R v Mendoza [2007] VSCA 120

R v Mendoza [2007] VSCA 120 - VSCA 2007 case summary — Zoe

[7]

The Background

5 On 27 January 2004, at approximately 5.10pm, an armed robbery was perpetrated at a hairdressing salon, "MV Unisex Hair", located in Albert Street, Footscray. At the time, a female customer and two female hairdressers, Virginia Nguyen and Mimosa Corpus were present.

6 Ms Nguyen was rinsing a client's hair when the offender, a male, entered the store and Ms Corpus was seated at the reception area. The person approached Ms Corpus and withdrew a knife from a plastic bag hidden underneath his T-shirt. He pointed the weapon at her neck and said, "Where is the money?" or "Give me all the money". Severely shocked, Ms Corpus found herself unable to speak and indicated to the drawer where the salon money was kept in a small tin. She remained seated while the robber leaned over her and took the tin. He then said, "Is that all, where's the rest?" or "Where's the money?" The offender then took Ms Nguyen's handbag, containing her purse, from under the desk. At that stage, another man entered the salon, and the robber fled with the handbag and tin.

7 Ms Nguyen described the perpetrator to investigating police members as being of Filipino ethnicity, around 19 to 22 years old, with a slim build and very dark hair to his neck with a "little bit" of a wave. She said that he was wearing a red T-shirt and dark denim jeans and that she had been able to observe him for a "good couple of minutes".

8 Ms Corpus described him as a man of a small build, who was wearing an oversized red shirt and jeans. He spoke with a Filipino accent and had black, collar length, wavy hair and a clean shaven complexion. She said that she was not able to get a good look at his face because he was leaning over her, and her attention was focused on the knife. She said the whole incident occupied no more than two minutes.

9 During the robbery, approximately $200 was taken from the tin and about $150 from Ms Nguyen's purse.

10 At about 4.45pm on that afternoon, Yvonne Epema and Jessica Strachan were at the nearby Hansen Reserve in Footscray, watching cricket training when a male, unknown to them, walked past towards the clubrooms. Ms Epema said to him, "It's not a public toilet". He stopped and looked straight at her for about five seconds, then continued walking and entered the change rooms.

11 Ms Epema described this person as being of "Asianatic" ethnic appearance, with neat black hair of about collar length and with gel or wax in it. He was wearing a light coloured top, that was very loose and baggy, similar to a "bomber jacket". His trousers were also light in colour. He was of average build and about five foot 10 inches tall. On 4 February 2004, Ms Epema was shown a photo board by police.[2] She pointed out photograph number 9 (the applicant) and said -

[13]

The applicant was selling rechargeable batteries,[5] and asked Ms Nguyen whether she wanted to buy any. He remained in the store for five to eight minutes. She telephoned the police immediately after he left.

17 Ms Corpus stated, in her evidence, that she felt scared when the applicant came to the salon, and that she knew it was the same man, identifying him principally from his eyes and nose. She said in evidence that she had a clear view of him on this occasion.

18 On the following day, the police showed Ms Nguyen a photo board containing 12 photographs of Asian males.[6] Ms Nguyen identified photograph number 9 (the applicant) and said, "That's the person that was in here. It's definitely him, I can tell by the eyes". Ms Corpus was also shown a photo board[7] on 3 February 2004 and she too identified photograph number 9 (the applicant) as the armed robber, and told police, "That's him. It's in the eyes".

19 Lyna Mendoza is the applicant's sister and, at that time, lived with her parents and the applicant in St Albans. On 22 January 2004, Ms Mendoza put blonde streaks through her hair, in preparation for a party the following night. When she had finished, there was some dye remaining that she left either on a bench in the house or in the bathroom. Some time after the party, Ms Mendoza noticed that the applicant had dyed his hair, using her left-over dye. She recalled that this observation was made "a couple of days" or "a few days" after the party, but within a week.

20 Candelaria Mendoza, the applicant's mother, gave evidence of seeing the applicant dying his hair, but she could not remember when this occurred.

21 Detective Senior Constable Peter Meath was the assigned informant in this matter. He compiled the photo boards, which included at number 9 a photograph of the applicant that had been taken on 12 June 2002 and, on 3 and 18 February 2004, he conducted tape recorded interviews with the applicant.[8]

22 In the second interview, he had a conversation with the applicant concerning the dying of his hair. The applicant said that he first dyed his hair "about two or three weeks before [he] was arrested the first time" on 3 February 2004.

The Application for Leave to Appeal Against Conviction

Grounds 2 and 3

23 The Crown case against the applicant, for practical purposes, rested entirely upon the evidence of Ms Nguyen and Ms Corpus. There was some circumstantial evidence relating to the time at which the applicant put highlights in his hair and his statements concerning that matter in his police interview. If regarded as reliable, bearing in mind the very different description of the clothing worn by the person observed, he was identified by Ms Epema as being in the vicinity at around the time of the robbery. However, absent the identification of the applicant as the offender, these pieces of evidence, whether considered separately or in conjunction, were incapable of supporting his conviction and the identification evidence itself raised issues that required the provision of careful instruction by the trial judge. The central question presented by grounds 2 and 3 is - were the instructions given adequate in the circumstances. The answer is - I consider - no.

24 There is no necessity to refer, other than generally, to the development of the law in this area or the numerous occasions on which the courts have directed to the risk of injustice arising from confidently made, but nevertheless possibly incorrect, identification of persons as offenders.

25 The proper approach to be adopted was set out by the High Court in Domican v R:

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"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 ... The terms of the warning need not follow any particular formula ... But it must be cogent and effective ... It must be appropriate to the circumstances of the case ... 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'... A warning in general terms is insufficient ... The attention of the jury 'should be drawn to any weaknesses in the identification evidence' ... 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 ... 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. [9]

...

The adequacy of the warning has to be evaluated by reference to the nature of the relationship between the witness and the person identified, the opportunity to observe the person subsequently identified, the length of time between the incident and the identification, and the nature and circumstances of the first identification - not by reference to other evidence which implicates the accused. A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to convict the accused ... The judge must direct the jury on the assumption that they may decide to convict solely on the basis of the identification evidence. If a trial judge has failed to give an adequate warning concerning identification, a new trial will ordinarily be ordered even when other evidence makes a very strong case against the accused ... "[10]

[24]

"First, ask yourselves is the witness identifying someone well known to her although even then mistakes can occur, even if the witness knows the person well, but of course there is much less likelihood of a mistake being made if you know someone well than if you do not. In this particular case, Nguyen and Corpus say that they saw the defendant on at least one prior occasion as distinct from Mrs Epema who said she had never seen this man before or since. As far as Nguyen and Corpus are concerned, although it could not be said that the accused was well known to them, on the other hand it cannot be said that he was a complete stranger to them. It being not in dispute in this case that he had been into their store it would seem on at least one or two occasions prior to 27 January 2004, the last being - I think the evidence was at least three months beforehand was the last time he visited the store. Of course, you will appreciate that their evidence was not that they recognised him as soon as they say he came in on 27 January but they do not say - neither of them say 'Yes, we recognised him straight away'. What they do say is that after the robbery and after he left, they then discussed the matter and had this recollection that the man had been into the store selling things before and I will come back to that later.

...

... [T]he next thing you should take into account is what time elapsed between the initial observation of the subject and identification later, because the longer the time that elapsed, the more opportunity we all have to forget things. And for clear impressions to be lost. Now, in this case, the evidence is, as you know, that these people were asked to identify the subject by means of photographs very soon after. There was no great time lapse here, and so, you can say well at least the witnesses had the advantage of having their identification process made very soon after the events, so there was no great time lapse, and that included Mrs Epema as well. So, it cannot be said, and hasn't been said here that their memories would've dimmed from the time of the initial sighting until they are asked to identify someone by means of photographs. And, in the case of Nguyen and Corpus, they had the opportunity, they say, to see the person again when they say the same person came into the shop on 3 February, so they say not only did we see this man before the robbery, on occasions when he came into the shop, we say we saw him on the day of the robbery, because it was him that came into the shop, and we say he came back to the shop on 3 February to sell things to us. And so they say that they had the opportunity to confirm their identification on that occasion.

...

... [T]he police are entitled, and did in this case, to adopt this secondary means of using photographs to show the witnesses to attempt an identification. Now, the first means by which they did that was by a photo book and, as you know, the witness Corpus was able to identify the accused man, at least to some extent. She wasn't saying a hundred percent, but she pointed to a photograph of the accused man in that book, and that photo was taken in June '02, as you've heard, I think, one of the witnesses, Mr Meath, perhaps gave evidence as to when it was taken. Now, you should not draw - again you should not draw any adverse inference against the accused because a photo of him was in that book. All you simply need to rely on is the fact that it was identified by Corpus, but not by Nguyen in that book.

Now, the question of the identification by the photos is an important part of the Crown case, but you must be satisfied, not only that the identity was made, but how certain the identity was made by the witnesses. So you'll take account of the evidence that was given and about whether it's 60 percent sure, or I think it's him and so on and so forth, and naturally the Crown case would've been better if they'd said I'm a hundred percent sure. But human beings are probably never that certain about anything, but you must make that assessment and take what was said by the witness at the time they identified the accused man in the photo into account. Of course, bearing all these things in mind that I've said to you, you've got to consider the evidence of personal identification obviously very carefully and, of course, in doing that, you'll look for some feature or features in the evidence which makes it more reliable before you accept it."

[28]

45 It is, as the large number of authorities dealing with this subject have repeatedly made clear over many years, accepted that the risk of injustice arising from wrong identification must be minimized by the provision of careful instructions directed to the real sources of possible unreliability of identification evidence. These instructions are to be given with the full authority of the judge's office. Sometimes the risks will be so apparent that not a great deal need be said, but even in that situation, the responsibility of the judge to ensure that the jury is mindful of the existence of the risk and how it could arise remains. Whilst the judge is required to remind the jury of the defence response to the identification evidence, it is almost never sufficient merely to repeat counsel's submissions on that aspect. In the present case, the judge not only failed to provide instructions concerning the possibility of displacement of recollection when directing the jury on the issue of identification but, as I have earlier indicated, treated the various observations of the applicant as somehow strengthening the evidence. Those deficiencies were not cured by the provision of a summary of the submissions of counsel and certainly not in a situation in which he completed his reference to those submissions with the remark, "It's entirely a matter for you."

Ground 1

46 There is no substance to this ground. When arrested the applicant had

highlights in his hair. The perpetrator of the robbery, according to the witnesses, had black hair. There was evidence that, at around the relevant time, the applicant had used his sister's hair dye. His reason for doing so and the time at which it occurred clearly assumed relevance in the trial. There is no basis upon which it can be seen that the trial judge fell into error in his directions on this aspect and the matter was properly put before the jury.

47 As the grounds relating to the judge's directions on identification have been made out, I consider that the verdict must be regarded as unsafe and set aside. It is not an appropriate case for the application of the proviso to s 568 and I would in that situation direct that a re-trial be held.

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties

Cases Cited (2)