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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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.

Charge 1 — Operation Bootham-Moko

This charge concerned a shipment of tomato tins from Italy. Inside 3,034 such tins were 15,193,798 MDMA tablets, with a total net weight of over 4.4 tonnes.[4] The pure weight of the MDMA was 2,900 times the commercial quantity. The tomato tins shipment was intercepted by law enforcement authorities in circumstances to which we shall shortly refer. The conspirators, of whom there were a large number, took a series of steps over many months to gain possession of the shipment. Ultimately, however, they abandoned that plan and moved on to other drug enterprises.
[4]This was, at that time, the largest consignment of MDMA ever recorded.

The failure of the tomato tins importation meant that Mr Barbaro and a man named Carmelo Falanga, both of whom had played leading roles in arranging for the shipment, assumed responsibility for meeting the very large debt that the conspirators owed to the Italian suppliers of the drugs.

Charge 2 — part of Operation Inca

This charge concerned the trafficking of 1,200,000 MDMA tablets. The same Italian suppliers who had provided the MDMA in the tomato tins shipment also supplied this second consignment. On this occasion, however, they charged a significantly higher price per tablet. This was so that the conspirators, particularly Messrs Barbaro and Falanga, would pay off their debt from the aborted tomato tins importation.

Eventually, police seized a total of 480,000 MDMA tablets, out of the 1,200,000 that were the subject of this charge. The tablets that were seized had a pure weight in excess of 50 kilograms. That amount alone represented more than 100 times the commercial quantity.

Charge 3 — also part of Operation Inca

This charge concerned Mr Zirilli’s attempt to take possession of a quantity of cocaine which had been smuggled into this country from Colombia. The cocaine was concealed in a shipment of coffee beans. That shipment was intercepted by law enforcement authorities, and found to contain 99.9 kilograms of the pure drug. That figure represented 50 times the commercial quantity. Mr Zirilli was said to have aided, abetted, counselled, or procured his co‑offenders in the commission of that particular offence.

The application for leave to appeal against conviction

Notwithstanding the fact that Mr Zirilli pleaded guilty to these offences, he now seeks leave, by notice dated 23 March 2020, to appeal against his convictions.

It is accepted that an applicant must demonstrate ‘very exceptional circumstances’[5] before this Court, following a plea of guilty, will grant leave to appeal against conviction. The applicant will generally need to show that, upon the admitted facts, he or she could not in law be convicted, or that there has otherwise been a substantial miscarriage of justice.[6]
[5]R v Stewart [1960] VR 106, 108; R v El-Kotob (2002) 4 VR 546, 566 [78]–[79] (O’Bryan AJA, Callaway JA agreeing at 550 [9]); [2002] VSCA 109 (‘El-Kotob’); R v Ahmed (2007) 17 VR 454, 470 [66] (Whelan AJA); [2007] VSCA 270 (‘Ahmed’).
[6]See generally, R v Forde [1923] 2 KB 400; El-Kotob (2002) 4 VR 546; R v GJB (2002) 4 VR 355; [2002] VSCA 54; Ahmed (2007) 17 VR 454.

In the present case, Mr Zirilli relies upon the role played by Nicola Gobbo, as a police informer, all the while acting as the barrister (or, in one case, legal representative) of at least some of those centrally involved in the tomato tins importation. He claims that there was a significant causal link between Ms Gobbo’s actions (and those of her Victoria Police handlers), and his ultimate decision to plead guilty, such that what occurred can now be seen to have given rise to a substantial miscarriage of justice. In that regard, he contends that it makes no difference whether the case against him was strong, or even overwhelming.

In support of his application, Mr Zirilli proposes to rely upon a single ground, which is in the following terms:

A substantial miscarriage of justice has occurred in circumstances where defence counsel was secretly used as a police informer to secure a conviction against the applicant.

Obviously, the ‘defence counsel’ referred to in the ground as drafted is Ms Gobbo. Mr Zirilli contends (and there is no dispute about this), that he was wholly unaware of the fact that Ms Gobbo was, at various relevant times, a registered police informer, providing information against her own clients, and former clients. He says that he first learned of her having acted in that manner in December 2018 (only after it had been reported in the media).

In AB (a pseudonym) & EF (a pseudonym) v CD (a pseudonym),[7] the High Court (having previously granted special leave to appeal from a decision of this Court that had rejected claims of public interest immunity (‘PII’) made by the Chief Commissioner of Victoria Police designed to protect Ms Gobbo’s identity) subsequently ordered that special leave be revoked. From that time onwards, Ms Gobbo was publicly named as having been a police informer. There is now no doubt about the pivotal role that she played in revealing the tomato tins conspiracy and, as a consequence, the various matters that were the subject of Operation Inca. Clearly, that is because of the connection that we have described between the tomato tins conspiracy and the several Operation Inca offences.
[7](2018) 362 ALR 1; [2018] HCA 58.

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. This included information bearing directly upon Operation Inca.

It is against this background that Mr Zirilli now seeks leave to appeal against his convictions.

Mr Zirilli’s affidavit

In an affidavit affirmed on 20 March 2020, Mr Zirilli deposed to having read Mr Terziovski’s draft affidavit which, at that stage, was expected to be affirmed on 23 March 2020.[8] Mr Zirilli indicated that he sought, inter alia, orders, pursuant to s 317 of the Criminal Procedure Act 2009 (‘CPA’), that various designated law enforcement authorities, including the Chief Commissioner of Victoria Police, provide him with documents, exhibits, and other things as specified in his s 317 notice. The relevant focus, for present purposes, is on documents revealing whether or not Mr Zirilli’s former solicitor, Joseph ‘Pino’ Acquaro, happened to be a police informer.
[8]As indicated, the Terziovski affidavit was not, in fact, affirmed until 15 May 2020.

Before setting out the actual terms of that s 317 notice, it should be observed that Mr Zirilli claims initially to have met Mr Acquaro in relation to the charges against him, on 9 August 2008. That meeting took place shortly after members of Mr Zirilli’s family had visited him in custody. It appears that Mr Zirilli had previously met Mr Acquaro at a wedding in Melbourne some years earlier, but had never before retained his services as his lawyer.

On the afternoon of 9 August 2008, Mr Zirilli instructed Mr Acquaro to act for him in relation to all the drug matters with which he was then charged. According to Mr Zirilli, from that day onwards, Mr Acquaro at all times acted as his solicitor, until the High Court eventually dismissed his appeal in 2014.

Mr Zirilli spoke of the advice that Mr Acquaro had given him from the moment they were first introduced. He said that Mr Acquaro came to see him a second time, several days later, and told him that he had discussed Mr Zirilli’s case with the AFP. Mr Acquaro impressed upon him that he was in ‘deep trouble’, and that the AFP had surveillance and telephone intercepts against him.

The next time Mr Acquaro met with Mr Zirilli, he was accompanied by Ms Gobbo. Mr Zirilli had never previously had any dealings with her. Nor was he aware that she would be accompanying Mr Acquaro on his visit that day. Mr Acquaro urged Mr Zirilli to retain Ms Gobbo as his barrister, and Mr Zirilli accepted that recommendation. Both lawyers told him that the AFP had ‘a lot of shit’ against him, and that he was in ‘big trouble’.

At that meeting, Mr Zirilli instructed his lawyers to make an application for bail as soon as possible. He insisted that Robert Richter QC be retained to lead Ms Gobbo on that application. Some days later, both Mr Acquaro and Ms Gobbo again attended upon Mr Zirilli. On this occasion, they advised him to delay his bail application until his co-accused had succeeded in gaining their release. Ms Gobbo assured him that she would arrange for him to be granted bail, but told him that he would eventually ‘have to plead guilty’. She described the prosecution case as ‘overwhelming’ and told him that there was no defence available to the charges brought. She said that pleading guilty represented his best chance of avoiding a life sentence.

Mr Acquaro confirmed Ms Gobbo’s advice. He too told Mr Zirilli that he had no defence of any kind to any of the charges, and that the case against him was ‘overwhelming’.

On 8 September 2008, Mr Zirilli succeeded in obtaining bail. He was permitted to return to his home in Griffith, New South Wales. Upon his release, he and his family went at once to Mr Acquaro’s office, where they conferred. Ms Gobbo was present. She again told Mr Zirilli that he would certainly be going to gaol and that he had no defence. Mr Acquaro again specifically confirmed that advice.

Throughout the following months, Mr Zirilli regularly had further conferences with Mr Acquaro and Ms Gobbo. After the hand-up brief had been served, Ms Gobbo again advised Mr Zirilli that he had no choice but to plead guilty.

Mr Zirilli said that he was unhappy with that advice. He said that he wanted to retain Mr Richter as his senior counsel, to appear at his committal. However, Mr Acquaro advised him not to do so, but rather to retain Ms Gobbo alone, with instructions to ‘settle’ the matter. Mr Zirilli queried that advice, but was told by Mr Acquaro that he had a ‘close relationship’ with Ms Gobbo, and that she could handle the matter on her own, at least at that stage.

There were a number of subsequent conferences in Melbourne between Mr Zirilli, Mr Acquaro and Ms Gobbo. They took place at Mr Acquaro’s office, or at a restaurant in Lonsdale Street known as the ‘Wheat Bar’. Throughout all those meetings, Mr Acquaro and Ms Gobbo continued to insist that Mr Zirilli had to plead guilty. They made it clear that he had no chance of defending any of the allegations.

According to Mr Zirilli, he began to lose faith in his legal representatives. At about that time, he was referred to a barrister from Sydney, Geoffrey Nicholson QC, and decided to retain him as senior counsel. He told Mr Acquaro of his decision, and arranged for Mr Nicholson to fly to Melbourne to meet Mr Acquaro. All three men met at Mr Acquaro’s office.

After several weeks, Mr Nicholson told Mr Zirilli that he had read the hand‑up brief. He advised that although the case was strong, there was some prospect of defending at least the importation allegations. Mr Nicholson advised Mr Zirilli to proceed with a contested committal hearing.

Mr Zirilli said that having, at last, found a barrister who was prepared to fight for him, he instructed Mr Acquaro that he no longer wanted Ms Gobbo to appear for him.

After the committal in April 2011, Mr Acquaro again advised Mr Zirilli that settlement options should be explored. By that stage, Mr Nicholson agreed. Mr Zirilli decided to retain Melbourne counsel for that purpose. He instructed Mr Acquaro to approach Philip Dunn QC. For reasons that are not apparent, Mr Acquaro instead retained Mr Nicholson.

Eventually, Mr Acquaro presented Mr Zirilli with the terms of a proposed settlement. According to Mr Zirilli, he was unhappy with those terms and instructed Mr Acquaro to negotiate further. Mr Acquaro refused point blank, telling Mr Zirilli that the proposal was as good as it could ever get. He said that Mr Zirilli could either ‘take it or leave it’. In those circumstances, Mr Zirilli decided to accept the deal.

Having become unhappy with Mr Nicholson, Mr Zirilli retained Michael Croucher as his counsel for the plea. On appeal to this Court, Mr Croucher appeared as senior counsel, leading Fiona Todd. By the time the matter reached the High Court, Bruce Walmsley SC was instructed to appear as senior counsel, leading Ms Todd. As previously indicated, Mr Acquaro remained Mr Zirilli’s solicitor throughout the entirety of those appellate proceedings.

Mr Zirilli said that he never had the slightest suspicion that either Ms Gobbo or Mr Acquaro were police informers, still less that they were informing against him or any of his co-accused. Not surprisingly, neither had ever apprised him of that fact. Nor had any investigative or prosecution agency told him that Ms Gobbo or Mr Acquaro, while purportedly acting in his best interests, were informing against him, or at least against his co-offenders.

Mr Zirilli said that he was never made aware of the fact that the tomato tins container had only been identified because Ms Gobbo had ‘double-crossed’ Mr Karam. He said that he subsequently learned that she had provided the critical information that had led to the entire case having been built against him. He said that had any of these matters been disclosed, as they ought to have been, he would have taken every step to defend the charges, and not pleaded guilty.

The s 317 orders

Section 317 of the CPA provides as follows:

For the purposes of this Part [6.3 — Appeal and case stated from the County Court or Trial Division of the Supreme Court], 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.

On 1 April 2020, Mr Zirilli made application to this Court for orders pursuant to that section. On 12 June 2020, Judicial Registrar Irving, by consent, made the following orders on the papers:

Document production
1.Pursuant to s 317 of the Criminal Procedure Act 2009 (Vic), the Chief Commissioner produce documents, exhibits, or other things connected with the proceeding as follows:
(a)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:
(i)The Bill of Lading (or Shipping Manifest) concerning the shipment provided by Nicola Gobbo to Victoria Police on 5 June 2007;
(ii)Diary entries and notes of Victoria Police members concerning the exchange of the information referred to in paragraph 1(a)(i) above;
(iii)Contact reports setting out the information exchange between Nicola Gobbo and Victoria Police, including on 5, 15, 17 and 18 June 2017 and 3 July 2007;
(iv)Transcripts of discussions between Nicola Gobbo and Victoria Police; and
(v)Information Reports concerning the information exchanged between Nicola Gobbo and Victoria Police.

(b)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 Australian Federal Police (‘AFP’), the 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:
(i)Diary entries, notes, emails, letters, memorandums and reports concerning the following meetings between:
(1)Members of Victoria Police and the Australian Crime Commission on 13 June 2007;
(2)Officer White (a pseudonym) and Officer Green (a pseudonym) (Victoria Police) and Tony Stephens (Customs) on 19 June 2007;
(3)Members from Victoria Police and members of the Australian Customs Service on 20 June 2007;
(4)Steven Smith (Victoria Police), Paul Osbourne (AFP), Loris Cavallin (Customs), Mark Ainsworth (ACC) and Wayne Cheesman (ACC) on 20 June 2007;
(5)Officer White (a pseudonym) (Victoria Police) and Tony Stephen (Customs) on 21 and 28 June 2007;
(6)Blayney (Victoria Police) and members of the AFP and the ACC on 29 June 2007;
(7)Members of the Joint Management Committee (Victoria Police, the AFP, Customs and the ACC) on 1 July 2007;
(8)Gavin Ryan (Victoria Police) and members of the AFP on 23 August 2007; and
(9)Officer White (a pseudonym) and Officer Green (a pseudonym) (Victoria Police) and Loris Cavallin (ACC) on 21 August 2008; and

(ii)A memorandum written by James (Jim) O’Brien (Victoria Police) on 16 July 2007.

(c)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:
(i)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
(ii)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 (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.

(d)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.
(e)All documents relating to information exchanged between the Applicant’s solicitor, Joseph Acquaro (deceased), and Victoria Police between 8 October 2006 and 16 December 2008 concerning:
(i)the Applicant;
(ii)the shipment of container MEDU1250218 containing tomato tins on board vessel MV Monica from Naples, Italy; or
(iii)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 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.

2.To the extent that there is no objection to the production of the documents referred to in paragraph 1 of these orders, the documents be produced to the Registrar of the Court of Appeal by 1 September 2020.
3.The legal representatives of the Applicant and the Respondent have leave to inspect and make copies of any document produced pursuant to this order subject to the undertaking provided by the Applicant and the Applicant’s legal representatives in the form of Schedule A to the orders made on 12 May 2020.

Submissions and affidavits
4.By 8 September 2020, the Chief Commissioner file and serve written submissions and supporting affidavits, if so advised, in respect of:
(a)any objections, and the basis for objections, to the production of any of the documents referred to in paragraph 1 of these orders; and
(b)the categories of redactions made to the documents produced pursuant to paragraph 1 of these orders, as referred to in Annexure 1 of these orders.

5.By 22 September 2020, the Applicant and respondent file and serve any written submissions in respect of:
(a)any objections raised by the Chief Commissioner to the production of any of the documents referred to in paragraph 1 of these orders; and
(b)any redactions, or category of redactions, made to the documents referred to in paragraph 1 of these orders.

Process for further hearing and determination of any objections to the production of documents or specific redactions of any of the documents
6.By 4:00pm on 13 October 2020, following any objection under paragraph 5 of these orders, any party that wishes to be heard on any objections raised by the Chief Commissioner to the production of documents, or any redactions, or category of redactions, made to the documents produced under paragraph 1 of these orders, is to file a Notice of Objection which includes notice of which redaction are opposed and the basis for the opposition to the redactions, including any material in support of the objection to the redaction.
7.If any such objections cannot be resolved between the parties and the Chief Commissioner, a hearing will be listed on a date to be fixed before a Judicial Registrar to enable a Court ruling on the parties’ objections.
8.No later than 7 days after the rulings contemplated in paragraph 7 of these orders, the Chief Commissioner produce to the Court and the parties, any documents or material that requires reproduction because of those rulings.
9.The Applicant and Chief Commissioner have liberty to apply for an order that an objection to production, or a redaction in, category 1, 2 or 3 in Annexure A to these orders be determined by the Court of Appeal.[9]

[9](Emphasis added).

In accordance with the orders made by Judicial Registrar Irving, the Chief Commissioner made application to this Court to be relieved from the requirement that he produce any materials relating to Mr Acquaro, as set out in order 1(e), on the basis of PII.

The Chief Commissioner’s application was supported by the following affidavits:

·an open affidavit of Detective Acting Superintendent Damian Jackson, sworn 8 September 2020; and
·a confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 8 September 2020 (to which there were 10 separate exhibits, a number of them quite lengthy).

During the course of oral argument before this Court, it was made clear on behalf of the Chief Commissioner that he would also seek to rely upon several affidavits which had been filed in support of claims of PII in analogous proceedings relating to Francesco Madafferi.

Mr Madafferi was convicted in 2014, after a trial, arising out of his involvement in part of the offending described as Operation Inca, which overlapped with Mr Zirilli’s plea of guilty. He now also seeks material relating to Mr Acquaro, his former solicitor, in support of his own application for leave to appeal against conviction. Because the two applications overlap to some degree, these reasons should be read and understood in conjunction with the Court’s judgment in the Madafferi matter.[10]
[10]See generally, Madafferi v The Queen [2021] VSCA 1R (‘Madafferi’).

Mr Madafferi’s s 317 application extended over a substantially longer period than that concerning Mr Zirilli. Mr Acquaro had been Mr Madafferi’s solicitor for many years, from well before 2007, and extending right up until several months before Mr Madafferi’s trial in 2014.

The affidavits relied on by the Chief Commissioner in the Madafferi proceeding were as follows:

·an open affidavit of Detective Acting Superintendent Damian Jackson, sworn 24 July 2020;
·a confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 24 July 2020 (to which there were nine separate exhibits, a number of them quite lengthy);
·a confidential affidavit of Acting Commander Scott Mahony, affirmed 29 September 2020 (to which there was one short exhibit);
·a second confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 13 November 2020 (to which there were 10 separate exhibits, a number of them quite lengthy); and
·a third confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 17 November 2020.

In addition, on 25 November 2020, after this Court had reserved judgment in both the Madafferi case, and this matter, the Chief Commissioner filed further affidavit material said to be relevant to both cases. He sought to file:

·a confidential affidavit of Christin Tom, sworn 23 November 2020; and
·a second confidential affidavit of Acting Commander Scott Mahony, affirmed 25 November 2020, containing some hundreds of pages of exhibits.

Accompanying those affidavits was a covering letter from Ms Catrina Boemo, a Managing Principal Solicitor at the Victorian Government Solicitor’s Office. That letter explained that following the conclusion of the hearing in the Madafferi matter, the Chief Commissioner’s legal representatives attended upon a former police officer who had dealt with Mr Acquaro. That officer did not wish to depose to the matters discussed between them. Previously, senior counsel for the Chief Commissioner had asked the Court, during oral argument, whether it would be of assistance to have an affidavit prepared by that particular police officer. The Court had declined that offer of assistance.

Nonetheless, the Chief Commissioner considered that it would be ‘prudent’ to provide the Court with all relevant documents, including diary notes prepared by that police officer. It was these documents that comprised the bulk of the exhibits to the second confidential Mahony affidavit.

In response, on 1 December 2020, the Court directed the Registry to write to the Chief Commissioner and the amici, informing them that leave to file both the confidential Thom affidavit, and the second confidential Mahony affidavit, was refused. However, the Court granted the Chief Commissioner leave to file a further, final, affidavit to put before the Court the diary notes and Interpose records exhibited to the second confidential Mahony affidavit. The Court also requested that the final affidavit explain why that material had not been produced prior to the hearings in both the Madafferi case, and this matter.

In the Madafferi matter, the Chief Commissioner then filed a fourth confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 17 December 2020. That affidavit contained 34 exhibits, totalling 334 pages. The vast majority of those pages did not, on their face, provide any further detail regarding Mr Acquaro’s involvement with Victoria Police at any relevant time. It was said that those documents had, nonetheless, been filed out of an ‘abundance of caution’.

In relation to Mr Zirilli’s matter, the Chief Commissioner also filed a second confidential affidavit of Detective Acting Superintendent Damian Jackson, sworn 17 December 2020. That confidential affidavit was brief, and essentially adopted the fourth confidential Jackson affidavit filed in the Madafferi proceeding.

In summary, the open affidavits filed in both proceedings were cursory in form. Put simply, they asserted that Victoria Police would routinely make application for ‘rulings on the ground of PII’ whenever, and wherever, documents were sought regarding whether a particular person was, or was not, a ‘police informer’, or had provided them with information. This was said to be done as a matter of practice and procedure. The stated aim was to protect the safety of perceived informers, irrespective of whether those individuals did, or did not, fall within that category.

The confidential affidavits to which we have referred of course go a great deal further. One might reasonably have expected that they would set out, in some detail, the risks to the safety of any person who might be identified as a police informer, or to the family or close associates of that person.

However, the confidential affidavits make no such claim. As far as Mr Acquaro is concerned, that is hardly surprising. It is common knowledge that he was murdered outside his gelato shop on Lygon Street in March 2016. The person accused of having committed that murder is shortly to stand trial. Self-evidently, the fact that Mr Acquaro is said to have been a police informer, if true, would emerge in evidence in that trial, it being almost certain that this will form a key plank of the defence to that charge.

Importantly for present purposes, the confidential affidavits filed in these proceedings do not suggest, or even hint at, the proposition that any member of Mr Acquaro’s family, or any of his known associates, would be at any specific risk of harm if, assuming it to be the case, Mr Acquaro were revealed to have been a police informer. Reference was made instead to the Calabrian mafia in general and to another, entirely unconnected, case in which a family member of a human source was murdered, along with that human source himself, upon discovery that he was an informer.

During the course of oral submissions, senior counsel appearing for the Chief Commissioner was asked specifically, and in terms, whether she placed any reliance at all upon risk of harm to others as one of the bases for the claim for PII.

The transcript of the open court hearing is instructive in that regard. As she had in the Madafferi hearing, which took place a week or so earlier, Ms Maharaj QC appeared for the Chief Commissioner. Mr Chernok appeared on behalf of Mr Zirilli during that part of the hearing that was held in open court.

The transcript reads as follows:

WEINBERG JA: In the ordinary case the prime argument, or one of the prime arguments for preserving confidentiality or public interest in relation to an informer arises from matters of safety. It’s common ground that Mr Acquaro is dead.

MR CHERNOK:        Yes.
WEINBERG JA:        I don’t know, but I suspect, that issues of safety are not going to arise as part of the balancing exercise here. Do you want to say anything about that?
MR CHERNOK:        It’s difficult without knowing what is in the confidential material. It may very well be that the Chief Commissioner of Police advances evidence that there is a risk to the safety of Mr Acquaro’s family, his surviving family.
WEINBERG JA:        I’ll clarify that in your presence by asking Ms Maharaj if the Chief Commissioner is going to advance any argument based on safety?

MS MARHARAJ:      No, Your Honour.
WEINBERG JA:        That’s clear then.
MR CHERNOK:        Yes.
WEINBERG JA:        Is there anything you want to say in those circumstances?
MR CHERNOK:        No, Your Honour, in the sense that if safety isn’t a relevant consideration for this court, then we need not trouble ourselves with it in a sense, but unless there’s anything further that I can add, those are the submissions.

In his second confidential affidavit, referred to earlier, Acting Commander Scott Mahony stated that, ‘upon further reflection’, given that the amici had ‘made much of the absence of this ground’ and because, it was said, that the risks of disclosure ‘are increasing with time’, the Chief Commissioner ‘formally puts [forward] the safety of Mr Acquaro’s family ground, particularly his sons’.

Material relied upon by the Chief Commissioner before Beach JA, in a pre‑trial application in the case concerning the murder of Mr Acquaro, was said to support the conclusion that revealing his involvement as a police informer would place members of his family at risk. That argument was rejected by his Honour. The material upon which the Chief Commissioner relied in that proceeding was, in substance, the same as that which is contained in the confidential affidavits filed in this proceeding.

This Court, in refusing leave to file the second confidential Mahony affidavit, took into account the fact that the safety ground was said to be relied on only ‘formally’, and that senior counsel’s concession that it was not relied upon at all was never, at any stage, sought to be withdrawn.

Mr Chernok did not, as indicated, have access to any of the confidential affidavits, or the exhibits thereto. However, the amici curiae, who appeared to assist the Court, did. They presented submissions that were, in effect, diametrically opposed to those advanced on behalf of the Chief Commissioner.

The confidential affidavits basically asserted that if it became known that the police were unable to protect the identity of police informers, there would be a ‘chilling effect’ such that sources would ‘dry up’. We shall come to that particular argument shortly.

Legitimate forensic purpose — a preliminary point

The Chief Commissioner, in closed court, raised as a preliminary point, by way of objection to the production of the documents sought under the s 317 notice, that there was no legitimate forensic purpose behind the notice. In the Chief Commissioner’s submission, the notice represented nothing more than a ‘fishing expedition’. It did not pass what has come to be known as the ‘on the cards’ test. A similar argument had been advanced in the Madafferi hearing.

In one sense, the Chief Commissioner’s preliminary point was wholly misconceived. The orders made by Judicial Registrar Irving were made by consent. Any objection to the making of such orders on the basis of a lack of legitimate forensic purpose ought to have been made at that time. Instead, the Chief Commissioner elected to deal with the entire issue of production solely on the basis of PII.

Nonetheless, this misconception was not addressed in oral argument. In addition, the Court received extensive submissions from both the Chief Commissioner and the amici regarding legitimate forensic purpose, and that issue had to be resolved for the purpose of the Madafferi decision, where there is considerable overlap with the present case regarding disclosure of Mr Acquaro’s status as a police informer. Accordingly, we propose to deal with the preliminary objection raised by the Chief Commissioner in this matter as well.

The starting point in considering the preliminary objection must be the decision of the High Court in Alister v The Queen.[11] There, three men were charged with conspiracy to murder, and two others with attempted murder, all arising out of an investigation into the Ananda Marga organisation and its activities. A subpoena issued to ASIO by the defence required it to produce all material relating to an individual named ‘Seary’, and his longstanding activities as an informer to that body.
[11](1984) 154 CLR 404; [1984] HCA 85 (‘Alister’).

The Commonwealth Attorney-General swore an affidavit claiming PII on a number of grounds. Seary was to be the principal Crown witness. He had pretended to join the conspiracy, which had as one of its objects the bombing of the home of a man suspected of being a member of a right-wing organisation known as the ‘National Front’. Seary had instead informed police about the plan.

Seary’s part in the investigation, and his role as an agent, was well known. However, the defendants alleged that Seary had fabricated his allegations. The subpoena issued to ASIO sought documents relating to Seary’s earlier involvement with Ananda Marga, going back to 1977, shortly after the Hilton Hotel bombing. The trial judge set aside the subpoena, declining to inspect the relevant documents.

The High Court, by majority,[12] held that the judge had erred by refusing to require the production to the Court of the documents sought, and then refusing himself to inspect them. This was a case where it was necessary and appropriate for the judge to have personally examined the documents, before engaging in the appropriate balancing process.
[12]Consisting of Gibbs CJ, Murphy and Brennan JJ, Wilson and Dawson JJ dissenting.

It should be noted that the claim to PII in Alister was based substantially upon what was said to be a risk to national security in revealing whether ASIO had any records or documents of the type described in the subpoena.

In his judgment, Gibbs CJ referred to the High Court’s decision in Sankey v Whitlam[13] as having established that when a party to litigation seeks the production of documents, and a PII objection is taken, the Court is required to consider two conflicting aspects of the public interest. These were (a) whether harm would be done by the production of the documents, and (b) whether the administration of justice would be frustrated or impaired if the documents were withheld.[14] The judge would then have to decide which of those two aspects predominated. The final step in this process, the balancing exercise, could only be taken when it appeared that both aspects of the public interest required consideration.
[13](1978) 142 CLR 1; [1978] HCA 43.
[14]Alister (1984) 154 CLR 404, 412 (Gibbs CJ, Murphy J agreeing at 431).

With regard to the question whether a judge, faced with a claim of PII, should inspect the relevant documents, Gibbs CJ said that the Court must attach special weight to the fact that the documents may support the defence of an accused person. His Honour said:

Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused.[15]

[15]Ibid 414–15 (Gibbs CJ, Murphy J agreeing at 431).

Justice Murphy agreed with the Chief Justice that the trial judge had erred in refusing to inspect the documents that had been subpoenaed in order to see whether they contained anything which might show that the case against the accused had been fabricated, or that might otherwise assist them in their defence, either directly or indirectly. It would be sufficient, in his Honour’s view, that the documents sought might point to the existence of other material which might assist.

Justice Brennan also agreed with the Chief Justice in allowing the appeal. His Honour observed that although the applicants did not know whether ASIO had possession of any document that might aid the defence case, the right to compulsory process could not be dependent upon the party’s ability to prove the existence of the content of such a document in advance. Self-evidently, reasonable grounds to believe that a document of that character might exist could justify the issue of a subpoena to obtain it. If there was some ‘concrete ground’[16] for belief which took the case beyond a mere fishing expedition (i.e. ground for belief that the documents contained material that might be substantially useful to the party seeking discovery), the fact that the case was criminal in nature justified adopting a more liberal approach to the inspection of documents. It would then justify compelling the production of those documents.
[16]Ibid 456 (Brennan J), citing Air Canada v Secretary of State for Trade [1983] 2 AC 394, 439 (Lord Wilberforce).

In R v Saleam,[17] the New South Wales Court of Criminal Appeal had cause to apply the principles authoritatively stated by the High Court in Alister. An accused appealed against certain convictions, and on the hearing of the appeal, sought access to documents referred to in a subpoena issued against the Commissioner of Police. That subpoena sought the production of every document relating to the investigation and prosecution of the offences with which the accused had been charged, together with the reports concerning any investigation into allegations of perjury committed by the principal Crown witness in the trial.
[17](1989) 16 NSWLR 14.

The Court (Hunt J, with whom Caruthers and Grove JJ agreed) observed that when a trial judge was faced with a subpoena of that kind, counsel for the accused should be required to identify expressly, and with precision, the legitimate forensic purpose for which access to the documents was sought. The judge should refuse access until such an identification had been made. The judge would have to be satisfied that it was ‘on the cards’ that the documents would materially assist the accused in his defence if objection were taken that no legitimate forensic purpose existed for their production.

The Court went on to say that when such an objection had been taken, the judge should usually inspect the documents in question. In the particular circumstances of Saleam, the ‘on the cards’ test was easily satisfied.

In Shaw v Yarranova Pty Ltd,[18] this Court, by way of obiter, addressed the test to be applied when, in civil proceedings, documents were sought under subpoena. It was noted that the applicant for such disclosure would have to identify a legitimate forensic purpose for which access was sought, and establish that it was ‘on the cards’ that the documents would materially assist his case. In clarification of that test, it was said that the court would have to be satisfied that the documents were relevant to an issue, and that there was ‘something in the material then before the court that makes it likely that the documents will materially assist the applicant’. Saleam was cited with approval.
[18][2011] VSCA 55.

In State of Victoria (Department of Justice) v Lane,[19] Kyrou J dealt with an application for judicial review of an order made by a magistrate refusing the plaintiff’s application to set aside certain items of a summons for production of documents that had been issued by the respondent. The summons sought production of documents relating to the service history and calibration details of three fixed speed cameras.
[19][2012] VSC 328.

In dismissing the application for judicial review, his Honour accepted that where an accused seeks production of documents pursuant to a subpoena, it is for the accused to satisfy the court that he or she has a legitimate forensic purpose in doing so. That purpose must be identified expressly and with precision. In order to meet that test, the accused must show that ‘it is on the cards’ that the documents would materially assist the accused in his or her defence.

It was at this point that Kyrou J provided further clarification of the relevant test. He stated ‘the expression ‘on the cards’ means ‘reasonable possibility’’.[20] He added that the ‘reasonable possibility’ test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown’s case and to take advantage of any applicable defences.
[20]Ibid [18].

His Honour distinguished between that approach, and mere speculation that the documents might assist the accused’s defence. Such speculation was insufficient to satisfy the ‘reasonable possibility’ test because it amounted to a ‘fishing expedition’ which could never constitute a legitimate forensic purpose. He added that mere relevance to an issue in the proceeding was also not sufficient to establish a legitimate forensic purpose.

In Holloway v State of Victoria (Department of Justice),[21] Cavanough J was confronted with a challenge to the correctness of the decision in Lane, at least in so far as it equated the ‘on the cards’ test with ‘reasonable possibility’. After a thorough examination of the relevant authorities, his Honour rejected that challenge and accepted Kyrou J’s statement of the relevant principles. Tacitly at least, he concluded that the notion of ‘on the cards’ was a metaphor, and not a descriptor to be given a literal, and arithmetic, meaning, but to be approached as Kyrou J said ‘with flexibility and common sense’.
[21][2015] VSC 526.

In our view, the ‘on the cards’ test should be applied in accordance with the guidance provided in both Lane and Holloway. As will be seen, that test is easily satisfied in the particular circumstances of the Madafferi case. For reasons that will become apparent, it is satisfied in the present case as well. The preliminary objection taken to the s 317 orders in this matter must be rejected.

The PII claim — the balancing test

In Jarvie v Magistrates’ Court of Victoria at Brunswick,[22] Brooking J set out the test governing the disclosure of the identity of a police informer as follows:

In dealing with the identity of informers judges have often used words which might be thought to suggest that identity may be disclosed only where it is shown that disclosure will enable the innocence of the accused to be demonstrated. So Lord Esher MR spoke of disclosures being ‘necessary or right in order to shew the prisoner’s innocence’: Marks v Beyfus.[23] By way of further examples see what was said by Gibbs ACJ in Sankey v Whitlam[24] (‘necessary to support the defence of an accused person’) and the authorities to which his Honour there referred, including R v Lewes Justices; Ex parte Home Secretary[25] (‘required to establish innocence’). But, while the court will no doubt allow the identity of an informer to be disclosed only after the most anxious consideration, the expressions I have cited, and other similar words, were in my view not intended to convey that disclosure is warranted only where it is clear that the result must be to demonstrate that the accused is not guilty. So in Cerrah v The Queen,[26] Vincent J, speaking in effect for the court, said:
It is, in my view, clear that before what appears to be a legitimate claim against the disclosure of the name of a police informer is rejected, the accused must demonstrate that the evidence is at the very least capable of being, if not likely to be, of some real assistance to him in answering the case made out against him. A speculative possibility of the kind for which the present applicant contends would certainly not suffice.

I doubt whether this test is significantly different to that mentioned by Wilson and Dawson JJ and Brennan J in Alister v The Queen[27] (a likelihood of the obtaining of material substantially useful to the accused). The test laid down by Vincent J is capable of being applied not only on a trial but also in committal proceedings. I would respectfully suggest that the words ‘is at the very least capable of being, if not likely to be, of some real assistance to him’ should be understood as requiring it to be demonstrated that there is good reason to think that disclosure of the informer’s identity may be of substantial assistance to the defendant in answering the case against him. I should add that I respectfully doubt whether McHugh JA (as he then was) in Cain v Glass (No 2)[28] intended to lay down any substantially different test to that which I have attempted to formulate.[29]

[22][1995] 1 VR 84 (‘Jarvie’).

[23](1890) 25 QBD 494, 498.

[24](1978) 142 CLR 1, 42.

[25][1973] AC 388, 407–8 (Lord Simon of Glaisdale); Lord Simon’s observation was also cited by Stephen J in Sankey v Whitlam (1978) 142 CLR 1, 62.

[26](Full Court of the Supreme Court of Victoria, Young CJ, Vincent and Crockett JJ, 6 October 1988).

[27](1984) 154 CLR 404, 438, 456.

[28](1985) 3 NSWLR 230.

[29]Jarvie [1995] 1 VR 84, 89–90 (citations in original), quoted in AB (a pseudonym) v CD(a pseudonym) & EF (a pseudonym); EF (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) & AB (a pseudonym) [2017] VSCA 338, [53] (‘AB v CD & EF).

Justice Brooking went on to say:[30]

The fact that there is good reason to think that disclosure of the informer’s identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.
It may be suggested that the notion of a balancing of relevant factors pointing in one direction against relevant factors pointing in the other is not consistent with the proposition that identity must be disclosed if there is good reason to think that disclosure may be of substantial assistance to the defendant, and that the question must always be the general one whether the public interest will be better served by disclosure or non-disclosure. On this approach it might be said that the degree of possible prejudice from non‑disclosure to which a given defendant may be required to submit may depend on the strength of the considerations favouring non‑disclosure. But it seems to me that the overriding need for a fair trial must mean that in no circumstances can the identity of a witness be withheld from a defendant if there is good reason to think that disclosure may be of substantial assistance to the defendant in combating the case for the prosecution. To say that in such a case no balance is called for is to say that, whatever the strength of the case in favour of non‑disclosure, it cannot prevail. But a balancing has still been carried out, and effect has been given to an overriding principle that the ‘right’ to a fair trial must not be substantially impaired.[31]

[30]Ibid 90 (citation in original), quoted in AB v CD& EF [2017] VSCA 338, [55].

[31]Alister (1984) 154 CLR 404, 456 (Brennan J); R v Governor of Brixton Prison; Ex parte Osman [1991] 1 WLR 281, 288 (Mann LJ); R v Keane [1994] 1 WLR 746, 751–2.

Mr Zirilli’s s 317 notice, and the consent orders made by Judicial Registrar Irving are, of course, closely analogous to a subpoena of the kind that was issued in Alister. They are also closely analogous to various other coercive processes for production of documents.

As indicated, Mr Zirilli wants to know whether Mr Acquaro was, at any relevant time, a police informer. Further, and if so, he wants to know whether Mr Acquaro provided police with any information touching upon any of the matters with which Mr Zirilli was charged.

The period specified in Mr Zirilli’s s 317 notice, and the consent orders, differs markedly from that concerning Mr Madafferi. Mr Zirilli’s request for documents and other material is confined to the period ending in December 2008. Yet, it is clear that Mr Acquaro represented Mr Zirilli as his solicitor for many years thereafter, right up until 2014.

At the same time, the s 317 orders specifically call for the production of all documents which bear not just upon the tomato tins importation, but also all other allegations of drug trafficking which resulted in Mr Zirilli’s eventual sentencing in February 2012. Clearly, that entire sentencing exercise did not end until 2014, when the High Court dismissed his appeal against sentence. As we have said, Mr Acquaro acted for him throughout that entire period. A possible, albeit liberal, reading of Judicial Registrar Irving’s orders would encompass any communications that passed between Mr Acquaro and police regarding, inter alia, Operation Inca, even if some of those communications took place, as they clearly did, in 2014. In any event, it would be pointless, having regard to the decision of this Court in the Madafferi matter, to condition any orders for disclosure made in favour of Mr Zirilli upon his seeking to amend his s 317 notice to expand the period within which the communications identified in that decision may have occurred. This entire matter has already taken up an enormous amount of time, at substantial cost to the community. Subject to PII considerations, to which we turn below, the documents evidencing these communications should simply be produced.

From Mr Zirilli’s point of view, his desire to obtain the information sought is entirely understandable. Whether, in the ultimate analysis, he would be able to make use of any such information in support of his application for leave to appeal against conviction will be a matter for his legal representatives to consider, and for the Court to determine. No doubt, it could be argued that the Acquaro material, if it confirms Mr Zirilli’s suspicions, will be combined with what is already known of Ms Gobbo’s conduct in support of his challenge to his convictions.

This then takes us to the balancing exercise which must be undertaken. The Court has been provided with what purports to be an exhaustive statement of Mr Acquaro’s dealings with Victoria Police throughout the period 2008 to 2014.[32] That material includes lengthy transcripts of discussions that were had between Mr Acquaro and certain designated police in 2008, and again in 2014.
[32]See Madafferi [2021] VSCA 1R.

It should be said at once that Mr Zirilli is not mentioned by name in any of those discussions. However, as the judgment of this Court in the Madafferi matter demonstrates, the 2014 transcripts reveal extensive, and damaging, references by Mr Acquaro to Mr Madafferi. They also reveal an assessment by Mr Acquaro of various weaknesses in the prosecution case against Mr Madafferi in relation to Inca, and how those weaknesses would be overcome. Mr Madafferi was, of course, a co‑offender of Mr Zirilli in relation to parts of the Operation Inca drug dealings.

This Court, differently constituted, has concluded that Mr Madafferi is entitled to see the 2014 material because it is reasonably possible that it could materially assist him in his challenge to his conviction on the Inca matters.[33] The question now to be determined is whether Mr Zirilli is similarly entitled to see that same material.
[33]Ibid.

It is here that the oral submissions before this Court of senior counsel on behalf of the Chief Commissioner should be noted.

WEINBERG JA:        I don’t underestimate the difficulties of the choices that the Commissioner has to make, I don’t underestimate those at all. Final question from me. Is it appropriate or would it be appropriate, hypothetically, to find in favour of Mr Madafferi on the issue of whether Mr Acquaro was an informer but to reject the same application in relation to Mr Zirilli?
MS MAHARAJ:        It becomes very difficult, Your Honour.
WEINBERG JA:        It does, doesn’t it?
MS MAHARAJ:        Yes, very, very difficult. I see it - - -
WEINBERG JA:        The arguments are not exactly the same but there are some underlying arguments that seem very similar.
MS MAHARAJ:        Yes, Your Honour. I would - - -
WEINBERG JA:        [You] said you’d have a fallback position in this case as well.
MS MAHARAJ:        Yes.
WEINBERG JA:        Which you foreshadowed in Madafferi.
MS MAHARAJ:        Yes, Your Honour. The Madafferi loss, complete loss would have the domino effect.
WEINBERG JA:        It has to, doesn’t it?
MS MAHARAJ:        Yes, Your Honour. I’ve thought long and hard about it. Because the fact that Mr Acquaro is an informer would be out.

Senior counsel’s entirely appropriate concession that, at the very least, the fact that Mr Acquaro had been informing on Mr Madafferi in connection with the Inca drug matters, albeit in 2014, could have a logical flow-on so far as Mr Zirilli was concerned, should be accepted. That is so, even though Mr Zirilli had, by 2014, already pleaded guilty. Indeed, by then, his appeal to the High Court against his sentence had been dismissed.

As noted in oral argument, Mr Zirilli’s argument, if he could establish that Mr Acquaro had been boasting to police about having identified weaknesses in the Inca prosecutions, might be that he could hardly have been providing Mr Zirilli with the independent legal advice to which he was entitled when deciding to plead guilty. That argument presupposes that Mr Zirilli was entitled to be fully informed of his solicitor’s views, in that regard, so that he could make his own assessment of whether or not to plead guilty.

If, as Mr Acquaro claimed to police, he alone had recognised that there were serious flaws in the prosecution case regarding Operation Inca (at least as regards Mr Madafferi) Mr Zirilli was surely entitled to be provided with that same information. Otherwise, he could not make a fully informed choice as to what course he should adopt.

When one considers the Acquaro material, not in isolation, but in combination with the evidence concerning Ms Gobbo’s activities, it could reasonably be argued that the Acquaro evidence might lend some weight to Mr Zirilli’s challenge to his convictions. It could be said that, although he pleaded guilty, his decision to do so had been heavily influenced by the pressure placed upon him by the barrage of legal advice that he received from both Mr Acquaro and Ms Gobbo. In relation to Ms Gobbo, she acted in clear breach of her duty to Mr Zirilli. As regards Mr Acquaro, there might be legitimate questions as to whether he provided Mr Zirilli with independent and impartial advice.

Once the Chief Commissioner abandoned any reliance upon the threat of harm to Mr Acquaro’s family, or his associates, as the basis for the claim of PII, really all that was left to support that claim was the ‘chilling effect’ argument.

In that regard, the third confidential Jackson affidavit in the Madafferi proceeding put forward the argument that the disclosure of Mr Acquaro’s identity as a police informer would be likely to lead to a decrease in the number of informers willing to provide information to police. In support of that particular contention, Superintendent Jackson claimed that the publicity arising out of the Royal Commission into the Management of Police Informants had already ‘made it more difficult for members to recruit new human sources’. He also claimed that a number of potential human sources had disclosed that the publicity surrounding Ms Gobbo had been a reason why they were now reluctant to provide information to Victoria Police. He put forward some raw figures that were said to support that argument.

The submission that those figures support the ‘chilling effect’ argument was, in our view, misconceived. They do not bear out any such conclusion. In oral argument, Ms Shann, as amicus curiae, submitted that the chilling effect upon which the Chief Commissioner relied was not one that would naturally result from the disclosure of the information sought. She distinguished between the ‘traditional informer’ case (where a person is promised that their identity will be kept secret in exchange for information), and the lawyer informer case, where the lawyer has turned against his or her own client. She submitted that as far as traditional informers are concerned, the revelation that Mr Acquaro had been an informer would not result in a ‘chilling effect’ because lawyer informers would be seen as a special, if not unique, case. Further, she noted that the raw figures cited in the third confidential Jackson affidavit were almost meaningless without proper context and analysis. They demonstrated no causal link of any kind to the chilling effect postulated.

This Court addressed a very similar argument concerning the ‘chilling effect’ of disclosing an informer’s identity put on behalf of the Chief Commissioner, in Chairperson of the Royal Commission into the Management of Police Informants v Chief Commissioner of Victoria Police.[34] There, the Court pointed to an important distinction between ordinary police informers, and a lawyer informer turning upon his or her own client:

In this context, there is an important difference between the position of Ms Gobbo, whose identity this Court determined could and should be disclosed, and that of the relevant persons.
Ms Gobbo’s conduct, and that of associated police, was described by the High Court as reprehensible. It was certainly not conduct which the law is concerned to encourage and protect.
The relevant persons, by contrast, on the present material, have done the very thing which the law has long held must be encouraged and protected. They have cooperated with authorities and given evidence against other criminals, or agreed to do so. They have advanced the administration of justice by doing so. They have imperilled their own physical safety and that of their families by doing so.
The distinction between Ms Gobbo’s position and that of the ‘ordinary case involving … a police informer’, is important.[35]

[34][2019] VSCA 154.

[35]Ibid [96]–[99].

Much the same can be said of Mr Acquaro’s conduct in informing against his client, Mr Madafferi, in relation to Operation Inca.

In Mr Madafferi’s case, the point being made is even stronger because Mr Acquaro was passing on information that was very much to the detriment of his client, concerning not just the drug offences with which Mr Madafferi was charged, but a series of other matters, including visa irregularities, which had nothing to do with those offences. Indeed, Mr Acquaro was actively assisting police in advising them as to how they might use such matters, and others, to have Mr Madafferi’s bail revoked. Mr Zirilli’s case does not have those features.

The Chief Commissioner, having claimed PII, and sought a non-disclosure ruling from this Court, plainly has the burden of making good that claim.

Section 130 of the Evidence Act 2008 relevantly provides:

Exclusion of evidence of matters of state
(1)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.
(2)The court may give such a direction either on its own initiative or on the application of any person (whether or not the person is a party).
(3)In deciding whether to give such a direction, the court may inform itself in any way it thinks fit.
(4)Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it as evidence would—
…
(c)prejudice the prevention, investigation or prosecution of an offence; or

…
(e)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; …

(5)Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)the importance of the information or the document in the proceeding;
(b)if the proceeding is a criminal proceeding— whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)whether the substance of the information or document has already been published;
(f)if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused— whether the direction is to be made subject to the condition that the prosecution be stayed.

…

Of course, the section speaks of the balancing of the competing public interests only in the context of adducing evidence. Pursuant to s 131A, however, s 130 is given a greatly extended operation. Accordingly, the principles laid down in s 130 apply equally to various forms of coercive discovery, including subpoenas, notices to produce, and, of course, orders pursuant to s 317.

In addition, s 142 provides:

Admissibility of evidence—standard of proof
(1)Except as otherwise provided by this Act, in any proceeding the court is to find that the facts necessary for deciding—
(a)a question whether evidence should be admitted or not admitted, whether in the exercise of a discretion or not; or
(b)any other question arising under this Act— have been proved if it is satisfied that they have been proved on the balance of probabilities.

(2)In determining whether it is so satisfied, the matters that the court must take into account include—
(a)the importance of the evidence in the proceeding; and
(b)the gravity of the matters alleged in relation to the question.

It seems to us that Stephen Odgers is correct when he writes:[36]

It appears clear from the formulation of s 130(1) that, to the extent that it is relevant to talk of the ‘burden of proof’ in this context, it is on the party arguing that the public interest in preserving secrecy or confidentiality in relation to information or a document that relates to matters of state outweighs the public interest in admitting into evidence the information or document. That party must establish both that the information or document ‘relates to matters of state’ and that the balancing test favours non-adduction (or non-production pursuant to s 131A). Again, to the extent that it is relevant to talk of ‘standard of proof’ in this context, s 142(1) imposes a standard of proof ‘on the balance of probabilities’. The Victorian Court of Appeal has pointed out that it is facts that must be established on the balance of probabilities by the party submitting that the information or document not be presented in evidence, not the matter said to support the public interest in preserving secrecy or confidentiality (that, a real risk or possibility of grave harm to the public interest apparent on the basis of facts proved on the balance of probabilities may be sufficient).[37]

[36]Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 14^th ed, 2019) 1162 (citation in original).

[37]R v Peters (a pseudonym) [2018] VSCA 115, [48].

In Director of Public Prosecutions v Debono,[38] Kyrou J confirmed the correctness of that reasoning when he said:

The onus lies upon the party seeking to prevent disclosure of information or a document to establish that the public interest in preserving secrecy or confidentiality outweighs the public interest in producing that information or document.[39]

[38](2012) 225 A Crim R 585; [2012] VSC 476 (‘Debono’).

[39]Ibid 591 [28].

His Honour cited, as applicable to s 130, the following observations of this Court, in State of Victoria v Brazel,[40] regarding the position at common law:

The claim for immunity must be articulated with rigour and precision, and supported by evidence demonstrating the currency and sensitivity of the information, so as to constitute a compelling case for secrecy. Anything less will be unlikely to suffice.[41]

[40](2008) 19 VR 553; [2008] VSCA 37.

[41]Ibid 575 [68]. Quoted in Debono (2012) 225 A Crim R 585, 591 [28].

In Jaffarie v Director-General of Security,[42] Flick and Perram JJ made a somewhat related point when they said:

The ‘weight’ to be given to the reasons expressed in support of a claim to privilege will, obviously enough, depend upon the facts and circumstances of each individual case and the persuasiveness of the reasons advanced. Less ‘weight’, it may be expected, will be given to reasons expressed as mere assertions and conclusions than the ‘weight’ to be given to a course of reasoning, soundly based upon such facts as it is possible to disclose, consistent with the maintenance of the privilege. Some claims may be more susceptible to explanation than others. But those making a claim for privilege, including claims for public interest immunity privilege founded upon concerns as to national security, should be forever conscious of the need to explain the basis upon which the claim is made as fully and as openly as possible — always also conscious of the need to not disclose the very information for which the privilege is claimed. In some cases, perhaps, little information can be publicly disclosed and a court may of necessity have to receive affidavit evidence in confidence. But the confidence and reliance that a court can place upon reasons advanced in support of claims for privilege depend to a very great extent upon the care with which those reasons have been advanced.[43]
[42](2014) 226 FCR 505; [2014] FCAFC 102.
[43]Ibid 514 [26] (White J agreeing at 537 [121]).

Conclusion

In this proceeding, the Chief Commissioner’s claim for PII in response to the s 317 orders was based on two quite separate limbs.

The Chief Commissioner argued first that Mr Zirilli’s desire to discover whether Mr Acquaro was in fact a police informer (who had informed upon Mr Zirilli, or his co-accused) was nothing more than a ‘fishing expedition’, and had no legitimate forensic purpose.

The Chief Commissioner argued, next, that even if it could be shown that there was a legitimate forensic purpose in seeking this material, the balancing exercise required under s 130 favoured non-disclosure.

We reject both contentions. Mr Zirilli is entitled to know whether Mr Acquaro, while acting for Mr Zirilli, was a police informer as regards the very drug matters with which Mr Zirilli was charged. In other words, he is entitled to know anything said by Mr Acquaro to police about Operation Inca which directly, or indirectly, concerned him. That includes, in our opinion, the material to which a differently constituted Court has ruled that Mr Madafferi is entitled.

As we have said, it may be that in the final analysis, Mr Zirilli will not find this information to be of any great use in challenging his convictions. The case against him was obviously a very powerful one. Nonetheless, this Court is in no position to make a definitive assessment regarding what use, if any, Mr Acquaro’s role as an informer could play in support of Mr Zirilli’s application.

The matter is better addressed by Mr Zirilli’s legal advisers, when they are fully apprised of all of the details of the relationship between Mr Acquaro and the police. It would be quite wrong, in our view, to deprive Mr Zirilli of the opportunity to make legitimate use of that material, if he can do so.

The amici, whose submissions were of great assistance to the Court, were obviously in no position to advance arguments of that kind. Only Mr Zirilli and his legal representatives can properly give full expression to the utility of those disclosures to his application for leave to appeal against conviction.

The final point to note is one that was emphasised in the Madafferi judgment. Once it becomes public knowledge, as has already occurred to a considerable degree,[44] that Mr Acquaro was informing upon his own clients to police, that particular ‘horse has bolted’. In the event that Mr Madafferi is provided with the PII material, it would be fanciful to think that Mr Zirilli would not become aware of it. That makes the Chief Commissioner’s position largely untenable.
[44]Mr Acquaro has been named as a police informer in various newspaper articles and other publications, albeit that none of those statements are official. We refer, also, to the forthcoming trial of the man charged with Mr Acquaro’s murder. As noted earlier, self‑evidently, Mr Acquaro’s role as a police informer will feature prominently as part of the defence in that trial. This point is fully addressed in Madafferi [2021] VSCA 1R, [112], [114].

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Saverio Zirilli v The Queen [2021] VSCA 2

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Director of Public Prosecutions v Radovilsky [2021] VCC 420

Cases Citing This Decision

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R v Hutson [2021] QDC 311

Binse v The King [2025] VSCA 158

Madafferi v The King [2025] VSCA 114

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DPP (Cth) v Barbaro [2012] VSC 47

Barbaro v The Queen [2012] VSCA 288

Barbaro v The Queen [2014] HCA 2

[2021] VSCA 2

15 January 2021; First revision 5 February 2021 to remove redactions at [73] and fn 44.