006) 204 FLR 165; Telstra Corporation Ltd v Australis Media Holdings (Unreported, Supreme Court of New South Wales, McLelland CJ in Eq, 10 February 1997); GE Capital Group Limited v Bankers Trust Co [1995] 1 WLR 172; Grey v Associated Book Publishers (Aust) Pty Ltd (in liq) [2002] FCA 1045; Menkens v Wintour [2007] 2 Qd R 40; Rio Tinto Limited v Commissioner of Taxation [2005] FCA 1335.

In addition the Chief Commissioner has not provided any reason why, where those principles are inconsistent, I should follow the principles expounded in the authorities on inter party civil discovery over the principles in the authorities dealing with production of documents pursuant to subpoena.

In my view the principles relevant to a subpoena for production by a non-party are more akin to the relative positions of the producing entities in this case and can be applied more practically and transparently to the task of the Court pursuant to the s 317 orders. I accept the submissions made by the CEO of ACIC that the task for the producing entity is to identify material that falls within the specific terms of the order and not to make an assessment of relevance to questions raised in the proceeding.

As will be apparent from the rulings I have made, the practical effect of applying the principles articulated below, as opposed to those contended for by the Chief Commissioner, has been minimal. In other words, notwithstanding the change in principles, the outcome has been largely the same. Indeed, in some instances I would have redacted material produced by the Chief Commissioner on the basis that it is not within the scope of the orders. Given my task is only to consider material redacted by the Chief Commissioner I have made no rulings that affect the unredacted material.

In undertaking the task required of the Court under the s 317 orders I have applied the following principles:

(jj) before the Court will make an order under s 317 of the CPA, an applicant must satisfy the Court of the applicant’s legitimate forensic purpose for which the documents or categories of documents are sought and that it is ‘on the cards’ that the documents will materially assist the applicant’s case;[25]
[25]R v Saleam [1999] NSWCCA 86, [11] (Hunt J, Carruthers and Grove JJ agreeing); State of Victoria (Department of Justice) v Lane [2012] VSC 328; Holloway v State of Victoria (Department of Justice) [2015] VSC 526; Zirilli (n 5) [2021] VSCA 2, [98], Madafferi v The Queen [2021] VSCA 1, [98].

(kk) a fishing expedition is not allowed and mere relevance is not sufficient;[26]
[26]State of Victoria (Department of Justice) v Lane [2012] VSC 328.

(ll) the Court may only make a s 317 order for production of documents if it is in the interests of justice to do so;

(mm) production under s 317 of the CPA is akin to an order for a subpoena for production (subpoena duces tecum);[27]
[27]R v Saleam [1999] NSWCCA 86, [11] (Hunt J, Carruthers and Grove JJ agreeing); Zirilli (n 5) [2021] VSCA 2, [98]; Madafferi v The Queen [2021] VSCA 1, [98].

(nn) care should be taken in drafting the terms of the order: Commissioner for Railways v Small;[28]
[28](1938) 38 SR (NSW) 564.

(oo) the terms of the s 317 order will dictate the scope of the documents required to be produced and, as in all criminal cases, it is appropriate to adopt a liberal reading to the terms of the order;[29]
[29]Carroll v A-G (NSW) (1993) 70 A Crim R 162, [170] (Kirby ACJ); Alister v The Queen (1984) 154 CLR 404, 456 (Brennan J).

(pp) a non-party ought not be required to form a judgment as to whether their documents are material to questions that arise between the parties, about which the non-party has necessarily limited knowledge.[30] This does not mean that issues of relevance may not be appropriately considered by a non-party that is subject to obligations of disclosure separate to or over and above its obligations to comply with a s 317 order;
[30]Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; Caltex Refining Company Ltd v Amalgamated Metal Workers Union [1990] FCA 816; Nevro Medical Pty Ltd v McKelvie (No 2) [2000] FCA 1876, [17]; P Dawson Nominees Pty Ltd v Multiplex Ltd [2007] FCA 1044; 64 ACSR 53, 57-58 [24]-[28].

(qq) similarly, the court should not be required to wade through masses of documents for the purpose of endeavouring to determine whether any of them are relevant, especially while the case is still at the stage when it is difficult or perhaps impossible for the court to know what may become relevant and what may not;[31]

(rr) the producing entity seeking to redact information bears the onus of demonstrating that the information does not fall within the scope of the s 317 order; and

(ss) the underlying guiding principle for the Court in determining whether documents or parts of documents are required to be produced will be what is required to do justice between the parties.

[31]Commissioner for Railways v Small (1938) 38 SR (NSW) 564.

Finally, in my view use of the term ‘relevance’ as a basis of redaction or non-production of documents under a s 317 order is apt to divert attention from the terms of the order and should be avoided in favour of the terms like ‘out of scope’ or ‘beyond the terms of the order’.

Rulings

Chief Commissioner Documents

The relevance redaction rulings on Mr Zirilli’s and the Chief Commissioner’s representative sample documents are attached to these reasons at Annexure C.

The relevance redaction rulings on the twenty-one documents produced by the CEO of ACIC are attached to these reasons at Annexure D.

ANNEXURE A

The categories of documents to be produced by the Chief Commissioner under the 12 June 2020 order, other than a category relating to Joseph Acquaro

All documents relating to information exchanged between registered police informer Nicola Gobbo (Human Source 3838) and Victoria Police between 21 May 2007 and 3 July 2007, concerning the shipment of container MEDU1250218 allegedly containing tomato tins on board vessel MV Monica from Naples, Italy which includes, but is not limited to, the following:
(a)The Bill of Lading (or Shipping Manifest) concerning the shipment provided by Nicola Gobbo to Victoria Police on 5 June 2007;
(b)Diary entries and notes of Victoria Police members concerning the exchange of the information referred to in paragraph 1(a)(i) above;
(c)Contact reports setting out the information exchange between Nicola Gobbo and Victoria Police, including on 5, 15, 17 and 18 June 2007 and 3 July 2007;
(d)Transcripts of discussions between Nicola Gobbo and Victoria Police; and
(e)IRs concerning the information exchanged between Nicola Gobbo and Victoria Police.
All documents relating to the dissemination of the information produced under Item 1 between 21 May 2007 and 21 August 2008, to other law enforcement agencies, including the AFP, Australian Customs Service (now the Australian Border Force) (‘Customs’); and the Australian Crime Commission (now the Australian Criminal Intelligence Commission) (‘ACIC’). This includes, but is not limited to, the following:
(a)Diary entries, notes, emails, letters, memorandums and reports concerning the following meetings between:
i)Members of Victoria Police and the ACIC on 13 June 2007;
ii)Officer White (a pseudonym) and Officer Green (a pseudonym) (Victoria Police) and Tony Stephens (Customs) on 19 June 2007;
iii)Members from Victoria Police and members of Customs on 20 June 2007;
iv)Steven Smith (Victoria Police), Paul Osbourne (AFP), Loris Cavallin (Customs), Mark Ainsworth (ACC) and Wayne Cheesman (ACC) on 20 June 2007;
v)Officer White (a pseudonym) (Victoria Police) and Tony Stephen (Customs) on 21 and 28 June 2007;
vi)Blayney (Victoria Police) and members of the AFP and the ACC on 29 June 2007;
vii)Members of the Joint Management Committee (Victoria Police, the AFP, and the ACC) on 1 July 2007;
viii)Gavin Ryan (Victoria Police) and members of the AFP on 23 August 2007; and
ix)Officer White (a pseudonym) and Officer Green (a pseudonym) (Victoria Police) and Loris Cavallin (ACC) on 21 August 2008; and
(b)A memorandum written by James (Jim) O’Brien (Victoria Police) on 16 July 2007.
All documents relating to information exchanged between registered police informer, Nicola Gobbo (Human Source 3838) and Victoria Police between 8 October 2006 and 16 December 2008:
(a)concerning the identification and prosecution of co – accused connected to the shipment of container MEDU1250218 allegedly containing tomato tins on board vessel MV Monica from Naples, Italy; and
(b)concerning the subsequent related drug trafficking, namely the second and third charges the Applicant pleaded guilty to, and was sentenced on 23 February 2012, being trafficking a commercial quantity of MDMA contrary to section 302.2(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’) and attempting to possess a commercial quantity of cocaine contrary to sections 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code.
All documents relating to the dissemination of the information produced under order 1(c) above between 8 October 2006 and 16 December 2008, to other law enforcement agencies, including the AFP, Customs and the ACC.

ANNEXURE B

The categories of documents to be produced by the CEO of ACIC under the 6 July 2020 order

Pursuant to section 317 of the CPA, the CEO of the ACIC produce the following documents to the Registrar of Criminal Appeals:
(a)All documents recording the information that was exchanged with Victoria Police, 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.
This includes, but is not limited to, diary entries, notes, emails, letters, memorandums and reports concerning the following meetings between:

i)Members of Victoria Police and the ACIC on 13 June 2007;
ii)Steven Smith (Victoria Police), Paul Osborne (AFP), Loris Cavallin (Customs), Mark Ainswih (ACIC) and Wayne Cheesman (ACIC) on 20 June 2007;
iii)Paul Osborne (AFP) and members of the ACIC on 21 June 2007; and
iv)Members of the Joint Management Committee (Victoria Police, AFP, Customs and the ACIC) on 1 July 2007; and

(b)All information, material and other documents relating to the identification and subsequent physical and electronic surveillance of the applicant by the ACIC during Operation Lavernock between 21 May 2007 and 1 July 2007.

ANNEXURE C

Chief Commissioner representative sample documents rulings

Item	Title	Redacted Doc ID	Unredacted Doc ID	Ruling on relevance redactions
REPRESENTATIVE SAMPLES CHOSEN BY THE CHIEF COMMISSIONER OF POLICE
TOMATO TINS PACKAGE
Audio transcript
1	34-21803838-050307	VPL.4048.0004.3263	VPL.4006.0005.0072	Page VPL.4048.0004.3403 – remove relevance redaction from last paragraph, commencing “Yeah, well, we kind of slipped back into old”
2	40-21803838-030707	VPL.4048.0004.4116	VPL.4006.0005.0484	Page VPL.4048.0004.4361 – remove relevance redaction from “I don’t think I’ve kept anything that I shouldn’t have kept” to the bottom of the page. Page VPL.4048.004.4362 – remove relevance redaction from entire page. Page VPL.4048.004.4363 – remove relevance redaction from entire page.
3	42-21803838-170707	VPL.4048.0004.5962	VPL.4006.0005.0854	No changes required
4	46-11792958-170308	VPL.4048.0004.0470	VPL.4006.0005.0001	No changes required
IRs
5	SID784-140806	VPL.4848.0301.0013	VPL.4006.0005.1394	No relevance redactions applied
6	SID818-290806	VPL.4848.0301.0023	VPL.4006.0005.1397	No changes required
7	SID787-140806	VPL.4848.0301.0015	VPL.4006.0005.1396	No relevance redactions applied
8	SID1441-070108	VPL.4848.0301.0003	VPL.4006.0005.1391	No relevance redactions applied
9	SID1554-100108	VPL.4848.0301.0005	VPL.4006.0005.1392	No changes required
2958 ICRs
10	ICR 2	VPL.2000.0003.0761	VPL.4006.0005.1100	No relevance redactions applied
11	ICR 10	VPL.2000.0003.0844	VPL.4006.0005.1112	No relevance redactions applied
12	ICR 025	VPL.2000.0003.1205	VPL.4006.0005.1131	No relevance redactions applied
13	ICR 039	VPL.2000.0003.1352	VPL.4006.0005.1144	No relevance redactions applied
14	ICR 46	VPL.2000.0003.1442	VPL.4006.0005.1160	No relevance redactions applied
3838 ICRs
15	ICR 41	VPL.2000.0003.1977	VPL.4006.0005.1170	No relevance redactions applied
16	ICR 48	VPL.2000.0003.2043	VPL.4006.0005.1179	No relevance redactions applied
17	ICR 53	VPL.2000.0003.2139	VPL.4006.0005.1205	No relevance redactions applied
18	ICR 56	VPL.2000.0003.2162	VPL.4006.0005.1214	No relevance redactions applied
19	ICR 63	VPL.2000.0003.2196	VPL.4006.0005.1219	No relevance redactions applied
20	ICR 67	VPL.2000.0003.2227	VPL.4006.0005.1228	No relevance redactions applied
21	ICR 73	VPL.2000.0003.2344	VPL.4006.0005.1245	No relevance redactions applied
22	ICR 77	VPL.2000.0003.2402	VPL.4006.0005.1261	No relevance redactions applied
23	ICR 82	VPL.2000.0003.2461	VPL.4006.0005.1270	No relevance redactions applied
24	ICR 86	VPL.2000.0003.2532	VPL.4006.0005.1283	No relevance redactions applied
25	ICR 89	VPL.2000.0003.2589	VPL.4006.0005.1297	No relevance redactions applied
26	ICR 97	VPL.2000.0003.2738	VPL.4006.0005.1317	No relevance redactions applied
27	ICR 114	VPL.2000.0003.3079	VPL.4006.0005.1343	No relevance redactions applied
28	ICR 119	VPL.5000.0503.1720	VPL.4006.0005.1368	No relevance redactions applied
DISSEMINATION PACKAGE
29	Jim O’Brien memorandum dated 16 July 2007	VPL.4002.0038.0003	VPL.4006.0005.1095	No changes required
30	70. ICR3838-116 – Diary of SMITH – Dated 18.01.08 to 20.10.08	VPL.4002.0038.1112	VPL.4006.0005.1414	No changes required
31	72.1 ICR3838-119 – Diary of Officer S. WHITE – Dated 08.01.2008	VPL.4002.0038.1150	VPL.4006.0005.1419	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
32	74. ICR2958-01 – Diary of FISHER – Dated 24.01.08	VPL.4002.0038.1105	VPL.4006.0005.1410	No changes required
33	Diary of BLAYNEY – Dated 29 June 2007	VPL.4002.0038.0019	VPL.4006.0005.1399	Page VPL.4002.0038.0019 - remove redaction from 6^th line from bottom of page, commencing “Spoke to Steve Smith. Also remove redaction from 5^th bottom line and the bottom line of the page.
34	116. ICR2958-43 – Diary of KELLY – Dated 17.10.08	VPL.4002.0038.0945	VPL.4006.0005.1408	No changes required
35	022.1. ICR3838-68 – Diary of OBRIEN – Dated 26.02.07 to 04.03.07	VPL.4002.0038.0870	VPL.4006.0005.1403	No changes required
36	117 Diary of Officer GREEN dated 20080820 – p3 - AMENDED	VPL.4002.0036.0001	VPL.4006.0005.1398	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
37	SID1627-180608	VPL.4002.0038.0025	VPL.4006.0005.1393	No relevance redactions applied
38	SID1893-191208	VPL.4002.0038.1152	VPL.4006.0005.1397	No relevance redactions applied
REPRESENTATIVE SAMPLES CHOSEN BY THE APPLICANT
TOMATO TINS PACKAGE
Audio transcript
D1	45-11792958-300108	VPL.4048.0004.2338	VPL.4006.005.1422	No changes required
D2	48-11792958-170608	VPL.4048.0004.2613	VPL.4006.0005.1697	On page VPL.4048.0004.2898 - unredact relevance redactions from “Yeah, it’s taken longer, yes, it’s been hard” to “bigger than probably anybody would have expected at the outset.” On page VPL.4048.0004.2920 – unredact relevance redaction on the first line, “and what that would mean”.
D3	11792959-040808	VPL.4048.0004.6539	VPL.4006.0005.2040	From “Has anyone else told you that” on page VPL.4048.0004.6914 to “seems to have slipped from the – the top” on page VPL.4006.0005.2431 – remove all relevance redactions. NB: redaction to some of this material may be sought on another basis.
IRs
D4	SID1518-290508	VPL.4048.0301.0007	VPL.4006.0005.2651	No relevance redactions applied
2958 ICRs
D5	ICR 001	VPL.2000.0003.0741	VPL.4006.0005.2578	No relevance redactions applied
D6	ICR 014	VPL.2000.0003.0897	VPL.4006.0005.2598	No relevance redactions applied
3838 ICRs
D7	ICR 114	VPL.2000.0003.3079	VPL.4006.0005.1343	No relevance redactions applied
D8	ICR 118	VPL.5000.0502.0289	VPL.4006.0005.2633	No relevance redactions applied
Diaries
D9	Diary of Officer Green dated 10 July 2007	VPL.4002.0025.0904	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D10	Diary of Sandy White dated 22 July 2007	VPL.4002.0025.1012	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D11	Diary of Officer Fox dated 6 September 2007	VPL.4002.0025.1185	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D12	Diary of Officer Sandy White dated 1 November 2007	VPL.4002.0025.1340	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D13	Diary of Officer Sandy White dated 20 January 2008	VPL.4002.0027.0519	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D14	Diary of Officer Wolf dated 16 March 2008	VPL.4002.0027.0295	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D15	Diary of Sandy White dated 28 April 2008	VPL.4002.0027.0433	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D16	Diary of Officer Fox dated 5 May 2008	VPL.4002.0027.0493	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D17	Diary of Sandy White dated 9 June 2008	VPL.4002.0027.0660	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D18	Diary of Officer Smith dated 19 June 2008	VPL.4002.0027.0751	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D19	Diary of Officer Green dated 22 June 2008	VPL.4002.0027.0756	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D20	Diary of Officer Green dated8 August 2008	VPL.4002.0027.0044	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D21	Diary of Sandy White dated 8 August 2008	VPL.4002.0027.0050	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D22	Diary of Officer Green dated 9 August 2008	VPL.4002.0027.0053	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D23	Diary of Officer Green dated 13 August 2008	VPL.4002.0027.0077	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D24	Diary of Officer Green dated 14 August 2008	VPL.4002.0027.0079	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
D25	Diary of Officer Sandy White dated 1 August 2008	VPL.4002.0027.0117	Ruling reserved until redacted and unredacted versions provided. Both versions currently contain redactions
DISSEMINATION PACKAGE
D26	Diary of GREEN (Drug Taskforce) – Dated 06.07 to 09.07	VPL.4002.0038.0207	VPL.4006.0005.2652	On VPL.4006.005.2658 – remove redaction from the line above the entry at 11:50. On VPL.4002.0038.0244 – remove all redactions other than redaction over the last four lines. On VPL.4006.005.2690 – remove redactions from first two lines on this page
D27	Diary of KELLY dated 20 June 2008	VPL.4002.0038.0919	VPL.4006.0005.2696	No changes required
D28	Diary of KELLY dated 24 June 2008	VPL.4002.0038.0923	VPL.4006.0005.2700	No changes required
D29	Source manage log 11792958	VPL.4006.0004.0136	VPL.4006.0005.2502	Redactions should be reviewed by Chief Commissioner as they do not appear to be based on relevance but may be justified on other bases.

ANNEXURE D

ACIC DOCUMENTS

Doc	Description	Pages (relevance redactions only)	Relevance redaction ruling
1	Briefing Note – Customs Operation KIBE C07 – Operations Update 221500KJUN07	-	-
2	Operation Lavernock Controlled Operation Investigation Plan – 16 July 2008	All pages	No changes required
3	Operation Lavernock Controlled Operation Investigation Plan – 5 October 2007	All pages	No changes required
4	Groups & Targeting – Pre Board Meeting Briefings	All pages	No changes required
5	Appliction to conduct a controlled operation under the common law – 20 July 2007	-	-
6	AFP Op INCA – Situation Report as at 7 September 2007	All pages	No changes required
7	AFP Minute – Operation Bootham/Moko – JMG Situation report as at 10 September 2007	-	-
8	Operation Lavernock Post Operational Summary	All pages	No changes required
9	Operations intelligence Report – 20 March 2008	All pages	No changes required
10	Joint Investigation Agreement between ACC, VicPol, AFP and ACS (Final JAA) 29 June 2007	Pages 3-4, 5, 6	No changes required
11	Joint Investigation Agreement between ACC, VicPol, AFP and ACS (Draft JAA)	Pages 3-9, 10, 11, 15, 16	No changes required
12	Diary of Mark Ainsworth 18 June 07 – 26 October 07	All pages	No changes required
13	L07072 0	Pages 1-4	No changes required
14	L07073 00 00	Pages 1-3	No changes required
15	L07073 01 00	Pages 1-3	No changes required
16	L07075 0	Pages 1-2	No changes required
17	L07068 00 00	Pages 1-3	No changes required
18	L07068 01 00	Pages 1-4	No changes required
19	L07068 02 00	Pages 1-4	No changes required
20	L07070 0	-	-
21	Diary of ACC Member SC – 18 May 2007 to 29 November 2007	All pages	No changes required

- - -

[2021] VSCA 174

18 June 2021