1. The respondent submitted that questions R1 to R8 captured the issues raised by the applicant's proposed ground of appeal and supporting written case. In respect of questions A15, A16, A18, A19 and A20, the respondent objected to any referral on the basis that the issues sought to be investigated by the applicant were irrelevant to the proposed ground of appeal and not the subject of any relevant assertion in the applicant's written case, and/or otherwise not a matter about which the parties have joined issue.

1. Following the filing of submissions supporting the proposed questions for which they each contended, the applicant and the respondent produced a joint summary of the proposed s 319A referral questions, narrowing some of the disputes between them as to the form of the questions which they said should be referred. While some common ground was identified, the relevance of questions about communications with the AFP remained in dispute - the respondent contending that the AFP questions proposed by the applicant were not relevant to the applicant's proposed ground of appeal and written case as currently formulated.

1. Section 319A permits this Court to refer to the Trial Division constituted by a judge, for the making of a reference determination, any specified issue or matter arising on an application for leave to appeal to which that section applies. Thus, as was said in Karam v The Queen,[8] s 319A provides a way in which factual disputes, which cannot conveniently be dealt with at the hearing of an application for leave to appeal, may be resolved.
2. The applicant's proposed ground of appeal in this case is premised on a number of disputed facts, the most important one of which is the assertion that Mr Acquaro and Victoria Police 'provided information to the media in a deliberate endeavour to negatively affect the applicant's prospects at trial'.[9] At one level, all that needs to be referred under s 319A is a question which asks whether any of the published media articles about which the applicant makes complaint contained any and what information provided by Mr Acquaro and/or Victoria Police, and whether any of this information was provided by them 'in a deliberate endeavour to negatively affect the applicant's prospects at trial'.
3. That said, as presently advised, we are minded to refer an expanded version of the respondent's proposed questions for the making of a reference determination under s 319A. In our view, the referral of the questions we propose will enable a judge to determine the disputed questions of fact upon which the applicant's proposed ground of appeal is premised.
4. We are not persuaded to refer the applicant's proposed questions for the following reasons:

(1) First, a number of the questions contain elements which are unacceptably open-ended. For example, the open-ended questions as to purpose in questions A1, A2, A4, A5, A12 and A15.

(2) Secondly, while questions dealing with whether Mr Acquaro breached any relevant duty or legal professional privilege are relevant, the same cannot be said of questions which asked whether Mr Acquaro 'might have breached'[10] a relevant duty or legal professional privilege. A conclusion that something 'might' have happened, in the absence of any evidence that something actually happened, is of little assistance.

(3) Thirdly, questions which are incapable of assisting in the resolution of a proposed ground of appeal should not be the subject of a reference determination. For example, an answer to question A9 ('What happened to the USB stick ... ?') is not likely to assist in the resolution of the applicant's proposed ground of appeal.

(4) Fourthly, there is force in the respondent's submissions that, at least so far as the applicant's case is presently formulated, a number of the applicant's proposed questions are not relevant.

(5) Fifthly, where a more limited form of questions than those proposed by the applicant adequately encompasses the matters about which the parties are in dispute, the referral of the applicant's questions would unnecessarily add to both the complexity of the trial judge's task and the time it would take to perform it.

1. That said, it may be that a number of the applicant's questions will be the subject of evidence for the purpose of enabling the judge to answer one of the referred questions. Moreover, the judge who hears the reference determination may well, as part of their reasons for giving particular answers to particular referred questions, deal with or answer some question which has not been specifically referred (including one of the applicant's proposed questions). Of course, this will be a matter for the particular judge, having regard to the evidence adduced on the reference determination and any submissions that might be made about that evidence during the course of the hearing of the reference determination.
2. In oral argument, the respondent maintained the position that there were no relevant allegations made by the applicant in relation to the AFP in the proposed ground of appeal and applicant's written case which justified the referral of questions about communications with the AFP. The applicant responded by noting that, in the absence of appropriate material, it would not be responsible for the applicant and his lawyers to make allegations of wrongdoing involving the AFP. However, the applicant submitted that, in circumstances where there was material disclosing communications between Mr Acquaro and Victoria Police, it might reasonably be inferred that similar communications (and/or communications for a like purpose) might also have occurred between Mr Acquaro and members of the AFP. It was submitted that, in those circumstances, this Court should be more ready to refer questions under s 319A dealing with this possibility, notwithstanding the absence of any specific allegation of wrongdoing by the AFP.
3. While we think the applicant's material so far as it relates to the AFP is thin, in light of the material the applicant has already obtained in relation to Victoria Police, we are persuaded that it is appropriate to refer questions dealing with the AFP in the same form as the questions we propose to refer relating to Victoria Police.
4. Finally, we should note that the order we will make for the referral of a reference determination is an interlocutory order. Nothing we have said prevents either party from coming back to this Court to seek the referral of additional or modified questions in appropriate circumstances.[11]

1. There will be an order pursuant to s 319A of the Act that the issues and matters set out below are referred, for the making of a reference determination, to the Trial Division of the Supreme Court constituted by a judge of the Court:[12]

(1) Did Mr Acquaro provide information to Victoria Police about the applicant? If so:

(a) What information did he provide to police about the applicant and when?

(b) Who was provided with that information?

(c) What use (if any) was made of that information by Victoria Police, the AFP or the respondent?

(2) Did Mr Acquaro provide information to the AFP about the applicant? If so:

(a) What information did he provide to the AFP about the applicant and when?

(b) Who was provided with that information?

(c) What use (if any) was made of that information by the AFP, Victoria Police or the respondent?

(3) Did Mr Aquaro provide information to the s 317 respondent about the applicant? If so:

(a) What information did he provide to the s 317 respondent about the applicant and when?

(b) Did the s 317 respondent provide any and which of this information to Victoria Police or the AFP or the respondent?

(c) What use (if any) was made of that information by Victoria Police, the AFP or the respondent?

(4) When, and in what capacity, did Mr Acquaro act for the applicant?

(5) What was Mr Acquaro's involvement in the applicant's Operation Inca proceedings, including the trial?

(6) Did Mr Acquaro breach any professional duties owed to the applicant or the Court, or was Mr Acquaro in conflict, in his role as the applicant's legal practitioner and his relationship with Victoria Police?

(7) Were any Victoria Police members or AFP members sources for any of the relevant articles (or any and which parts of the articles) published by the media relating to the applicant?

(8) Was Mr Acquaro a source for any of the relevant articles (or any and which parts of the articles) published by the media relating to the applicant?

(9) Did Mr Acquaro breach any professional duties owed to the applicant or the Court, or was Mr Acquaro in conflict, in his role as the applicant's legal practitioner and his relationship with the s 317 respondent?

(10) Was there a deliberate endeavour by Victoria Police and/or Mr Acquaro to negatively affect the applicant's prospects at trial at any time between the end of Mr Acquaro's retainer in 2013 and the end of 2014?

(11) Did Victoria Police have any, and if so, what involvement in the investigation of the matters the subject of the applicant's trial?

(12) At any time prior to the entry of the verdicts, did the AFP provide to the prosecution, the Court and the accused all materials in the possession of the AFP which were or may be relevant to the determination of the criminal proceeding against the applicant (including but not limited to the determination of the application for a permanent or temporary stay)? If not, which materials were not provided?

(13) At any time prior to the entry of the verdicts, did Victoria Police provide to the prosecution, the Court and the accused all materials in the possession of Victoria Police which were or may be relevant to the determination of the criminal proceeding against the applicant (including but not limited to the determination of the application for a permanent or temporary stay)? If not, which materials were not provided?

[1] DPP (Cth) v Madafferi (Unreported, County Court of Victoria, Judge Mason, 17 December 2014).

[2] Madafferi v The Queen [2017] VSCA 302 (Priest, Hansen and Coghlan JJA).

[3] That application was granted on the papers by an order made in May 2020 by a senior registry lawyer acting pursuant to a delegation made by the Registrar under r 1.06(2) of the Supreme Court (Criminal Procedure) Rules 2017.

[4] See Madafferi v The Queen (No 2) [2021] VSCA 4, [2] (Emerton, Weinberg and Osborn JJA); Madafferi v The Queen [2021] VSCA 332, [3] (Emerton and Osborn JJA); Madafferi v The King [2024] VSCA 229, [5], [12] (Beach and Macaulay JJA). See also Madafferi v The Queen [2022] VSCA 189, [1] (Emerton ACJ and Beach JA); Madafferi v The King [2023] VSCA 178; Madafferi v The King (No 1) [2024] VSCA 12; Madafferi v The King (No 2) [2024] VSCA 14; Madafferi v The King [2025] VSCA 114.

[5] See Madafferi v The Queen [2021] VSCA 1; (2021) 287 A Crim R 380; [2021] VSCA 1.

[6] The anonymous letter to which the applicant refers was an undated letter sent to the AFP, Victoria Police and various media recipients in December 2013.

[7] The USB stick to which the applicant refers is one which was provided by Mr A to Victoria Police on 19 March 2014.

[8] [2022] VSCA 23, [6] (Beach and Kennedy JJA).

[9] Paragraph (ii) of the proposed ground of appeal.

[11] See, for example, Karam v The Queen (No 2) [2022] VSCA 163, [1]-[2], [7] (Beach and Kennedy JJA).

[12] See Criminal Procedure Act 2009, s 319A(2)(a).