Barbaro v The Queen; Rovere v The Queen

These proceedings before the High Court of Australia concerned applications for special leave to appeal against decisions of the Court of Criminal Appeal of New South Wales. The applicants, Mr Barbaro and Mr Rovere, sought to challenge their convictions. The core of the dispute revolved around the admissibility and reliability of identification evidence presented at their trials.

The legal issues before the High Court included whether the Court of Criminal Appeal erred in upholding the trial judges' decisions to admit certain identification evidence. Specifically, the applicants contended that the identification evidence was unsafe and unsatisfactory, arguing that it should have been rejected. This encompassed challenges to both the evidence of witnesses who identified the accused from photographs and gave evidence in court, and the evidence of police officers regarding what those witnesses had stated out of court when shown the photographs.

The applicants' submissions focused on the alleged defects in the photographic identification process. They argued that the photographs were shown to witnesses after Mr Barbaro had become a prime suspect, and that the process was unfair. This included the fact that initial sets of photographs shown to witnesses did not include Mr Barbaro, and that subsequent photographs of him were added to the display after he had been secretly photographed. The applicants contended that this procedure was contrary to established principles regarding the use of photographic evidence for identification purposes, which should cease at the end of the detection process and not be used for mere forensic purposes, and that an accused person should be afforded the opportunity to have legal representation present. The applicants argued that without this identification evidence, the remaining evidence would be insufficient to sustain their convictions.