Criminal Procedure Act 2009.

Zirilli v The Queen [2021] VSCA 174; Alister v R [1984] HCA 85; (1984) 154 CLR 404; R v Saleam (1989) 39 A Crim R 406; Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300; Polimeni v The King [2022] VSCA 20; Zirilli v The Queen [2021] 287 A Crim R 407; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Szabo v The Queen [2000] QCA 194; [2001] 2 Qd R 214; Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661; Mokbel Ruling No 1 [2005] VSC 410; Arico v The Queen [2021] VSCA 353; [2021] 294 A Crim R 20.

S 317 Respondent

S 317 Respondent

1. In Francesco Madafferi's appeal against his August 2014 drug conviction, documents have been produced by a number of agencies pursuant to orders of the Court.[1] In August 2022 Mr Madafferi applied for production from [redacted], the 's 317 Respondent'.[2] The s 317 Respondent opposes the making of orders.
2. The principle issue to be determined is whether it is in the interests of justice that the s 317 Respondent be ordered to produce material to the Court. The s 317 Respondent argues that Mr Madafferi has no legitimate forensic purpose for the documents he seeks and that the s 317 Respondent ought not be asked to assist as a check on disclosure by, or to fill in the gaps left by, prosecuting agencies.
3. In his appeal, Mr Madafferi asserts that his one-time lawyer, Mr Joseph 'Pino' Acquaro, provided privileged and/or confidential information about Mr Madafferi to Victoria Police. In the first limb of his ground of appeal, Mr Madafferi argues that, as a consequence of this conduct, his right to a fair trial in 2014 was subverted and that there has been a substantial miscarriage of justice. Secondly, he asserts that the same alleged conduct by his lawyer and Victoria Police gives rise to a perception that justice has miscarried.
4. Material revealed to Mr Madafferi in disclosure and/or production to date shows that the s 317 Respondent received information from Mr Acquaro and also from Victoria Police. Mr Madafferi says that the material also suggests that the s 317 Respondent may in fact have been involved in the exchange of information between Mr Acquaro and Victoria Police.
5. For the reasons that follow, I have decided that it is in the interests of justice to order production from the s 317 Respondent in respect of his dealings with Mr Acquaro and Victoria Police confined to the six month period prior to Mr Madafferi's conviction.

1. Mr Madafferi was arrested and charged with the drug offences in question in August 2008. At that time, Mr Acquaro was Mr Madafferi's lawyer. Mr Acquaro had been representing Mr Madafferi in respect of immigration matters since 1998. Mr Acquaro represented Mr Madafferi in relation to these charges up until late 2013, when the relationship between them broke down. Mr Madafferi was represented by different legal practitioners at trial.

1. The trial was due to start in June 2014. [Redacted]. This prompted Mr Madafferi to apply for a stay of the trial. This was unsuccessful.
2. Material disclosed or produced to Mr Madafferi in this appeal shows that, at the time of the articles' publication, there were discussions between Mr Acquaro and Victoria Police in relation to the articles and their potential effect on Mr Madafferi.

1. Mr Madafferi relies upon a single ground, with two limbs and four particulars, as follows:

Ground 1

(a) A substantial miscarriage of justice has been occasioned by reason of the subversion of the applicant's right to a fair trial; and/or

(b) A fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice had miscarried.

In particular, unbeknownst to the applicant at the relevant time:

1. The applicant provided instructions to, and was given advice by, a solicitor, Mr Acquaro, who both at the time of his retainer, and after it was terminated, was a human source who provided privileged information about the applicant to Victoria Police; and/or
2. Mr Acquaro and Victoria police provided information to the media in a deliberate endeavour to negatively affect the applicant's prospects at trial;
3. Victoria police failed to disclose to the applicant that Victoria Police had conspired with Mr Acquaro to damage his interests; and/or
4. Victoria Police and the Australian Federal police failed to disclose that Victoria Police had been involved in the investigation of the matter.

1. In broad terms, the documents sought by Mr Madafferi are records of the exchange of information between the s 317 Respondent and:

(a) the applicant's one time lawyer Mr Joseph Acquaro (Mr Acquaro');

(b) Victoria Police;

(c) the Australian Federal Police; and

(d) the Commonwealth Director of Public Prosecutions.[3]

1. Mr Madafferi seeks records for the period from February 2008 to 26 August 2014.

1. It has been observed that the process in respect of an order under s 317 of the Criminal Procedure Act 2009 is akin to an order for a subpoena for the production of documents.[4] Whether there is legitimate forensic purpose or, to use the language of the statute, whether it is in the interests of justice to order production, is to be assessed with reference to the proposed ground of appeal and the issues in dispute in the proceeding.[5]
2. A legitimate forensic purpose will be demonstrated "where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold".[6] It is a test to be approached "with flexibility and common sense".[7] The circumstances of some cases will warrant greater latitude in the interpretation of the case and issues, as expressed by Beach JA in Polimeni:

Thus, for example, while a given application may involve a greater than usual degree of uncertainty about whether it was 'on the cards' that the production of the document would materially assist an applicant's case, the importance of the issue in respect of which the document is sought might be such that, weighing all relevant matters, the Court might conclude that it is nevertheless in the interests of justice to order production of the document.[8]

1. Whilst it may, in certain circumstances, be appropriate for the Court to adopt a more liberal approach in considering whether to order production from a non-party, it is not permitted to make orders based on speculation.[9] Mere speculation amounts to a fishing expedition which can never amount to a legitimate forensic purpose.[10]
2. Lastly, it will be critical that the Court "consider the precise wording of the order to determine whether production is in the interests of justice, particularly where the order for production is in respect of a non-party that is not obliged to make discovery".[11]

Is there a legitimate forensic purpose in the documents sought?

1. The starting point for assessing legitimate forensic purpose is the ground of appeal. Mr Madafferi's ground of appeal contains two limbs. The first argues in the language of s 276 of the Criminal Procedure Act 2009 that there has been a substantial miscarriage of justice arising from the subversion of his right to a fair trial. The second asserts a perception of justice miscarried and refers to the decision of Szabo.[12] Following the hearing, additional written submissions were provided by the s 317 Respondent in relation to the decision in Szabo. I have read those submissions.
2. One focus of oral argument was Mr Madafferi's lost opportunity to use information about the conduct of Mr Acquaro and Victoria Police in his 2014 stay application. I understood this to have been an illustrative example of the impact of non-disclosure rather than a particular point at which justice miscarried. Mr Madafferi's appeal is not so narrow. Nor is his application for production from the s 317 Respondent. The injustice, or perception of it, derives from the flow of information from his one-time lawyer to Victoria Police without his knowledge. Mr Madafferi asserts that the s 317 Respondent was a party to some of this information and Mr Madafferi was able to point to instances where the s 317 Respondent was involved in receiving information and/or connecting the relevant parties.
3. The real question is whether it is 'on the cards' that there is information held by the s 317 Respondent that will show that Mr Acquaro gave information to Police, either directly or via the s 317 Respondent, that may have prejudiced the applicant's trial. The context that informs that assessment are the relationships and information exchange evidenced by [redacted].
4. Material disclosed to the applicant by Victoria Police shows that Mr Acquaro had a relationship with the s 317 respondent. It shows also that Mr Acquaro had been [redacted]. It shows that the s 317 respondent had a relationship with members of Victoria police and that the s 317 respondent had facilitated the connection between Victoria Police and Mr Acquaro in March 2014.
5. Whilst there is material that directly shows the bilateral exchange of information within each of these relationships (Mr Acquaro with Victoria Police, Mr Acquaro with the s 317 Respondent, and between the s 317 Respondent and each of them), the applicant relies on inference to argue that the s 317 respondent acted as a conduit for the flow of information between Mr Acquaro and Victoria Police.
6. There was insufficient material to establish a similar flow of information between the s 317 Respondent and either the AFP or the CDPP involving Mr Acquaro, let alone about Mr Madafferi.
7. Mr Madafferi revised his ground of appeal to include a particular about the use made of the media by his former lawyer Mr Acquaro and Victoria Police in the lead up to his trial. The conduct of Victoria Police and his former lawyer remain the focus of his argument. They are the two principal actors and the source of any injustice he asserts, perceived or otherwise. The applicant does not suggest that [redacted] has played anything other than a passive role. The application for production has been prompted by what might be gleaned from disclosure and production to date about the flow of information between Victoria Police and Mr Acquaro involving the s 317 Respondent. There are reasonable inferences to be drawn that, between March and June of 2014, in the months leading up to Mr Madafferi's trial, there was material received by Victoria Police from the s 317 Respondent, sourced from Mr Acquaro.
8. Because I find that there are inferences that are reasonably drawn, I am satisfied that it is on the cards that there is a reasonable possibility that there is information held by the s 317 Respondent that will materially assist the applicant in his appeal. That is limited to material and information that the s 317 Respondent received from Mr Acquaro about the applicant, and material and information the s 317 Respondent exchanged with Victoria Police about the applicant.
9. I am not satisfied that it is on the cards that there will be such information prior to March 2014 or after the applicant's conviction on 26 August 2014. Each of Categories 1.1, 1.2 and 1.3 will be limited to these dates.
10. I am also not satisfied that there is any legitimate forensic purpose in seeking production from the s 317 Respondent as it relates to communications with either the AFP or the CDPP. I will not order production of categories 1.4 or 1.5.

Is it impermissible to order production of category 1.3 documents to 'check' on prosecution disclosure?

1. The s 317 Respondent argued that an application for production, like a subpoena, cannot be used to 'check' the prosecution's compliance with their disclosure obligations or to fill in a shortfall in that disclosure.
2. It is clear from the authorities that the bar on compelled production to check compliance with disclosure is founded in the independence of the prosecuting agencies of the state and the discretion they exercise. Neither the Court nor the parties should involve themselves in the exercise of this discretion, including by ordering production from a prosecuting agency.[13]
3. The s 317 Respondent referred to the recitation of this principle by Pedley JR in his decision on a s 317 application in the matter of Arico.[14] It should be noted that, in that case, Pedley JR was considering an application for production against the Chief Commissioner of Police.
4. For reasons of practical reality, as well as of principle, the s 317 Respondent's submission is misconceived. It is not for the s 317 Respondent to know what has been disclosed, nor to know what should have been disclosed. Logically he does not, and cannot, have the records that are kept by a prosecuting agency, and which are either disclosed or not, according to that agency's discretion.
5. The s 317 Respondent agrees with the observation of Mr Madafferi's counsel that notes taken by different parties to a conversation or exchange will be a different record of that exchange. He therefore conceded the production of notes taken, in the instance that I proceed, as I have, to order a limited date range for category 1.3.
6. There were no authorities cited to suggest that risk of overlap with production from other recipients of orders for production, by itself, would require that an order for production be narrowed.
7. I have decided to order production of category 1.3 as sought in the application for the same limited date range.

1. I have decided that it is in the interests of justice to order production of documents from the s 317 Respondent. The orders are in the following terms:
   1. Pursuant to section 317 of the Criminal Procedure Act 2009 (Vic), the s 317 Respondent provides to this Honourable Court and to the parties:

1.1 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent Mr Joseph "Pino" Acquaro in relation to Mr. Madafferi and/or the Madafferi family between 1 March 2014 and 26 August 2014

1.2 Any documents provided to the respondent by Mr Acquaro in relation to the applicant between 1 March 2014 and 26 August 2014;

1.3 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent and any member of Victoria Police between 1 March 2014 and 26 August 2014, including but not limited to:

(a) Detective Acting Inspector Boris Buick;

(b) Detective Acting Inspector Stuart Bateson;

(c) Detective Acting Inspector Peter Trichias;

(d) Detective Sergeant Petter Kenned; and

(e) Detective Inspector Kenneth Ashworth.

in relation to the applicant or his family and/or where the respondent is conveying information which may have been originally sourced from Mr. Acquaro.

1. The parties are to advise the Court of a timetable settled between them for the production of the documents in accordance with the orders.

APPLICANT'S S 317 APPLICATION - CATEGORIES OF PRODUCTION SOUGHT

Excerpt of 'General application (s 317 - s 317 respondent)' - Filed 18 August 2022_[15]_

Mr Madafferi ('the applicant') wishes to apply for the following orders:

1. Pursuant to section 317 of the Criminal Procedure Act 2009 (Vic), [the s 317 Respondent] provides to this Honourable Court and to the parties:

1.1 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent and Mr Joseph "Pino" Acquaro in relation to Mr. Madafferi and/or the Madafferi family between 12 February 2008 and 31 December 2015 26 August 2014;

1.2 Any documents provided to the respondent by Mr. Acquaro in relation to the applicant between 12 February 2008 and 31 December 2015;

1.3 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent and any member of Victoria Police between 12 February 2008 and 31 December 2015 26 August 2014, including but not limited to contact with:

in relation to the applicant or his family and/or where the respondent is conveying information which may have been originally sourced from Mr. Acquaro;

1.4 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent and any member of Australian Federal Police in relation to the applicant and his family between 12 February 2008 and 31 December 2015 26 August 2014, including but not limited to contact with:

where the respondent is conveying information which may have been originally sourced from Mr. Acquaro;

1.5 All notes, recordings, emails, text messages, or any similar document (whether in physical or electronic form) documenting contact between the respondent and any employees of the Commonwealth Director of Public Prosecutions between 12 February 2008 and 31 December 2015 26 August 2014, including but not limited to contact with:

in relation to the applicant and his family where the respondent is conveying information which may have been originally sourced from Mr. Acquaro.

[1] Pursuant to s 317 of the Criminal Procedure Act 2009.

[2] The identity of the s 317 Respondent is the subject of a non-publication order. They are referred to as 'the s 317 Respondent'. The detail of the s 317 application is the subject of the same non-publication order made on 2 September 2022, as varied on 31 May 2023.

[3] The detailed categories sought by the applicant are annexed to this judgment as Annexure A.

[4] See, for example, Zirilli v The King [2021] VSCA 174, [42].

[5] Polimeni v The King [2022] VSCA 20, [34]-[35].

[6] Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, 324 [96]; [2008] VSC 1.

[7] Zirilli v The Queen [2021] 287 A Crim R 407, 425 [97]; [2021] VSCA 2 citing State of Victoria (Department of Justice) v Lane [2012] VSC 328 and Holloway v State of Victoria (Department of Justice) (2015) 73 MVR 145; [2015] VSC 526.

[8] Polimeni v The King [2022] VSCA 20, [35].

[9] Zirilli v The King [2021] VSCA 174.

[10] State of Victoria (Department of Justice) v Lane [2012] VSC 328.

[11] Zirilli v The King [2021] VSCA 174, [42].

[12] Szabo v The Queen [2000] QCA 194; [2001] 2 Qd R 214.

[13] Australian Competition and Consumer Commission v Pratt (2008) 250 ALR 661; [2008] FCA 1373; See also, Mokbel Ruling No 1 [2005] VSC 410, [39]-[41].

[14] Arico v The Queen [2021] VSCA 353; (2021) 294 A Crim R 20, 27 [26], 30 [33]; [2021] VSCA 353.

[15] As amended by 'Applicant's Submissions in relation to categories of documents' filed 29 November 2023