SUPREME COURT OF VICTORIA
COURT OF APPEAL	
	
S EAPCR 2020 0045	

FRANCESCO MADAFFERI	Applicant	
		
v		
		
THE KING	Respondent	

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JUDGE:	McCANN JR	
WHERE HELD:	Melbourne	
DATES OF HEARING:	15 April 2025, 7 May 2025, 26 May 2025 and 28 May 2025	
DATE OF JUDGMENT:	26 May 2025	
MEDIUM NEUTRAL CITATION:	[2025] VSCA 114	Revised on:
29 May 2025	

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CRIMINAL LAW – Appeal – Practice and procedure – Application for production pursuant to s 317 of the Criminal Procedure Act 2009 – Where application directed to Department of Premier and Cabinet as record holder of submissions made to the Royal Commission into the Management of Police Informants – Where the Department is poorly placed to identify, assess or present submissions to the Court in respect of objections to production – Where it is suitable for the Court to inspect the subject documents in the absence of an objection to production or claim of public interest immunity – Where it is in the interests of justice to order production of specific documents.

Criminal Procedure Act 2009; Inquiries Act 2014; Evidence Act 2008.

Zirilli v The Queen [2021] VSCA 174; Polimeni v The Queen [2022] VSCA 20; State of Victoria (Department of Justice) v Lane [2012] VSC 328; Zirilli v The Queen (2021) 287 A Crim R 407; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Ryan v State of Victoria [2015] VSCA 353; Zirilli v The King [2023] VSCA 64; Alister v The Queen (1984) 154 CLR 404; R v Debono [2012] VSC 476; Sankey v Whitlam (1978) 142 CLR 1; Commonwealth v Northern Land Council (1993) 176 CLR 604; R v Saleam (1989) 16 NSWLR 14; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; Madafferi v The Queen [2021] VSCA 1; Zirilli v The Queen [2021] VSCA 2; Polimeni v The Queen [2021] VSCA 329.
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Counsel	
Applicant:		Ms C Boston SC with Ms S Molyneux (15 April 2025, 7 May 2025)
Ms S Molyneux (26 May 2025)
-- (28 May 2025)	
Respondent:		Ms D Karamicov (15 April 2025, 7 May 2025, 28 May 2025)
Mr J Hannebery KC (26 May 2025)	
Department of Premier and Cabinet		Ms S Keating with Mr A James-Martin (15 April 2025)
Ms S Keating with Mr J E Hartley (7 May 2025, 28 May 2025)
Ms S Keating (26 May 2025)	
	
Solicitors	
Applicant:		Ms R Parker (28 May 2025), Galbally Parker Lawyers	
Respondent:		Commonwealth Director of Public Prosecutions		
Department of Premier and Cabinet		Russell Kennedy Lawyers	

McCANN JR:
1	On 26 August 2014 Francesco Madafferi (‘the applicant’) was convicted of trafficking a controlled drug in a commercial quantity. On 17 December 2014, he was sentenced to 10 years’ imprisonment with a non‑parole period of 7 years. In March 2020 the applicant applied for leave to appeal against this conviction for a second time pursuant to Part 6.4 of the Criminal Procedure Act 2009 (‘the CPA’). 
2	On 5 October 2022 the applicant filed an amended application for leave to appeal against conviction. To summarise, he relies upon a single ground, contending that a substantial miscarriage of justice occurred on the basis that inter alia Mr Joseph ‘Pino’ Acquaro, the applicant’s former solicitor, provided, at the time of the applicant’s trial, privileged information about him to Victoria Police and to the news media in a deliberate endeavour to damage his interests and negatively affect his prospects at trial, unbeknownst to the applicant. 
3	The appeal remains to be determined and is currently timetabled to identify questions that might be referred by the Court of Appeal to the trial division pursuant to s 319A of the CPA.
The s 317 application directed to the Department of Premier and Cabinet
4	On 10 October 2024 the applicant filed an application seeking production from the Department of Premier and Cabinet (‘the DPC’) pursuant to s 317 of the CPA. As amended on 3 March 2025, that application seeks the following:
	Any submissions (whether confidential, anonymous or otherwise) provided to the Royal Commission into the Management of Police Informants (RCMPI) by any person or body other than the Chief Commissioner of Police in relation to:
(a)	the activities of Joseph (Pino) Acquaro as a human source for Victoria Police, including but not limited to Mr. Madafferi; and/or
(b)	the use (by Mr. Acquaro) of members of the media to affect the conduct of his clients’ cases, including but not limited to Mr. Madafferi.
5	There was no issue between the parties about the principles applicable in the determination of a s 317 application. Applying those principles there is legitimate forensic purpose in the production sought in the s 317 application. That is, there is a reasonable possibility that the documents sought by the applicant will materially assist him in his appeal grounds. It is in the interests of justice that production be ordered and I will so order.
The DPC ’s position
6	The DPC holds all of the records of the Royal Commission into the Management of Police Informants (‘the RCMPI’). They were transferred to the Department in compliance with s 124(1) of the Inquiries Act 2014 (Vic). The DPC are therefore the holder of the submissions sought by the applicant.
7	I understand that the DPC has identified, amongst their RCMPI holdings, 11 documents that would be responsive to the application made (‘the Documents’). However, the DPC recognises and articulates the potential for there to be an impediment to production in the form of:
(a)	a non‑publication order or other prohibition; and/or
(b)	a public interest claim to protect against a risk to the safety of the author, source or subject matter of the Documents.
Non-Publication Orders
8	The DPC has conducted searches for any non‑publication orders applicable to the Documents. These searches are described in the confidential affidavit of David Israel Kazatsky affirmed on 30 April 2025 and filed on behalf of the DPC. I am satisfied from that affidavit that reasonable searches have been conducted and that they have not revealed any extant orders relating to the Documents.
Public Interest Immunity Claims
9	Pursuant to s 130(1) of the Evidence Act 2008 (Vic) the court may direct that evidence not be admitted where, on balance, “the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document.”
10	The application of s 130 is informed by the common law doctrine of public interest immunity (‘PII’).
11	Section 131A of the Evidence Act extends the balance encapsulated in s 130 to considerations of the objection to the production of a document. 
12	Section 130(4) establishes a non‑exhaustive list of consequences on the release of information that would give that information the quality of relating to “matters of state” for the purpose of s 130.
13	Section 130 of the Evidence Act relevantly provides that:
(4)	Without limiting the circumstances in which information or a document may be taken for the purposes of subsection (1) to relate to matters of state, the information or document is taken for the purposes of that subsection to relate to matters of state if adducing it would—
(a)	prejudice the security, defence or international relations of Australia; or
(b)	damage relations between the Commonwealth and a State or between 2 or more States; or
(c)	prejudice the prevention, investigation or prosecution of an offence; or
(d)	prejudice the prevention or investigation of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other contraventions of the law; or
(e)	disclose, or enable a person to ascertain, the existence or identity of a confidential source of information relating to the enforcement or administration of a law of the Commonwealth or a State; or
(f)	prejudice the proper functioning of the government of the Commonwealth or a State.
(5)	Without limiting the matters that the court may take into account for the purposes of subsection (1), it is to take into account the following matters—
(a)	the importance of the information or the document in the proceeding;
(b)	if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c)	the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d)	the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e)	whether the substance of the information or document has already been published;
(f)	if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the directions is to be made subject to the condition that the prosecution be stayed.
The parties’ submissions
14	The DPC submit that they are poorly placed to identify, assess or present submissions to the Court in respect of ‘matters of state’ and potential public interest claims but are concerned that such claims might nonetheless exist. The authors and the subjects of the responsive documents are best placed, the DPC submits, to identify and present to the Court any claim of PII.  Additionally the Chief Commissioner of Police might be aware of an interest impacted or a risk created with the revelation of information in the Documents. Rather than identify, locate and notify all with a potential claim arising from all of the responsive documents in order to ensure that any claim is brought to the attention of the Court, the DPC submitted that the Court should first inspect the documents to determine which among them, if any, would provide material assistance to the applicant in his appeal. It was possible that very few or even none would provide this level of assistance. The DPC’s task of notification would thereby be reduced in size and complexity. 
15	The applicant’s submissions canvassed the issue of PII, including the application of the Inquiries Act to materials provided, or otherwise withheld from production, to the RCMPI. However, submissions on PII are premature at this stage in the absence of any objection to production on this basis.
16	The DPC and the Office of Public Prosecutions referred to authority for inspection by the Court in the absence of any objection to production in the form of a PII claim.
17	In Alister v The Queen, Brennan J considered it appropriate that a more liberal approach to the inspection of documents be adopted in the context of criminal cases. Other authorities echo adopting a more liberal approach in criminal matters to the production of documents in respect of which PII is claimed.
18	In R v Saleam, the New South Wales Criminal Court of Appeal extended the approach adopted in Alister to the context of determining whether there was a legitimate forensic purpose in the production of documents at any stage of the criminal process, whether or not a claim of immunity or any kind of privilege is made. 
19	Further, in Esso Australia Resources Ltd v Commissioner of Taxation (Cth) Gleeson CJ, Gaudron J and Gummow J observed that a court “should not be hesitant” to exercise its power to examine documents.
Consideration and determination
20	The authorities support the inspection of the Documents even in the absence of an objection to production or claim of PII. In addition, there appeared good reason to conduct an inspection of the 11 Documents responsive to the s 317 application directed to the DPC. This is because the required follow up location and notification of authors, sources and/or subjects of Documents would likely require additional resources and would be a time consuming endeavour. An assessment of whether any of the Documents contained information that would materially assist the applicant may eliminate some of the documents from consideration and therefore from this potentially time consuming and resource‑intense task. 
21	The Court is concerned to reduce or eliminate further avoidable delay in the determination of this appeal.
22	It was for these reasons that, on 8 May 2025, I ordered that the DPC provide to the Court for inspection all of the documents responsive to the s 317 application.
The Documents inspected
23	The Documents were exhibited to an affidavit of David Israel Kazatsky affirmed on 9 May 2025. They fall into two categories of limitation; those publicly available in redacted form and those not publicly available.
24	I understand from inspecting the Documents that those submissions that are not publicly available are confidential at the makers’ request at the time of submitting them to the RCMPI. 
25	Of the 11 Documents, I have identified five that would materially assist the applicant. I have made that assessment with reference to well established principle, the applicant’s application for leave and their amended written case.
26	In the material provided to the Court by the DPC they have adopted the document numbering protocol of the RCMPI. The identification of documents in this ruling and the orders replicates that numbering.
27	Two of the documents are publicly available, being the submissions of Mr Madafferi, referred to as RCMPI Submission 085, and Mr Polimeni, referred to as RCMPI Submission 128. There is no impediment to those being provided and I note that there should be no issue in removing the redactions applied. The first of these submissions was authored by the applicant himself. The redactions applied to the second of these submissions conceal the identity of Mr Joseph Acquaro. Both of the submissions were produced and submitted to the RCMPI prior to the decisions in the Court of Appeal in 2021 concerning and revealing the conduct of Victoria Police in using Mr Acquaro as a police informant and, as such, any redactions to Mr Acquaro’s identity within these submissions can be removed.
28	The three remaining documents were submissions provided to the RCMPI by their authors on a confidential basis. They have not been published. The submissions are referred to as RCMPI Submissions 092, 127 and 133. As already observed, the DPC was unable to locate any order that would prevent their publication or indeed their production to the applicant. 
29	In the circumstances, I will order the production of the previously published submissions to the RCMPI responsive to the s 317 application forthwith with redactions lifted.
30	The details contained in the three unpublished submissions lead me to the view that locating and notifying the interested parties should not be a significant challenge.
31	I will therefore order that the three previously unpublished submissions be produced and be made available for inspection by the applicant from 30 June 2025. 
32	Having shared an unrevised version of these reasons with the parties I considered orders timetabling the DPC’s process of notification. I did so with the objective of ensuring notification occurred and that the date on which the applicant would be allowed inspection would be maintained. Having considered further submissions from the DPC I have determined that the process of notification is properly a matter for the DPC and orders navigating the detail of that are un-necessary.
33	I therefore also order that the DPC are to notify the authors of the unpublished submissions and their legal representatives by providing a copy of the relevant submission(s) in sufficient time to allow those authors to register any objection they may take to production and for the production for inspection to occur by 30 June 2025.
34	There will otherwise be liberty to apply.
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