Citation: Regina v Barbaro; Regina v Rovere [2000] NSWCCA 192
Court: New South Wales Court of Criminal Appeal
Date: 26 May 2000
Judge(s): Spigelman CJ; Wood CJ at CL; Grove J
Background
The two appellants were convicted in the District Court following a retrial ordered by the Court of Criminal Appeal in 1993. The charges arose from the discovery in December 1989 of approximately 20,000 cannabis plants concealed within a corn crop on a rural property near Moulamein. Police found signs of occupation but no persons present. The Crown case centred on the allegation that the first appellant, Barbaro, had posed as a man named "Pat Trimarchi" to lease the property where the cannabis was cultivated.
The second appellant, Rovere, was a stock and station agent who introduced the person masquerading as Trimarchi to the property owners and was charged with conspiracy to cultivate. Both men had been convicted at an earlier trial in Albury, but those convictions were quashed on appeal in 1993. The retrials presided over by Shadbolt DCJ in 1999 resulted in fresh convictions, prompting the present appeals.
A significant feature of the evidence was that several witnesses who had previously identified Barbaro from photographs declined at trial to affirm those earlier acts of identification. The Crown relied on police officers who had witnessed the original identification exercises, and on other witnesses who gave evidence about physical similarity rather than positive identification.
Legal Issues
- Whether police officers could give evidence of what witnesses had said or done during a photographic identification exercise, where those witnesses later declined to affirm the identification at trial (hearsay and observer evidence issues under the Evidence Act 1995 and at common law)
- Whether the witnesses themselves could give evidence of what they had previously said to police about their identification
- Whether the evidence of a witness named Peach concerning identification was properly admitted
- Whether the trial judge erred in permitting the Crown to cross-examine its own witness, Bruno Taverna, as an unfavourable witness
- Whether a separate trial ought to have been granted to Barbaro
- Whether a stay of proceedings should have been granted, given the lengthy delay between the original offending and the retrial
- Whether the photographic board used in the identification exercise was fair, and whether evidence dependent on it should have been excluded
- Whether the trial judge's directions on the use of similarity evidence (as distinct from identification evidence) were correct
- Whether the verdicts were unsafe and unsatisfactory
Decision
Grove J (with Spigelman CJ and Wood CJ at CL agreeing) allowed both appeals. The court found error in the way identification evidence was admitted and used at trial, with the photographic board and associated observer evidence raising particular concern.
On the hearsay and observer evidence grounds, the court examined the competing approaches established in Alexander v The Queen (1981) 145 CLR 395. Where an identifier declines at trial to affirm a prior act of identification, the admissibility of a police officer's account of that exercise becomes more complex. The court found that the trial judge's approach to this evidence was erroneous and that the errors went to the fairness of the trial.
The court also found error in the directions given to the jury regarding similarity evidence. Evidence that a witness thought a person resembled someone they had seen is qualitatively different from positive identification evidence, and the two categories carry different weight. The directions given did not adequately convey that distinction.
On the fairness of the photographic board (Exhibit Q), the court found the selection was vulnerable to challenge and that admitting the identification evidence flowing from it compounded the errors already identified. The court declined to uphold the ground that the verdicts were unsafe and unsatisfactory, finding there was evidence capable of supporting conviction, but the combination of errors warranted the appeals being allowed.
Orders Made
- Barbaro's appeal allowed; conviction and sentence quashed; new trial ordered
- Rovere's appeal allowed; conviction and sentence quashed; verdict and judgment of acquittal entered
Key Takeaways
- Where an identifier declines at trial to affirm a prior photographic identification, the admissibility of a police officer's account of that exercise raises distinct hearsay and observer evidence questions that require careful analysis under both the Evidence Act 1995 and common law principles.
- A conviction will not automatically be quashed merely because grounds of appeal are established: the Court of Criminal Appeal retains a discretion to order a new trial rather than enter an acquittal, particularly where evidence capable of supporting a guilty verdict remains available.
- In exercising the discretion to order a new trial or enter an acquittal, the extent to which a convicted person has already served their sentence is a relevant consideration. Rovere had served the entirety of the custodial element of his sentence, and consistent with established practice, the court entered an acquittal rather than ordering a retrial.
- Similarity evidence (a witness saying a person resembled someone they had seen) is legally distinct from positive identification evidence, and trial directions must clearly convey that distinction to the jury.
- The fairness of a photographic board used for identification purposes is a matter subject to judicial scrutiny, and evidence dependent on an unfair selection process may be vulnerable to exclusion.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
Cases:
- Alexander v The Queen (1981) 145 CLR 395
- Mackenzie v The Queen (1996) 190 CLR 348
- Graham v The Queen (1998) 195 CLR 606
- King v The Queen (1986) 161 CLR 423
- Jago v District Court of New South Wales (1989) 168 CLR 23
- R v Barbaro & Ors (1993) 67 A Crim R 456
- R v Adam (1999) 47 NSWLR 267
- R v Guldur (1986) 8 NSWLR 12
- R v Blick [2000] NSWCCA 61
- Murphy v R (1994) 62 SASR 121
- R v Birkby [1994] 2 NZLR 38
- R v Piazza (unreported, CCA, 16 June 1997)