R v Mendoza [2007] VSCA 120

1. The learned trial judge erred in:

(a) admitting the evidence of a change of hair colour of the applicant;

(b) failing to exclude that evidence in the exercise of the Christie direction;

(c) failing to properly charge the jury as to the use to be made of that evidence.

2. The learned trial judge erred in that he failed to adequately direct the jury in relation to identification evidence.

3. The learned trial judge failed to adequately direct the jury in relation to:

(a) the potential for "displacement" in the attempted identification from photographs;

(b) the potential for the evidence of identification of the applicant by Virginia Nguyen to have been contaminated or bolstered in discussions with Mimosa Corpus;

(c) the potential for the evidence of identification of the applicant by Mimosa Corpus to have been contaminated or bolstered in discussions with Virginia Nguyen;

(d) the potential for the evidence of the applicant's change of hair colour to influence the identification evidence;

(e) the use of the words "I think" by each of Ms Nguyen and Ms Corpus in relation to their evidence of identification; and

(f) identification evidence, in that warnings were not given with the authority, or sufficient authority, of his Honour's office.

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 -

"He looks most like it. I would say 85 to 90 per cent sure it is him. It's his eyes and the shape of his face are the same. His hair is different. The man I saw didn't have dyed hair".

12 Jessica Strachan could not describe the male's face, but said that he was wearing baggy clothes and green-blue jeans. He had black hair and was tanned and his hair had the appearance of having been styled. On 5 February 2004, Ms Strachan was shown the same photo board, but she could not identify the man.

13 At the subsequent trial of the applicant, Ms Nguyen gave evidence of having seen the offender in her salon on two or three occasions prior to the armed robbery, when he had gone there trying to sell face creams and mugs. Ms Corpus said the offender had called in on one previous occasion, at night time, trying to sell ladies face creams.

14 On 28 January 2004 (that is, on the day following the robbery) Ms Nguyen attended the St Kilda Road Police Complex. She was shown photo books of Asian males, in one of which was a photograph of the applicant, but was unable able to identify the perpetrator. She compiled a FACE image of the offender, with the assistance of a Victoria Police technician.[3]

15 Ms Corpus also attended at the complex on 28 January 2004. She was shown two brown folders containing photographs of Asian males. She selected a photograph[4] (the applicant) and told the police officer -

"This one looks very similar, especially the eyes and the nose. But he had no facial hair and his hair was longer and wavier".

When asked whether this could be the offender, she said "yes", and stated that he was "about 60 per cent" similar.

16 On Monday, 2 February 2004, the applicant visited the salon. Ms Nguyen and Ms Corpus were present. Both noted that his hairstyle was different from that of the perpetrator in that he had some blonde foils or highlights. Ms Nguyen said, in her evidence at the trial, that she was positive he was the person who had robbed them, as he had -

"the same build, the same walk, the same accent, the same way he talked in his English, and his eyes - certainly his eyes. Once I look at those eyes I knew that it was him."

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:

"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]

26 In the present case, there were features of the evidence of both Ms Nguyen and Ms Corpus that could be seen to raise questions concerning the possible unreliability of their respective identifications.

Ms Nguyen

27 This witness told the police that she had seen the perpetrator in the salon on two or three occasions during a three month period prior to the robbery, on one of which he was selling face cream and, on another, thermos type mugs. [The applicant told the police, when interviewed, that he had been to the salon on one occasion selling Oil of Ulan products.]

28 Although she claimed that she was able to observe the perpetrator for a "good couple of minutes" on the day of the robbery, she also said, with respect to the visibility in the store, that it was not very good - "when someone walks in - you can't quite see, because it's against the light."

29 When shown photo books of Asian males on the day after the robbery, one of which contained a photograph of the applicant, she failed to identify him.

30 She compiled a FACE image of the robber with the assistance of a Victoria Police technician, advising the technician that his eye colour was brown, dark or black; his hair colour was black; and styled straight and collar length, and that he had no facial hair. However and notably, she made no reference to any distinctive character of the offender's eyes at that time.

31 The applicant accepted that he did attend the salon five days after the robbery, selling rechargeable batteries. Ms Nguyen observed that he spoke with a Filipino accent and claimed to have identified him at that stage.

32 When he left, she spoke to Ms Corpus and then rang the police:

"I told the police that the person I think that robbed us just was here and was selling us some rechargeable batteries." (Our emphasis)

The significance of her conversation with Ms Corpus in arriving at this conclusion is unclear as the following passage from the defence counsel's cross-examination suggests -

"Now, ...[b]efore you told the police that the person who robbed you was a person you believed you'd seen before, you discussed the robber and the person you'd seen before with your colleague, Ms Corpus. Is that right?---Yes.

You talked to her about how the robber looked. Is that so?---Yes.

And she talked to you about how the robber looked. Is that so?---Yes.

In the course of that conversation did you, for your part, come to the conclusion that the robber and the person who visited previously selling things was the same person?---Yes."

Obviously, the possibility that the two women mutually confirmed or contaminated their separate identifications had to be considered.

33 When shown a photo board on the next day showing only three persons she considered were of Filipino origin, she identified the applicant, emphasizing her observation of the eyes of the offender.

34 If Ms Nguyen was correct in her evidence concerning the number of occasions he had been at the salon prior to the robbery (and excluding the robbery), she had seen him three or four times personally and twice in photographs. She had also discussed with Ms Corpus the identification of the person selling batteries as the perpetrator of the robbery.

35 In re-examination it was put to her that she had made a mistake and she disagreed with that proposition stating that she was just so sure -

"that it's always been the same person that walked in there prior to the robbery that sold us things. It's also the same person that robbed us and it is also the same person that walked in there a week after the robbery incident ... I can tell that it's him by the way he talks. He's got that distinct accent when he talks, and it's - he's so tiny - you know, he's of a slim build. You can pick him up straightaway."

It is interesting and possibly significant, that no reference was made at that stage, when she was emphasizing the features that she considered enabled her to identify the applicant, to his claimed distinctive eyes or nose.

36 In the circumstances, the potential for misidentification by this witness must be regarded as, at least, real. In particular, there can be seen to be a risk of wrong identification by reason of what has been termed the displacement effect and the possible contamination of her recollection as a consequence of her discussions with Ms Corpus. As Mason J stated in Alexander v R[11]-

"Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognizing on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed."

Ms Corpus

37 This witness recalled seeing the applicant in the salon selling face cream on one occasion prior to the robbery but, she said, Ms Nguyen was not present. She said that they had spoken about the attendance of a person selling products before the robbery, and had agreed at that time that they had probably encountered the same individual.

38 She accepted that her observation of the perpetrator in the course of the robbery was limited by the physical circumstances under which it was made, the time involved and the understandable fear that she experienced on seeing the knife.

39 When shown photographs, one which depicted the applicant on the following day, she did not identify him as a person who had been in the salon prior to the robbery but said that the applicant "could" have been the perpetrator. He looked very similar, especially "the eyes and the nose" and that he was "60 per cent" similar.

40 However, she identified the applicant as the perpetrator when he later came to the salon, selling batteries. But, as I have already indicated, there was a conversation with Ms Nguyen following this observation that may have influenced the position.

41 When then shown a folder containing a photograph of the applicant she identified him as the perpetrator to the police. At that time, on her evidence, and setting aside the occasion of the robbery, she had seen the applicant twice in the salon and previously in a photograph.

42 The potential for misidentification in the circumstances clearly existed and necessity for the provision of careful directions is apparent.

43 Surprisingly, rather than drawing the attention of the jury to the risk of contamination of identification through displacement of recollection or the discussion between the two witnesses, the trial judge directed the jury on the basis that their various observations strengthened rather than detracted from the reliability of their evidence.

44 In his charge his Honour said -

"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."

His Honour's only reference to the possibility of displacement of recollection was made earlier summarizing defence counsel's address.

"[Counsel] raises the point again that before you can accept these women, and you must accept their evidence beyond a reasonable doubt in order to arrive at guilty verdicts in this case, you have got to be satisfied about the quality of their observations and the quality of their memory and to be careful as he put it that their memories were not displaced. You would appreciate that if someone sees someone on previous occasions and then makes an identification that that particular person was involved in an incident such as this, that then when they come to look at photos as was done in this case, there can be a danger when they see the photograph if they recognise that as the person who they had seen on the prior occasions of displacing the person they saw at the time of the incident as being the same person. It could happen. He reminds you of the danger of that, that when you look at the photo, you are thinking, 'Well, yes, I know that person because I have seen him on prior occasions', but the important thing is not whether you have seen them on prior occasions but whether it is the same person that was involved in the particular incident that the police are concerned about. So you need to be on your guard about that."

" ... he says that you need to be particularly careful in relation to Ms Nguyen and Ms Corpus about their identification because they discussed the matter of his client coming into their shop on previous occasions. They had this discussion about this before they ever saw any photos produced by the police and, in effect, they contaminated each other's recollections and memories, or the potential was certainly there to contaminate each other's memories because of their discussions about what had gone on before.

Now, he says that they themselves have raised a doubt about their recollections. He reminded you again by using the word 'I think' when they spoke to the police that the robber was just here, relating to the report they made to the police following the defendant's return or attendance at the shop on 3 February to sell more goods. Now he says, quite properly, that if you find that each woman's identification was faulty, you can't put the two of them together, the two faulty recollections together and come to the view that you end up with one good one. Two faulty recollections means just that. There's no way that you can add them together.

Now, as I said, and I don't intend to cover every argument put to you by counsel and if you think there are other arguments that have been put to you that I haven't mentioned. If you please can take them into account. It's entirely a matter for you."

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.

48 I agree with the orders proposed by Vincent JA and with his reasons.

49 I also agree with the orders proposed by Vincent JA and with his reasons.

---

[1] The applicant was, on 5 August 2005, sentenced to a term of 21 months' imprisonment, in respect of which a non-parole period of six months was fixed. That sentence related to a number of shop stealing offences committed on 13 July, 8 September and 9 October 2004 and 7 January, 20 January and 19 December 2005. With respect to the 9 October 2004 offending, the applicant, in trying to avoid apprehension, stabbed a security guard in the shoulder.

[2] Exhibit G.

[3] Exhibit C.

[4] Exhibit E.

[5] On 2 February 2004, the applicant attended "The Warehouse" store in Werribee and stole two portable CD Walkmans and two packets of batteries. Later that day he tried to sell these items to Ms Corpus and Ms Nguyen, approximately five days after the armed robbery. These items were the subject of count 1 on Presentment no. S02068759.2.

[6] Exhibit D.

[7] Exhibit F.

[8] Exhibits H and J.

[9] [1992] HCA 13; (1992) 173 CLR 555 at 561-562.

[10] [1992] HCA 13; (1992) 173 CLR 555 at 565.

[11] [1981] HCA 17; (1981) 145 CLR 395 at 426.