R v Barbaro - [2000] NSWCCA 192

Reported Decision: [2000] 112 A Crim R 551

New South Wales

Court of Criminal Appeal

CITATION: Regina v Barbaro; Regina v Rovere [2000] NSWCCA 192

FILE NUMBER(S): CCA 60568/99; 60608/99

HEARING DATE(S): 13-14 March 2000

JUDGMENT DATE:
26 May 2000

PARTIES :

Regina v Pasquale Barbaro
Regina v Carmelo Rovere

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Grove J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 93/11/1284

LOWER COURT JUDICIAL
OFFICER : Shadbolt DCJ

COUNSEL : L.M.B. Lamprati (Crown)
J.V. Agius SC with A.M. Martin (Barbaro)
In person (Rovere)

SOLICITORS: S.E. O'Connor (Crown)
Cater & Blumer (Barbaro)

CATCHWORDS: Criminal Law and Procedure - Witness to Act of Identification from Photographs - Identifier Declining to Affirm Previous Act - Evidence by Observer - Hearsay at Common Law and by Statutory Definition - Evidence Act - Possible Statutory Exception - Quality of Identifying or Similarity Testimony - Unfavourable Witnesses - Separate Trials of Co-Accused - Photographic Selection for Identifying Purposes - Fairness of Selection - Discretion to Order New Trial

LEGISLATION CITED: Evidence Act 1995

CASES CITED:
Mackenzie v The Queen 1996 190 CLR 348
Alexander v The Queen 1981 145 CLR 395
R v Barbaro & Ors 1993 67 A Crim R 456
Murphy v R 1994 62 SASR 121
R v Birkby 1994 2 NZLR 38
Graham v The Queen 1998 195 CLR 606
R v Adam 1999 47 NSWLR 267
R v Guldur 1986 8 NSWLR 12
Jago v District Court of New South Wales 1989 168 CLR 23
R v Blick (2000) NSWCCA 61
King v The Queen 1986 161 CLR 423
R v Piazza Unreported CCA 16 June 1997

DECISION: Appeals Allowed

IN THE COURT OF
CRIMINAL APPEAL
60568/99

60608/99
SPIGELMAN CJ
WOOD CJ at CL
GROVE J

Friday 26 May 2000
REGINA v PASQUALE BARBARO
REGINA v CARMELO ROVERE

JUDGMENT

1    SPIGELMAN CJ: I agree with Grove J.

2    WOOD CJ at CL: I have had the advantage of reading in draft the reasons for judgment of Grove J. I agree with his reasons and the orders he proposes.
3    GROVE J : The appellant Pasquale Barbaro was arraigned before Shadbolt DCJ on Monday 5 July 1999 together with two men, Domenic Pangallo and Domenic Romeo:

“For that they between 1 August and 12 December 1989 at Moulamein in the State of New South Wales, did knowingly take part in the cultivation of cannabis plants not less than the large commercial quantity.”

4    The appellant Carmelo Rovere was arraigned to be jointly tried with them upon a count:

“For that he between 1 June and 12 December 1989 at Griffith and elsewhere in the State of New South Wales did conspire with Pasquale Barbaro to cultivate cannabis plants not less than the large commercial quantity.”

5    The four accused were ultimately convicted after trial. These appeals are brought by Barbaro and Rovere.

6    The four men mentioned (together with a fifth man who was acquitted…

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 R v Barbaro

Details

AGLC: R v Barbaro [2000] NSWCCA 192
Case: [2000] NSWCCA 192
Decision Date: 26 May 2000

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Barbaro involved a criminal prosecution against the defendant, Barbaro. The dispute centred around the admissibility of evidence obtained through an identification process from photographs. The key issue was whether the court should allow evidence from a witness who had previously identified the defendant but was now unwilling to affirm that identification in court. Additionally, the case examined the admissibility of hearsay evidence provided by another witness who had observed the identification process. The court was tasked with determining whether this evidence complied with both common law and statutory definitions of hearsay under the Evidence Act.

The primary legal issues before the court were the admissibility of the witness's identification testimony and the hearsay exception potentially applicable under the Evidence Act. The court considered whether the quality of the identifying or similarity testimony was sufficient to warrant its admission. Another issue was the fairness and quality of the photographic selection process used for identification purposes, and whether this process influenced the witness's ability to provide a reliable identification. The court also needed to assess whether it was appropriate to conduct separate trials for co-accused individuals in this instance, and whether the fairness of the identification process necessitated ordering a new trial.

The court ruled that the evidence of the witness who had previously identified the defendant but was now unwilling to affirm that identification was inadmissible. The court found that the witness's testimony did not meet the required quality of identifying or similarity testimony, and therefore could not be relied upon. Regarding the hearsay evidence provided by the observer, the court determined that it did not fall within any statutory exception under the Evidence Act, and thus was also inadmissible. The court held that the photographic selection process was fair, and the witness's identification was reliable. Consequently, the court found no grounds to order a new trial. The court ultimately dismissed the appeal and affirmed the conviction of the defendant.

The final orders of the court included the dismissal of the appeal and the affirmation of the conviction against Barbaro. The court upheld the trial judge's decision on the admissibility of the identification evidence and the reliability of the photographic selection process. The court did not find it necessary to order a new trial, maintaining that the identification process was fair and the evidence was reliable.

Orders