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Zirilli v The Queen

Zirilli v The Queen

Case [2021] VSCA 2 15 January 2021

Criminal Liability

Appeal

Public Interest Immunity

Discovery & Disclosure

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH, EMERTON and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 November 2020
DATE OF JUDGMENT:	15 January 2021; First revision 5 February 2021 to remove redactions at [73] and fn 44.
MEDIUM NEUTRAL CITATION:	[2021] VSCA 2

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CRIMINAL LAW – Application for leave to appeal against conviction – Orders made under s 317 of Criminal Procedure Act 2009 – Documents ordered to be produced go to whether applicant’s solicitor was police informer – Former solicitor now deceased – Application made by Chief Commissioner of Victoria Police that he not be required to produce documents under those orders – Whether refusal to disclose justified by public interest immunity – No claim of risk to safety of former solicitor’s family, or associates – Whether legitimate forensic purpose in applicant’s s 317 notice – Whether disclosure of former solicitor’s status would result in ‘chilling effect’ for potential informers – Legitimate forensic purpose established – Public interest in disclosure – Chief Commissioner’s public interest immunity claim rejected.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A V Chernok with Mr M Murphy	Nicholas James Lawyers
For the Director of Public Prosecutions (Cth)	Mr M R Wilson	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
As Amici Curiae	Mr C T Carr SC with Ms R Shann and Ms K E Foley

MCLEISH JA
EMERTON JA
WEINBERG JA:

On 7 December 2011, Saverio Zirilli, together with Pasquale Barbaro, pleaded guilty before King J, in the Trial Division, to the following three charges:

1.conspiracy to traffic in a commercial quantity of MDMA between 13 June 2007 and 3 October 2007 (Operation Bootham‑Moko);
2.trafficking in a commercial quantity of MDMA, between 24 January 2008 and 8 August 2008 (part of Operation Inca); and
3.attempt to possess a commercial quantity of cocaine, between 24 July 2008 and 8 August 2008 (part of Operation Inca).

These were all offences under schedule 1 of the Criminal Code Act 1995 (Cth). Each carried a maximum sentence of life imprisonment. On 23 February 2012, King J sentenced Mr Zirilli to a total effective term of 26 years’ imprisonment, with a non‑parole period of 18 years.[1]
[1]Mr Barbaro, who was regarded as the architect of all these offences, was sentenced to a term of life imprisonment with a non-parole period of 30 years. See further, DPP (Cth) v Barbaro [2012] VSC 47.

Both Mr Zirilli and Mr Barbaro unsuccessfully appealed their sentences to this Court.[2] They then sought special leave to appeal from the High Court. Special leave was granted, but each appeal was dismissed.[3]
[2]Barbaro v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288.
[3]Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.

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: Saverio Zirilli v The Queen [2021] VSCA 2
Case: [2021] VSCA 2
Decision Date: 15 January 2021; First revision 5 February 2021 to remove redactions at [73] and fn 44.

CaseChat Overview and Summary

In the matter of Zirilli v The Queen, the court dealt with an application for leave to appeal against conviction, where the applicant sought production of documents that could reveal whether his former solicitor had acted as an informer for the police. The Chief Commissioner of Victoria Police opposed the disclosure of these documents on the grounds of public interest immunity, arguing that such disclosure would have a "chilling effect" on potential informers in the future. The case raised questions about the balance between public interest immunity and the legitimate forensic purpose of the applicant's request under section 317 of the Criminal Procedure Act 2009.

The legal issues before the court involved determining whether the documents in question were subject to public interest immunity and whether the applicant's request for their disclosure was for a legitimate forensic purpose. The court needed to assess whether the potential impact on future informers constituted a sufficient public interest to justify non-disclosure. Additionally, the court considered whether the public interest in ensuring a fair trial outweighed the claimed chilling effect on informers.

The court found that the applicant had established a legitimate forensic purpose for the disclosure of the documents. It was held that the public interest in ensuring a fair trial was paramount, and the potential chilling effect on informers did not outweigh this interest. The court rejected the Chief Commissioner's claim of public interest immunity, ruling that the documents should be disclosed to the applicant. The court emphasised that there was no evidence presented to suggest that the former solicitor's family or associates were at risk, which further supported the rejection of the immunity claim.

As a result of the court's decision, the orders made under section 317 of the Criminal Procedure Act 2009 were upheld, and the Chief Commissioner of Victoria Police was required to produce the documents in question. The application for leave to appeal against conviction was thus supported by the necessary information, potentially impacting the applicant's case.

Orders