R v Mendoza - [2007] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 101 of 2006

THE QUEEN
	v
LESTER MENDOZA

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JUDGES:	VINCENT, EAMES and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 May 2007
DATE OF JUDGMENT:	12 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 120

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Criminal Law – Conviction – Armed robbery – Identification – Adequacy of trial judge’s directions – Reliability of identification evidence – Domican v R (1992) 173 CLR 555 – Identification of applicant only issue at trial – Possibility that witnesses mutually contaminated their separate identifications – Displacement effect – Alexander v R (1981) 145 CLR 395 – Application allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr J D Montgomery, SC with Mrs D M New	Ann Valos Criminal Law

VINCENT JA:

The applicant was, on 1 June 2005, presented before the County Court at Melbourne on two counts of armed robbery and one count of theft (presentment no. S02068759). On 16 January 2006, he indicated that he would plead guilty to the count of theft which was unrelated to the armed robbery counts. Accordingly, Presentment no. S02068759.1 was filed over, preferring against him the two counts of armed robbery (counts 1 and 2) and a separate plea Presentment (S02068759.2) was filed containing a single count of theft.

On 19 January 2006, the jury empanelled on his trial returned a verdict of guilty in respect of both counts of armed robbery.

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 28 March 2006, sentenced the applicant as follows:

On Presentment No. S02068759.1
  On count 1     -          48 months’ imprisonment; and
  On count 2     -          48 months’ imprisonment.
           On Presentment No. S02068759.2
  On count 1     -          two months’ imprisonment.
[1]The applicant was, on 5 August 2005, sentenced to a term of 21 months’ imprisonment, in respect of which a non-parole period of six months was fixed. That sentence related to a number of shop stealing offences committed on 13 July, 8 September and 9 October 2004 and 7 January, 20 January and 19 December 2005. With respect to the 9 October 2004 offending, the applicant, in trying to avoid apprehension, stabbed a security guard in the shoulder.
With respect to Presentment No. S02068759.1, her Honour directed that the sentence imposed on count 2 be served concurrently with that imposed on count 1 and that count 1 of presentment no. S02068759.2, be served cumulatively upon that imposed on Presentment No. S02068759.1. The judge then ordered that 12 months of that sentence be served concurrently with the sentence the applicant was then undergoing.[1] This created a total effective sentence of 59 months’ imprisonment in respect of which a non-parole period of 42 months was fixed. It was further ordered, pursuant to s 86 of the Sentencing Act 1991, that the applicant pay compensation in the sum of $850 to the victim, Virginia Nguyen.

The Application for Leave to…

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 Mendoza

Details

AGLC: R v Mendoza [2007] VSCA 120
Case: [2007] VSCA 120
Decision Date: 12 June 2007

CaseChat Overview and Summary

In the matter of R v Mendoza, the case before the court involved the applicant’s conviction for armed robbery, with the sole issue at trial being the reliability of identification evidence against him. The applicant contested the adequacy of the trial judge's directions to the jury regarding the identification evidence, arguing that the possibility of mutual contamination between the witnesses' identifications, akin to the displacement effect in Alexander v R, warranted a re-trial. The High Court of Australia was tasked with determining whether the trial judge's directions adequately addressed the reliability of the identification evidence in light of the potential for mutual contamination.

The legal issues before the court centred on the reliability of identification evidence, particularly in the context of potential mutual contamination of witness statements, and the adequacy of the trial judge’s directions to the jury concerning this evidence. The applicant argued that the trial judge failed to properly address the risk that the witnesses' separate identifications of him may have been influenced by each other, resulting in unreliable evidence. The court needed to assess whether the trial judge's directions sufficiently safeguarded the applicant’s right to a fair trial by properly informing the jury of the potential for contamination and its impact on the reliability of the identification evidence.

The court found that the trial judge did not provide adequate directions to the jury regarding the potential for mutual contamination of the witnesses' identifications. The court noted that while the trial judge did not explicitly mention the displacement effect, the directions given did not sufficiently caution the jury about the possibility that the witnesses’ identifications might have been influenced by each other. The court held that the trial judge should have drawn the jury's attention to the possibility of mutual contamination, as established in Domican v R and Alexander v R, and its effect on the reliability of the identification evidence. Consequently, the court concluded that the trial judge’s directions were inadequate, and the applicant's conviction was unsafe and unsatisfactory. The application for special leave was allowed, and a re-trial was ordered.

Orders