Sindoni v The Queen

Case [2011] VSCA 195


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:

  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…

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AGLC
Sindoni v The Queen [2011] VSCA 195
Case
[2011] VSCA 195
Decision Date

CaseChat Overview and Summary

In the case of Sindoni v The Queen, the appellant, Angelo Sindoni, was convicted of intentionally causing serious injury to a person and faced a lengthy prison sentence. The matter was heard in the High Court of Australia. The appeal raised critical issues surrounding the adequacy of the trial judge's directions to the jury concerning identification evidence, character evidence, and alibi evidence. The appellant contested that the trial judge failed to adequately address these aspects, leading to a miscarriage of justice.

The primary legal issue before the court was whether the trial judge's directions to the jury were insufficient in relation to the identification, character, and alibi evidence presented during the trial. The appellant argued that these deficiencies warranted a retrial to ensure a fair trial. The court needed to determine whether the inadequacy of the directions constituted a miscarriage of justice and whether the proviso in the relevant legislation applied. The High Court examined whether the verdict was otherwise unsafe or unsatisfactory despite the shortcomings in the directions.

The High Court held that the trial judge's directions regarding identification evidence were insufficient. However, the court found that the proviso did not apply in this instance. Despite the inadequate directions, the court concluded that the verdict was not otherwise unsafe or unsatisfactory. Consequently, the appeal was allowed, and the conviction was set aside. The High Court ordered a retrial on the second count of the indictment, granting leave to appeal against the conviction and treating the appeal as instituted, heard immediately, and allowed.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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