Sindoni v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0788
AARON PLACIDO SINDONI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER, HANSEN JJA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2011
DATE OF JUDGMENT:	1 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 195
JUDGMENT APPEALED FROM:	[2009] VSC 365 (Bongiorno J)

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CRIMINAL LAW – Conviction – Intentionally causing serious injury – Identification evidence – Character evidence – Alibi evidence – Adequacy of directions – Identification directions insufficient – Miscarriage of justice – Proviso inapplicable – Verdict not otherwise unsafe or unsatisfactory – Appeal allowed – Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr D Reynolds, solicitor	Defteros Lawyers
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA

HANSEN JA
MACAULAY AJA:

In the early hours of Friday 28 March 2008, a security guard by the name of Cedar Ferry was shot with a .32 calibre pistol at close range outside Larry Flynt’s Hustler Club in Sydney Road, Brunswick. A total of three shots were fired and Ferry was hit once. Although the bullet went through his arm, punctured his lung and lodged in his spine, where it will remain permanently, Ferry survived. Aaron Placido Sindoni (‘the applicant’) who was at the club that night, was presented on one count of attempted murder,[1] alternatively intentionally[2] or recklessly[3] causing serious injury, alternatively two reckless endangerment offences,[4] and aggravated burglary[5] constituted by entering the club with intent to assault. Following a trial in the Supreme Court lasting 12 days, the applicant was convicted of intentionally causing serious injury, and acquitted of the other counts. Following a plea in mitigation, the learned judge sentenced the applicant to eight years’ imprisonment and fixed a non-parole period of six years.[6]
[1]Count 1.
[2]Count 2.
[3]Count 3.
[4]Counts 4 and 5, which the Crown did not press and as to which the judge directed a verdict of acquittal.
[5]Count 6.
[6]The judge declared 145 days of pre-sentence detention. It appears, however, that the correct figure was 317 days. As at the date of hearing the appeal, counsel for the Crown stated that the applicant had been detained for a total of 939 days.

The applicant now seeks leave to appeal against conviction and, if unsuccessful, against sentence.

In essence the applicant complains that the judge misdirected the jury on three discrete issues, namely identification evidence, good character evidence and alibi evidence, and further that the verdict is unsafe and unsatisfactory. The applicant abandoned a complaint that the judge had wrongly admitted evidence of certain admissions, referred to below. As to sentence, the sole ground pressed was that the sentence is manifestly excessive.

For the reasons which follow, the conviction must be set aside and a retrial ordered. In these circumstances, it is unnecessary to say anything about the sentence.

Background

The primary issue at the trial was whether the applicant was the person who shot Ferry.

The applicant, who was aged 23 at the time, arrived at the club at about 7.30pm on 27 March for a private ‘bucks night’ party. He remained there until some time shortly after 1am the following morning. Throughout the night he drank alcohol and socialised with some 15 other young men. During the night, the applicant went out the front of the club from time to time to smoke cigarettes. Some time after 1am, he was refused re-entry to the club, apparently because a member of the security staff (not the victim) determined that he had had too much to drink. Closed circuit television (CCTV) from the front of the club, which we have viewed, shows a man in dark clothing smoking outside the club and later being pushed away from the front door when he tried to re-enter. It was not disputed at trial that that man was the applicant.

After being refused re-entry, the applicant left the club and took a taxi on the west side of Sydney Road,[7] directing the driver to take him to Boundary Road, Pascoe Vale, where the applicant lived with his parents and sister. The taxi driver, Allahverdi, was to become the most critical witness in the case.
[7]The club is on the east side of Sydney Road.

Allahverdi gave evidence to the effect that during the trip to Pascoe Vale the applicant was agitated. When they arrived at the applicant’s home, the applicant asked Allahverdi to wait while he went inside. After about six or seven minutes, the applicant returned to the taxi. Having originally been dressed in a black shirt and black pants, he was now wearing a jacket with a hood, described by Allahverdi as ‘off-white’ in colour. This type of jacket was described in the trial as a ‘hoodie’. The applicant asked Allahverdi to take him back to where he had picked him up. The taxi headed in that direction, that is driving south down Sydney Road. During the trip, the applicant was swearing and mumbling to himself and appeared to be agitated. A critical issue in the trial was what occurred when the taxi reached Albion Street, which crosses Sydney Road about 100 metres to the north of the club.

The Crown case relied on Allahverdi’s evidence, which was to the following effect. The taxi turned left (east) into Albion Street and stopped opposite a dry-cleaning business not far from the corner. The applicant left the taxi without paying the fare, crossed Albion Street and entered a lane running south which gave access to a car park that opened out onto Sydney Road, just to the north of the club. Allahverdi left the taxi and followed the applicant down the lane on foot at a ‘safe distance’, but ultimately decided it was too dangerous and returned to the taxi. When he returned to the taxi, his window was ‘a bit open’ and by that time he heard three gun shots. He did a u-turn and drove back down Albion Street and turned left into Sydney Road. He saw ‘the hooded guy’ that had been in his taxi running towards the carpark. Allahverdi had just turned into Sydney Road at this point. The hooded man ran diagonally across the carpark in a northerly direction, chased by two men, one skinny with a goatee beard, and the other chubby. He was not sure how the two chasing men were dressed, nor could he remember the distance between them and the hooded man. Allahverdi stopped immediately because he saw ‘the guy lying down’[8] on the footpath next to the red Hustler sign and ‘the other people was assisting him’. Allahverdi was cross-examined on many matters, including this evidence, to which reference is made below. For present purposes, the critical part of his evidence, and the central plank of the Crown case, was that Allahverdi saw the man who had just been in his taxi[9] running away from the club, shortly after hearing three gun shots. As indicated above, the applicant now complains that the judge’s directions in respect of this identification evidence were deficient. Indeed, the major part of the appeal hearing was spent dealing with that ground.
[8]This was clearly a reference to the victim.
[9]It was common ground that Allahverdi’s passenger was the applicant.

Returning to the narrative, it is important to note that Allahverdi was the only witness who purported to identify the applicant near the scene after the shooting. In this regard, it is necessary to summarise the evidence of the other Crown witnesses who were in the vicinity.

The victim Ferry was one of three security staff on duty that night. The others were Chris Saratsiotis and Ashley Dunen. Ferry’s evidence was that from time to time he would check the carpark to the north of the club to make sure there were no bottles lying around and that everything was in order. When he was on his way to check the carpark, he saw a man with a black balaclava heading towards him. The man was wearing a grey-hooded windcheater with black top underneath, black pants and black shoes. He saw the man shoot him, sparks coming out of the gun, and then fell to the ground.[10] He thought he had been shot in the back, and that he had been hit by two shots. As he was regaining consciousness, he saw the man fire more shots at the reception area. When he saw that, he started getting up and saw the gunman heading towards him again. He ran across Sydney Road and the gunman chased him. Ferry ran down an alley and the gunman fired another shot in the alley which missed him and which he heard ricochet. He tried unsuccessfully to climb over the back gate of the Edinburgh Castle Hotel, and then threw himself under a four wheel drive in the carpark behind the hotel. While under the car, he saw the gunman’s legs. He was standing still just for a few seconds. Then the gunman returned back up the alleyway. Ferry got out from underneath the car and called triple zero as he walked back to the club. At that time, he saw the gunman ‘walking through, running through the carpark’ just north of the club. He ‘called 000 and someone that came out, I gave him my phone and collapsed again’ and lost consciousness.
[10]In cross-examination, Ferry said that the gunman was about two feet away when he first fired.

Chris Saratsiotis gave evidence that he heard Dunen tell a man that he could not come back into the club as he had had too much to drink. He did not hear any further conversation. Later on, he was inside the front door of the club when he heard gun shots that sounded ‘unrealistic … like a cap gun’. He peeked his head out the front door quickly ‘not even two seconds’ and saw someone standing there with an extended arm which looked as if they were holding a firearm. He then ran back into the club, phoned the police and stayed behind the bar. When he went outside again, the police were already there.

Kristy Lee Steele was working as a barmaid and receptionist at the club. When she was at the reception desk just inside the entrance, she heard Dunen tell a man that he had had too much to drink and could not come back into the club. The man tried to get back in, leading to Dunen pushing him away. The man then said ‘you wait, cunt’ in a threatening manner. Later on, she heard a loud bang and then saw Saratsiotis running past the reception desk into the club. She got up onto the desk to see if she could see anything and heard a couple (maybe three) more bangs, and ultimately saw in the reflection of the door window a man in a grey hoodie jumper (with no zipper)[11] with a black balaclava covering his face. He stood in the doorway, at which point Steele backed away and went under the desk. She waited until it was quiet – about five to ten minutes later – and then ran further inside the club.
[11]The prosecutor said in closing address that the hoodie in the photos clearly had a zipper thus Steele’s evidence was wrong on this point.

Sharbell Sukkar, who had previously worked as a security guard at the club, gave evidence that, at some point, he heard people rushing into the club which led him to go outside. He saw Ferry coming towards the club from the other side of Sydney Road. Ferry told him that he had been shot and handed him a mobile phone. Sukkar spoke to a female police officer who was on the line and gave her relevant details. He then pulled Ferry over to the side of the road, near the medical centre (which is between the club and the carpark), where Ferry went straight to the ground. He did not hang up the phone, somebody else then took the phone from him and continued speaking. By this time a lot of people were there. He did not see anyone with a gun.

Jason Lee Harry Hartley gave evidence that he saw the gunman in the following circumstances. There were two sets of doors at the entrance to the club. The internal doors were closed and the external doors were open. Hartley was inside the club behind the closed internal doors when he heard two gun shots. He walked through the internal doors and, at that point, saw somebody wearing a grey hoodie, black balaclava and black pants holding a silvery grey gun in his right hand. The gunman came into the frame of the external doors and said ‘youse are fucking lucky, cunts’, then ran off. Hartley followed. Ferry was ‘in the alleyway across the road and pointed us towards the carpark’. In response to the judge asking whether he (Hartley) was on his own, Hartley said that there were other people around. He did not count them but there were a few, or a couple. CCTV footage was played and Hartley identified himself and the gunman on the tape. Hartley stated that after hearing the initial two shots and going outside, he went back inside the club and then heard a further three shots after which he went back outside. Hartley and other people headed towards the carpark at this point to see if they could find the gunman. Ferry pointed them in that direction. Hartley went into the carpark probably only 50 to 60 metres. He did not see the gunman. By the time he returned from the carpark, Ferry was lying on the footpath outside the medical centre.

Jared Phillip Threlfall attended the club with his brother and a friend. He was inside when somebody yelled that there was guy outside with a gun. A group of people rushed outside, and Threlfall followed to see what was going on. When he got outside, he could not see any of the other people that had run outside the club. Ferry approached him and said he had been shot in the back. Ferry was standing on the road at that stage, probably about one car width from the kerb. Threlfall checked Ferry’s back for wounds, then got him to sit down on the concrete, got a blanket from his car which he put under Ferry’s head, asked somebody to call an ambulance, and then held Ferry’s hand and talked to him until the ambulance arrived.

Ashley Craig Dunen described himself as floor manager at the club. His job included security duties and supervising the other security guards. The prosecutor showed Dunen CCTV footage in which a man in black is seen to move back (having either been pushed or punched) from the front door of the club. Dunen said he had no recollection of any incident at the door where he pushed a man away, although he accepted it was possible it occurred. He did not see any gun or gunman at all. By reference to further CCTV footage, Dunen agreed that he went out the back door of the club and returned a few minutes later.[12] That was after he heard that there was a gunman outside. He went up the lane behind the club, looked around the carpark for the gunman, then returned to the club to make sure that everything was OK inside. He then went out the front and saw that Ferry had been shot. In cross-examination, Dunen was asked about the pushing incident at the front door. He said that he did not remember the incident. Counsel referred to a statement Dunen made to police in which he said, in essence, that he pushed a man away when he tried to come back inside the club, and in which there was no reference to any threats or aggression by the man. Dunen reiterated that he had no present recollection of the incident. Dunen agreed that the CCTV footage of the back door showed that a person with a hoodie exited the door after him.[13] He did not know that person. He agreed with counsel’s suggestion that it was quite common for young people at the club to wear hooded jackets. He agreed that he never heard any shots. He recalled that when he went out the back into the carpark he spoke to somebody but could not recall who it was, ‘It was pandemonium’.
[12]From 1.30am to 1.33am on the CCTV clock.
[13]There was no suggestion by either the prosecution or the defence that this person was the applicant. Rather, this evidence went to the defence argument that people other than the applicant were wearing hoodies at the club that night.

There were other Crown witnesses but none that saw the gunman. The above is a sufficient reference to the evidence for present purposes. It is to be noted that the Crown case was a circumstantial one. Apart from the evidence of Allahverdi, the case relied on admissions made by the applicant, alleged lies told by the applicant in his record of interview, and other matters referred to below.

The defence case was that Allahverdi was a liar, indeed a perjurer, who was not at the scene at the relevant time, and whose evidence could not be believed. It is necessary to digress briefly to explain how it was that defence counsel[14] sought to impugn Allahverdi as a perjurer.
[14]Who did not appear on the appeal.

During the trial, on the afternoon of 2 June 2009, the court adjourned while Allahverdi was still under cross-examination. That afternoon, the police informant gave Allahverdi a lift in his car to Jewell railway station in Brunswick. Outside court, the applicant (who was on bail) and his family became concerned upon seeing the informant and Allahverdi get into the car together. The family raised the matter with defence counsel, asking if counsel ‘wanted a photo’ in order to raise the matter with the judge. Counsel said yes, and ultimately the applicant used his mobile phone to try to take a photograph of Allahverdi and the informant in the car as they left the court precinct. The following morning, defence counsel raised the matter with the judge. The prosecutor told the judge that the informant gave Allahverdi a ride to the station, and called the informant to give evidence about the matter on a voir dire. In short, the informant stated that he and Allahverdi did not discuss the case or Allahverdi’s evidence, although he joked to Allahverdi about asking for the fare ‘up front’.[15] Also, Allahverdi was ‘rattled’ by the photographing incident, which they discussed. Defence counsel did not cross-examine the informant. Later, when Allahverdi’s cross-examination resumed, Allahverdi said that he and the informant did not speak in the car, as he was still under oath. In closing address, defence counsel argued that Allahverdi’s evidence to the effect that there was no conversation in the car was, in the light of the informant’s (truthful) evidence that there was some conversation, a deliberate lie. Counsel went so far as to argue that Allahverdi had perjured himself and although ‘of course’ he would not be prosecuted for it, nor should his evidence be believed.
[15]Obviously a reference to Allahverdi’s evidence that the applicant decamped from the taxi without paying.

Apart from the suggestion that the jury should reject Allahverdi’s evidence as that of a perjurer, counsel argued in closing address that independent evidence established that Allahverdi could not have heard the gun shots, as the taxi was nowhere near the club at the relevant time. Moreover, the applicant could not have been the gunman because he was in the taxi until 1.40am, which was after the time of the shooting. In this regard, it was an agreed fact that Saratsiotis made an emergency call at 1:36:07, hence the shooting occurred some time before that. However, the time at which the applicant left the taxi was very much in dispute. The defence argument that the applicant left the taxi at 1.40am depended on drawing certain inferences as to the accuracy of times shown on the still photographs from the taxi, as adjusted by reference to the time displayed on a laptop used by Andrew Douglas, the employee of the Victorian Taxi Directorate (‘VTD’) who downloaded the relevant images. The argument about times is referred to at [93]-[98] below when dealing with the unsafe and unsatisfactory ground.

Another plank in the defence case was the argument that, contrary to Allahverdi’s evidence, the taxi turned right (west) into Albion Street and drove several hundred metres along that street, crossing the railway line, before dropping the applicant at the house of Shane Comar who lived at 229 Albion Street, some 40 metres west of the railway line near Anstey Station. Comar, who was the father of the applicant’s then-girlfriend, was called by the defence and gave evidence to the effect that the applicant arrived at his house at exactly 1.40am, which he knew from seeing that time displayed on the clock radio next to his bed. Comar said he had a beer with the applicant, who was ‘under the weather’, and ultimately gave him a lift back to a hotel in North Coburg at 6am. Apart from seeking to set up a positive alibi, defence counsel relied on Comar’s evidence as undermining Allahverdi’s evidence that he turned left into Albion Street, thus supporting the primary contention that Allahverdi was a liar who, together with the applicant in the taxi, was simply not at the scene at the time of the shooting.

The applicant also called character evidence which was said to make it unlikely that he committed the offences charged. This evidence is referred to below.

Next, it is necessary to say something about the applicant’s conduct after the shooting, and the arguments put to the jury about the significance of that conduct.

At about 4.30pm on the afternoon of 28 March the applicant was arrested by police from the Special Operations Group outside his aunt’s house in Craigieburn. The police came in a special armoured vehicle, were heavily armed, shouted over loudspeakers for the applicant to come out of the house, and made him lie face down. Detectives then came to the scene, cautioned the applicant, and put him in their car. The applicant made several admissions to the detectives in the car, which the judge ruled admissible under s 464H(1)(c) of the Crimes Act 1958 on the basis that the substance of those admissions was confirmed by the applicant in his record of interview. As mentioned earlier, the applicant abandoned a ground of appeal that the judge erred in so ruling. In short, the relevant admissions were (a) that a bouncer at the club had punched him and would not let him back into the club; and (b) that a gun was at a mate’s house at 250 Hope Street, Brunswick.[16]
[16]A search of those premises found no gun, and indeed the gun used to shoot Ferry was never recovered.

After arriving at the St Kilda Road police complex, the detectives began a recorded interview at 5.44pm, which was suspended shortly thereafter to enable the applicant to telephone and speak to his father and a solicitor, which he did. The interview was resumed at 7.28pm. The interview contained the following exchange:

QUESTION: Okay. I’ll put it to you that we’ve asked you where a – where a handgun was located.
ANSWER: Yeah, yeah.
QUESTION: Okay. And what did you – do you remember what we told you or what you told us?
ANSWER: Well, I told you it was at – at Hope Street.
QUESTION: Yeah.
ANSWER: The reason being, ‘cos I was scared. Like, I – I didn’t know what – what was going on because I thought – to be honest with you, if you get bombarded like that, alright, I’ve never been in trouble with the police before and for them to fuckin’ – sorry for my language.
QUESTION: It’s alright.
ANSWER: For them to, you know – I didn’t know what – I didn’t know what was going on and I just thought I’m just going to go along with youse.
QUESTION: Yeah.
ANSWER: You know what I mean? Because whatever – I’m not gonna – I’m not gonna say anything to make youse go, “You’re a fuckin’ shit talker,” or, “Dah, dah, dah, dah, dah,” ‘cos then I thought - - -
QUESTION: Yeah.
ANSWER: Maybe then – then you’d have a reason to – you know, to kill me or something. Do you understand what I’m saying?
QUESTION: No.
ANSWER: Well - - -
QUESTION: How often does that happen?
ANSWER: What do you – what do you mean?
QUESTION: Well, the police kill people for not - - -?
ANSWER: Well, I don’t know, mate. I’ve never been in trouble with the police. I’m not – I’m not aware of how the police works. But the way I thought they worked, it was if I don’t go along with your little stories - - -

The detectives then suggested to the applicant that he shot Ferry, which he denied. He admitted that he was at the club for a bucks night, and said that he went outside the club for a cigarette and they wouldn’t let him back in, so he walked home. He later said that one of the security guards punched him in the face and told him to go away, so he walked home. He was not with anyone after leaving the club. He denied suggestions that he took a taxi from the club, saying ‘I told you, I walked home’. When asked later if he was in a taxi at any stage the previous night, he said ‘not that I can remember’. He said at various points in the interview that he had been drunk and did not remember things.

At the trial, the defence case accepted that the applicant took a taxi home from the club, indeed arguing that the applicant returned in the taxi to Comar’s house. Accordingly, it was common ground that the statements in the interview – that the applicant walked home, did not take a taxi, and was not with anybody after leaving the club – were incorrect.

The Crown argued that the applicant told deliberate lies about these matters and the only rational explanation for doing so was to distance himself from the shooting, hence the statements could be used as implied admissions of guilt. Further, the lies went to the applicant’s credit when the jury were evaluating his denial in the interview of involvement in the shooting. As to his admission about a gun being at Hope Street, the Crown argued that even if the applicant was scared, it simply made no sense to give false information to the police that made him look guilty. In short, the admission was not the reaction of an innocent man, and provided strong indication of his involvement.

The defence, on the other hand, argued that the applicant told a lie about the gun out of panic because, given the circumstances of his arrest and his lack of previous trouble with the law, he thought he would be killed by the police. As to the statements that he walked home and did not take a taxi, counsel argued that they were not lies told in consciousness of guilt, but rather were the understandable lies of an innocent person who was worried that he would be falsely accused and also did not want to say anything that would cause the police to go to Comar’s house.

For present purposes, the above is a sufficient overview of the respective cases put at trial.

The grounds of appeal can now be considered, conveniently in the order argued by counsel.

Ground 4

This ground alleges that ‘the learned trial judge failed to properly direct the jury upon identification evidence’. The identification evidence was that of Allahverdi.

A convenient starting point is the following passage in Domican v R,[17] where the High Court said:[18]

Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.[19] The terms of the warning need not follow any particular formula.[20] But it must be cogent and effective.[21] It must be appropriate to the circumstances of the case.[22] Consequently, the jury must be instructed ‘as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case’.[23] A warning in general terms is insufficient.[24] The attention of the jury ‘should be drawn to any weaknesses in the identification evidence’.[25] Reference to counsel's arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge's office behind it.[26] It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.

[17](1992) 173 CLR 555.

[18]Ibid 561–562 (Mason CJ, Deane, Dawson, Toohey, Gaudron & McHugh JJ).

[19]Kelleher v The Queen (1974) 131 CLR 534, 551; R v Turnbull [1977] QB 224, 228; R v Burchielli [1981] VR 611, 616–619; R v Bartels (1986) 44 SASR 260, 270–271.

[20]R v De-Cressac (1985) 1 NSWLR 381, 384; R v Finn (1988) 34 A Crim R 425, 435–436.

[21]R v Dickson [1983] 1 VR 227, 230; Reid (Junior) v The Queen [1990] 1 AC 363, 380.

[22]R v Aziz [1982] 2 NSWLR 322, 328; R v Allen (1984) 16 A Crim R 441, 444–445.

[23]Smith v The Queen (1990) 64 ALJR 588, 588.

[24]Kelleher v The Queen (1974) 131 CLR 534, 551.

[25]Kelleher v The Queen (1974), 131 CLR 534, 551.

[26]Davies and Cody v The King (1937) 57 CLR 170, 182–183.

Similarly, in R v Burchielli,[27] Young CJ quoted[28] with approval the statement of Lord Widgery CJ in R v Turnbull[29] that:
[27][1981] VR 611. (Young CJ, McInerney & McGarvie JJ each agreeing in separate judgments).
[28]Ibid 617–618.
[29][1977] QB 224, 228–229.

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?
…
Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.

Young CJ also observed that:[30]
We should not be understood as saying that in every case where identification is in issue every one of the matters which we have mentioned should be referred to in the charge. Nor do we mean that even in this case a summing up which omitted reference to some of them would necessarily be inadequate, but having studied the charge as a whole, admirable though it was in many respects, we are not satisfied for the reasons we have attempted to express, that it was sufficient to guide the jury in its task of arriving at a correct conclusion on the evidence.

[30][1981] VR 611, 621.

Thus, the question in the present case is ultimately whether, read as a whole, the judge’s charge was sufficient to guide the jury in its task of reaching a correct conclusion on the evidence, having regard to all the circumstances of the case which included the particular dangers associated with identification evidence generally and the specific identification evidence in this case.

Before setting out the judge’s charge, however, it is necessary to say something about the context in which the charge was given, informed as it was by the way counsel dealt with the identification evidence.

The starting point is that Allahverdi’s identification evidence was a significant part of the Crown case. That was particularly so given that none of the other witnesses could identify the gunman, who was apparently wearing a balaclava.

In examination in chief, Allahverdi said that the hooded man he saw running was the same man that had been in his taxi.

In cross-examination defence counsel did little to test this evidence, and never put to Allahverdi that he had made a mistake in identifying the applicant. The cross-examination did, however, raise some matters that might affect the quality of the evidence. For instance, Allahverdi said that he could not say exactly which part of the carpark he saw the three people running in. He could not recall whether he saw the men through the windscreen, or the side window. He could not remember whether his windscreen wipers were on at the time, but he assumed they were because it was raining. He was not sure, but thought he had the people in view for ‘a few seconds’. He could not remember if the side window was up or down. Counsel also asked whether the man he saw on the ground was lying on the ground before or after Allahverdi stopped the taxi. Allahverdi said that the man was lying on the ground with people helping him when he stopped his taxi near the club. He did not see the man walking across the road holding a phone and then falling to the footpath, nor did he see the man come out of a side street. While these latter questions about the victim’s position on the ground did not relate directly to the identification evidence, it is clear that defence counsel was exploring how Allahverdi’s evidence about seeing people running fitted into the other witnesses’ accounts of where Ferry was at about the time they went into the carpark in search of the gunman.

It is thus apparent that defence counsel elicited matters going to the reliability of the identification evidence. To be exhaustive, those matters were the duration of observation, whether it was raining, whether he was looking out the side window or the windscreen, whether the windscreen wipers were on, whether the side window was open or closed, and whether the victim’s position on the ground meant that the gunman had already left the scene before Allahverdi arrived. Further, slightly earlier in cross-examination, in the context of the witness looking at some unrelated details in the photographs, counsel asked ‘are your eyes not too good’, which prompted the reply ‘My eyes not very good. Small details’. But there was no further exploration of the witness’s eyesight during cross-examination on what he saw in the carpark, nor did counsel mention it in closing address. Indeed, despite raising the above matters potentially bearing on the reliability of the identification evidence, defence counsel never squarely put to Allahverdi that any of these matters adversely affected his ability to say that the hooded man running from the club was the same man that had been in the taxi. Similarly, there was no reference in cross-examination nor in closing address to a balaclava and how that might have affected his evidence. In short, defence counsel neither put to Allahverdi nor argued in closing address that he was mistaken in identifying the applicant.

Given the centrality of Allahverdi’s identification evidence to the Crown case, the lack of cross-examination and argument in closing address on these matters was stark. The explanation seems to be that defence counsel made a tactical decision to avoid the issue, given that his primary argument was that the applicant and Allahverdi were nowhere near the scene at the relevant time. Counsel may have perceived that to cross-examine Allahverdi, and then make arguments to the jury, about the reliability of Allahverdi’s account of what he saw at the scene was to lend credence to the Crown’s position that he was indeed at the scene, and thereby risk undermining the defence argument that Allahverdi was simply not there. Perhaps for that reason, defence counsel’s closing address focused on the argument that the adjusted times on the photos proved that the applicant and Allahverdi were not at the scene, thus supporting the suggestion that Allahverdi had made up his evidence and that the police had arrested the wrong man.

In the end, the closest that defence counsel got in closing address to engaging with the identification evidence of Allahverdi was in relation to criticising the Crown’s contention that Hartley was the bearded man who Allahverdi had seen chasing the hooded man. As to that, defence counsel argued that given Allahverdi’s evidence that Ferry was already on the ground when he arrived on the scene, and given Hartley’s evidence that he saw no gunman in the carpark at the (earlier) time when Ferry was still on his feet, Allahverdi could not have seen the gunman. But again, this argument was raised to support the primary contention that Allahverdi was simply not there, rather than being an argument that although he was there Allahverdi did not see well enough to identify the applicant.

As to the Crown’s approach, in closing address the prosecutor said very little about the specifics of Allahverdi’s identification evidence, merely arguing that despite his uncertainty about some general details in his evidence (none of which related to the reliability of what he saw in the carpark), Allahverdi was unshaken about the central points of his evidence and the jury ought accept him as a witness of truth. The prosecutor also noted that the judge would give directions about identification evidence in due course.

The judge charged the jury as follows:

The next thing I want to talk to you about are questions of identification. Identification is always a very difficult – not always – often a very difficult issue because we know that the identification of people by other people is fraught with all sorts of opportunities for error, quite aside from malicious identification – some people saying somebody was there when they knew they were not – but in cases where people are seeing fleeting views of other people, identification is something that a jury has to be very careful of. It does not mean that you cannot act on the identification evidence but it has to always be very careful of it.
In this case, Mr Allahverdi, the taxi driver, whose evidence, you might think, is central to this whole case and extremely important, gave evidence that he saw the man who had been in his taxi (he did not know his name but he was clearly referring to the man we now know as the accused), that he saw the man who was in his taxi running across the car park to the north of the Hustler Club after he heard the shots.
I will come to Mr Allahverdi's evidence in detail but I am picking out one little bit of it now. [The judge then summarised Allahverdi's evidence from the point that the passenger left the taxi to the point at which he saw the men running across the carpark]
[Counsel] cross examined him about that and suggested that the direction he had him running in was different to what he said in chief, et cetera. But leaving aside those questions of attack on the evidence, the question that you have to determine is whether you accept an identification of the man in the taxi as being the man who ran across the car park. That acceptance involves your accepting that Mr Allahverdi is, firstly, truthful, and you may well accept that he is truthful. It also, of course, involves your accepting that his observation of the man running across the car park was sufficient for him to make the identification which he did, and you have to consider that. I am not saying for a moment that you cannot accept his evidence that it was the same man but you have got to consider that he saw but a fleeting view of him, on any view of the evidence. It was night time. He had a hood on but we know that there were other people in the club who had hoods on or in and around the club who wore hoods, we do not know how many there were. They are the sort of things you have to consider. You must consider them carefully when you are considering Allahverdi's evidence there. That is not a question of Allahverdi's honesty, it is a question of just whether you would be prepared to act upon that evidence.
One of the matters, of course, that you take into account is all the other evidence in the case. You do not look at any piece of evidence and say: ‘Well, we don't accept that’ or ‘we have a bit of a difficulty about that.’ It may be that when you look at the whole evidence of the case you are quite able to say: ‘Yes, well, we accept that, that is in fact what happened’ or ‘we don't accept that’.
So, when you are assessing evidence, you are not embarking on a minute examination of one piece and saying: ‘Well, this is our answer about that, this is our answer about that, this is our answer about that’ because you are looking at the, as you would in any scenario of working out what happened you do not take individual pieces of evidence and deal with them as if they are in isolation, because they are not. Each piece of evidence is simply part of a running event over a fixed period of time in a particular place, at a particular time, on a particular night, so that is what you are doing.

My warning to you is simply that identification is always difficult and when you add to it that it is night time, et cetera.
The prosecutor's argument, of course, is that this hoodie (if that is what it is called, the whole thing is called) was particularly distinctive and you, by looking at what you saw in the taxi and by looking at what you saw on the CCTV footage outside the club of him running down, running into the club again, coming out of the club again, that you should have no difficulty.
Now, all of that is entirely a matter for you. That is why I say you are deciding the facts. You have to examine these things and consider them. But you have got to do so in light of the fact that we know that identification in such a circumstance can be difficult. You may say: ‘Well, we are satisfied that he did identify him’ and you may say that because of all sorts of other parts of evidence in the case, but you have to be careful. Indeed, you have got to be careful in examining all the evidence and consider it very carefully but particularly I just put that to you as a particular matter to be careful of.

Later, when the judge summarised Allahverdi’s evidence more specifically, he referred to his statements in cross-examination that he saw the man who had been in his taxi running for ‘a few seconds’ being pursued by two men, that he had a ‘hoodie’, and that he could not remember how the men chasing were dressed. When the judge summarised the Crown’s argument that the jury should accept Allahverdi as a witness of truth, he said ‘You will recall what I said to you about identification and the care that you have to apply to identification.’

Later, the judge summarised the defence argument about identification as follows:

[Counsel] commenced by criticising the argument of [the prosecutor] that you can identify the hoodie by looking at it. He referred to the question of identification and how identification is always a difficult issue. I have already given you directions about that and warned you that you must be careful about identification and make sure that you are satisfied if you accept evidence of identification. He said that the colour of the hoodie on the CCTV is different to the colour of the hoodie in the taxi. This is all entirely a matter for you to determine.

It is to be noted that in the course of summarising the defence case, the judge did not say anything about specific weaknesses in Allahverdi’s identification evidence. That reflected the fact that defence counsel did not identify any specific weaknesses in closing address, relying as he did on the contention that Allahverdi was not at the scene.

Neither counsel took exception to the judge’s directions about the identification evidence.

Submissions

Counsel for the applicant submitted that the present was an identification case hence there was a need for cogent and effective directions of the kind referred to in Domican and a series of other cases referred to therein, so as to warn the jury of the dangers of convicting on the uncorroborated identification evidence of Allahverdi. More specifically, the judge’s directions were inadequate for the following reasons.

First, there was no warning as to the special dangers relating to identification evidence. All the judge said was that identification can often be difficult and that care was required. Counsel referred to R v Turnbull[31] where the English Court of Appeal spoke of the requirement to give an ‘adequate warning’ as to the ‘special need for caution’ in relation to identification evidence.[32]
[31][1977] 1 QB 224.
[32]Ibid 229.

Secondly, and contrary to the authorities, the judge failed to tell the jury the reason why such warnings are required. While the judge said ‘we know that the identification of people by other people is fraught with all sorts of opportunities for error’, he did not explain to the jury the law’s experience that miscarriages of justice can and do occur where innocent people are wrongly convicted on the basis of mistaken identification by honest witnesses, and that such honest and mistaken witnesses can often be convincing.

Thirdly, the judge failed to direct as to the particular matters and circumstances that affected the reliability of the evidence. The judge only mentioned that it was night time, that Allahverdi had ‘but a fleeting view’, and that the applicant was wearing a hoodie while other people at the club that night also had hoodies. By reference to the model charge in the Criminal Charge Book, counsel submitted that the judge should have highlighted for the jury the following questions, as to which counsel’s suggested answers appear in parentheses:

(a) for how long did the witness observe the person? (a few seconds)
(b) how far away was the person? (the witness could not say)
(c)what was the angle of observation? Did the witness see the person’s face or only his back? (the witness’s view was through a car window which was probably closed, it was raining, the windscreen wipers were on, the taxi may have been moving, there was no evidence that the witness saw the person’s face and unlikely that the person was running towards the witness)
(d)what was the light like? (the judge did not deal with this, apart from saying that it was night time)

(e) had the witness seen the person before? (no)
(f)was the witness stressed or were there other factors that may have affected his powers of observation? (the witness may have been fatigued as his shift commenced at 3pm, his eyesight was not good and he was stressed as evidenced by high blood pressure – none of these matters were mentioned by the judge)

(g)Is the witness relying too heavily on a particularly memorable feature of the person in identifying him? (the judge should have told the jury that it was a single uncorroborated witness and the sole identifying feature was the light-coloured hooded jumper)

Fourthly, the judge erred by telling the jury, or leading them to infer, that the honesty of Allahverdi was not in issue. It can be said immediately that there is no substance in this complaint. In essence, the judge told the jury that in order to act on Allahverdi’s evidence, they had to accept first that he was an honest witness, and secondly that his identification evidence was reliable. In so doing, the judge did not tell the jury that they were bound to find that Allahverdi was an honest witness. On the contrary, the judge highlighted the defence argument that Allahverdi had committed perjury – even redirecting at the request of the Crown so as to specifically summarise the evidence relevant to the perjury allegation – and told the jury that it was a matter entirely for them. It would have been plain to the jury that the honesty of Allahverdi was in issue and nothing the judge said detracted from that proposition.

Fifthly, the judge erred by telling the jury that they could decide the issue as to identification by reference to the other evidence in the case, whereas in Domican the High Court said that the adequacy of the warning about identification evidence ‘is evaluated by reference to the identification evidence and not the other evidence in the case’.[33]
[33](1992) 173 CLR 555, 565.

Finally, counsel submitted that the judge should have directed the jury that no adverse inference could be drawn from the applicant’s refusal to participate in an identification parade, which fact was disclosed by his answer to question 211 in the record of interview.

Counsel for the respondent submitted, correctly, that this last matter should have been the subject of a separate ground of appeal, because if the direction now sought was required, it was required at the time the record of interview was admitted into evidence, rather than as part of the directions about Allahverdi’s evidence, from which it was logically distinct. Nevertheless, counsel did not oppose the matter being raised on appeal, and sought to deal with it on its merits. As to that, he noted that in the course of the judge’s oral summary of the evidence, when the judge read through the questions and answers in the record of interview, he deliberately refrained from reading the answer to question 211. In short, the judge consciously avoided reiterating the applicant’s refusal to take part in an identification parade. Counsel submitted that such an approach was understandable, and indeed correct, in circumstances where defence counsel never sought the direction now contended for, and for the obvious forensic reason that to do so risked reminding the jury of the applicant’s refusal to submit to an identification parade. We agree that the judge’s approach was correct in the circumstances, and nothing further need be said about this aspect.

As to the substance of the judge’s identification directions, counsel for the respondent accepted that directions and warnings as to Allahverdi’s evidence were required, but submitted that the directions were adequate in the particular circumstances of the case. In developing this submission, counsel noted the statement in Domican that such warnings need not follow any particular formula. He also referred to R v AJS[34] for the proposition that the judge is required to determine what the issues are in a case and tailor his charge with an eye to the issues and how the case has been conducted. As to that, he pointed to several matters which impacted on the extent of the warnings required. First was the fact that Allahverdi had observed the applicant in his taxi for some twenty minutes before identifying him in the carpark. Hence, this was not a case where the witness had no prior dealings with the person being identified. Rather, it was a ‘recognition case’. As such, the dangers typically associated with identification evidence were less than in the ‘classic identification case’. Secondly, the defence did not raise such issues at trial, focusing instead on the argument that Allahverdi was a liar who was not at the scene. In those circumstances, experienced defence counsel did not seek warnings of the type now contended for, and took no exception to the directions given by an experienced judge. In these circumstances, the Court should be slow to infer that what the judge said constituted a misdirection, let alone a miscarriage of justice.
[34](2005) 12 VR 563, 577 [55].

Conclusion on ground 4

The starting point is that Allahverdi’s evidence identifying the applicant was a critical part of the Crown case, thus the judge was obliged to warn the jury in accordance with Domican. Of course, Domican (and other authorities) make clear that such warnings are not required where the reliability of the identification evidence is not disputed. As we have mentioned, however, counsel for the respondent conceded that warnings were required in the present case. That is, the respondent did not suggest that the way the case was conducted – particularly the lack of defence focus on the identification evidence – meant that the evidence was not disputed and that no warning was required.

That concession was correct. As noted above, the defence case at trial focused not on the actual identification evidence but rather on other matters that might affect Allahverdi’s credibility, in particular the suggestion that he was simply not at the scene. But that did not mean that the defence conceded that the identification evidence was reliable. Indeed, it was consistent with the defence case that the identification evidence had all the difficulties one would expect of it when given by a person who could not identify anyone at the scene because he was not there himself. The present case can be readily distinguished from cases where the reliability of identification evidence was not genuinely in issue and, moreover, could not have arisen as an issue on any view of the evidence, and regardless of the course the jury’s deliberations might have taken. For example, in Dhanhoa v R[35] the victim identified a man in a photograph as one of four men who had attacked him in his flat. The defence accepted that the accused was the man in the photograph and had been in the flat, but argued that he left the flat before the violence occurred. In those circumstances, identification was not in issue. The only issue was the credibility of the accused’s explanation that he left the flat before the offence occurred. The High Court thus held that no warning was required. In R v MacKay,[36] the Full Court observed that a warning must be given if identification is ‘fairly and squarely raised as an issue’. In that case, the evidence was not of visual identification but rather the victim of a bomb attack recognising a voice over the telephone and threats made by that person. In cross-examination it was suggested to the victim that a particular threat was not made, but there was no suggestion that the call did not occur or that he was wrong about the identity of the caller. Not surprisingly, the Full Court held that because no issue was raised as to mistaken identity, no warning was required.
[35](2003) 217 CLR 1.
[36][1985] VR 623.

In contrast, the present case always carried the very real possibility (as in fact must have come to pass) that the jury would reject the defence’s primary argument that Allahverdi was not at the scene. If the jury accepted that Allahverdi was at the scene, they then needed to consider whether his identification evidence was reliable. The fact that the judge gave identification warnings at all demonstrates that he adverted to the possibility that the jury would reject the primary defence argument and thus need to consider the identification evidence on its merits. In this sense, it is plain that the judge did not regard the case as one where the defence was conducted in such a way that no identification warning was required at all.

In effect, the respondent’s argument boils down to saying that the warnings given were sufficient in all the circumstances, particularly because this was a case where the witness recognised someone he already knew as opposed to being a first-time identification, and the witness was not really challenged about that aspect of his evidence.

The suggested distinction between ‘recognition cases’ and ‘identification cases’ is of limited utility. In R v Lovett,[37] Ormiston JA (with whom Buchanan and Ashley JJA agreed) said that:[38]

Difficulties of observation at the time a crime is committed frequently are just as great and the possibility of jumping to conclusions as to the identity of the miscreant with a person already known may likewise be just as great, albeit that there will ordinarily be no need for any subsequent formal identification process. What is required in every case will vary, the object in each being to avoid a miscarriage of justice which may flow from the failure to warn a jury of the danger arising from possible confusion or mistake. Even as long ago as Davies and Cody[39] the undesirability of placing cases relating to the identity of an offender in separate categories was reflected in the Court’s observation:
‘It is almost unnecessary to say that the amount of care and the nature of the precautions which should be taken when a potential witness is brought to identify an accused or suspected person must vary according to the familiarity of the witness with that person’.[40]

[37][2006] VSCA 5.

[38]Ibid [41] (references omitted).

[39](1937) 57 CLR 170.

[40]Ibid 181.

The above passage emphasises that cases cannot be determined by reference to labels such as ‘recognition case’ or ‘identification case’. As has long been recognised, the extent of a witness’s prior familiarity with the person identified is a question of degree and is but one factor in the mix. The nature of the warning required will depend on all the circumstances of the case, and even where a witness is very familiar with the person identified, the circumstances surrounding the identification may nonetheless be such that a comprehensive warning is required. The judge’s overriding duty is to give such directions and warnings as are necessary in the circumstances of the particular case to enable the jury to properly carry out its task as the judge of the facts and thereby avoid the risk of a miscarriage of justice.

In the present case, it is plain that Allahverdi had some familiarity with the applicant from his being a passenger in the taxi for some twenty minutes. Yet, this was not a case of a witness recognising someone with whom he was familiar due to a long acquaintance, in conditions where there was no real possibility of error. On the contrary, as counsel for the applicant demonstrated, there were numerous factors which had the potential to affect the jury’s assessment of the reliability of the evidence. Many of the matters referred to by counsel would have been well apparent to the jury. Others perhaps less so. In any event, as Domican makes clear, the judge was obliged to ‘isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence’.[41]
[41](1992) 173 CLR 555, 562.

In summary, the judge told the jury that identification is ‘often difficult’, ‘fraught with all sorts of opportunities for error, quite aside from malicious identification’ and that ‘in cases where people are seeing fleeting views of other people, identification is something that a jury has to be very careful of.’ More specifically, he stated that Allahverdi had ‘but a fleeting view’ of the applicant, that it was night time, and that he was wearing a hoodie whereas other people at the club that night also had hoodies. In short, these were all relevant matters that were properly brought to the jury’s attention. However there were other factors that bore on the jury’s task of assessing the reliability of the identification evidence. The judge ought to have drawn the jury’s attention to the matters raised at [53(c)] above, that is the angle of the witness’s view and particularly the fact that there was no evidence that Allahverdi saw the hooded man’s face, together with the evidence that the gunman was wearing a balaclava.

Further, the judge ought to have explained to the jury in specific terms why he was giving them a warning, in the sense of telling them the law’s experience, which may otherwise not have been apparent to the jury, that miscarriages of justice can and do occur as the result of mistakes by honest witnesses in identifying people.

Further still, the judge erred in directing the jury that they could be satisfied that Allahverdi did identify the applicant ‘because of all sorts of other parts of evidence in the case’. Counsel for the respondent submitted that the reference to ‘other parts of evidence’ was to be understood as those items bearing on the identification – that is the CCTV footage which showed the hooded gunman and the photos of the applicant in the taxi – and that such a direction was correct because the jury was entitled to look at those items when assessing Allahverdi’s evidence. It is true that the jury was entitled to have regard to those items when considering whether they accepted Allahverdi’s evidence. However, it is another thing to accept that the jury would have understood the judge’s directions in that way. On their face, the directions appear to go beyond the identification evidence, and extend to the whole of the circumstantial case. In those circumstances, there was a real risk that the jury may have used evidence unrelated to the question of identification to bolster the identification evidence of Allahverdi. In effect, the conclusion that Allahverdi correctly identified the applicant was an intermediate fact which constituted an ‘indispensable link in a chain of reasoning towards an inference of guilt’; see Shepherd v The Queen.[42] In those circumstances, the jury was not entitled to use such a conclusion unless satisfied of it beyond reasonable doubt, by reference to the identification evidence itself, and not the other evidence in the case.
[42](1990) 170 CLR 573, 579, and see 581 (Dawson J).

Finally, we do not overlook the fact that experienced defence counsel did not take exception to the judge’s directions. That is plainly a matter of significance, indicating as it does that counsel who was acquainted with the nuances of the trial saw no disadvantage to his client in the directions that were given. Nevertheless, given the deficiencies in the charge to which we have referred above, the interests of justice demand that a new trial be had notwithstanding counsel’s failure to take such points at trial.

Ground 4 is made out.

Ground 2

Ground 2 alleges that ‘the learned trial judge failed to properly direct the jury and misdirected the jury upon evidence of good character’.

The applicant called character evidence from a witness Haintz, who was national operations manager for a labour hire company which had employed the applicant over several years. Haintz said that the applicant was a good worker, had a reputation for being reliable and trustworthy, and had never displayed any aggression.

The judge initially directed the jury about this evidence as follows:

Another sort of evidence that we had to deal with in this case was character evidence. The accused in this case has come before you as a man who has had no prior convictions of any kind and he called a witness, Mr Haintz, who knew him and said that he had a reputation among those who knew him as being a good worker, an honest and upright person. He is entitled to do that and to put that before you in his favour. Of course, evidence of character in that way does not go to any of the issues in the case and it is simply a matter that you take into account when you are assessing the evidence in the case. But it, of course, cannot displace evidence of witnesses who saw and did what they did and it also has to be borne in mind, of course, that, I suppose, everybody who comes before a criminal court has, on the first occasion, at least, got an unblemished record. It is a matter that can be taken into account but within its limitations and you will understand that.

Defence counsel sought a redirection, on the basis that ‘the jury can regard the evidence of good reputation as being capable of bearing upon the likelihood or probability of the accused having committed the crime.’ Counsel did not seek a specific direction that the character evidence also went to the applicant’s credibility.

The judge later redirected as follows:

The relevance, as I said to you, of his [Haintz’s] evidence is that, he [the applicant] is entitled to put that evidence before you as evidence of his good character and part of the theory of that is that it goes to the likelihood or probability of someone who is of good character committing a crime, particularly perhaps a serious crime. But, as I said to you this morning, that of course is subject to the evidence in the particular case, but that's the reason that that evidence is permitted.

On appeal, counsel submitted that the redirection was inadequate for the following reasons:

(a) The judge never gave a proper good character direction.
(b)All the judge did was tell the jury what the alleged theory behind the direction was, which would not have assisted the jury.
(c)The jury should have been disabused of the earlier misdirections that the good character evidence did not go to any of the issues in the case and was as such subject to limitations.
(d)The jury should not have been told that the direction was subject to the evidence in the particular case, in effect repeating the earlier direction that such evidence could not impact upon what witnesses saw and did.
(e)The jury should have been told that they could use the good character evidence to support the credit of the applicant on the issue of whether they accepted his denials of the offence in the record of interview.

There is no substance in any of these complaints.

As to points (a) to (d) above, it is true that the judge did not use the direction in the charge book which, in essence, states that while character evidence cannot alter proven facts, it can nevertheless be used when deciding what facts the prosecution has proved. Indeed, it would have been preferable to have charged in that way. Nevertheless, read as a whole, the judge’s directions were to similar effect. In his initial direction, the judge told the jury that the character evidence was a matter to be taken into account when assessing the evidence in the case. That was plainly correct. The judge then qualified that direction by stating that the character evidence ‘cannot displace evidence of witnesses who saw and did what they did’. And in the redirection, the judge said that the character evidence was ‘subject to the evidence in the particular case’. Counsel on the appeal focused on these qualifying statements, arguing that the jury would have understood the judge to be directing them that the character evidence could not impact on the evidence of other witnesses, thus significantly undermining the character evidence.

However, the judge’s direction that the character evidence was to be taken into account when assessing the evidence in the case would have left the jury in no doubt that the character evidence was relevant to their assessment of the evidence as a whole. The later qualifications essentially did no more than repeat King CJ’s suggestion in Trimboli[43] that a judge may tell the jury that ‘evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous good character’.[44] While the judge did not say that in those terms, the jury would have understood that the reference to the character evidence not displacing ‘other evidence’ was a reference to other evidence which the jury in fact accepted, having considered for that purpose the character evidence.
[43](1979) 21 SASR 577.
[44]Ibid 578.

As to point (e), having decided to charge the jury on good character, the content of the character direction was a matter for the judge to determine, based inter alia on the issues raised by the evidence and the way the case was conducted.[45] In R v Arundell,[46] Callaway JA said:[47]

A direction concerning evidence of good character does not always have to be given. When it is given … no particular form of words is necessary. The judge should tell the jury to bear the accused's previous good character in mind when they are considering whether to draw a conclusion of guilt from the evidence. It is a factor affecting the likelihood of the accused's committing the crime charged, the weight of which often depends on the nature of the evidence and the character of the crime. Honesty, for example, may have little bearing on whether the accused committed a crime of violence and, even more obviously, vice versa. The judge may add, if he or she thinks it appropriate in the particular case, that the jury should also consider the accused's previous good character in assessing his credibility. [His Honour referred to several authorities including Murphy[48]]

[45]R v Zecevic [1986] VR 797 (reversed on appeal but not on this point).

[46][1999] 2 VR 228.

[47]Ibid 250–251 [58] (emphasis added) (references omitted).

[48](1985) 4 NSWLR 42 (reversed on appeal but not on this point).

In Murphy[49] after reviewing the authorities, the New South Wales Court of Criminal Appeal said:[50]

This line of authority shows that, whilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand.

[49](1985) 4 NSWLR 42.

[50]Ibid 54 (emphasis added).

In the present case, defence counsel did not seek a direction that the character evidence went to the applicant’s credibility. That was understandable in circumstances where counsel’s address to the jury merely argued that the character evidence made it unlikely that the applicant committed the crimes in question. While counsel referred to, and invited the jury to accept, the applicant’s denial of the shooting in his record of interview, and his explanation as to the admission about the gun, the defence case was not primarily focused on what the applicant said in the record of interview. That was well understandable given the applicant’s lack of frankness in the interview. If the judge had given the direction now sought, it would have risked focusing further (unwanted) attention on the lies told in the interview. Further, the applicant did not give evidence so there was no question of evaluating his credibility in the witness box. In short, this case was quite unlike Murphy, where character evidence going to credibility was at the forefront of the defence case, and the judge had specifically directed the jury not to have regard to the character evidence when assessing the accused’s credibility. In the circumstances of the present case it is well apparent why defence counsel did not seek the direction now sought, which was neither necessary nor desirable. Ground 2 must fail.

Ground 3

Ground 3 alleges that ‘the learned trial judge failed to properly direct the jury on alibi evidence’.

The alibi evidence, given by Comar, was that the applicant arrived at his home (a few hundred metres from the club) at 1.40am and remained there until later that morning. The judge told the jury that the evidence was not that Comar was with the applicant at the time of the shooting, as the shooting happened before 1.36am (when the emergency call was made) whereas Comar’s evidence only accounted for the applicant’s whereabouts from 1.40am onwards. The judge also said:

There is no onus on the accused to establish the alibi but, of course, he is entitled to put before you the evidence of it for you to take into account in determining the issues. But in the end, to convict in this case, you have got to be satisfied beyond reasonable doubt that Sindoni was there at the club at the time the shots were fired and that he was on the end of the gun pulling the trigger. So it does not matter really, the question of onus is, to some extent, a bit to one side but it is important that it is not a case of him not establishing an alibi, the Crown has to prove that he was at the club. So there is that.

Defence counsel took no exception to these directions.

Counsel for the applicant accepted that the above directions were correct, but submitted that the judge should have gone further by directing the jury that if they found the alibi was false: (a) this did not necessarily mean that the applicant was the shooter, and (b) they could not use that finding to support Allahverdi’s identification evidence. Counsel submitted that in circumstances where the judge told the jury that they could look at all of the evidence in assessing whether they were satisfied that Allahverdi identified the applicant, there was a real risk that if the jury rejected Comar’s evidence, they might have used that rejection as a matter to support Allahverdi’s identification. As to that, counsel relied on Turnbull[51] where Lord Widgery CJ referred[52] to the need for care when a judge is directing the jury about false alibi evidence supporting identification evidence. His Lordship observed that false alibi evidence can be relied on as post-offence conduct evidencing guilt but only where the jury is satisfied that the only reasonable inference to draw is that the false alibi was proffered because the accused was guilty and not for some other reason.
[51][1977] QB 224.
[52]Ibid 230.

There is no substance in these complaints.

As to (a), the proposed direction would have been superfluous. The judge’s directions made clear that the jury could only convict if they were satisfied that the applicant was the shooter. It followed, and the jury would have well understood, that rejection of the alibi evidence could not by itself establish that the applicant was the shooter.

As to (b), Lord Widgery CJ’s remarks arose in the context of a discussion about cases where the prosecution seeks to rely on false alibi evidence as supporting the identification evidence. In the present case, the Crown did not invite the jury to use the alibi evidence in that way. The Crown merely urged the jury to reject Comar’s evidence, thus removing any doubt that may have been engendered if the applicant had arrived at the house at 1.40am. Moreover, the Crown argued that even if Comar’s evidence was accepted, there was still time for the applicant to have shot the victim before he went to Comar’s house.

As counsel for the respondent submitted, the direction now sought could have potentially undermined the defence case. That is because it would have drawn additional attention to Comar’s evidence when the Crown had not sought to use his evidence as an implied admission of guilt, let alone to bolster the identification evidence or to undermine the credibility of the defence case. Accordingly, notwithstanding the conclusion that the judge erred in directing the jury that they could assess the identification evidence by reference to all the evidence, having regard to the way the case was conducted there was no real risk that the jury would have used any rejection of the alibi evidence as a factor supporting the identification evidence. Ground 3 must fail.

Ground 5

Ground 5 alleges that ‘the verdict of the jury is unsafe and unsatisfactory’.

The Court’s approach in assessing the unsafe and unsatisfactory ground is described in M v The Queen,[53] R v Libke[54] and R v Klamo[55] among other authorities, and need not be repeated, save to say that the question for this Court is whether, upon the whole of the evidence, the jury was bound to have entertained a reasonable doubt as to the applicant’s guilt, bearing in mind that the jury had the primary responsibility of determining the issue.
[53](1994) 181 CLR 487, 493–4 (Mason CJ, Deane, Dawson and Toohey JJ).
[54](2007) 230 CLR 559, 596–7 [113].
[55](2008) 18 VR 644, 653–4 [38]–[40].

Counsel for the applicant relied on two matters in this regard. First, the jury should have had a reasonable doubt that the applicant was the shooter, on the basis that the times in the taxi photographs showed that he was still in the taxi at the time of the shooting. Secondly, the identification evidence was so unreliable that a jury acting reasonably was bound to have a reasonable doubt as to the applicant’s guilt. Counsel did not separately develop the second point, relying on the same matters he raised under ground 4.

As to the argument about the times, it is necessary to briefly describe the evidence. Douglas produced a certificate to the effect that at the time he downloaded the taxi images, the time displayed on his laptop was one hour and six minutes ahead of the time on the taxi computer. He gave evidence in chief to similar effect. He stated in response to a question from the judge that he could not be certain that the laptop time was correct, indeed it may have been out by as much as 10 or 15 minutes either way. That was because the laptop was usually accurate at the start of his seven day rostered shift, but it got less accurate toward the end of the shift. Defence counsel cross-examined Douglas as to why he had not mentioned this uncertainty at the committal. Counsel put that it was only a theoretical possibility that his laptop time was inaccurate, and that as far as he (Douglas) was concerned the laptop time was correct. Douglas agreed with that proposition.

Defence counsel argued in closing address that the laptop time was correct, or at least there was a reasonable possibility it was correct given that the Crown had failed to prove otherwise. If the laptop time was correct, accurate times could be calculated by adding one hour and six minutes to the times displayed on the taxi photographs. On that basis, the last photo showing the applicant still in the taxi was taken at 00:34:49 (on the taxi computer’s time) which meant that, adding one hour and six minutes, the time was 1.40am when the applicant left the taxi, which was after the shooting.

The prosecutor accepted that if the laptop time was accurate, it proved that the applicant was not at the scene at the time of the shooting. However, he argued that the laptop time was not accurate. First, he pointed to Douglas’s evidence that he could not be certain as to the accuracy of the laptop, and the potential margin of error. Further, independently of that evidence, there was Allahverdi’s evidence that he heard gun shots. If the jury accepted Allahverdi’s evidence, that established that the taxi was back at the scene at the time of the shooting thus the hypothesis based on the laptop time fell away.

The judge told the jury that it was common ground that the applicant could not have been the shooter if the laptop time was correct. The judge told the jury that they were to decide whether the time on the computer was correct or incorrect, and that they were to decide the case on the whole of the evidence, which included Allahverdi’s evidence that he heard shots. As the judge said, if the jury accepted Allahverdi’s evidence that he heard shots, the times proposed by the defence were wrong, which would then raise questions as to what one makes of the times. On the other hand, if the jury did not accept Allahverdi’s evidence that he heard shots, and accepted that the times were only out by one hour and six minutes, ‘the applicant could not have been the shooter’.

The judge appropriately summarised this issue and made clear to the jury their task. There was no logical reason why the jury could not accept Allahverdi’s evidence that he heard shots. That finding alone was sufficient to dispose of the defence argument that the laptop time was accurate. But in addition, there was Douglas’s own evidence which tended to cast doubt on the accuracy of the laptop. In those circumstances, it was well open to the jury to reject the defence argument about the times.

As to the identification evidence, reference has already been made to the deficiencies in the judge’s charge and those matters need not be repeated. Despite those matters, in our view it cannot be said that a jury, properly directed as to the identification evidence, could not accept that evidence. The applicant’s counsel could not point to any particular features of the evidence that made it inherently incapable of belief. In circumstances where the defence did not test the evidence as rigorously as it might have, and did not put to the witness that he was mistaken, it would be an unjustified intrusion into the jury’s domain for this Court to now state that the evidence is incapable of belief.

Assuming then that a jury, properly instructed, may accept the identification evidence, and indeed the other strands of evidence, there is no logical reason why the jury must have entertained a reasonable doubt as to the applicant’s guilt.

Although circumstantial, the Crown case is strong once the identification evidence is accepted.

The applicant was pushed away from the club and, however irrational it was, he thus had a motive to harm security staff. Accepting Allahverdi’s evidence generally, as was plainly open to the jury, the applicant travelled home from the club in an agitated state, changed his clothes, and then returned to the vicinity of the club in an agitated state. Based on elapsed times in the CCTV footage and the taxi photos, which are accurate even if the actual time is not, the applicant was in the taxi for 23 minutes and 35 seconds, whereas the time between the applicant walking away from the front of the club and the gunman returning is 26 minutes and 49 seconds. Thus the elapsed times are consistent with the hypothesis that the applicant was the gunman.

While it was a matter for the jury, the photos of the applicant in the taxi show a hoodie which appears similar to the hoodie worn by the gunman on the CCTV footage. And notwithstanding the reference in the evidence to other people at the club wearing hoodies, as to which it might be added that the judge gave a favourable direction to the applicant’s benefit, there was no evidence that any specific person at the club wearing a hoodie had a grudge against the security staff and whose movements were otherwise consistent with involvement in the shooting.

Further, if accepted by the jury, the alleged lies and admissions pointed strongly to the applicant’s guilt.

In all the circumstances, it cannot be said that on the whole of the evidence the jury was bound to entertain a reasonable doubt as to the applicant’s guilt. Ground 5 must fail.

Disposition

Counsel for the Crown submitted that the proviso could apply, but did not develop the argument. As the High Court made clear in Domican,[56] where there is a misdirection in relation to an identification warning, unless this Court concludes that the jury must inevitably have convicted the applicant independently of the identification evidence, the proviso will not apply. That is because the accused will have lost a chance of being acquitted had the proper warning been given. In our view, it cannot be said that the jury would inevitably have convicted the applicant independently of the identification evidence. Indeed, the jury might have had a reasonable doubt as to the applicant’s guilt if a proper warning had been given. It follows that the proviso cannot apply.
[56](1992) 173 CLR 555, 565–567.

By the same token, rejection of ground 5 means that it is appropriate to order a retrial rather than an acquittal.

For these reasons, there will be leave to appeal against conviction, and orders that the appeal be treated as instituted and heard instanter and allowed, the conviction and orders below set aside and the applicant retried on count 2.

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Citations

Sindoni v The Queen [2011] VSCA 195

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R v Smith [2017] SASCFC 153

R v Sindoni [2012] VSC 238

Cases Cited

8

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B v The Queen [1992] HCA 68

R v AJS [2005] VSCA 288

R v Young [2020] QCA 3

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[2011] VSCA 195

1 July 2011