R v Defrutos - [2008] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 416 of 2006

THE QUEEN
	v
MANUEL DEFRUTOS

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JUDGES:	BUCHANAN, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 February 2008
DATE OF JUDGMENT:	9 April 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 55

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Criminal law – Conviction – Attempted murder – Whether jury charged incorrectly in relation to identification evidence – Applicant and victim known to each other – Reliability of recognition evidence given by victim – Whether verdict unsafe and unsatisfactory in the circumstances – Whether evidence of prior relationship and animosity wrongly admitted - Whether prejudicial – Whether existence of motive required to be established beyond reasonable doubt – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr T Kassimatis	Victoria Legal Aid

BUCHANAN JA:

I agree with Vincent JA.

VINCENT JA:

The applicant was found guilty, on 30 November 2006, in the Supreme Court at Melbourne, of the attempted murder of Anthony McCallum on 23 July 2004.[1]
[1]After hearing a plea in mitigation of penalty, the sentencing judge, on 11 December 2006, imposed a term of imprisonment of 11 years in respect of which he fixed a non-parole period of eight years.

The background
The Crown case

At the trial, the prosecution adduced evidence that the applicant and McCallum had known each other for some 20 years having played football together for the same team in the 1980’s. In early 2000, they became reacquainted when the applicant began drinking at the Flying Duck Hotel (the Flying Duck), an establishment located not far from the home of McCallum in Prahran and frequented by him and his then girlfriend, Caroline Mildenhall. Later in that year, McCallum spent some weeks in London. While he was absent, the applicant and Ms Mildenhall commenced a short-term affair. When he returned and learned of it, he was upset but continued his relationship with Ms Mildenhall. However he made clear to the applicant that he wanted no more to do with him.

The prosecution contended that the applicant resented this outcome and, from time to time, over the next three years, displayed the presence of continuing antagonism towards McCallum, and his own interest in Ms Mildenhall. At one stage, he insisted that McCallum pay him $2,000 for a trifling service that the applicant had rendered to him and on two occasions, both chance encounters, the applicant assaulted McCallum. On Valentine’s Day in 2003, the applicant sent Ms Mildenhall a letter in which spoke fondly of her but was scathing of his erstwhile

friend.

It was asserted that, on the night of 23 July 2004, the applicant, who knew where McCallum lived, and of his practice to walk through the park next to the Flying Duck on his way home, waited for him. He had in his possession a handgun and was, at that time, wearing clothing which made it possible for him to be identified only…

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 Defrutos

Details

AGLC: R v Defrutos [2008] VSCA 55
Case: [2008] VSCA 55
Decision Date: 9 April 2008

CaseChat Overview and Summary

The applicant, Defrutos, appealed against his conviction for attempted murder, arguing that the jury was improperly directed in relation to the identification evidence given by the victim, who knew the applicant. The High Court of Australia reviewed the case to determine whether the jury's charge was flawed, the reliability of the victim's recognition evidence was appropriately assessed, and whether the admission of evidence about the prior relationship and animosity between the applicant and the victim was prejudicial or necessary. Additionally, the court examined whether the prosecution needed to establish motive beyond reasonable doubt.

The central legal issues before the court involved the proper assessment of identification evidence, particularly when the accused and the victim are known to each other, and the potential prejudicial impact of evidence related to prior relationships and animosity. The court also considered whether the existence of a motive should be established beyond reasonable doubt. The court found that the trial judge correctly directed the jury on the assessment of identification evidence, taking into account the familiarity between the parties. The reliability of the victim's recognition evidence was deemed sufficient, considering the circumstances. The court held that the evidence of the prior relationship and animosity was not prejudicial and was relevant to establishing the context of the incident. Furthermore, the court ruled that there was no requirement for the prosecution to prove motive beyond reasonable doubt.

The High Court dismissed the appeal, affirming the conviction. The court concluded that the jury was adequately directed, the identification evidence was reliable, and the evidence of the prior relationship did not unfairly prejudice the applicant. Additionally, the court found that motive did not need to be established beyond reasonable doubt. The decision underscores the importance of contextual factors in assessing identification evidence and the relevance of prior relationships in criminal cases.

Orders