Zirilli v The Queen - [2020] VSCA 261

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 September 2020
DATE OF JUDGMENT:	2 October 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 261	First Revision: 5 October 2020

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CRIMINAL LAW – Bail pending appeal – ‘Exceptional circumstances’ required to be shown – Appeal against conviction based on discovery that applicant’s former counsel (on bail application and special mention) was, at the time, acting as a police informer in relation to the drug offences of which applicant was ultimately convicted – Concession by applicant that reasonable prospects of success, alone, insufficient to constitute exceptional circumstances – Need, at least, for strong prospects of success – Novel case with attendant difficulty in assessing prospects of success – Prospects on two of three charges no more than reasonable – Even success in relation to most promising charge would leave intact substantial non-parole period to be served – Cvetanovski v The Queen [2020] VSCA 126, distinguished – Exceptional circumstances not made out – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Gumbleton with Mr A V Chernok and Mr M Murphy	Nicholas James Lawyers
For the Respondent	Ms R J Sharp with Mr M R Wilson	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

McLEISH JA

WEINBERG JA:

On 23 March 2020, Saverio Zirilli (‘the applicant’) filed an application for leave to appeal against conviction on the sole ground that a substantial miscarriage of justice had occurred by Victoria Police’s use of defence counsel, Nicola Gobbo, as a police informer, to secure a conviction against him.[1] That application has not yet been heard and, for reasons that will become apparent, may not be able to be heard for some considerable time.
[1]That application for leave to appeal foreshadows a further ground of appeal arising out of what the applicant suspects to have been the conduct of his former solicitor, Joseph ‘Pino’ Acquaro, in informing to Victoria Police about the applicant during the time that Mr Acquaro represented the applicant in relation to the very drug matters that are the subject of the proposed appeal.

On 22 September 2020, this Court heard an application for bail pending appeal, which of course, requires the applicant to show ‘exceptional circumstances’.[2]
[2]See generally Re Zoudi (2006) 14 VR 580; [2006] VSCA 298.

By way of introduction, on 7 December 2011, the applicant pleaded guilty in the Trial Division, before King J, to one charge of conspiracy to traffic in a commercial quantity of a controlled drug (MDMA), one charge of trafficking in a commercial quantity of a controlled drug (MDMA), and one charge of attempting to possess a commercial quantity of a controlled drug (cocaine). His plea was heard, together with that of his co-offender, Pasquale Barbaro.

On 23 February 2012, the applicant was sentenced as follows:

Charge on

Indictment

Offence

Maximum

Sentence

Cumulation

1 Conspiracy to traffic in…

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 [2020] VSCA 261
Case: [2020] VSCA 261
Decision Date: 2 October 2020

CaseChat Overview and Summary

In the matter of Zirilli v The Queen, the court was presented with an appeal by the applicant against their conviction, focusing on the discovery that their former counsel, who had represented them during the bail application and a special mention, was acting as a police informer related to the drug offences for which the applicant was convicted. The applicant argued that the exceptional circumstances required for bail pending appeal had been met due to this new information. The Court of Appeal was tasked with determining whether the exceptional circumstances were present, considering the applicant's concession that reasonable prospects of success, on their own, were insufficient, and the need for strong prospects of success. The court also had to assess the difficulty in evaluating the prospects of success, given that the case was novel, and whether the applicant’s success on the most promising charge would still result in a substantial non-parole period. The court’s decision hinged on whether these factors constituted exceptional circumstances warranting bail.

The legal issues before the court included whether the newly discovered information about the applicant’s former counsel constituted exceptional circumstances that would justify bail pending appeal. The applicant argued that the discovery of their counsel's role as a police informer at the time of the bail application and special mention was critical, and that this warranted a re-evaluation of the bail application. The court had to determine whether the exceptional circumstances required to grant bail were present, and if the applicant's prospects of success were strong enough to meet this threshold. The court also needed to consider whether the difficulty in assessing the prospects of success in a novel case constituted exceptional circumstances.

In addressing these issues, the court found that the applicant had not demonstrated exceptional circumstances. While the discovery about the former counsel was significant, the court noted that the applicant had conceded that reasonable prospects of success, on their own, were not enough to constitute exceptional circumstances. The court held that strong prospects of success were required, and the applicant's prospects on two of the three charges were no more than reasonable. Furthermore, even if the applicant succeeded on the most promising charge, it would not eliminate the substantial non-parole period they would still need to serve. The court distinguished the case from Cvetanovski v The Queen, finding that the exceptional circumstances were not made out. Consequently, the application for bail pending appeal was refused.

The court made no order for bail pending appeal, affirming that exceptional circumstances had not been demonstrated. The applicant's prospects of success, even on the most promising charge, did not meet the threshold for exceptional circumstances, and the difficulty in assessing these prospects in a novel case did not sufficiently establish such circumstances. The court's decision was based on the need for strong prospects of success and the substantial non-parole period that would remain even if the appeal were successful on one charge.

Orders