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…

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 174
Case: [2021] VSCA 174
Decision Date: 18 June 2021

CaseChat Overview and Summary

In the matter of Zirilli v the Queen, the applicant sought the production of certain documents held by the Chief Commissioner of Victoria Police under section 317 of the Criminal Procedure Act 2009. The dispute arose as the police objected to the production of these documents on multiple grounds, including public interest immunity, relevance to the proceeding, scope of the orders, and compliance with the Telecommunications (Interception and Access) Act 1979 (Cth) and the Surveillance Devices Act 2004 (Cth).

The legal issues before the court involved the interpretation and application of section 317 of the Criminal Procedure Act 2009, which governs the orders for the production of documents in criminal proceedings. The primary questions were whether the documents were protected by public interest immunity, if they were relevant to the proceeding, if they fell within the scope of the orders, and if their production complied with the aforementioned Acts. The court was also required to determine whether the redactions made to the documents were appropriate and if the unredacted documents could be produced to the court for ruling on the redactions.

The court examined the arguments presented by both parties and considered the relevant statutory provisions and case law. It found that while some of the objections raised by the police were valid, others were not. Specifically, the court determined that certain documents were protected by public interest immunity, while others were not relevant to the proceeding. However, it also found that some of the documents were within the scope of the orders and could be produced, albeit with redactions to protect sensitive information. The court concluded that the unredacted documents could be produced to allow rulings to be made in relation to the redactions. As a result, the court made orders for the production of the documents with the specified redactions.

Orders