Sindoni v The Queen

[2011] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

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

---

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)

---

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.

---

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:

1. 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.  

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

1. 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.

1. 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

1. The primary issue at the trial was whether the applicant was the person who…