R v Chiacchietta

[2004] VSCA 21

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 129 of 2002

THE QUEEN

v.

NICHOLAS CHRISTOPHER CHIACCHIETTA

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JUDGES:	VINCENT, J.A. and SMITH and COLDREY, A.JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 March 2004
DATE OF JUDGMENT:	2 March 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 21

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Criminal Law – Conviction – Concession by Director of Public Prosecutions of serious issues with respect to identification evidence adduced at trial – Appeal allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C., D.P.P. Ms C. Quin	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr B. Lindner	Slades & Parsons

VINCENT, J.A.:
SMITH, A.J.A.:
COLDREY, A.J.A.:

1. At the commencement of the hearing this morning, Mr Coghlan, the Director of Public Prosecutions, indicated that it was accepted that a re-trial was required in this case.  Without conceding any of the arguments which it was anticipated would be advanced on behalf of the applicant, he nevertheless accepted that there were some serious issues to be considered with respect to the identification evidence that was adduced in the trial.  Included among them was the possibility of the abuse of an appropriate evidentiary foundation to support the evidence of identification of some of the witnesses.  It was, in this context, pointed out by him that there appeared to be a gap between the evidence of opinion of the identity of the individual depicted in the video-tapes shown to those witnesses and evidence that the person so shown was the applicant.  He indicated that this evidence may well be available and could well be adduced in the event that a re-trial were ordered. 

1. Setting to one side these obviously legitimate concerns, he accepted that the judge's charge was deficient in a number of important respects.  One or two of them may have arisen from the manner in which his Honour expressed himself with respect to the evidence, or, indeed, may have simply reflected some error in transcription.  It is not necessary to address those particular matters, as he submitted that it was apparent that this was a case in which an instruction with respect to the proof of identity on the basis of circumstantial evidence was required but none whatever was given by the trial judge.  It is the view of the Court that this concession by the Director was soundly based, and that a re-trial should be ordered.

1. Consideration was given to whether or not guidance could be provided to any subsequent trial judge with respect to the other questions raised concerning  identification evidence adduced in the trial or as to the kind of instruction which ought to be given in relation to the circumstantial evidence aspects of this matter.  However, it became clear in the course of discussion that, as it was relatively unlikely that the evidence to be adduced on a re-trial would be the same as that

which was presented in the earlier proceeding, there seems to be little point in embarking upon a speculative exercise encompassing a number of possible scenarios in an advisory capacity.  In the circumstances, we have declined to engage in such an exercise. 

1. However, as earlier mentioned, some concerns have been felt by the members of the Court relating to the admission of the identification of the applicant in the vicinity of a court at the time of the committal hearing, bearing in mind the circumstances under which the respective identifications were made, and the earlier exposure of the witnesses involved to photographs and to video recordings of a person engaged in criminal conduct.  However, we have not heard argument in relation to those matters and simply express these views in a tentative fashion.

1. Accordingly, it is the order of the Court that leave to appeal be granted.  The appeal is treated as being heard instanter and allowed and a re-trial is ordered.

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