Arico v The Queen [2022] VSCA 35

1 In November 2016, following a trial in the County Court, the applicant was convicted of three charges of extortion, one charge of intentionally causing injury and one charge of trafficking in a drug of dependence (methylamphetamine) in not less than a large commercial quantity. In February 2017, following a second trial, the applicant was convicted of one charge of being a prohibited person in possession of a firearm, and one charge of possessing a drug of dependence. In March 2017, the applicant was sentenced in respect of both trials to a total term of 14 years' imprisonment with a non-parole period of 10 years. Subsequent applications for leave to appeal against conviction in the first trial and against sentence were refused by this Court in May 2018,[1] and an application for special leave to appeal was refused by the High Court in November 2018.[2]

2 On 3 June 2021, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a second application for leave to appeal against conviction. In this application, the applicant seeks leave to appeal against his convictions in both trials. His application contains one proposed ground of appeal as follows:

1. The subversion of the applicant's right to a fair trial amounts has resulted in a substantial miscarriage of justice. In particular, unbeknownst to the applicant:

(a) legal advice he received was not independent, in circumstances where his solicitor was an informer for Victoria Police; and/or

(b) investigators (and ultimately the prosecution) gained an unfair advantage by reason of the applicant's solicitor being a police informer; and/or

(c) investigators failed to disclose to the applicant that his solicitor had acted as a police informer; and/or

(d) investigators failed to disclose that they had seized the computer of the applicant's solicitor which contained materials relating to the applicant; and/or

(e) investigators failed to disclose to the applicant that Victoria Police had a practice of making payments to prosecution witnesses beyond expenses associated with the giving of their evidence, as was subsequently revealed in Cvetanovski v The Queen [2020] VSCA 272.

3 Following the filing of his application for leave to appeal, the applicant filed an application under s 317 of the Criminal Procedure Act seeking an order that the Chief Commissioner of Victoria Police produce 11 categories of documents identified in paragraphs 1(a) to (k) of that application. Pursuant to an order made by Maxwell P, that application was referred to a judicial registrar for hearing and determination.

4 The applicant's s 317 application was heard on 23 September 2021 by Pedley JR. On 15 December 2021, the judicial registrar refused to order the production of documents in categories 1(a) to (c), (e) and (i) to (k) of the application.[3] In respect of category 1(d), the judicial registrar said that he would make an order for the production of some of the material covered by this category.[4] Categories 1(f) to (h) were the subject of agreement between the parties,[5] and category 1(j) was dealt with on the basis that the parties would have further discussions in relation to it.[6]

5 On 23 December 2021, the applicant filed an application to review/appeal the determination of the judicial registrar not to order the production of documents identified in paragraphs 1(a), (i) and (k) of the s 317 application. No complaint is made in this application about the judicial registrar's refusal to make an order in relation to categories 1(b), (c), (e) or (j). In his review application, the applicant seeks an order only for the production of the documents in categories 1(a), (i) and (k). The application to review/appeal the judicial registrar's determination falls to be conducted by way of hearing de novo.[7]

Applicant's case on the substantive application for leave to appeal and appeal

6 The applicant's case is that the former solicitor, Joseph Acquaro, acted for him in respect of numerous legal matters (including criminal, immigration, property and taxation matters) from 2006 until 2016. Upon his arrest on 5 March 2015, in respect of the charges the subject of his subsequent trials, he immediately instructed Mr Acquaro to act on his behalf. Over the following 12 months, the applicant provided instructions to Mr Acquaro, and obtained advice from him in relation to those charges. Mr Acquaro made all the forensic and strategic decisions in respect of the applicant's defence of the charges, until his death on 15 March 2016.

7 In his written case, the applicant observes that, on 15 January 2021, it was revealed that Mr Acquaro had been a police informer; and that this Court's decision in Madafferi v The Queen[8] establishes that there were a series of contacts between Mr Acquaro and police in 2008, and a second series of contacts in the first half of 2014. In respect of the second series of contacts in the first half of 2014, the applicant notes that this was when Witness A (the complainant in his first trial) approached police causing investigations to commence. Relying upon Madafferi,[9] the applicant asserts that, during both periods (2008 and the first half of 2014), Mr Acquaro provided information to police about at least one client.

8 The applicant's ultimate case is, relevantly so far as this application is concerned, that his right to a fair trial was subverted by the fact that his solicitor was a police informer, and by the failure of investigators to comply with their obligations of disclosure in respect of that issue. The applicant will ultimately contend that these matters gave rise to a fundamental irregularity in his trials, such that a substantial miscarriage of justice was necessarily occasioned. Additionally, he will contend that the failure of Victoria Police to disclose matters that were required to be disclosed, deprived him of the opportunity to object to the admissibility of evidence and/or to apply for a permanent stay of proceedings. In support of these contentions, the applicant will rely upon AB v CD,[10] Orman v The Queen,[11] Cvetanovski v The Queen[12] and Roberts v The Queen.[13]

9 The documents sought by the applicant in categories 1(a), (i) and (k) are identified in paragraph 1 of his s 317 application as follows:

(a) All materials relating to information exchanged between Joseph Acquaro and Victoria Police (including but not limited to Peter Trichias, Shaun Bingham and Cliff Pickett) between 22 December 2010 (being the date on which [Witness A] allegedly agreed to sell methylamphetamine to Toby Mitchell) and 15 March 2016 (being the date of Mr Acquaro's death) regarding:

i. the applicant; and/or

ii. [Witness A].

...

(i) All affidavits in support of warrants obtained during the course of the investigation leading to the applicant's convictions (at trials in November 2016 and February 2017).

...

(k) All materials relating to the review, and/or use, for any purpose, by Victoria Police, of any materials relating to the applicant which were seized as part of the investigation into Mr Acquaro's death (including but not restricted to materials on his computer).

10 In his written submissions on the review,[14] the applicant contended that the documents sought in paragraph 1(a) of the s 317 request go to the question of whether the applicant's legal representative was a police informer who provided information to Victoria Police about current and/or former clients, including the applicant. He submitted that, as this Court recognised in AB v CD,[15] if proven, the fact that Mr Acquaro provided information to Victoria Police about the applicant or others 'may give rise to a series of different conceptual bases for challenge to the convictions in issue'.[16] The applicant contended that those conceptual bases are reflected in particulars (a) to (c) of his proposed ground of appeal.

11 In response to the applicant's written submissions, in his written submissions on the review,[17] the Chief Commissioner noted that he had already produced a subset of the documents sought in category 1(a), being the documents and materials in relation to the 2008 and 2014 periods that Mr Acquaro provided information to police, regarding the applicant and/or Witness A and referred to in the appendix to Madafferi. The Chief Commissioner contended that it was not in the interests of justice to order production of any further documents in this 'overly broad category', which 'would require the Chief Commissioner to manually review an indeterminate number of documents over a four-year period in order to ascertain whether there are references to Mr Acquaro, the applicant and/or Witness A'. Relying upon an affidavit of Superintendent McKinney,[18] the Chief Commissioner submitted that, 'Victoria Police's best estimate is that it would need at least six months to review documents to ascertain whether they fall within category 1(a) which is oppressive and excessively burdensome'.[19]

12 The Chief Commissioner's ultimate written submission in respect of category 1(a) documents was that the request was 'no more than a fishing expedition on behalf of the applicant and should be refused'. The Chief Commissioner contended that, in its decisions in Madafferi and Zirilli v The Queen,[20] this Court had already determined that the only informing that was done by Mr Acquaro was that identified in the appendix of Madafferi.

13 In an anticipatory response to the Chief Commissioner's written submissions, the applicant submitted that the contention that item 1(a) amounts to fishing was 'extraordinary'. The applicant then identified various matters which he contended rendered it reasonably possible, and not merely speculative, that the documents sought by item 1(a) would materially assist the applicant. These included the fact that it is now known that Mr Acquaro engaged in the conduct identified in Madafferi and Zirilli. As the applicant put it:

Alone, the extraordinary nature of this conduct in respect of Mr Madafferi and Mr Zirilli would give rise to the reasonable possibility that Mr Acquaro provided information to Victoria Police about his other clients and/or that Victoria Police permitted or encouraged him to do so.

14 In the applicant's written submissions, he contended that the legitimate forensic purpose for the request in paragraph 1(i) 'derives from that of item 1(a), and the reasonable possibility that Mr Acquaro provided information to the police about the applicant'. The applicant submitted:

Significantly, it is now known that Victoria Police conferred with, and sought the approval of, Mr Acquaro when it intended to make applications that were adverse to Mr Acquaro's clients' interests, such as applications to revoke bail.[21] It is also known from Detective Pickett's diaries that within days of his late night telephone calls to Mr Acquaro, the detective was involved in the preparation of warrant affidavits in [a particular operation].[22]

15 In the Chief Commissioner's written submissions, he noted that there was no allegation in the applicant's written case that relates to any impropriety in relation to any warrants ahead of his trials in November 2016 and February 2017. It was submitted that the applicant has not been able to identify why it is in the interests of justice for him to be provided with this category of documents other than 'there is a reasonable possibility that Mr Acquaro provided information to police about the applicant'. This allegation was submitted by the Chief Commissioner to be 'without any merit given the factual findings in Madafferi about the extent of Mr Acquaro's "informing" to Victoria Police being limited to the 2008 and 2014 periods and the documents ... listed in the appendix to that decision'.

16 The Chief Commissioner also submitted that the applicant's contentions failed to address the evidence of Superintendent McKinney that representatives from the Chief Commissioner have undertaken a review of the affidavits in support of the telecommunication and search warrants used in the investigation of the applicant 'and there is no reference either to Mr Acquaro or any human source (registered or unregistered) in any of these affidavits'. The Chief Commissioner thus submitted that there is no legitimate forensic purpose to the category 1(i) request and that 'it is a classic fishing expedition such that it is not in the interests of justice for the Court to order production of these documents'.

17 In relation to category 1(k), the applicant submitted in writing that, whether or not the materials seized at Mr Acquaro's legal office evidenced disloyal or unethical conduct, 'they are highly likely to have contained or included privileged material concerning the applicant, including information relevant to the applicant's trial, such as his instructions'. The applicant submitted that it was strongly arguable that the undisclosed seizure of this material by Victoria Police, at the very time that it was investigating and prosecuting the applicant, constitutes a fundamental procedural irregularity within the meaning of cases such as Weiss v The Queen[23] and Lane v The Queen.[24]

18 In his written submissions, the Chief Commissioner responded by contending that in determining whether an order should be made in respect of category 1(k), it is relevant to consider the order already made in relation to category 1(d), namely the production by the Chief Commissioner of 'All materials relating to the applicant which were seized as part of the investigation into Mr Acquaro's death (including but not restricted to materials on his computer)'.

19 The Chief Commissioner then submitted that insofar as category 1(k) is different from category 1(d) - being framed to 'capture materials recording how documents from category 1(d) were subsequently reviewed and/or used by Victoria Police' - the applicant's submissions again failed to address the evidence of Superintendent McKinney:[25] his evidence being to the effect that such review which has been conducted of Mr Acquaro's materials has not resulted in anything relevant being discovered; and that, in any event, nothing has been conveyed by those police officers investigating Mr Acquaro's death (and who have conducted the review of Mr Acquaro's materials) to relevant police officers involved in the investigation and charging of the applicant.

20 Thus again, the Chief Commissioner submitted that the request in paragraph 1(k) of the s 317 application was fishing, and it was not in the interests of justice to make the order sought by the applicant.

21 As I have already said, the review of the judicial registrar's decision falls to be conducted by way of hearing de novo. Thus, the arguments put in writing on the review were not entirely the same as those put at the original hearing - they having been recast to deal with arguments put, and conclusions reached, at first instance. Unsurprisingly, the arguments of the parties advanced further during the oral hearing of the review.

22 As is plain from the judicial registrar's decision, and the written submissions, the Chief Commissioner, in contending that no order for the production of documents should be made, relied significantly upon the material in the first McKinney affidavit and the second McKinney affidavit. In oral argument, however, the applicant devoted considerable attention to establishing that statements relied upon by the Chief Commissioner in the McKinney affidavits did not withstand appropriate scrutiny. Specifically, on the hearing of the review in this Court, the applicant tendered a raft of documents, not tendered before the judicial registrar (some of which were only obtained by the applicant after that hearing),[26] for the purpose of calling into question a number of critical paragraphs in the McKinney affidavits. It is convenient to deal with the applicant's arguments about the material in the McKinney affidavits, by reference to the categories of documents, in the order in which the applicant dealt with those categories in his oral submissions.

23 In the second McKinney affidavit, it is asserted that no member involved in Operation Kinvo (the operation, conducted by the Purana Taskforce, which led to the applicant's prosecution and convictions that are the subject of his current application for leave to appeal) reviewed Mr Acquaro's computer or devices seized pursuant to search warrants; and that no material from Mr Acquaro's computer or devices were disseminated to the Purana members involved in Operation Kinvo. The Chief Commissioner relied upon this evidence to resist any order for the production of category 1(k) documents.

24 As the second McKinney affidavit notes, however, Mr Acquaro's computer was reviewed in part by Detective Senior Constable Paul Thomas of the Purana Taskforce. While the second McKinney affidavit asserts that DSC Thomas had no involvement in Operation Kinvo, a number of documents tendered by the applicant during the course of the hearing suggest otherwise.[27] Ultimately, the applicant submitted that these documents showed that the assertions set out in paragraph [23] above could not be accepted.

25 It is, of course, not necessary for me, in this review, to make any definitive finding as to the involvement, in Operation Kinvo, of any of those police officers who reviewed Mr Acquaro's computer or devices seized pursuant to search warrants. It is sufficient to observe that the material, tendered by the applicant on the hearing of this review, suggested that it was at least on the cards that relevant material from Mr Acquaro's computer or other devices was reviewed and/or disseminated to at least one officer involved in Operation Kinvo.[28]

26 In oral submissions, the applicant noted that the production of category 1(i) documents is sought by him for the purpose of establishing that evidence obtained following the execution of warrants (both search warrants and telephone intercept warrants) was improperly obtained and should thus be excluded under s 138 of the Evidence Act 2008.[29]

27 In the first McKinney affidavit, it is asserted that there were 'seven telecommunication warrants in relation to the investigation into the applicant and a search warrant executed on 5 March 2015 (which related to the charges in the second trial)'. Prior to the hearing in this Court, the Chief Commissioner's position was that no documents should be ordered in relation to category 1(i) because, amongst other things, the affidavit in support of the search warrant executed on 5 March 2015 and the affidavits in support of the search warrant and the telecommunication warrants had been reviewed,[30] and those affidavits had been found to make 'no reference either to Mr Acquaro or any human source (registered or unregistered)'. To the contrary, those affidavits are said to 'rely predominantly on information provided by Witness A'. In oral argument, the applicant observed that the word 'predominantly' admitted of at least the possibility that the affidavits referred to relied on information provided by people in addition to Witness A (potentially including Mr Acquaro).

28 During the course of the hearing, the applicant tendered a number of documents which showed that there was more than the one search warrant referred to in the first McKinney affidavit. From the documents, it would appear that there were a number of search warrants executed in relation to the investigation of the applicant; and that the affidavits relied upon to obtain these warrants had not been the subject of any review. Thus again it was submitted by the applicant that the evidence relied upon by the Chief Commissioner in the McKinney affidavits could not be an answer to his application for the production of the materials sought.

29 The identification by the applicant, during the course of oral argument, of additional search warrants was responded to by counsel for the Chief Commissioner in the following terms:

Your Honour, if it is the case that there are more warrants than the Chief Commissioner has identified in his submissions and it looks like that there may be. ... We are prepared to collect all of those affidavits that have been identified by our learned friends today and if there are more affidavits, please identify them to us and we will ensure that a similar exercise is conducted in a lineal way which is searching for any information about this applicant or Mr Acquaro in those affidavits and we will present the affidavits to the Court under cover of an affidavit analysing the results of the searches so there's no requirement for an order from the Court that we will do it and we are indeed obliged to do it as part of our continuing obligations to disclose on behalf of the Chief Commissioner.

30 Later in argument, in response to questions from the bench, senior counsel for the Chief Commissioner abandoned the Chief Commissioner's objection to producing the documents sought in category 1(i), saying:

Your Honour can still make the order but all I'm saying is that there is no necessity to make the order because we're going to do that in any event.

31 In his oral submissions, the applicant expanded on what was set out in his written submissions. Additionally, a number of documents were tendered for the purpose of establishing the involvement of Mr Acquaro's police 'handler' in Operation Kinvo.[31] This material was tendered for the purpose of calling into question the statement in the second McKinney affidavit suggesting that Operation Kinvo investigators did not have any contact with Mr Acquaro outside his formal professional capacity as the applicant's legal representative (or as a victim of threats, the existence of which is not presently relevant).

32 As I have already observed, there were significant differences in the way this matter was argued on review from the way in which it was argued before the judicial registrar. As a result of those differences, I have come to a different conclusion from the judicial registrar in relation to the documents sought in paragraphs 1(a), (i) and (k) of the s 317 application. In no small part, this is due to the successful undermining of a number of absolute statements made (which I have no reason to doubt, were made on the best material then available to the deponent) in the McKinney affidavits.

33 That said, it must be observed that the Chief Commissioner's position in relation to whether Mr Acquaro informed to Victoria Police in relation to his clients or former clients, and the extent of any such informing, has evolved over time from the position he originally expressed in December 2019, in the application he brought in the matter of R v Crupi,[32] when, on instructions, his counsel emphatically denied any suggestion that Mr Acquaro had breached any duty or obligation he owed as a solicitor to any client or former client.[33]

34 Because of the evolution of the Chief Commissioner's position over time in relation to the extent of Mr Acquaro's informing to Victoria Police, one might be cautious about accepting absolute statements in affidavits relied upon by the Chief Commissioner about the timing, extent and content of that informing - even absent the undermining of some of the critical statements in the McKinney affidavits (and upon which the Chief Commissioner relies) caused by the tendering of the documents, to which I have referred, during the course of the present hearing.

35 The Chief Commissioner accepted that what has been called the Madafferi subset of category 1(a) documents should be produced to the applicant. His contention, against the making of an order for the production of all of the documents under category 1(a), was that, in Madafferi and Zirilli, this Court had already accepted that no additional documents relevant to Mr Acquaro's informing exist. I reject that contention. There is nothing in Madafferi or Zirilli which suggests that this Court concluded that there were no additional category 1(a) documents over and above the Madafferi subset of category 1(a) documents.

36 Further, and having regard to the material tendered on the hearing of this review, I do not accept the absolute proposition (deposed to in the McKinney affidavits) that, other than during the already identified periods in 2008 and 2014, 'there was no other time that Mr Acquaro acted as an unregistered human source and spoke to police in that capacity'.[34] It seems to me that it is at least on the cards that Mr Acquaro provided information to police at times additional to the identified periods in 2008 and 2014. It seems to me that there is force in the applicant's contention that logic suggests that if a legal practitioner is prepared to breach his or her duties owed to a client (or clients) in 2008 and 2014, it is on the cards that they might similarly do so during the intervening years or subsequently.

37 Moreover, having regard to the importance of this issue so far as the applicant's application for leave to appeal is concerned,[35] I am not persuaded that it is excessively burdensome or oppressive to order the production of the category 1(a) documents covering the period referred to in that category (namely, between 22 December 2010 and 15 March 2016). To the contrary, my view is that the interests of justice require that an order for the production of category 1(a) documents covering this period be made.[36] For completeness, I should also say that Victoria Police's 'best estimate ... [of] a minimum of six months to review its holdings in respect of [category 1(a)]',[37] asserted as a high level proposition in the first McKinney affidavit (and without an appropriate factual foundation upon which one could test this so-called 'best estimate'), is of little (if any) persuasive value in this application.

38 To the extent that the Chief Commissioner relied upon this Court's decision in Polimeni, to argue by analogy that categories found to be too broad in that case told in favour of the same conclusion in relation to category 1(a) in the present case, I reject that submission. Such discussion as there was about the breadth of particular categories in Polimeni, related to differently expressed categories, involving different cases, different factual issues and different proposed grounds of appeal. There is no relevant equivalence between the facts in Polimeni and the facts in the present case.

39 In relation to category 1(i) documents, as I have already noted, during the course of the hearing of the review, the Chief Commissioner accepted that an order could be made - ultimately saying that no order was necessary 'because we are going to do that in any event'. The concessions made by senior counsel for the Chief Commissioner in relation to this category of documents were rightly made. In the circumstances, and to avoid any possible misunderstanding, I propose to make an order requiring the production of category 1(i) documents.

40 In relation to category 1(k) documents, I was initially of the view that an order for their production might be premature in the sense that, if no documents are produced under category 1(d) then it is unlikely that any documents could be produced under category 1(k). During the course of argument, however, it became apparent that documents have been (or will be) produced under category 1(d). In the circumstances, I am persuaded that it is in the interests of justice[38] to order the production of documents under category 1(k). Again, this is largely because the applicant has persuaded me that it is on the cards that (contrary to passages in the McKinney affidavits to which I have referred) at least one member involved in Operation Kinvo reviewed Mr Acquaro's computer or devices seized pursuant to search warrants, and/or such material has been disseminated to at least one police officer involved in Operation Kinvo.

41 The applicant has satisfied me that he has a legitimate forensic purpose for seeking the productions of the materials referred to in paragraphs 1(a), (i) and (k) of the applicant's s 317 application, and that it is in the interests of justice to order the Chief Commissioner to produce the materials referred to in those paragraphs. Accordingly, I will make an order under s 317 of the Criminal Procedure Act requiring the Chief Commissioner to produce the materials referred to in paragraphs 1(a), (i) and (k) of the s 317 application.

[1] Arico v The Queen [2018] VSCA 135.

[2] Arico v The Queen [2018] HCASL 360.

[3] Arico v The Queen [2021] VSCA 353.

[7] See Polimeni v The Queen [2022] VSCA 20, [7]-[12] ('Polimeni').

[8] [2021] VSCA 1 ('Madafferi').

[10] (2018) 93 ALJR 59; [2019] VSCA 95.

[11] [2019] VSCA 163; (2019) 59 VR 511.

[12] [2020] VSCA 272.

[13] [2020] VSCA 58; (2020) 60 VR 431.

[14] Applicant's Submissions on the Review, dated 28 February 2021 ('the applicant's written submissions').

[15] [2017] VSCA 338.

[17] Submissions of the Chief Commissioner of Police on the Applicant's Appeal, dated 7 March 2022 ('the Chief Commissioner's written submissions').

[18] Affirmed 23 August 2021 ('the first McKinney affidavit').

[19] While the Chief Commissioner's written submissions referred to a 'four-year period', for completeness I should note that in paragraph 43.2 of the first McKinney affidavit, reference is made to a 'five-year period'.

[20] [2021] VSCA 2 ('Zirilli').

[21] Madafferi [2021] VSCA 1, [73].

[22] Emphasis and footnote in original.

[23] [2005] HCA 81; (2005) 224 CLR 300.

[24] [2018] HCA 28; (2018) 265 CLR 196.

[25] First McKinney affidavit at [53] and Superintendent McKinney's second affidavit (affirmed 22 October 2021) at [29] and following.

[26] Cf r 84.10 of the Supreme Court (General Civil Procedure) Rules 2015.

[27] For example, a record of interview conducted on 2 April 2015; DSC Thomas's diary notes for 2 April 2015 at 2:20 pm; and the transcript of the cross-examination of a prosecution witness at committal on 23 October 2015.

[28] The applicant also relied upon documentation in relation to a second officer, Detective Senior Constable Stephen Haralabakos. For present purposes, it is not necessary to refer to this material in any detail in these reasons.

[29] Specifically, the applicant relies upon s 138(1)(b) of the Evidence Act.

[31] An example being the presence of the handler when cash was removed from a safe in Operation Kinvo to pay the expenses of Witness A.

[32] [2019] VSC 810 ('Crupi').

[34] Cf first McKinney affidavit at [38].

[35] See Polimeni [2022] VSCA 20, [35].

[36] See s 317 of the Criminal Procedure Act.

[37] First McKinney affidavit at [66] (see also the second McKinney affidavit at [45]).

[38] Again, see s 317 of the Criminal Procedure Act.