Madafferi v The Queen [2021] VSCA 332

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 This is an application for bail made under s 310 of the Criminal Procedure Act 2009 pending appeal against conviction.

2 On 26 August 2014, the applicant was convicted of one charge of trafficking a controlled drug in a commercial quantity, contrary to s 302.2(1) of the Criminal Code Act 1995 (Cth). He was sentenced to 10 years' imprisonment with a non-parole period of seven years.

3 In March 2020, the applicant applied for leave to appeal his conviction based on matters revealed, in part, in the hearings of the Royal Commission into the Management of Police Informants. Since filing his application for leave to appeal his conviction, the applicant has been engaged in a protracted process of obtaining records from Victoria Police concerning persons involved in his legal representation at the time of his arrest and subsequently.

4 In August 2021, the applicant became eligible for parole, but parole was refused.

5 On 7 September 2021, the applicant filed an application for bail on the following grounds:

1. Exceptional circumstances exist which justify a grant of bail; and

2. The applicant is not an unacceptable risk of flight, reoffending or interference with witnesses if granted bail.

6 The application for bail is supported by two affidavits made by the applicant's current solicitor, Ruth Angharad Ellis Parker, the first affirmed on 6 September 2021, the second on 10 November 2021. Ms Parker deposes to the difficulties the applicant has experienced and continues to experience in preparing his case for the appeal, his prospects of succeeding in the appeal, and his personal circumstances, including the hardship he is experiencing in prison.

7 The respondent opposes the grant of bail and relies on the affidavit of Patrick James Darby, an employee of the Commonwealth Director of Public Prosecutions ('CDPP'), affirmed on 8 October 2021, and the affidavit of David James Stembridge of the Australian Border Force sworn on 7 October 2021.

8 Mr Darby exhibits records of disclosure filed in the trafficking proceeding concerning the involvement of Victoria Police in the Australian Federal Police ('AFP') investigation leading to the trafficking charge (known as 'Operation Inca').

9 Mr Stembridge deposes to the applicant's immigration status. The applicant is an Italian citizen. His Australian visa was cancelled on 18 September 2015 and he is currently an unlawful non-citizen. Pursuant to s 189 of the Migration Act 1958 (Cth), if released or bailed from criminal custody, the applicant must be mandatorily detained in immigration detention pending his deportation.

10 The applicant accepts that the practical consequence of a grant of bail will be that, at least initially, he will be detained in immigration detention awaiting deportation. He submits that the Court should accept that he will not voluntarily seek removal from Australia, given that his family is here and he has been fighting to remain in Australia for two decades. He submits that if he is granted bail and detained under the Migration Act, the Court can impose as a condition of bail that he not seek voluntary removal from Australia. He points out that the CDPP has the ability to obtain a 'criminal justice stay certificate' under Division 4 of the Migration Act that would ensure that he cannot not leave the jurisdiction until his criminal matters, including any period of imprisonment, have been concluded. Furthermore, under the Migration Act, it would be open to the Minister to grant the applicant a 'criminal justice visa' that would enable him to live in the community for so long as his application for leave to appeal and any appeal remained on foot.

11 The applicant was arrested and charged with the trafficking offence in August 2008 as part of Operation Inca. A number of co-offenders were arrested at the same time. The prosecution case at trial was that, between 12 February 2008 and 7 August 2008, the applicant trafficked 57,000 MDMA tablets with a value of approximately $473,500 alleged to have been imported by Pasquale Barbaro, as head of the drug syndicate, and others. Police surveillance showed the applicant in Barbaro's company as cash and boxes containing drugs were exchanged. Business records seized from Barbaro were said to document the sale of drugs to the applicant, and intercepted telephone calls and text messages were said to reveal coded conversations concerning the applicant. The applicant's defence at trial was that he was not involved in the trafficking of any drugs.

12 Following his arrest on the trafficking charge, the applicant was represented by Joseph 'Pino' Acquaro, who was the principal of the firm Acquaro & Co. Acquaro conducted the applicant's defence to the trafficking charge from the time of the applicant's arrest in August 2008 until late in 2013. In late 2013, the relationship between the applicant and Acquaro broke down dramatically and the applicant ceased to be represented by Acquaro. The applicant was represented by different legal practitioners at his trial on the trafficking charge, which took place in July and August 2014.

13 The applicant says that in the five year period during which Acquaro represented him in the trafficking proceeding, Acquaro not only took instructions from him and advised him about the conduct of the proceeding, but also introduced him to Nicola Gobbo, a barrister and police informer, with whom he met on a number of occasions in 2008 and 2009.

14 Acquaro was shot dead outside his Brunswick gelato bar in 2016.

15 In the course of the Royal Commission into the Management of Police Informants, reference was made to police informers other than Gobbo, including 'a lawyer, now deceased' referred to as 'Mr McCallum'. The applicant suspected that Acquaro was Mr McCallum.

16 Accordingly, on 24 May 2020, the applicant applied pursuant to s 317 of the Criminal Procedure Act for orders that the Chief Commissioner of Victoria Police produce documents, including any documents relating to information exchanged between Acquaro and Victoria Police concerning the applicant and any documents revealing whether Acquaro was a police informer ('s 317 application'). The Chief Commissioner in turn applied for an order protecting the documents from disclosure on the ground of public interest immunity ('PII application'). This Court heard the PII application in November 2020 and delivered its judgment in January 2021, refusing to make the orders sought by the Chief Commissioner to protect the documents from release to the applicant.[1]

17 As a result of the Court's decision in the PII application, the applicant now knows that Acquaro was a police informer who spoke to members of Victoria Police in early 2008, before the applicant's arrest, and again in the first half of 2014, after he had ceased acting for the applicant and before the applicant's trial on the trafficking charge.

18 In the discussions that took place in 2014, Acquaro gave Victoria Police information in relation to the applicant's immigration status that was potentially damaging to the applicant's interests. Acquaro also commented on two aspects of the prosecution case against the applicant in the trafficking proceeding: first, concerning the quality of the interpreting of some of the intercepted material; and, secondly, concerning the use of 'cut and paste' in the indictments of several of the co‑offenders which, he said, resulted in the same conversation being alleged to have different meanings in different proceedings. Acquaro also gave Victoria Police information about current criminal activity involving threats to his life and extortion of market stall holders and small businesses. The potential revocation of the applicant's bail was discussed and the applicant's bail was in fact revoked towards the end of the trial.

19 The applicant alleges that the material released to him as a result of the s 317 application discloses that the Victoria Police officers involved in discussions with Acquaro, in particular an officer known only by the pseudonym 'Officer Pearce', passed intelligence to Commonwealth agencies about the applicant in the lead up to and during his trial.

20 The applicant's proposed ground of appeal contained in his amended notice of appeal dated 14 September 2021 is 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 has miscarried.

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

(i) the applicant provided instructions to, and was given advice by, a solicitor 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

(ii) Victoria Police failed to disclose to the applicant that Victoria Police had conspired with Mr Acquaro to damage his interests; and/or

(iii) Victoria Police and the Australian Federal Police failed to disclose that Victoria Police had been involved in the investigation of the matter.

21 On 26 August 2021, the applicant filed an interim revised written case in support of his application for leave to appeal submitting that leave should be granted, the appeal allowed and his conviction quashed, and a verdict of acquittal be entered.

22 The applicant accepts that he must show exceptional circumstances in order to be granted bail. In oral submissions, counsel identified the following matters which, she submitted, in combination gave rise to exceptional circumstances:

(a) the difficulties faced by the applicant in preparing for an appeal of significant complexity while in prison;

(b) the 'extraordinary' delay which has already taken place in the applicant's proposed appeal and the further inevitable delay before the appeal is ultimately heard and determined;

(c) the proportion of his sentence the applicant has already served, namely, his entire non-parole period and all but two and a half years of his total sentence;

(d) the hardship experienced by the applicant in prison as a result of measures introduced in response to the COVID-19 pandemic;[2]

(e) the applicant's very limited and old criminal history;

(f) the protective factors enjoyed by the applicant that mitigate any risk that his release may pose - the offer of a surety of $1m from a friend, his strong family support, and the offer of stable employment and accommodation should he be granted a criminal justice visa; and

(g) the applicant's prospects of success on appeal.

23 Counsel submitted that the 'extraordinary' nature of the appeal proceeding is relevant to many of these factors in different ways. She emphasised that this is a case which results from Victoria Police 'reprehensibly using lawyers [as] police informers' and 'deliberately concealing' that fact from the applicant for many years.

24 The applicant relies, in particular, on the fact that he has now served his entire non-parole period and, if bail is refused, he will serve a further period in custody before his appeal is heard and determined, in circumstances where a delay of 18 months has already occurred through no fault of his own and where further delay can be reasonably expected. According to the applicant, it is possible, as further disclosure may need to be made, that his appeal will not be heard before he is next eligible to apply for parole in mid-2022. He submits that it would be fundamentally unfair for him to have to spend all of this time in prison, as he may serve more time in custody than would lawfully be justified in the event his appeal is successful, effectively rendering success on the appeal nugatory.

25 The applicant points to the delay caused by the conduct of Victoria Police, which has resulted in 'in camera' hearings in the PII application, arguments in relation to redactions and an application for access to the sealed court file. Ms Parker's first affidavit deposes to the manner in which documents have been produced by the Chief Commissioner of Victoria Police 'on the drip feed' over a lengthy period since August 2020. The documents that have ultimately been produced are voluminous. Unlike in an ordinary criminal appeal, there have been, and will continue to be, numerous interlocutory proceedings relating to the production of documents and claims for public interest immunity.

26 Counsel for the applicant stressed that as the materials that are being produced have not previously been seen by the applicant's legal practitioners, the lawyers require instructions much more regularly and in much more detail than would ordinarily be the case in a criminal appeal. Taking instructions while the applicant is in gaol is difficult. Due to COVID restrictions, in-person conferences have been almost non-existent. The lawyers cannot telephone the applicant and must wait for him to call them. Calls are limited to 12 minutes and there is competition in gaol for the phones. Video conferences must be organised in advance and are limited to 30 or 60 minutes. These difficulties are further complicated by the applicant's poor English. In future, detailed conferences will be required in preparation for the appeal and if the applicant remains in gaol, his lawyers will need to schedule conferences to coincide not only with the availability of counsel and the applicant, but also a Calabrian interpreter. By way of contrast, if the applicant were detained in immigration detention, he would have access to a mobile phone and the internet, which would mean that his lawyers could contact him and would not have to wait for the applicant to contact them. They would be able to speak with him for unlimited periods of time and correspond via email. Self-evidently, were the CDPP to apply for and obtain a criminal justice visa permitting the applicant to live in the community, obtaining instructions from him and preparing for his appeal would be even better facilitated.

27 As to the likelihood of further delay, counsel for the applicant submitted that on the appeal, the Court would be assisted by evidence from 'Officer Pearce' concerning his contact with Acquaro 'in the period 2008-2014' and to know to whom Officer Pearce provided information sourced from Acquaro. Officer Pearce is said to be the remaining person alive who can give fulsome evidence about the information that was obtained from Acquaro and subsequently passed on to the AFP. Counsel submitted that Officer Pearce's recollection of his dealings with Acquaro is an avenue that needs to be explored and foreshadowed filing an application under s 318 of the Criminal Procedure Act in order to obtain evidence from Officer Pearce. The contact details of Officer Pearce's lawyers had only recently been obtained, enabling such an application to be made. However, given that it appears Officer Pearce suffers from a chronic psychiatric condition, there is no indication as to when he will be available to give evidence. This is likely to compound the delay already experienced by the applicant, who has had to await the conclusion of a number of different steps relating to the provision of documents and information in order to progress his appeal in any substantial way.

28 In his written submissions the applicant said little about his prospects of success on appeal, other than to say that, as in Cvetanovski v The Queen,[3] his application for leave to appeal and his proposed ground of appeal is 'reasonably arguable'. Rather than rely on the strength of his case, the applicant's written submissions emphasised the 'extraordinary nature' of the proceedings, which are said to involve the use of the applicant's lawyer as a human source for Victoria Police in an effort to obtain privileged and confidential information upon which it was intended to act against the applicant's interests.

29 In oral submissions, counsel for the applicant submitted that the evidence obtained to date establishes that the applicant's long time lawyer was a police informer who conspired with Victoria Police to damage the applicant's interests. Acquaro's 'police handler', Officer Pearce, was in contact with the AFP at the time of their investigation, in the months leading up to the trial and, indeed, during the trial itself. This, it is submitted, shows that the applicant has a very strong argument that, as in R v Szabo,[4] a fair-minded citizen in the position of the applicant with knowledge of all relevant circumstances would entertain a reasonable suspicion that justice has miscarried.

30 The respondent's submissions focussed on whether it is likely that the applicant will have served either the whole or a substantial portion of the sentence before the appeal is heard and whether he has strong prospects of success on appeal.

31 The respondent submits that although the applicant's non-parole period has expired, parole was refused, he is ineligible to apply for parole again until August 2022 and there is evidence to support a finding that the applicant is unlikely to be released on parole at that time. As a result, the expiry of the applicant's non-parole period carries less weight than it otherwise would.

32 As to the strength of the appeal, counsel for the respondent submitted orally that while the respondent's written submissions stated that the applicant's case was 'reasonably arguable', this was because at this stage of the proceedings it is rarely possible for the Court to make a meaningful assessment of prospects. However, the applicant needs to establish the existence of some matter that would impugn the trial process itself, and he has not shown that there is a strong basis for impugning the conduct of the trial or his conviction. What has been raised on behalf of the applicant remains speculative, particularly the foreshadowed line of inquiry through Office Pearce.

33 The principles governing the grant of bail pending an appeal were set out by the Court in Cvetanovski as follows_:_

An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.

Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court. A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.[5]

34 'Exceptional circumstances' means circumstances which are 'truly exceptional'.[6] The requirement for the applicant to establish exceptional circumstances is a stringent one, having regard to the fact that he has been convicted and sentenced, and the right of appeal is conditioned by the presumption which operates in favour of the validity of the conviction and sentence. This is to be contrasted to trial bail, where an accused enjoys both the presumption of innocence and a presumption in favour of the grant of bail.

35 Although the applicant relies on a combination of matters to establish exceptional circumstances, including matters relevant to risk (such as the protective factors to which he alludes), the two factors most commonly recognised by the Court as capable of establishing exceptional circumstances are the expiry of the applicant's non-parole period and the strength of the applicant's case on appeal.

36 The Court in Cvetanovski explained the importance of the expiry of the non-parole period as follows:

In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant's non-parole period. The fundamental principle is one of fairness. Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.[7]

37 In this case, the applicant's non-parole period has expired, but he was denied parole, largely for reasons related to the nature of the offending for which he was convicted. The applicant may re-apply for parole in August 2022, but, on the face of it, the same reasons for refusing bail will exist at that time. Unless he succeeds on appeal, it seems likely that the applicant will serve the full 10 years of his sentence in custody.

38 In our view, the fact that the applicant was denied parole when he became eligible in August 2021 does not prevent him from arguing that exceptional circumstances exist by virtue of the likelihood that he will have served more than 80 per cent of his sentence before his appeal is heard and determined, and that his appeal, if successful, will have had limited utility in reducing the time he has spent in custody.

39 Relevant to the question of fairness is the delay that the applicant has experienced in preparing his appeal as a result of difficulties obtaining information about Acquaro's role in exposing his legal vulnerabilities to the authorities. The process has been protracted, involving, as the applicant has outlined, a multitude of objections by the Chief Commissioner of Victoria Police to the provision of documents, multiple hearings and the release of documents to the applicant over a number of dates in a variety of states of redaction.

40 We also accept that the last two years in custody have been particularly difficult due to COVID-19 restrictions in prisons and that the applicant's imprisonment, particularly in the context of the COVID-19 restrictions, makes the task of preparing the appeal very challenging.

41 On the other hand, since January 2021, the applicant has had the benefit of a comprehensive judgment from the Court on the PII application that describes the interactions between Acquaro and members of Victoria Police during the relevant periods in 2008 and 2014. The Court carefully reviewed the documents that were the subject of the s 317 application and set out their contents in some detail. Furthermore, the applicant has had access to the submissions of the amici curiae, which describe the content of the documents in even more detail. The applicant is - to say the least - relatively well informed about the nature and extent of Acquaro's disclosures concerning him. The documents also describe the extent to which that information was communicated to others within law enforcement.

42 The applicant's stated determination to take evidence from Officer Pearce in order to establish to whom he communicated information received from Acquaro has the potential to cause significant further delay. We query whether such delay is necessary. Insofar as the information sought from Officer Pearce pertains to disclosures to persons associated with the applicant's trial (as it must do), that information might be more readily obtained from the persons directly involved in the conduct of the trafficking proceeding on behalf of the Crown. Moreover, it is not at this stage apparent that anything was said by Acquaro that had any effect on the course of the applicant's trial. If Officer Pearce communicated information to the AFP concerning (then) ongoing criminal activities reported by Acquaro (related to, for example, threats against Acquaro's life, a spate of 'shoot-ups' of pizza restaurants around Melbourne, the systematic extortion of stall holders at the wholesale vegetable market and so on), he was well entitled to do so and such communication scarcely forms the basis for a finding that the applicant's trial miscarried.

43 There is no hard and fast rule as to how much of a term of imprisonment or non-parole period needs to expire before consideration can be given to granting bail. Each case depends upon its own facts.[8] In our view, the fact that the applicant will have served a substantial portion of his sentence before his appeal is heard and has experienced frustrating delays in preparing his appeal due to positions taken by the Chief Commissioner of Victoria Police goes some way to establishing exceptional circumstances. However, these factors are not, alone or in combination, sufficient to establish truly exceptional circumstances.

44 In Higgs, the Court considered that the relationship between time served and the merits of the proposed appeal might be relevant to the establishment of exceptional circumstances. The Court observed that the longer the period of time still to be served, the greater the prospects of success will need to be before it might be said that exceptional circumstances exist justifying a grant of bail.[9]

45 In this application, some attention must be given to the applicant's prospects of success on appeal. Because the Court has previously examined the documents covered by the s 317 application, the Court is not without an understanding of how the appeal may unfold.

46 As discussed, the sole ground of appeal turns on the involvement of Acquaro and rests on two propositions: a substantial miscarriage of justice has been occasioned by reason of the subversion of the applicant's right to a fair trial; and/or a fair-minded citizen in the position of the applicant, with knowledge of all relevant circumstances, would entertain a reasonable suspicion that justice has miscarried.

47 As to the first of these propositions, and so far as we can tell, none of the fresh evidence about Acquaro exculpates the applicant or raises any doubt about his guilt. None of the evidence bears on the admissibility of the evidence that was called on trial. Acquaro did not act for the applicant at trial. The applicant was independently and competently represented. Furthermore, there is no evidence that anything that Acquaro said to Victoria Police was communicated to the informant or had any bearing on his trial. Acquaro's observation that there was a problem with the interpreting was already clearly set out in the defence statement and it is not suggested that it raised a new issue or that the prosecution changed its case from the case that had been put against all the co-accused from the committal onwards. The issue of the 'cut and paste' as between different accused was raised in open court and rejected by the Court some days earlier in the case of Polimeni v The Queen.[10] It was not, in any way, 'inside information' and had no effect on the applicant's trial for trafficking.

48 As a result, the applicant appears (at this stage) to be constrained principally to the second limb of his ground of appeal, that is, that 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 (even though he had the benefit of competent representation).

49 In Szabo,[11] the Queensland Court of Appeal set aside convictions for burglary and rape on this basis in circumstances where the appellant's counsel failed to disclose a close personal relationship with the prosecutor. After observing that it was not a case of actual injustice (the defence was robust, the trial was regularly conducted, and there was no suggestion of any actual, improper disclosure),[12] de Jersey CJ said:

I am satisfied that in this case a reasonable observer would regard, as a matter for curious enquiry, why defence counsel, imbued with the high ideals of professional practice at the bar and owing substantial duties to the Court, and appreciating the delicacy of the process and the strength of his client's interest in securing an acquittal, would fail to disclose his substantial past, and to a degree obviously continuing, intimate association with the prosecutor. That is a matter which would concern an ordinary litigant in such a situation. That counsel failed to advert to it engenders, reasonably, suspicion or apprehension that justice may not have been done.[13]

50 In this case, there is no suggestion that the applicant's lawyers at trial were anything but independent. They were not tainted by association with anyone from the prosecution and, so far as we are presently aware, there was nothing in the interaction between Acquaro and Victoria Police that touched on the conduct of the trial. To establish a reasonable suspicion that justice has miscarried the applicant relies more generally on this being 'an extraordinary case which results from Victoria Police reprehensibly using lawyers and police informers and deliberately concealing that fact from the applicant for many, many years'.

51 We are not in a position to say anything definitive about this submission. However, we do not consider that, on the material before us, the strength of the applicant's case on appeal is such as to establish exceptional circumstances.

52 This leaves the matters discussed above under the rubrics of proportion of sentence served and delay. As discussed, they are not in themselves sufficient to establish exceptional circumstances. Nor are they sufficient when considered cumulatively with the other matters on which the applicant relies.

53 Accordingly, bail is refused. However, we will seek to expedite the hearing of the applicant's appeal.

[1] Madafferi v The Queen [2021] VSCA 1R (Emerton, Weinberg and Osborn JJA).

[2] It was submitted further that, as a result of legislation that has been foreshadowed, the applicant will not have the benefit of emergency management days, having been convicted of a Commonwealth offence.

[3] [2020] VSCA 126 (Maxwell P, Beach and Weinberg JJA) ('Cvetanovski').

[4] [2001] 2 Qd R 214; [2000] QCA 194 (de Jersey CJ, Davies and Thomas JJA) ('Szabo').

[5] [2020] VSCA 126, [1]-[2] (Maxwell P, Beach and Weinberg JJA) (citations omitted).

[6] Re Zoudi [2006] VSCA 298; (2006) 14 VR 580, 589 [28(5)]; [2006] VSCA 298 (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA).

[7] Cvetanovski [2020] VSCA 126, [3] (Maxwell P, Beach and Weinberg JJA).

[8] Higgs v The Queen [2021] VSCA 90, [28] (Beach and Emerton JJA) ('Higgs').

[10] [2014] VSCA 72 (Weinberg and Coghlan JJA).

[11] (2000) 2 Qd R 214; [2000] QCA 194.