Frank (a pseudonym) v The King - [2024] VSCA 37

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0158

MICHAEL FRANK (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of pseudonyms in place of the name of the applicant.

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JUDGES:	BOYCE, WHELAN and T FORREST JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF JUDGMENT:	18 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 37
JUDGMENT APPEALED FROM:	DPP v Michael Frank (a pseudonym) (County Court of Victoria, Judge Wraight, 28 September 2022)

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CRIMINAL LAW – Appeal – Conviction – Indecent assault – Rape – Common law rape – Applicant found guilty of four charges of indecent assault, three charges of rape and one charge of common law rape – Sentenced to 9 years’ imprisonment with a non-parole period of 5 years – Whether a verdict of the jury was unreasonable or could not have been supported by the evidence because of a factual inconsistency – Whether a substantial miscarriage of justice resulted from the jury not having been directed to return not guilty verdicts on charges of indecent assault where age of complainant in question – Jury verdict was reasonable, could be supported by evidence and not factually inconsistent – No substantial miscarriage of justice – Leave to appeal refused.

Crimes Act 1958, ss 44, 45; Criminal Procedure Act 2009, s 276(1).

McKenzie v The Queen (1996) 366 CLR 348, applied; Goldsmith v The Queen [2010] VSCA 99; MFA v The Queen (2002) 213 CLR 606, discussed.

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Counsel
Applicant:		Mr PJ Matthews
Respondent:		Ms DI Piekusis KC
Solicitors
Applicant:	Paul Vale Criminal Law
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
WHELAN JA

T FORREST JA:

On 28 June 2022, the applicant was convicted by a jury in the County Court of four charges of indecent assault, three charges of statutory rape and one charge of common law rape in respect of offending which occurred in 1986.
The applicant was sentenced on 28 September 2022. The details of his convictions and sentence are set out below.

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Indecent assault[2]	5 years’ imprisonment	2 years and 6 months’ imprisonment	6 months
2	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	6 months
4	Rape[3]	10 years’ imprisonment	3 years’ imprisonment	6 months
5	Rape	10 years’ imprisonment	4 years’ imprisonment	1 year
6	Rape	10 years’ imprisonment	4 years’ imprisonment	1 year
7	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
8	Indecent assault	5 years’ imprisonment	2 years and 6 months’ imprisonment	3 months
9	Common law rape	10 years’ imprisonment	5 years’ imprisonment	Base
Total Effective Sentence:		9 years’ imprisonment
Non-Parole Period:		5 years
Pre-sentence Detention Declared:		92 days
Other Orders: Pursuant to s 6F Sentencing Act 1991, the applicant was sentenced as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Frank (a pseudonym) v The King

Details

AGLC: Frank (a pseudonym) v The King [2024] VSCA 37
Case: [2024] VSCA 37
Decision Date: 18 March 2024

CaseChat Overview and Summary

The case of Frank v The King involved an appeal against the applicant's conviction and sentence for various sexual offences. Frank, referred to by a pseudonym, was found guilty of four counts of indecent assault, three counts of rape, and one count of common law rape, and was sentenced to nine years imprisonment with a non-parole period of five years. The appeal centred on whether the jury's verdict was unreasonable or unsupported by the evidence, and if a substantial miscarriage of justice occurred due to the jury not being directed to return not guilty verdicts on the indecent assault charges due to the age of the complainant.

The court was required to determine if the jury's verdict was unreasonable and whether there was a factual inconsistency in the evidence that could undermine the verdict. Additionally, the court had to assess if a substantial miscarriage of justice occurred because the jury was not properly directed on the indecent assault charges. The applicant argued that the jury's verdict was unreasonable and factually inconsistent, and that a substantial miscarriage of justice had occurred due to the jury not being directed on the indecent assault charges.

The court held that the jury's verdict was reasonable and could be supported by the evidence. The court found that there was no factual inconsistency that would render the verdict unreasonable. The court also concluded that there was no substantial miscarriage of justice as the jury had been adequately directed on the charges. The appeal was dismissed, and leave to appeal was refused.

The final orders of the court were to dismiss the appeal and refuse leave to appeal. The court found that the jury's verdict was supported by the evidence, and that there was no substantial miscarriage of justice. The applicant's sentence and conviction were upheld.

Orders