Regina v Barbaro; Regina v Rovere

Court of Criminal Appeal (NSW)|2000-03-14|Before: Spigelman CJ, Wood CJ, Grove J

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 Shadbolt DCJ OFFICER :

SPIGELMAN CJ WOOD CJ at CL GROVE J

REGINA v PASQUALE BARBARO REGINA v CARMELO ROVERE

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 on the jointly charged count) had been arraigned in September 1991 in the Albury District Court on identical counts and each of them was, after conviction, sentenced. An appeal to this Court was listed and heard in September 1992 and March 1993. On 24 May 1993, appeals against the convictions at Albury District Court were upheld, the convictions and sentences quashed and new trials ordered. The present appellants, Barbaro and Rovere, applied for special leave to appeal to the High Court of Australia. On 4 March 1994, special leave was refused. 7 The hearings presided over by Shadbolt DCJ were the new trials ordered by this Court in May 1993. Neither the appellants nor the Crown invited investigation of the considerable delay apparent before the matters were retried. Some explanation can be gained by reference to the extended course of related litigation: Mackenzie v The Queen (1996) 190 CLR 348 and the detailed chronology annexed to the interlocutory judgment delivered by Shadbolt DCJ on 9 July 1999. 8 Some background facts should be sketched. On 12 December 1989 a police helicopter crew detected a plantation of cannabis concealed within a large crop of corn upon a property, "Lenlin" which was located about twenty kilometres from Moulamein. Police officers visited the property and found no person present but there were signs of current occupation. Later investigation revealed a camouflaged "hide" into which it was deduced that a person seen on the property from the air, must have gone. An irrigation system was in place for the crop which was found to consist of about 20,000 plants which were removed by police and destroyed. 9 Lenlin was owned by Bruno Taverna, his wife and members of his family. The appellant Rovere was a stock and station agent with offices in the Irrigana Hotel building at Griffith. He was a cousin of Bruno Taverna. He introduced to the Tavernas a man giving the name Pat Trimarchi. Negotiations for the lease of Lenlin resulted in instructions being given to Mahon, a solicitor in Victoria, to prepare a lease. The necessary documentation was forwarded to an address given as 13/116 Cabramatta Road, Sydney and it was returned apparently executed by "Tony Trimarchi". The lease was for a term of twelve months commencing on 1 August 1989 and provided for rental by six instalments each of $13,333. 10 The Crown case was simply that Pat Trimarchi (and others) knowingly took part in the cultivation and that a person masquerading as Pat Trimarchi was in fact the appellant Barbaro. 11 As mentioned, Barbaro and Rovere were arraigned upon different counts. About ten days prior to the hearing of this appeal, the appellant Rovere was released on parole after serving the minimum term component of the sentence imposed upon him by Shadbolt DCJ. He applied for adjournment of the hearing of his appeal in order to enable him to raise funds for legal representation. He did not have the benefit of a grant of legal aid. I shall return to the issues in his appeal but it is convenient to deal first with the grounds advanced on behalf of the appellant Barbaro which, insofar as they touched upon his own case, Rovere adopted. 12 The grounds advanced on behalf of the appellant Barbaro (including an amended ground) were expressed as follows: "1. The trial judge erred in admitting evidence from police officers of what was said to them by witnesses purporting to make an identification of the Appellant about the fact of identification. 2. The trial judge erred in admitting evidence from witnesses who purported to make an identification of the Appellant of what it was that they said to police officers about the identification. 3. The trial judge erred in admitting the evidence of the witness Peach concerning the identification of the Appellant. 4. The trial judge erred in permitting the Crown to cross examine its own witness Bruno Taverna. 5. The trial judge erred in not granting the Appellant a separate trial. 6. The trial judge erred in not granting the Appellant a stay of proceedings. 6A. The trial judge erred in not rejecting the identification evidence which depended upon the use by the police of the photoboard (Exhibit Q). 7. The trial judge erred in directing the jury as to the manner in which they should approach the evidence of the witness Bruno Taverna. 8. The trial judge erred in directing the jury that they should treat the evidence of Andrew Coburn and the witness Lindsay Lowe as evidence of identification rather than evidence of similarity. 9. The trial judge erred in directing the jury as to how they could use evidence of similarity as opposed to evidence of identity. 10. The verdict was unsafe and unsatisfactory and resulted in a miscarriage of justice."

Grounds 1 and 2 13 Grounds 1 and 2 were argued together. A number of propositions were advanced in support of them. 14 The first requires some background reference. Judgments in Alexander v The Queen 1981 145 CLR 395 reveal a difference in opinion concerning the nature of evidence by a witness testifying to an act of identification performed by another. The most common example would be a police officer giving evidence that a person, on being shown a selection of photographs pointed out a particular image in response to a request to attempt identification. Such photographs are usually numbered and no doubt it may frequently arise that an identifier, called to give evidence much later, might remember performing an act of identification but by that time can, either not remember the number or the particular image, or neither of them. By reference to records, the police officer can supply necessary detail. The issue could be further complicated by the identifier seeking to resile from the act of identification. Such is the present situation (in the cases of some witnesses) and I will turn to that aspect later. 15 A primary issue is the status of the evidence of the policeman (or other) who witnessed the act of identification. The judges in Alexander were agreed that such evidence was admissible. If I may epitomise the principal contrasting views, Mason J (as he then was) held that such evidence did not violate rules relating to hearsay or best evidence and thus testimony of the nature of that under discussion should be classified as direct evidence of an act of identification. Gibbs CJ regarded the principle justifying the admission of such evidence as obscure and opined that, if not an exception to the hearsay rule, the rationale of its admission must be to show consistency between testimony and the previous act of the identifier, along the lines that evidence of complaint was admitted in sexual cases. Thus the Chief Justice would admit the evidence where the identifying witness was consistent or where that witness had forgotten the detail but would hold otherwise in a case where the witness did not adhere to his or her earlier act of identification. It is not necessary to elaborate upon the views of other members of the Court. Aickin J agreed with Mason J. Murphy J held the evidence admissible in the instant case because it proved what had become an issue therein, namely the reliability of in-court identification or the completion of an incomplete in-court identification. Stephen J dissented from the orders agreed by the balance of the Court for reasons which need not now be explored. 16 It is significant that the views expressed in Alexander expose the position at common law and it will be necessary to consider any consequences of the passage of the Evidence Act 1995. The application for special leave by the appellants to the High Court of Australia in respect of the appeal to this Court in connection with the trial at Albury also preceded the changes wrought by that Act. 17 A transcript of the hearing of that application was supplied and reference to it was made by all parties. From it, it appears that in the course of exchange with counsel, the presiding judge (Brennan J, as his Honour then was) with reference particularly to foreshadowed challenge by the appellants to the views of Mason J in Alexander remarked that if it was "a live problem, then one would think that special leave should be granted in this case". There followed discussion in which counsel then appearing for the Crown (at the time holding office as Deputy Director of Public Prosecutions) asserted that, at the retrial ordered by this Court, it was expected that there would be an abundance of (incriminating) evidence other than that of police witnesses testifying to acts of identification by persons who had, when called, either recanted or qualified such earlier act when called to testify. 18 Special leave was ultimately refused, the presiding judge concluding with the observation that there was "uncertainty as to whether the evidence on ……..retrial would give rise to a consideration of the competing views" expressed in Alexander . 19 The discussion noted in the transcript included observations by counsel for the Crown that there seemed little point in "running again" with evidence of the acts of identification by persons who would be expected not to adhere to having done so when called to the witness box, inter alia, he stated: "I am not making any concessions in relation to that (that is, the calling of observers at the trial in 1991) 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." 20 At the trial in 1999 the subject evidence was led. It is contended that this represented a retraction by the Crown from an implicit undertaking or, at least a representation, that the evidence would not be called at retrial and this Court should, in the enforcement of standards of fairness, hold the Crown to the position which it was asserted to have adopted in the High Court. 21 The intention of the Crown to adduce the evidence was notified in advance of the retrial and a ruling sought from Shadbolt DCJ. His Honour dealt with this and other issues in his judgment of 9 July 1999. On this issue he held that he was unpersuaded that the appellants had been deprived of some chance (of a judgment of acquittal in lieu of the order for new trial) as a result of undertaking by the Crown because a "revisiting of Alexander's case would not of necessity resolve problems in any retrial". 22 His Honour's conclusion was correct. The exchange between members of the High Court bench and counsel does not reveal an undertaking express or implied, to refrain from calling evidence and it is apparent that the primary reason for refusal of special leave was the absence of conclusiveness that there was likely to be required for determination, a definitive preference for one or the other of the different views expressed in Alexander . 23 The opinion of Mason J (Aickin J agreeing) in Alexander was followed in this Court in the earlier appeal: R v Barbaro & Ors 1993 67 A Crim R 456. That decision (and hence the opinion of Mason J) has been followed by a Full Court of the Supreme Court of South Australia: Murphy v R 1994 62 SASR 121. The differing view was adopted in New Zealand: R v Birkby 1994 2 NZLR 38. 24 There is no case made out for the departure by this Court from its previous decision in Barbaro . That adherence redeclares the common law in this State. The question arises whether the common law has been relevantly qualified by the Evidence Act. The rejection of the contention of the appellants, that the view of Gibbs CJ in Alexander is to be preferred and their contention that Barbaro was wrongly decided, does not answer that question. 25 It is convenient to interpolate reference to the Crown submission that it follows from accepting the correctness of Barbaro that the evidence of observers is primary evidence of the occurrence of an act of identification and available to prove the truth of its content, namely that the image is that of a person whom it is stated to be. It is therefore contended to be otiose to consider the provisions of the Evidence Act concerning hearsay (Part 3.2). Alternatively, the Crown submits that if the provisions do apply, the evidence is admissible pursuant to s66. Unless otherwise stated, unreferenced section numbers herein are to the Evidence Act 1995. I do not consider that the legislation can be treated as inapplicable in any sense. 26 Evidence is excluded by force of s59(1). That provision operates in its own terms and is not expressed to operate in respect of everything or any specified range of things which would be classified as hearsay at common law although obviously there is much commonality. 27 Section 59(1) provides: "Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation." 28 Both "previous representation" and "representation" are defined in the dictionary within the statute namely: " Previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced. Representation includes: (a) an express or implied representation (whether oral or in writing), or (b) a representation to be inferred from conduct, or (c) a representation not intended by its maker to be communicated to or seen by another person, or (d) a representation that for any reason is not communicated." 29 In the present context I find it inescapable to conclude other than that a statement by a person viewing a collection of photographs, that one of them is recognized as a particular individual (whether by name, or by reference to identifying that person as the perpetrator of some viewed activity, or in some given circumstance) is a fact that the person intended to assert by the representation. In effect the identifier is saying: "that is the person". Such representation has inevitable reference to something which has occurred in the past and necessarily then, previous to giving evidence and thus is, unless otherwise permitted, excluded by force of s59. 30 The Crown did seek to rely (in its alternative stance) on s66. The relevant part of that provision is s66(2) namely: "If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by: (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation." 31 An issue was raised concerning what is the asserted fact, in the context of evidence of observation of an act of identification, which is required to be fresh in the memory of the person who made the representation. In Graham v The Queen 1998 195 CLR 606 in their joint judgment, Gaudron, Gummow and Hayne JJ observed: "The word 'fresh' in its context in s66, means 'recent' or 'immediate'. It may also carry with it a connotation that describes the quality of the memory (as being 'not deteriorated or changed by lapse of time' Oxford English Dictionary, 2nd ed (1989), 'fresh' sense 7a) but the core of the meaning intended, is to describe the temporal relationship between 'the occurrence of the asserted fact' and the time of making the representation. Although questions of fact and degree may arise, the temporal relationship required will very likely be measured in hours or days, not, as was the case here, in years." 32 Callinan J (with whom Gleeson CJ agreed) wrote: "I return to the appellant's argument that the Court of Criminal Appeal misconstrued s66 of the Evidence Act. Whilst it cannot be doubted that the quality or vividness of a recollection will generally be relevant in an assessment of its freshness, its contemporaneity or near contemporaneity, or otherwise will almost always be the most important consideration in any assessment of its freshness". 33 The Crown submission was that what was required to be fresh in the memory was the mental image corresponding with the photographic image being indicated at the time of identification. It therefore was contended to follow that the evidence of the observer was admissible pursuant to s66(2)(b). 34 What are under consideration are cases where the witness has recanted or qualified an alleged act of identification and evidence is being adduced from a person who saw, heard or perceived the representation being made. There is obvious contemporaneity between an act of identification, for example "this is a photograph of (the offender) whom I saw in such and such a circumstance" and the witnessing of this by an observer and hence there could be little argument, if the Crown's contention be correct, that that occurrence was fresh in the memory. The same contemporaneity attaches to the conceptualization of the image and the statement by the identifier. But, in the example given, the asserted fact is not the unembellished parts of the statement "this is (the offender)". It cannot be severed from the balance "whom I saw in such and such a circumstance". The latter is an assertion of fact, the former a conclusion based on that assertion. This construction and application gives natural meaning to the word "memory". The image which is called to mind at the time of making the statement of identification is that which the identifier has seen before. In my opinion it is the remembered circumstance which enables the statement of conclusion and it is therefore the enabling remembered fact which must be fresh in the memory in order to fulfil the requirement of s66(2)(b). 35 As I have noted, the testimony of the observer of the act of identification may be classified as primary evidence at common law but the provisions of the Evidence Act, s59 in particular, operate so as to encompass that evidence within a statutory concept of hearsay. 36 None of the memories of the recanting or qualifying witnesses of their respective encounters with Pat Trimarchi, upon which they were drawing for the purpose of making identifications of which the Crown tendered evidence by the observer, was at all proximate in time so as to fulfil any criterion making it fresh as it must be understood in relation to s66(2)(b):see Graham v The Queen 1998 195 CLR 606; R v Adam 1999 47 NSWLR 267. 37 At the hearing of the appeal, counsel for the Crown expressly disavowed any reliance upon s60, which provides: "60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation". 38 The Court had reserved its decision and thereafter an additional written submission was forwarded on behalf of the Crown and, later, a response on behalf of Barbaro. Reference was made to evidence given by Bruno Taverna. There were two photographs of Barbaro in the selection numbered 28 and 30. Bruno Taverna gave evidence that when shown photograph number 30 he had said "it looks a bit like Pat Trimarchi" and that when shown photograph number 28 it looked "familiar" as Pat Trimarchi. Leave was granted to the Crown Prosecutor to cross examine Bruno Taverna as an unfavourable witness. Further reference will be made to this in connection with Grounds 4 and 7. When further questioned he conceded that when shown photograph number 30 he had said to the police officer "photo 30 is definitely a photograph of the man I know and was introduced as Pat Trimarchi". When shown photo number 28 he conceded that he had said "this photograph is very similar to the man Trimarchi although I believe that when I saw this man the hair was a lighter colour". 39 The Crown now submits that, because the representation by Bruno Taverna out of Court that the man in photograph number 30 was definitely the man he had known as Pat Trimarchi was relevant for the purpose of showing that he had made a prior statement inconsistent with his evidence in court (that the man in the photo looked a bit like Pat Trimarchi), the hearsay rule did not apply and, for like reasons in respect of photograph number 28, that the person shown in it was very like him. There is a particular problem with the belated attempt to raise this issue. Had the matter been advanced on this basis, at the very least the trial judge would have been required to give consideration to placing limitation upon the use of the evidence pursuant to s136. Even if the argument how sought to be raised by the Crown were held to be correct, there would be manifest unfairness in depriving the appellant of any opportunity to be heard in connection with what limitations should be applied pursuant to that provision. This is not an issue which this Court can resolve and for my part I would not permit the Crown to repudiate its earlier disavowal of reliance upon s60. 40 In a like situation is a further submission sought to be made concerning s72. The likeness in situation is that reliance upon s72 was disavowed by the Crown during the course of oral submissions. It provides: "72. The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind". 41 The submission now sought to be made is that an indication by a witness to a police officer, identifying a person shown in a photograph, is a statement by that person as to the person's state of mind and that therefore evidence from the police officer who was present is evidence of a representation made by a person that was a contemporaneous representation about that person's state of mind. 42 There are perceptible difficulties in adopting this approach to photographic identification evidence not the least of which is the specific requirement in s66(2) concerning freshness in memory. In the situation under consideration the statement by the witness, although in one sense a current state of mind, is in another an expression of identity with a mental image of something that has been seen on a previous occasion. I would consider that there would be a prima facie inhibition against treating a general provision, as s72 is, as permitting circumvention of an express requirement such as legislated in s66(2). However the matter was not argued upon this basis and again I would refuse leave to the Crown to belatedly alter its stance in this regard. 43 Ground 1 is made out to the extent that the evidence of police officers of what was said to them by the alleged identifiers was inadmissible. There is no reason why the witnesses themselves could not testify to the circumstances of their individual acts of identification. That would amount to original evidence of their own states of mind and the evidence would merely be an expression of it. To exclude such evidence would invest an unwarranted element of artificiality into a trial. It is common practice for an identified photograph (or a copy of it) to be signed or otherwise endorsed by the identifier and there is again, no reason why reference to such may not be made. Such evidence may be led from a witness or, in accordance with appropriate procedures, put to an unfavourable witness. Ground 2 is not sustained.

Ground 3 44 An application to exclude the evidence of the witness Charles Peach was made on the ground that it was not evidence of identification and was generally unsafe and unreliable. The application was refused. Mr Peach was familiar with Lenlin and knew Bruno (Taverna) as the owner of the property. In October 1989 he spoke to a man who had been on a tractor and gave his name as Mick. Another man later came up to them and Mr Peach remembered that he also gave his name as Mick. Some time later he was shown photographs by police and indicated photograph No 28 (Barbaro) as the "first Mick" he had spoken to. However he added: "If the chap in photo 28 - if you put beanie - which was a very heavy beanie - and a pair of dirty overalls, it could possibly be him"

and further "It could possibly be somebody else too, I am sorry". 45 This is plainly inadequate evidence of identification. The learned trial judge dealt with it as similarity evidence. He gave the jury some explicit directions about the approach to such evidence including these: "………but I want to point out two similarities or two hundred similarities do not make a positive. You cannot aggregate the similarities and say well he was identified by one person and - I am just picking a number out of the air - a hundred people said it was similar. That kind of aggregation is not permissible. That kind of adding them together is not permissible. All that you can say about that similarity evidence is that it does not cast a shadow across the person who has positively identified another person, that is all. That is as far as it goes and you must not attempt to aggregate it and say well if so many people said it was similar then it must be that person. That would not be a proper way of going about your task." 46 The evidence of Mr Peach was obviously tentative but it was capable of being used to the extent that his Honour had indicated to the jury. Admission of the evidence did not lead to miscarriage and this ground should be rejected.

Grounds 4 and 7 47 The Crown sought to tender evidence against Rovere through the witness Bruno Taverna. In chief he agreed that after he spoke to police on 12 December 1989, he received a phone call from Rovere which he "thought" he brought to the attention of a police inspector at Deniliquin. He agreed that he received a second call from an anonymous caller. He claimed to remember only that Rovere had asserted that he had nothing to do with the crop and that he had been "conned". He denied that anything about photographs had been mentioned in the call. It would not be a likely secret that police were showing a photographic selection to potential witnesses. 48 Application was made by the Crown Prosecutor pursuant to s38 and, if it arose s44, for leave to cross examine the witness as unfavourable. In support of this a copy of a police occurrence pad entry was produced. It was marked for identification 55. A copy of the document was made available in the appeal. The entry had been made on 20 December 1989 by Detective Sergeant Bellis. The content was as follows: "INFORMATION RECEIVED FROM INSPECTOR MARHEINE DENILIQUIN POLICE FROM BRUNO TAVERNA This date Chief Inspector MARHEINE of Deniliquin Police contacted this office and stated the following: Last Friday Bruno TAVERNA, (telephone 050 324354) owner of 'Lenlin' where the cannabis plantation was located contacted a member of the Swan Hill Police whom he knew. Apparently Bruno is concerned about who he can trust and was not prepared to contact local detectives at Swan Hill. The member then referred Bruno to Inspector MARHEINE and Bruno then passed on the following information. He had been contacted by Charlie ROVERE by telephone and Charlie allegedly said 'You will be shown a number of photographs shortly by the Police. Tell them that you don't recognise any one and that you've never seen them before.' Charlie then went on to say 'I have spoken to the man in Sydney in relation to your money and everything is alright, you will still get your money each month.' Bruno is very concerned and does not want to accept any money from these people for fear of implication. Attempts were made this date to contact Bruno by telephone but there was no answer. Further attempts will be made by either BELLIS or DOLAN." 49 Pursuant to leave granted, Bruno Taverna was asked to read MFI 55 and he was later asked questions and gave this evidence: "Q. Yes. Having examined that passage that has been coloured in yellow or green, do you maintain the answer you gave to the question whether or not in the phone call, Mr Rovere said anything concerning photographs? A. Well, after reading that, it could have - I think that could have happened. Q. What was said by Mr Rovere in the phone call concerning photographs? A. Well, could have been similar to what's written down there. Q. Well, what is that? A. I sort of can't remember at the time but reading that, probably would have been into - close to those words. Q. Well, what was it, Mr Taverna? Please tell us. What did he say to you about photographs? Did he say something to you about being or that you would be shown a number of photographs? A. I sort of don't - after reading that, I recall we did have that conversation but the words that were said at the time, I can't remember but must be similar to that. Q. Did you say to you that you would be shown photographs? A. (No answer). Q. I will ask you again, Mr Taverna -- A. I know, look, it is very hard to remember what happened ten years ago. Q. Did Mr Rovere say to you in the phone call that you would be shown photographs? A. Can I use that to go on or not? HIS HONOUR: Q. Yes. A. To answer the question? HIS HONOUR: You can use that. WITNESS: I will have to say yes. CROWN PROSECUTOR: Q. Did he tell you that you should tell the police that you don't recognise anybody? A. Well, going back to that, I would have to say yes/ Q. And did he tell you that you should tell the police that you had never seen them before? A. Well, as I said, going on to that, I'd have to say yes."

And further: "Q. Having read that, do you stand by the evidence you gave earlier about whether there was any conversation about the rental payments? A. As I said, if I can go with that, I will say yes. Q. I am sorry? A. If I can quote that, I will say yes. Q. If you can quote that? A. Yeah. Q. By that, you mean if you can quote what is in that document in front of you? A. As I said, I can't remember but I do - I do remember we did that. I had forgotten all about that but that must be right. Q. And what was said to you by Charlie Rovere in that phone call about payments? A. Well, according to that, not to worry about it, the payments will be all right. Q. What about -- OBJECTION. (FINCH). BREACH OF SECTION 44(3)(d). Q. Did he tell you that he had spoken to the man in Sydney? A. Well what's said in that probably is right. I just can't remember what was said but if I can refer to that, I will say yes. Q. Did he tell you he had spoken to the man in Sydney in relation to your money? A. Yes. Q. And did he tell you that, 'Everything is all right, you will still get your money each month'? A. Yes. Q. And did you pass that information on to the inspector, whoever he might be and at whatever police station he may have been? A. Yes." 50 The objection pursuant to s44(3)(d) noted in that portion of transcript was taken by counsel appearing for Rovere up to Wednesday 28 July 1999. On the following day his Honour was informed that his and his solicitor's instructions had been withdrawn and new counsel appeared for Rovere. No evidence was taken on that day or the next. On the Monday morning when hearing was scheduled for resumption, the Crown Prosecutor informed his Honour that the witness Bruno Taverna had come forward with information concerning the evidence which he had given on the previous Wednesday. Inter alia, his Honour was informed: "In summary what Mr Taverna has put forward is this; he now says he didn't receive the phone call in the terms traversed in the occurrence entry in which he embraced on Wednesday. That phone call was received by his brother Steven in those terms. There is some question and some confusion about whether this was Mr Rovere who identified himself on the phone call or whether it was an anonymous phone call. He says that as a result of that phone call he approached a Detective Dalton at Swan Hill and sought his assistance because of concerns he had about his safety in New South Wales. Detective Dalton put him in touch with a man named Charlie who was a Detective at Deniliquin. We have since confirmed that was now Superintendent Charles Sanderson. That when there was that conversation those police then put him in touch with Inspector Marheine." 51 There followed a voir dire hearing (in the nature of a "Basha" enquiry, there being no issue to be determined upon it) in the course of which Bruno Taverna and several police and former police officers gave evidence about various contacts including contacts involving Bruno Taverna's brother Steven. An application was made for discharge of the jury without verdict on behalf of Barbaro. In summary, it was based upon the dilemma that Bruno Taverna's credit had been impugned in respect of evidence which was being tendered against Rovere but not against Barbaro, Barbaro however wished to rely upon the credibility of Bruno Taverna's description of Pat Trimarchi but he could only seek to restore his credit by reference to matters concerning Rovere and the content of anonymous phone calls. His Honour refused the application but it is to be noted that, importantly, in his charge to the jury he suggested to them (with proper qualification) that they might set aside his evidence upon two issues about which there was a pattern of repeated contradiction; those issues being the identification of Barbaro as Pat Trimarchi and the content of the telephone calls. The suggestion to the jury did not include setting aside evidence given by Bruno Taverna of his description of Pat Trimarchi which was of a man with "fairish" hair. 52 When Bruno Taverna resumed giving evidence he agreed (when cross examined by counsel for Rovere) that his brother Steven told him that he (Steven) had received a telephone call from Rovere in which a message was passed that his cousins (the Tavernas) should keep their mouths shut and they would get their money, presumably the balance of rent due under the lease. It can be mentioned that Rovere in his unsworn statement confirmed that he had passed such a message. This was consistent with an answer given by him to Detective Bellis in an interview at Griffith Police Station on 4 March 1990: "Q 36. Steve has told us that you said I have been told to tell you don't worry about anything, the money will be alright, just keep your mouth shut, or words to that effect. Do you recall a conversation of this nature between yourself and Steve Taverna. A. Yes. I told Steve exactly what was told to me. Ring your cousins, tell them to shut their fucking mouths and they will get their money. There was actually two calls that I got. One was a hang up call and the second one was to the effect that your cousins are in trouble at Moulamein. Tell them to shut their fucken mouths and they will get their money." 53 This material was of course not admissible against Barbaro but it offers some explanation of the confusion and the sources of confusion which have been highlighted. 54 Seen in its context, his Honour's direction did not denigrate submission on behalf of Barbaro seeking attachment of credibility to Bruno Taverna's description of Pat Trimarchi and his separate personality from that of Barbaro. Ground 7 is not made out. 55 There was ample basis for conclusion that Bruno Taverna was an unfavourable Crown witness and for the grant of leave pursuant to s38. Insofar as the particular content of MFI 55 might have involved contact between Steven Taverna and police, the premises upon which Bruno Taverna was questioned were unsound, however in all the circumstances it did not lead to miscarriage. At material times Bruno Taverna was aware that the message had been received that they should keep their mouths shut. That adjuration would be understood to mean not to identify anyone either by the use of photographs or otherwise. In his reasons for refusing to order discharge, Shadbolt DCJ observed that any potential finding of unreliability in a witness and the consequent diminution in utility to the defence of anything said by that witness, is not a basis for discharge and that the prejudice claimed to be suffered by Barbaro was no more than that of any co-accused in respect of evidence which is more weightily incriminating of the other. I do not consider his Honour erred either in permitting cross examination or in refusing the application to discharge without verdict. Ground 4 should be rejected.

Ground 5 56 At the commencement of the trial Barbaro sought a separate trial from Rovere. As mentioned, Rovere was indicted for conspiracy with Barbaro whereas Barbaro was not charged with conspiracy with Rovere but with knowingly taking part in the cultivation of the cannabis crop. Shadbolt DCJ delivered brief reasons for refusing the application. The alleged activities of each of the appellants were centred upon the use of Lenlin by Pat Trimarchi. It was anticipated that a significant volume of evidence would be common to both of the then accused and merely because some pockets of evidence may have been admissible against one but not the other did not require separate trials: R v Guldur 1986 8 NSWLR 12. I perceive no error in his Honour's ruling. 57 The issue for this Court is whether, in the event, the joint trial has been unfair and led to miscarriage. 58 It is complained on behalf of Barbaro that Rovere, if a compellable witness which as co-accused he was not, could have provided important evidence particularly that Barbaro and Trimarchi were separate identities. Rovere's unsworn statement to that effect in the joint trial was not available for consideration in the case concerning Barbaro. Next, he may have provided evidence of dates upon which he accompanied Pat Trimarchi to Lenlin in respect of which Barbaro could have raised alibis and, thirdly, the handling of the lease when he helped Rovere move offices in Griffith could be confirmed. So far as the last is concerned, by January 10, 1990, police had identified Barbaro's fingerprints on the lease and such could not have been deposited as a result of his handling it at a police interview which was after that date. Counsel acknowledged that it was in a practical sense critical for Barbaro to explain the presence of those fingerprints which are to be distinguished from other deposited prints which were not detected until re-examination of the document a long time afterwards. 59 The appellant Barbaro also relied upon the matters pertinent to ground 4 and the content of MFI 55 above discussed. These matters were contended to contribute to miscarriage. 60 It can be observed that separate trials would not necessarily result in Barbaro being able to compel Rovere to answer. Given the Crown allegations as to the respective seriousness of the involvement of the appellants, if the trials were separated, it might be predicted that Barbaro would be likely to be tried first. However it is the trial which was in fact conducted which requires examination. The cardinal Crown allegation was that Barbaro was Pat Trimarchi and a great volume of evidence was directed to proof this fact. Miscarriage could be discerned if the joint trial deprived either Barbaro or Rovere of a fair chance of raising a doubt about that central fact. Given the course of trial and the content of the evidence, I am unpersuaded that this can be discerned and I would reject this ground. 61 Even if this conclusion be wrong it is a necessary consequence of the orders which I will propose that there will not be a further joint trial of the appellants.

Grounds 6 and 6A 62 Application was made at trial for permanent stay of the presentation of the indictment as an abuse of process which was dealt with by his Honour in a judgment also ruling upon a motion to exclude certain evidence. As is obvious, the trial conducted in 1999 concerned events which had happened ten years previously. Shadbolt DCJ approached his task by attention to the five reference points collated by Deane J in Jago v District Court of New South Wales 1989 168 CLR 23: the length of delay; the explanations by the prosecution; the responsibility of the accused; likely prejudice to the accused and public interest in the conviction of those guilty of serious crime. No ground has been made out for intervention by this Court in respect of his Honour's assessment and judgment. 63 Significant argument in support of the stay was directed to challenge against what were alleged to be inherently flawed circumstances concerning the identification evidence and, in particular, the folder of photographs prepared by police to show to potential identifying witnesses. 64 Police originally compiled a collection of photographs numbered 1 to 26. None of these was a photograph of the appellant Barbaro. This folder was shown to a number of witnesses between December 1989 and February 1990. No one identified Pat Trimarchi in this collection. On 29 March 1990 police surveillance obtained a photograph of the appellant who is shown standing next to a tractor. The print depicts a left profile. A full face photograph was also acquired which was described by a witness (Pillon) who knew Barbaro in 1989 as a good likeness of him at the time. These photographs and eight others were added to the original folder, the profile shot of Barbaro was numbered 28 and the full face shot numbered 30. 65 This compilation of thirty six photographs was shown to witnesses (Bruno and Steven Taverna, Andrew and Max Coburn and Barry Collins). Steven Taverna, Andrew Coburn and Barry Collins referred to number 28 and Bruno Taverna and Max Coburn to both numbers 28 and 30. They offered varying degrees of certainty about the similarity or identity of the photographs with the man they knew as Pat Trimarchi. It is not necessary to deal with these grounds to trace all the details of what they said or what they are said to have said. 66 The appellant Barbaro was arrested on 1 April 1990 and responded to a request to participate in an identification parade that he would rely on legal advice. No identification parade was in fact held. 67 After that arrest a further six photographs (of men other than the appellants) were added to the compilation and forty two photographs were shown to witnesses (Lorraine Taverna, Lindsay Lowe, Anthony Pumpa, Charles Peach, Rex Oswin and Michael Hind). Each of these witnesses referred to photograph 28, again with varying degrees of certainty about similarity or identity. 68 The appellant complains about the constitution of the collection. Many witnesses had seen Pat Trimarchi in a rural context yet the only photograph showing anybody in such a context was number 28 which depicted Barbaro standing next to a tractor. Bruno Taverna had described Pat Trimarchi as having "fairish" hair, Lorraine Taverna called it "light", Anthony Pumpa, "sandy" and Steven Taverna, "straw coloured or mousey". The appellant had dark hair. None of the photographs (with the possible exception of number 41 which was added after Barbaro's arrest) depicted a fair haired man. 69 It was further argued that the compilation was unfair in the sense that witnesses who had rejected the twenty six photographs when later confronted with the expanded compilation of thirty six photographs, were effectively being asked to make an identification only from the added ten, two of which were photographs of Barbaro. The compilation was only rendered slightly less unfair by the second addition. 70 By the time of trial in 1999, witnesses were being asked to offer identification evidence to the jury derived from encounters in 1989, most of which were of extremely short duration. It would appear to be fair comment that, in all likelihood, the witnesses were recapitulating and adhering to their earlier testimony rather than pledging their oaths to identifying the particular photographs as the person they remembered seeing in 1989. 71 Reference was made to the evidence of Professor Thompson who was called by the defence. It was for the jury to assess its cogency and they were not obliged to give it any particular weight. 72 In R v Blick (2000) NSWCCA 61, a case dealing with the proper approach to objection based on s137, it was remarked that to show a group of photographs in which only one was a man with a goatee beard, when that was the identifying factor in the witness's mind, was little better than showing him only one photograph. 73 In the present case the probative value of identification, where it is made from an effective reduction to a selection from ten photographs (of which two were the suspect) and the absence of images fulfilling the criteria of witness's suggestions of fair hair, was contended to be low. The unfair prejudice to Barbaro whose image appears twice among the additional ten photographs was said to be high. 74 The argument was premised upon the discretion of Shadbolt DCJ having miscarried although, as pointed out in Blick (decided after hearing of this appeal), the correct approach (to objection under s137) is to perform the weighing exercise and, if the probative value is outweighed by the dangers of unfair prejudice, there is no residual discretion. 75 I consider that there is substance in the appellant's complaint but I am unpersuaded that it could not be found that the unfair prejudice was outweighed by the probative value of this evidence. It is possible, and I refrain from expressing a view, that the addition of ten photographs might be regarded differently from the addition, ultimately, of sixteen photographs. The Crown contends that a case is maintainable against Barbaro from evidence outside of that of the identifiers. Counsel for Barbaro claimed that such evidence, in particular the fingerprints on the lease, would not be sufficient to prove the appellant's involvement in the cultivation. I do not accept that forecast. Sustaining this ground would not of itself, lead to a judgment of acquittal. 76 As for other reasons I am of a view that, in the appeal of Barbaro, it should be allowed and a new trial ordered, I consider that the desirable course is for the matter to be weighed by a judge of first instance at any new trial that comes to be held. At such trial there is the available guidance of Blick and the opportunity for specific focus on the matters of probative value and unfair prejudice which are required to be weighed.

Ground 8 77 This ground relates to asserted error by the trial judge leaving the evidence of witnesses Andrew Coburn and Lindsay Lowe as evidence of positive identification. His Honour did not leave this testimony to the jury in a fashion which suggested that they had testified to such positive identification and the use of expressions such as "an identification" or "identification" needs to be assessed in context. 78 Regarding Andrew Coburn his Honour charged the jury: "Andrew Coburn made sightings between October 1989 and December 1989. He had conversations with the person calling himself Pat and one calling himself Steve and one calling himself Mick on four different occasions. He made an identification five months later. He identified nine and thirteen as Mick and you will recall that they are the photographs of Pangallo who he said had a lisp and twenty eight was Pat. He agreed under cross examination that he had only seen the person who he identified as twenty eight on two occasions, not four, it was a five minute conversation and twenty eight is someone who resembled Pat. He is not absolutely certain and could be mistaken." 79 And regarding Lindsay Lowe his Honour said: "Lindsay Lowe made an observation in August of a person who paid him $1,000 and a later observation for some work he had done on a tractor. It was a thirty second observation and he saw him with Rovere for about perhaps less than five minutes. The date that he was asked to make an identification was 5 May. He identified twenty eight and seventeen which is Rovere. He believes his identification was correct but cannot be one hundred percent sure. He did not identify thirty and he had no particular reason to remember the person he identified." 80 Given his Honour's directions discriminating identification and similarity to which I will turn in relation to ground 9, and the recitation of the qualifications in the evidence of Andrew Coburn and Lindsay Lowe, it cannot fairly be concluded that the jury could have been misled. I would reject this ground.

Ground 9 81 The principal complaints of the appellants are directed to a passage early in his Honour's summing up. He had pointed out a number of matters as defects in the prosecution case on identification with particular reference to the assembling of the photographic folder display. He continued: "But there were people who never made an actual identification. They said it is merely similar and what then should be done with those people. If I can give you a little example, if there were six people and they are shown a board of six people with one suspect who they have all seen and they all pick a different person, each one picks a different person from the other and even though one of them appears to have picked the suspect, you would have the greatest possible misgivings that that was a real identification. If six people, all having seen the same person, again are shown six photographs including the suspect, and one person identifies that person and the other five say that it is very similar, then that evidence is not just to be put to one side because for one thing it helps not to throw a shadow over the one who has identified the person. And the other thing is that those people who maintain that it is similar are in reality, and as a matter of common experience over 150 years of photography in this world, saying that some of the features which they have recorded in their minds eye accord with some of the features in the person before them. They may of course be different features. One person may have well remembered a hairline, a mouth, jaw. Another person might have remembered the eyes or the colouring or the nose, but each of them is saying that there is some feature which is in their minds eye which accords with that particular photograph. So what it does is to throw no shadow over the one who does positively identify the person and secondly, it may give some support to that person who does positively identify the suspect." 82 The argument included assertion that the jury were invited to re-assemble a patchwork of features "identified" by similarity witnesses in the absence of any evidence by witnesses as to which particular feature of the person, if any, was facilitating the making of the statement of similarity. The critical matter is whether the jury were misdirected or in some way the case of the appellant unfairly dealt with. 83 Immediately following the passage above extracted his Honour told the jury: "So when you come to deal with the identification evidence and in summing-up to you on the evidence I am going to separate them, have regard to those matters that it has some value but it is not identification in itself. The thing I want to point out to you is that all of these people were asked to perform an identification months after the event. They had been required to carry in their minds eye, as it were, a casual meeting for a period of months and then to identify a person from the photo board. Some were shown the board twice with additional photos which narrowed the choice. It is claimed on behalf of Barbaro, Romeo and Pangallo that the board was unfair, Barbaro, because the pictures were inherently bad. Both of them were together. There were two on the one board and one of them was in contact with the tractor. Pangallo maintains that there are several, three photographs of him and Romeo because his alone is in colour and amongst additional photographs to those that had already been shown to those witnesses. I must point out to you that it will be dangerous to convict on that evidence alone. It would need support or corroboration from other sources." 84 Later in his summing up, his Honour also gave the caution which I have set out in relation to ground 3. The interests of the accused at trial were adequately and fairly protected. There was no misdirection.

Ground 10 85 This ground was argued on the basis that the verdict of guilty was unreasonable and could not be supported having regard to the evidence and that there had been miscarriage. There is evidence capable of convincing the jury of a guilt of the appellants. Setting to one side the evidence relative to the issues in connection with grounds 1 and 2 and, for present purposes ground 6A, I do not come to the conclusion that, on the balance of the evidence the jury ought to have acquitted the appellants. I would not uphold this ground.

Rovere 86 Although grounds 1 and 2 relate to the identification of Barbaro as Pat Trimarchi, it is clear that it in a practical sense if the jury were satisfied beyond reasonable doubt that Barbaro was masquerading as Pat Trimarchi then Rovere, who knew Barbaro had introduced him to become the lessee of Lenlin would inevitably be inculpated. It is true that much evidence pointing to the masquerade was admissible only against Barbaro but it would clearly be unsafe to allow a guilty verdict against Rovere to stand in all the circumstances. 87 Rovere has served the entirety of the custodial element of his sentence. Whilst I am of the view that there is available evidence capable of leading to his conviction at a new trial, it would be consistent with the practice of this Court not to exercise its discretion so to order: King v The Queen 1986 161 CLR 423; R v Piazza unreported CCA 16 June 1997.

Barbaro 88 Taking into account time served following the Albury trial, Barbaro was sentenced to a minimum term of three years and six months from 9 September 1999 with an additional term one year and two months. On 3 December 1999 he was released to bail pending this appeal and has continued to have conditional liberty. He has been in custody in all some twenty one months. The original sentence passed following the Albury trial had a minimum term element of ten years six months. 89 I recognize that it is now ten years since the events giving rise to the indictment and it will be even longer before any new trial can be held. However, taking all matters into account and in particular the grounds giving rise to the appeal being allowed, I am of opinion that the discretion of this Court ought be exercised to order a new trial. Whether the appellant is in fact called for retrial depends upon the exercise of a different discretion by the prosecuting authority. 90 In the case of Barbaro I propose that the appeal be allowed, the conviction and sentence quashed and a new trial ordered. 91 In the appeal of Rovere I propose that the appeal be allowed, the conviction and sentence quashed and a verdict and judgment of acquittal entered. **********

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