Barbaro v The Queen; Rovere v The Queen

[1994] HCATrans 222

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney No S85 of 1993

B e t w e e n -

PASQUALE BARBARO

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Sydney No Sl58 1993

B e t w e e n -

CARMELO ROVERE

Applicant

and

THE QUEEN

Respondent

Applications for special leave

Barbaro 1 4/3/94

to appeal

BRENNAN J
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 MARCH 1994, AT 10.19 AM

Copyright in the High Court of Australia

MR I. McC BARKER, QC: If the Court pleases, I appear with

MR S.J. ODGERS for the applicant in the matter of

Barbaro. (instructed by Christopher Murphy)

MR R, KELEMAN:  May it please the Court, I appear for the

respondents.	(instructed by S.E. O'Connor,
Solicitor for	Public Prosecutions (New South
Wales))

MR S.J. ODGERS:  May it please the Court, I appear for

Mr Rovere. (instructed by W.G. McNally & Co)

BRENNAN J:	We will hear the matters together, I presume.
MR BARKER:	Yes.  Your Honours, I wonder if I might hand up

some material to assist Your Honours. Much of the

discussion is about photographs and I have prepared

sets of the same photographs which were before the

jury and I would ask Your Honours to look at them.

There is a chronology and a very brief analysis of

the relevant findings in Alexander's case.

Your Honours, my submissions come down to these, that the Court of Criminal Appeal should

have found the verdict was unsafe and

unsatisfactory. The so-called identification

evidence should have been rejected. It was all

objected to.

DAWSON J: Which identification evidence?

MR BARKER:	The evidence of witnesses who looked at those photographs and who gave evidence in court which
was loosely called "identification evidence"; much
of it merely evidence of resemblance. Also we submit the evidence of the police officers of what those witnesses said out of court when they saw the
photographs should also have been rejected.
Without the identification evidence and the police evidence our submission is the remaining
evidence would be quite inadequate to safely
sustain a conviction.
TOOHEY J:	Mr Barker, you are drawing a distinction between

the police evidence of what identification

witnesses said out of court and the evidence of

identification witnesses themselves and, as to the

second, there is a challenge to that also, is

there?

MR BARKER:	Yes.
BRENNAN J:	I take it that the objection to the police

evidence is based upon the competing views in

Alexander's case?

Barbaro 2 4/3/94

MR BARKER:	Yes.
BRENNAN J:	And you are seeking to uphold the view other

effect. than that to which the learned trial judge gave

MR BARKER:	Yes.
BRENNAN J:	What do you say about the ground, however, of

attack on the admissibility of the evidence of the

witnesses who gave, with varying degrees of

certitude, some indication of who the accused was

in the box.

MR BARKER:  The problem with that evidence is this: it is

not easy to answer Your Honour very briefly but the evidence suffered from classical defects. Firstly, the photographs were not shown to the witnesses

until after Mr Barbaro had become a prime suspect.

Now, the judgment of the Court of Criminal Appeal

on the second page simply says, page 6 line 15:

The Crown case was that Barbaro, Pangallo

and Romeo had declined to participate in an

identification parade.

That is so, but it was not offered to them until

after - at least it was not offered to Barbaro

until after his arrest. What happened was that he

having become a suspect, he was secretly

photographed and after that the photographs were

shown to witnesses.

If I can just tell Your Honours what happened by reference to the photographs themselves and the

chronology. In late 1989 four of the witnesses,

1989 and early 1990, were shown 26 photos, Nos 1 to

26 in the gallery I have given you.	None of
Barbaro were included.	Then the police

photographed him next to his tractor, and that is

photograph No 28. They added another photograph of

him, which is photograph 30, straight under 28, and

then, on 30 March 1990, the 36 photographs were

again shown to those four witnesses and another.

That is the first problem with the photographs themselves, that these witnesses firstly saw a set

without him, then the two were added straight after

the others. Why two was never explained except it

was said it was done in error. That, itself, was

unfair. But the courts appear to have consistently

and favourably referred to the principle that if

photographic evidence is going to be used for this
purpose it should stop at the end of the detection
process and should not be used for the purpose of -

for simply forensic purposes, and that an accused

Barbaro 3 4/3/94

person should be given the opportunity of having an

identification parade.

TOOHEY J: But if you cannot make good a special leave point

in relation to the evidence admitted from police

officers as to what identification witnesses said,

you might be hard put to get a special leave point

out of the proposition you are just putting to us.

MR BARKER:  Your Honour, as to that we point to the

injustice of the situation confined to the case

itself. We point to the practice followed by the

Crown prosecutor and the Director of Public Prosecutions and the police in showing photographs to witnesses at a conference not long before the trial. We point to the multiple showings which

must inevitably have robbed the evidence of any

real significance. And this is a practice which

emerged in this case in respect of which we submit

this Court would be interested in a consideration

of whether it is a special case.

BRENNAN J:  The problem arises, of course, if you are right

about Alexander's case, because then the evidence
of what happened out of court could only be used,
as it were, to show some consistency on the part of

the evidence that was given in court. If the

evidence that was given in court is weak and is

affected by the considerations to which you have

just referred you would have then, on your view of

Alexander's case, a fairly strong submission that

it was unsafe and unsatisfactory. But if you are

wrong about Alexander's case, then matters that you

have just been referring to really indicate how

they came to get up to whatever strength they had

by the time they got into the witness box.

MR BARKER:  Which indicates a focal flaw in the conviction,

we submit. The difficulty with the construction of

Alexander's case preferred by His Honour is that it had the practical effect of converting equivocal

uncertain evidence which really did not go beyond

mere resemblance into quite positive evidence of

identification and that is extremely unfair to the

accused and put the jury in this invidious position

of having to determine whose account should be

believed, what the witnesses themselves said they

said or observed, or what the police said they said

when shown the photographs.

BRENNAN J: But your argument goes to this extent, does it

not? Let us assume that there is a perfectly

regular identification parade and the witness who identifies the accused in that parade dies before the trial. On your submission the police officer

who received the identification could not testify

as to the making of it.

Barbaro 4 4/3/94

MR BARKER:  It would be mere hearsay unless it got in

according to the reasoning in Walton, Benz and

Pollitt's case. But you see, Your Honour, that is

not the case here. Here the best evidence was

left.

DAWSON J:  To what, you say, is a verbal act, as it were.

MR BARKER:  Yes. Going to a state of mind. But, that

situation does not arise here because we have the

evidence of the very people.

DAWSON J: As far as consistency is concerned, in fact it

does not prove consistency, it proves inconsistency
because the latter evidence was equivocal compared

with police evidence of their earlier

identification.

MR BARKER: Precisely. It led to the situation in respect

of some witnesses that they were, according to the

police evidence, they had identified photographs

which those witnesses denied.

BRENNAN J:  I think we understand the point, Mr Barker. I

do not think we need trouble you any further at

this stage. Mr Odgers, what do you say about

Rovere and the implications for that case of the points that are made by Mr Barker?

MR ODGERS:  We rely on them, Your Honour. Essential to the

case against Mr Rovere was that Mr Barbaro was

Trimarchi. If the evidence relating to that has the flaws which Mr Barker argues, then the case

against us collapses as well.

TOOHEY J:  From your point of view they stand or fall

together?

MR ODGERS: That is the case, Your Honour.

BRENNAN J: Yes. Yes, thank you, Mr Odgers. Yes,

Mr Keleman.

MR KELEMAN:  It is the respondent's submission that there

was ample evidence which would warrant the order

for a new trial. Putting the evidence

identification just for this moment to one side it

is the respondent's submission that in fact the

order for a new trial could be based on the other

evidence alone. There was the evidence of the

fingerprints on the lease document - - -

BRENNAN J: That may be so but I mean if it comes back to

retrial, does not the trial judge have to address

the problem of Alexander's case?

MR KELEMAN:	Yes, certainly.
Barbaro	4/3/94
BRENNAN J:	Is there.not a real question as to which of the

views expressed in Alexander's case should prevail?

MR KELEMAN: Certainly there is a difference of opinion in

relation to the applicable principles.	The
the Chief Justice and the agreement of
respondent, of course, relies upon the	judgment of
Justice Aickin.

BRENNAN J: Yes.

DAWSON J: That is consistency?

MR KELEMAN:  No, consistency was the judgment of the former

Chief Justice and essentially it seems that -

DAWSON J:  What is the correct view of identification

evidence in this - - -

MR KELEMAN:  We say the correct view is the view expressed

by the Chief Justice. That is that the relevant

act involved is the act of identification and its

original evidence. If that act is evidenced by

what the identifying witness claims he or she said

and an observer of that -

BRENNAN J:	If that view is wrong, then the evidence by the police officers would be excluded?
MR KELEMAN:	Not in every case.
BRENNAN J:	No, not in every case?
MR KELEMAN:	Some of the identification witnesses who gave

positive strong identification were not, if you

like, if I can use this word neutrally if it is

possible, undermined by the differing views

expressed by the police officers. For example, two

of the witnesses, perhaps three, gave evidence of

their out of court identification which was largely consistent with the evidence of the police officers

and that identification evidence cannot be assailed

in the same way that, for example, the evidence of

the Tavernas is sought to be assailed. That just

does not arise. So it not that all of the evidence

is assailed, only part of it is. It is essentially

only the evidence of the Tavernas that really falls into this category because the other witnesses give evidence of their out of court identification which is largely consistent with the evidence of the

police officers. It is only really the Tavernas

that fall into this category. Perhaps one other

witness. It would be wrong to suggest that we are

only looking at a situation where each of the
identifying witnesses gave evidence of the out of
court identification.·

Barbaro 6 4/3/94

BRENNAN J:  Mr Keleman, let us assume that the matter goes

back for retrial and that there is a conviction, the trial judge giving a direction in accordance with the views of Justice Mason in

Alexander's case. Let us assume that that effectively relates only to the evidence of the Tavernas, and then the matter comes back through the Court of Criminal Appeal and comes back here

again, the Court of Criminal Appeal in the meantime
affirming the view that Justice Mason's attitude is
correct. Would there not then be a strong ground

for seeking special leave on the footing that the
jury may have acted on the evidence of the Tavernas

in reaching the adverse conclusion and under the

influence of what would then be alleged to be a

wrong direction as to the law?

MR KELEMAN:  You mean in relation to the observers of the

Tavernas rather than the Tavernas?

BRENNAN J: Yes.

MR KELEMAN:  With respect, if I can answer it this way, I

would not anticipate that that course would be

followed if a new trial was ordered on a subsequent

occasion. I mean, the reality of it is the

Taverna's evidence formed only a very, very small

part of the Crown case. To suggest otherwise would

effectively ignore the evidence of the other

identifying witnesses.

DAWSON J: Are you saying the Crown would not call evidence

of the Taverna's prior identification?

MR KELEMAN:  From an observer.

DAWSON J: It would not call it?

MR KELEMAN:  No. On a subsequent retrial.

DAWSON J: It.did on the first trial.

MR KELEMAN: It certainly did. Perhaps with hindsight that

was not an appropriate course. I am not making any

concessions in relation to that but I would

anticipate that if a further trial was ordered that

the Crown would not approach the evidence of the

observers in the same way that it did in this

trial.

BRENNAN J:  What you are saying is there is no unsafe and

unsatisfactory ground available - - -

MR KELEMAN:	Not at all.
BRENNAN J:	- - - if you decide leave aside the question of

the Taverna's out of court identification?

Barbaro	7	4/3/94
MR KELEMAN:	Yes.	I mean the Crown could call the Tavernas.

I am not suggesting that that could not occur but

it would be inappropriate, I would have thought,

for the Crown to rely on the evidence of the

observers, essentially for the reasons stated by

the judges in Alexander. On the view of the former

Chief Justice the matter would hardly go to

consistency; have no relevance that way. On the

view of the Chief Justice, the evidence would have

marginal but I would have thought little probative

value.

So, from that point of view, from a tactical

or forensic point of view, there would be little

point in really seeking to lead that evidence on a

subsequent occasion and if you look at it in that

way, and I would submit that that is a practical

and proper way to look at it, the evidence of the

Tavernas only forms a tiny piece of the evidence

upon which the Crown relies. The Crown would still

be able to run with the evidence of the Tavernas
because the Tavernas did not say, "No, it was not

him", the evidence of the Tavernas was, "It looked

like him" or something to that effect. It would

still be relevant and admissible in relation to

supporting the other identifications and in
relation to generally strengthening the Crown case.

BRENNAN J: Leave aside the Taverna's out of court evidence or evidence about the identification out of court,

what do you say about the admissibility of the

evidence of other out of court identifications.

MR KELEMAN:  Those that are largely consistent with the

evidence of the observer and the identifying
witness, strictly that evidence would be

admissible, but again it seems to me that there

would be little point in running again with that

evidence. There would be no need to. Unless, of

course, there was a challenge made as to what might

have occurred at the earlier identification out of

court.

of what was said, but unless no challenge was made It may be then appropriate to call evidence

of that it seems to me that, looking at the

authorities, there would be little point in leading

that evidence. It is not normally done as a matter

of practice.

BRENNAN J: What it comes to is this, Mr Keleman, that if

the problem that Mr Barker refers to is a live

problem, then one would think that special leave

should be granted in this case. But, if it is not

a live problem then it may not be an appropriate

case for special leave. Now, the question of

whether it is a live problem or not depends on

whether there is sufficient evidence available to

the Crown on a retrial, apart from that which is

Barbaro 4/3/94

challenged, to support a conviction, and you say

there is. Is that right?

MR KELEMAN:  The Crown would submit there is an abundance of

evidence.

BRENNAN J: Could you just identify briefly where the

evidence comes from. We have not got it all here

obviously, but where do you say it comes from?

MR KELEMAN:  Certainly. We are putting aside, I take it,

for the purpose of this argument all of the

identification evidence. Is that correct or

only that - - -

BRENNAN J: All of the out of court identification evidence.

MR KELEMAN:  Certainly. The evidence upon which the Crown

would rely are the fingerprints on the lease

document. That was a lease document that the Crown

alleges Trimarchi, the applicant, the Crown alleges

signed when taking up the property. There are a

number of fingerprints on that document and they

are quite prominent and there are some very

prominent fingerprints on that document on the top

of the page where the lease was signed. That

fingerprint evidence provides very cogent evidence

that Trimarchi was in fact the applicant, and I

would submit that that alone would be sufficient

for the Crown to run with -

BRENNAN J: There was an explanation given, was there not,

of how that fingerprint came to be there?

MR KELEMAN:  It was suggested by the applicant, as I

understand it, that those prints were placed on the

lease document when he was interviewed some months·

after. There is a large body of police evidence,

and I particularly now focus on evidence from

fingerprint experts who are quite independent from

the investigating police, who gave evidence that

the prints were lifted off the document months
before the interview.	The document was treated

with a ninhydrin-type process and when the

applicant made a statement as to how he touched the

document his version was that he touched the bottom

corners of the document as he went through the

document. The prints on the document that the

Crown relied upon were on a number of places on the

document but principally on the top. The position

of the fingerprints found on the document above the signature are consistent, as the Crown argued, with

the applicant signing the document with one hand
and placing his other hand on the top of the

document across the top of the page.

Barbaro 9 4/3/94

BRENNAN J: Thence there is evidence on which the Crown

relies that those fingerprints were lifted before

the accused saw the document.

MR KELEMAN:  Yes, and that is strong evidence. Then there

is evidence that chairs found on the property where

the cultivation took place were similar to chairs

found in the applicant's home and that those chairs

had on them grind marks, that is the chairs found

at the property, and the grind marks were on a

place on the chairs that was consistent with

markings that were placed on the chairs found in

Barbaro's home, the applicant's home. There is

further evidence that the applicant, once arrested,

disguised his handwriting and the Crown relied upon
that as consciousness of guilt. There was also
some other evidence about the applicant being

absent from a gym for periods of time. It is

submitted that - - -

BRENNAN J: What about the signature on the lease?

MR KELEMAN:  That was the handwriting upon which the Crown was seeking to make comparison with.

BRENNAN J: And was there handwriting evidence to identify

that signature as the handwriting of the accused?

MR KELEMAN:  Yes, I understand that was the case, but there

were claims - would Your Honour just excuse me for

a moment? I withdraw what I said then. I am not

in a position really to assist directly - I cannot

really assist in relation to that.

As I understand, the only basis upon which the

Crown would have relied on the disguised

handwriting would have been if the Crown was not

able to in fact prove that the signature on that

lease that Trimarchi signed was in fact signed by

the applicant. But the Crown would have relied on

the fingerprints to assert that the person who

signed the document was in fact the applicant. This was a very live issue at the trial and

the Crown called a lot of evidence in relation to
the question of fingerprints and as I submitted

earlier, in my respectful submission, the Crown

could run with that evidence alone and the nature
of the case would be a strong one because it is
submitted that at the end of the day the

explanation given by the applicant for the

fingerprints being found on the document had little

probative value in the context of the other

evidence.

BRENNAN J: What was the evidence of out of court

identification which was consistent with the in

Barbaro 10 4/3/94

court identification? In other words, who are the

in court witnesses whose evidence was consistent

with what happened before?

MR KELEMAN:  Perhaps if I may refer to the schedule that my

friend handed up, that might assist.

BRENNAN J: The chronology, you mean, or - - -?

MR KELEMAN:  Yes, it was one of the documents my friend

handed up entitled, "Identification Witness".

TOOHEY J:  I do not think we got that.

MR KELEMAN:  I am sorry. I have got that. Then perhaps the

best thing to do is to take Your Honours to the

application book, page 33 of the application book.

The evidence of the witness, Peach, that is

referred to at line 24 clearly had little effect in

the context of the evidence of identification.

Your Honours will see from the judgment that that

evidence was equivocal and that apparently was also

the nature of the evidence that was given by the

police officer. So there was consistency in

account there. In relation to the witness, Pumpa,

at line 27:

No police officer was called to give evidence

of an out-of-court identification -

situation. So that did not apply. The next

witness was Andrew Coburn, at the top of page 34.

He gave evidence that the out of court

identification statement was to the effect that

Number 28 was the photo that resembledm Pat.	The
police officer observing that indication, he
indicated both photos 28 and 30 and said:

"They are both definitely Pat".

So that evidence falls more in the category of the

Taverna's. The evidence of Mr Coburn who was -

BRENNAN J: And he knew "Pat" as being the farmer on the

adjoining property, is that right?

You can continue past the appointed time,

Mr Keleman.	We need to understand what this
evidence is.

MR KELEMAN:  He said "Number 28 was Pat". He gave a

positive dock identification as well and according

to the police officer - - -

BRENNAN J:	Who is Maxwell Coburn?
MR KELEMAN:	He was a farmer in an adjoinir;g property.

Barbaro 11 4/3/94

TOOHEY J:  He was a relation, obviously, of Andrew Coburn.

MR KELEMAN:  Yes. So, the evidence then that he gave in

court and of his out of court identification was

largely consistent and largely consistent, we would

submit, with what the police officer said in

relation to what was said out of court.

The same applies to the next witness,

Barry Collins. Barry Collins actually saw, the

Crown asserts, the applicant on the property on a number of occasions and spoke to him on a number of

occasions on the property. He gave "positive out-

of-court identification" and it was consistent

with, as I understand it, what the police officer

said occurred out of court. No look, I am sorry -

Collins was not in fact the - I am sorry, I will

withdraw that. Collins was not the farmer on the

farmer next door. Collins was the sales manager of

an organization from whom the applicant purchased a

planter for corn, but the importance of his

evidence was that it was positive and there was no

inconsistency between his out of court

identification and the positive evidence of
identification subsequently.

Michael Hind, an agronomist, gave positive

identification of the applicant. It was qualified
in that in relation to photograph 28 he said:

that if it was a front view I would probably

be able to identify him positively. But as it

was side-on I wasn't quite sure".

It is submitted that the evidence of the police

officer is largely consistent with that out of

court identification. Your Honours will see at

page 35 of the application book at line 6 that the

officer said words to the effect of his statement

to him, "It is only a side view but it looks

similar". That is largely consistent. This was the witness that I had mistakenly

thought Collins was earlier. Mr Rex Oswin, a

farmer on the adjoining property, gave positive

dock identification of the applicant. He was the

one who saw the applicant on a number of occasions

on the property and spoke to him on a number of

occasions. Now his evidence is entirely positive

and entirely consistent with what occurred out of

court at the earlier identification.

So, Your Honours will see that only some of the identification evidence is subject to the

difficulties that have been expressed in relation

to the differing judgments in Alexander's case and

it is quite clear that a number of the

Barbaro 12 4/3/94

identification witnesses would suffer little

difficulty as a result of whatever version was

relied upon in the differing judgments in

Alexander's case because they gave evidence of

identifications ou~ of court that were consistent

with their subsequent identifications and

consistent with what the police officers said

occurred out of court.

DAWSON J:  You could not keep evidence of the prior

identifications out, could you, coming by way of

cross-examination, even if it did not come in

examination in-chief?

MR KELEMAN:  The evidence of the prior identification?

DAWSON J: Yes.

MR KELEMAN: That is, in fact, what the Crown would rely

upon. The subsequent identifications - - -

DAWSON J:  By "subsequent identifications" you mean

identifications in the witness box?

MR KELEMAN:  Yes. The only identification really that has

any probative value, I would submit, is the

original identifications made. The subsequent

identifications ultimately only go to one thing,

and that is perhaps what weight you might give at

the end of the day to dock identifications. And I

would have thought at the end of the day that
weight would be very little.

It was submitted earlier that the evidence was

tainted because of these multiple showings. With

all due respect that evidence of the multiple

showings can really only go to the weight one gives

at the end of the day to the dock identifications. court identifications made.

DAWSON J:	given the book of photographs and would be asked, So the process would be the witness would be	"Did you identify the accused as being any one of
those photographs?"

MR KELEMAN:  Yes.

DAWSON J: And then he would be asked, "And do you see the

accused present?"

MR KELEMAN:  Not necessarily. The witness can be asked

which photograph he identified. Evidence need not

come from the witness as to who it is, in fact, in

the photograph. That can come from a police

officer and, in fact; that is the way it is

invariably done. That is the better way.

Barbaro	13	4/3/94
DAWSON J:	Very well.	The next question would be, would it,

"And do you see the person you identified present

in court today?"

MR KELEMAN:  Not necessarily. Given the multiple showings

of the photographs, that question Your Honour just

posed, in my respectful submission, would probably
not be asked by a prudent Crown p rosecutor

because it could have no weight because of the

displacement effect, which takes it all back to the

reliability of the original identifications.	The
subsequent identifications have really little
probative value, including the dock
identifications.

DAWSON J: But does that not still throw up a question as to

the nature of the prior identification?

MR KELEMAN: 

Only in relation to a small number of the

witnesses, and then the Crown would simply rely on
what they say, and none of them denied making any

identification. All that occurred was there were

varying degrees of certainty, starting off the high

certainty being with Oswin and Collins going down

to the Tavernas, ignoring, I think, Peach whose

evidence was of no value at all.

BRENNAN J: 

Mr Barker, it seems like the ball is back in

your court.

MR BARKER:  Yes, Your Honour. It is very difficult to deal

with this sort of evidence in a special leave

application, but it is not right to say there was

an abundance of evidence. There would appear to

have been at least five witnesses in respect of

whom the police gave evidence at variance with

theirs, but if my friend is really saying that this

situation has been brought about because the Crown

called this evidence when it should not have, that

is a very good reason why there should not be a

second trial.

BRENNAN J: That is a matter which no doubt has been

considered by the Court of Criminal Appeal.

MR BARKER: It was, Your Honour. But there was a lot wrong

with this identification evidence so-called,

besides the the Alexander question. Apart from the

multiple showings, the witness Collins, for

example, was shown the photographs on the morning

at the court before he gave evidence. The two

witnesses, Coburn and the Tavernas were at the

court for some four days watching the accused

coming and going before they gave evidence.	The
witness Oswin, who my friend said gave strong
positive evidence, was unable to identify
Mr Barbaro at the committal proceedings.

Barbaro 14 4/3/94

TOOHEY J: But your difficulty is this, is it not: you have

an order for retrial so the application for special
leave really depends upon making good the

proposition that the verdict was so unsafe and

unsatisfactory that no retrial should be ordered.

That is to state the obvious, but it is a fairly

heavy onus that is cast on you in inviting this

Court to grant special leave when the question in

respect of which special leave really was sought

initially may not be a live one.

MR BARKER:	I question that, with respect, Your Honour. would depend I suppose who finishes up prosecuting	It
the case, and we have not been told that the decision about this.

BRENNAN J: But we ought not to take on board a special

leave case for the purpose of deciding an issue

which might turn out to have no practical

application to the retrial.

MR BARKER:  Your Honour, it may well have a practical

application - - -

BRENNAN J: It may or it may not.

MR BARKER:  - - - of great significance to the applicant

and, indeed, other cases. As to the unsafe and

unsatisfactory point, in my submission, this case

in principle is no different from Horris and

Whitehorn and cases where the Court has examined

the evidence and seen its deficiencies.

For example, my friend says, "Well, the jury

can rely on the fingerprint evidence", and there

was no credible explanation given about it. I

wonder if I might briefly give Your Honours the

lease in question, or copies of it. The fact is

that the applicant's solicitor, Mr McKenzie, who

was present when he was arrested, said that

firstly, the lease was not stained red, it was an
ordinary document.	He is a solicitor and he has
seen lots of ordinary documents.	He said secondly,

that the certificate of title portion of the

document, which is the last three pages, were

present because he remembers seeing the plan on the

second-last page; and he says Mr Barbaro handled

the document. But the police evidence is that the

fingerprints that the lease - - -

BRENNAN J:	He said Mr Trimarchi handled the document.
MR BARKER:	No, at the interview with the police.

BRENNAN J: At the interview, ·yes, I see.

Barbaro 15 4/3/94

MR BARKER:  The police evidence was that the fingerprints

had been discovered before the interview, and that

the document was stained red and that for some

reason which they could not explain, there were

pages missing from it, being the title reference of

the certificate of title.

DAWSON J:	I am sorry, I am not following this, Mr Barker.
MR BARKER:	Your Honour, he was arrested on 1 April 1990.

The police before then had, according to them,

tested the document for fingerprints, and because

of the nature of the ninhydrin chemical it then

became permanently stained, or something like that.

They said there was no reason for them to have

taken the document apart for the purpose. They

said that Mr Barbaro's fingerprints appeared on the

certificate of title part of it as well as other

parts. The police also said he did not handle the

document at the interview.

The solicitor and Mr Barbaro both said

firstly, that the document was not stained red, so

if that is right it had not been subjected to the

ninhydrin treatment, and these pages were present.

It is difficult to see how a jury could just reject that evidence, particularly from the solicitor, and

at the same time reject the solicitor's evidence

that Barbaro handled the lease at the interview.

BRENNAN J:  Why? Was there not contrary evidence?

MR BARKER:  From the police?

BRENNAN J: Yes.

TOOHEY J:  You see, in a case like Morris you have evidence

which is so intrinsically unacceptable that a court

in the position of this Court can make some sort of

assessment. But where you have a range of

material - evidence to be adduced by the Crown and

contradicted by the accused, it would be very

difficult for this Court to make a decision that

the verdict was so unsafe and unsatisfactory that

there should not be a retrial.

MR BARKER:  Your Honour, there is a real problem with the

whole of the identification evidence.

TOOHEY J: Yes, I understand that, but your argument touches

the evidence at so many points that in a way it

demonstrates that it is not perhaps the sort of

case in which this Court could really rule that it

is an unsafe and unsatisfactory verdict.

Barbaro 16 4/3/94

MR BARKER:  We have this disadvantage on special leave

applications, of course. I cannot take

Your Honours through all the evidence.

BRENNAN J: Of course, that is one of the reasons why there

J

is a special leave application. In other words,

this is not a court of criminal appeal - - -

MR BARKER:	I understand that, Your Honour.
BRENNAN J:	- - - and the view sometimes, and I am not

suggesting that you are one of those who conveyed

this view, Mr Barker, but there is oftentimes a

view that this Court is a court of criminal appeal

and that special leave applications can be

approached in that way. The fact is that we are

not.

MR BARKER:  I have read too often such pronouncements to

fall into that error.

TOOHEY J:	I thought you understood that pretty clearly.
MR BARKER:	The point I was trying to make earlier is that

the conduct of those prosecuting and investigating

in relation to these photographs and what was seen

by the Crown to be vital identification evidence is

such that this Court ought to look at it, with

respect, apart from the Alexander question. It was

tainted evidence. It remains tainted, and it is
not going to improve on a new trial. With respect

to the Court of Criminal Appeal, Their Honours were

wrong in not taking that view, and in ordering that

the applicant be retried.

Returning finally to the Alexander point, it

remains an open question, with respect, and if this

does go back for trial it may well be that someone

will be standing here making the same sort of

submissions again in a year's time - - -

DAWSON J: That is quite possible.

MR BARKER:	- - - which is a reason why this Court should look at it now, with respect.	Thank you,
Your Honours.

BRENNAN J: Yes, Mr Odgers.

MR ODGERS:  Thank you, Your Honours. There are, briefly,

two points. In my submission, absent the

identification evidence, there simply is not enough

material to justify a new trial. If the High Court

were to grant special leave and to accept that the

identification evidence was fatally flawed in toto,

then it would have a·discretion whether or not to

order a new trial. It is not simply a question of

Barbaro 17 4/3/94

whether the conviction is unsafe. It would have to

determine whether or not it was appropriate to

order a new trial, and given what I submit, and Mr

Barker has submitted, are the great weaknesses with

what is left, it would be quite open to the Court

to conclude that in all the circumstances a new

trial should not be ordered.

In relation to the identification evidence, if

I might submit, there is a special leave question

which really has to be resolved relating to the

police methods of obtaining the evidence. the proposition that even if photographic

identification occurs after the completion of the

detection process, that it is really a matter of the trial judge's discretion balancing probative value and prejudice whether or not the subsequent

identification evidence should be excluded.

However, three members of that court, a majority of the court indeed, expressed very strong views, that

if photographic identification is used after the

completion of the detection process, that is wrong,

it is improper and - - -

DAWSON J: What is the significance -

MR ODGERS:  The significance is this, Your Honour: it is my

submission that the fairness discretion which is

often applied to confessional evidence should also

be available in relation to identification

evidence. So if the police use improper methods to

obtain evidence which causes unfairness to an

accused, creates potential difficulties at

trial - - -

DAWSON J: What I was really asking is why does unfairness

arise because of the completion of the detection

process in using photographic evidence?

MR ODGERS: Simply this, that once they have a firm suspect

they can always go along to that person and say,

"Will you take part in an identification parade?"

If the person declines, they can say, "Very well,

we will use an alternative method." But he should

be given the opportunity. That did not occur in

this case. Mr Barbaro was a firm suspect. They

chose surreptitiously to take photographs and put

them into a folder where there were only ten added,

two of which were him. That really caused great

risks to him that he would be selected, and it is

my submission that the unfairness of following that

procedure is a basis for exclusion of effectively

all the identification evidence. If that follows,

then the question for the court would be

ultimately, "Assuming' that that should have been

Barbaro 18 4/3/94

excluded, should a new trial be ordered on what is

left?"

I repeat what Mr Barker has submitted that

really there was very, very little left other than
the fingerprint evidence where you had police

evidence against the evidence of a solicitor.	None
the less, what I submit is a special leave point

which should be considered is the nature of a trial

judge's discretion in relation to the methods of
obtaining identification evidence. Alexander did

not resolve that question. In fact, it seems to

have been interpreted in a way which, in my

submission, is wrong, which is -

BRENNAN J:  Was it addressed by the Court of Criminal

Appeal?

MR ODGERS:  I was there and I am trying to remember. I am

not sure that that precise point that I am putting

to the Court was addressed, but the discretionary

basis was. It was argued that there was unfairness

in the methods used which, quite apart from issues
of probative value and prejudice, meant that the

material should have been excluded, and that the

Court of Criminal Appeal simply - indeed, it fell

into the error which Mr Barker referred to earlier

which is, they said, "Well, he was offered an

identification parade." The fact of the matter was

he was only offered that some long period after the

photo identifications had occurred, by which time

it was obviously pointless. The court seemed to

have simply concluded that there was no unfairness.

The issue was raised, but not perhaps as explicitly

as I have sought to raise it.

BRENNAN J: Having regard to the evidence available to the

Crown on the retrial ordered by the Court of

Criminal Appeal and the uncertainty as to whether

the evidence on that retrial would give rise to a consideration of the competing views expressed in

Alexander v Reg, (1981) 145 CLR 395, these cases

are not ones which warrant the grant of special

leave. The other points raised by counsel for the
applicants do not warrant a grant of special leave.

Special leave will be refused in both cases.

AT 11.15 AM THE MATTER WAS ADJOURNED SINE DIE

Barbaro 19 4/3/94