Barbaro v The Queen - [2021] VSCA 370

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0116

DOMINIC BARBARO	Applicant
v
THE QUEEN	Respondent

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JUDICIAL REGISTRAR:	McCANN JR
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 December 2021
DATE OF JUDGMENT:	23 December 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 370

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CRIMINAL LAW – Appeal – Practice and procedure – Production of documents – Applicant seeks documents from Chief Commissioner of Victoria Police – Dispute over date range of documents – Dispute over breadth of categories of documents – Whether legitimate forensic purpose – Criminal Procedure Act 2009 s 317.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C Boston	Sarah Tricarico Lawyers
For the Respondent	Ms A Martin	Director of Public Prosecutions
For the Chief Commissioner of Victoria Police	Ms S Maharaj QC with Mr J Bayly and Ms A Yuan	Victorian Government Solicitor’s Office

McCANN JR:

Introduction

On 15 October 2008 the applicant, Mr Dominic Barbaro (‘the applicant’) entered a plea of guilty to one count of conspiracy to traffic in a commercial quantity of a drug of dependence, namely phenyl–2–propanone (a substance used in the manufacture of methylamphetamine) in the County Court of Victoria. On 15 December 2008, the applicant was sentenced to two years and nine months imprisonment, of which two years was suspended for a period of three years.[1]
[1] R v Barbaro, Dominic [2008] VCC 1587 (Judge Howie).

On appeal against sentence to this Court on 4 May 2009, the applicant was re–sentenced to two years imprisonment, of which 15 months was suspended for a period of three years from the date of sentence.[2]
[2] The Queen v Dominic Barbaro [2009] VSCA 89 (Vincent and Weinberg JJA and Coghlan AJA).

The applicant has not previously appealed against his conviction and has served out the sentence imposed.

On 10 September 2021, the applicant applied for leave to appeal against his conviction pursuant to s 274 of the Criminal Procedure Act (2009) (‘CPA’). Given the delay in making such an application he also seeks an extension of time in which to file his application and relies on the contents of an affidavit sworn by Ms Sarah Tricarico in support of this application.

The applicant advances a single ground of appeal with a number of particulars, being that:

A substantial miscarriage of justice has been occasioned due to Victoria Police’s use of Nicola Gobbo as an informer. In particular:
(a)legal advice the applicant received was not independent, in circumstances where his barrister was an informer for Victoria Police; and/or
(b)investigators (and ultimately the prosecution) gained an unfair advantage by reason of the barrister for the applicant and “Mr Cooper” (a pseudonym) being a police informer; and/or
(c)investigators failed to disclose to the applicant that his barrister was a police informer; and/or
(d)investigators failed to disclose to the applicant that his barrister also acted for the primary prosecution witness against him; and/or
(e) investigators failed to disclose to the applicant that Victoria Police had made payments to the primary prosecution witness, “Mr Cooper” (a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbaro v The Queen

Details

AGLC: Barbaro v The Queen [2021] VSCA 370
Case: [2021] VSCA 370
Decision Date: 23 December 2021

CaseChat Overview and Summary

In the case of Barbaro v The Queen, the applicant, Barbaro, sought the production of documents from the Chief Commissioner of Victoria Police, as part of an appeal process against a criminal conviction. The applicant's request was contested by the Commissioner, leading to a legal dispute over the appropriate date range and categories of documents that should be disclosed. The central issue before the court was whether the applicant's request for documents was made for a legitimate forensic purpose under section 317 of the Criminal Procedure Act 2009.

The court examined the scope and rationale behind the applicant's request, considering whether it was necessary for the proper conduct of the appeal. The applicant argued that the documents were essential to challenge the conviction on the basis of new evidence. However, the Commissioner contended that the request was overly broad and not tied to a legitimate forensic purpose. The court assessed whether the documents sought were relevant to the grounds of appeal and whether the applicant had a genuine need for them to effectively argue the appeal.

The court determined that the applicant's request was not sufficiently tied to a legitimate forensic purpose, as it did not clearly relate to the grounds of appeal or demonstrate a necessity for the documents to be produced. The court emphasised the need for a clear connection between the requested documents and the specific grounds of appeal. Consequently, the court rejected the application for the production of the documents. No further orders were made beyond the rejection of the applicant's request.

Orders