R v Fischetti & Sharma [2003] ACTSC 10 (5 March 2003)

Last Updated: 31 March 2003

R v FRANK JOHN FISCHETTI and R v AVINASH BHARDWAJ SHARMA [2003] ACTSC 10 (5 MARCH 2003)

REASONS FOR RULING

Evidence Act 1995 (Cth), s 137

R v Tugaga (1994) 74 A Crim R 190

Festa v The Queen [2001] HCA 72; (2001) 76 ALJR 291

Nos. SCC 86 of 2002 and SCC 206 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 5 March 2003

IN THE SUPREME COURT OF THE )

) No. SCC 86 of 2002

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 206 of 2001

THE QUEEN

v

FRANK JOHN FISCHETTI

and

THE QUEEN

v

AVINASH BHARDWAJ SHARMA

REASONS FOR RULING

Judge: Gray J

Date: 5 March 2003

Place: Canberra

THE COURT RULES THAT:

1. The evidence may be admitted.

1. I have heard, as a preliminary issue, on a short voir dire hearing, an application by Mr Everson on behalf of the accused Mr Fischetti that evidence to be given by Sergeant De Paoli be not admitted on the ground that its probative value is outweighed by the danger of unfair prejudice to the accused (s 137 Evidence Act 1995 (Cth).

2. The evidence is that at about 8.00 am on 17 April 2001, at a time before the charges had come to the attention of the authorities, Sergeant De Paoli saw a person whom he recognised as the accused operating an automatic teller machine (ATM) situated on Northbourne Avenue, Canberra City. The significance of this observation is that, at about that time, it now recorded that transactions said to be linked to the matters charged, took place from that machine at about that time.

3. Sergeant De Paoli gave evidence of having known the accused over a period of ten years. His familiarity extends to some limited social contacts and extensive professional contract concurring certain investigations into the accused's affairs including an extended period in 1997-98 where he was an informant in committal proceedings extending over some weeks in which the accused was a defendant.

4. These matters have the potential to be highly prejudicial to the accused and have a potential to be misused by the jury. On the other hand, the extent to which they need to be led is dependant upon the challenge to the familiarity that Sergeant De Paoli says that he has with the accused.

5. The challenge made by Mr Everson in respect of the evidence of Sergeant De Paoli led before me did not concentrate on that familiarity but rather concentrated on the circumstances of the identification. Those circumstances related to an occasion when Sergeant De Paoli was walking to work in Canberra City at about 8.00 am. At the time there was little traffic and he was traversing the wide median strip of Northbourne Avenue approaching an ATM situated along the shop fronts on the western side. On reaching the western footpath a short distance from the ATM, he walked in a southerly direction along the footpath looking back from time to time at the person at the machine. He says he recognised the accused when he first saw him at the machine as he approached the footpath. That recognition involved assessing the back, hair and side profile of the person at the ATM. Although he claimed recognition at that time, he kept the person under observation (by looking back) for some 50 paces down the street and remained near and around the next street corner. He says he had a clear view of that person then leave in a motor vehicle, the registration number of which he noted.

6. Although it was suggested that his observation which caused the recognition was "a glimpse", the overall observation was for a much longer time in circumstances where there was a fair opportunity to revise the observation. I am not able to say that the fact that the witness assented to the proposition that his initial recognition was based upon a short observation taken with those other facts materially detracts from the quality of the evidence so as to make it only of very low probative value.

7. Mr Everson referred to R v Tugaga (1994) 74 A Crim R 190 where Hunt CJ at CL, with whom Gleeson CJ and Abadee J agreed, said -

In R (at 79-80; 409-410), Gleeson CJ quoted extensively from the judgment of Wilson J in Mezzo [1986] 1 SCR 802 at 818, 820, in which her Ladyship convincingly made good the point that, in determining whether identification evidence should be left to the jury, the test is whether the quality of the evidence falls short of the point where its frailty or frailties cannot be cured by an appropriate caution to the jury. Although that is not the test applied in Australia as to whether there is a case to answer, it appears to me, with respect, to be an admirable one to be applied when considering whether identification evidence should - in the context of the evidence as a whole - be excluded from the evidence or withdrawn from the jury, and to be a test which is consistent with the well-known line of authority commencing with Turnbull [1977] QB 224. I would not put it forward as the only test; it is nevertheless a test which is appropriate to the circumstances of this present case. When considering this question, it must be kept in mind that the evidence should not be considered in isolation; what may appear to be poor in quality when taken by itself may gain strength when considered in the context of the evidence as a whole: cf Chamberlain (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535.

8. That last observation I take to refer to other circumstances surrounding the identification rather than, as I think Mr Everson was suggesting, evidence in the case as a whole. As Kirby J noted in Festa v The Queen [2001] HCA 72; (2001) 76 ALJR 291 at [65] -

... unsatisfactory evidence of an act of identification cannot be turned into evidence of a positive identification by reference to circumstantial or other evidence unrelated to the act of identification.

I consider that the converse is equally so.

9. In the present case, factors related to the familiarity of the witness with the accused, an unusual characteristic that of the accused's hair and the period under which the accused was under observation and the conditions of that observation, all support rather than detract from the probative value of the evidence. I am not persuaded that the evidence is of such a quality that appropriate directions and cautions will be ineffective in having the jury fairly consider it.

10. There are matters that the prosecution may take account of in seeking to deal with the circumstances that may be prejudicial to Mr Fischetti from his association with the police officer concerned. It would be desirable that they be minimised but that is a matter which counsel may wish to discuss.

11. I rule that the evidence may be admitted.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 5 March 2003

Counsel for the prosecution: Mr A Robertson

Solicitor for the prosecution: Director of Public Prosecutions (ACT)

Counsel for the first accused: Mr C Everson

Solicitor for the first accused: Jennifer Saunders & Co

Counsel for the second accused: Mr N Adams

Solicitor for the second accused: Sheila Foliaki-Singh

Dates of hearing: 4 March 2003

Date of ruling: 5 March 2003