Franze v The Queen - [2015] HCATrans 119

[2015] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M13 of 2015

B e t w e e n -
ADRIAN FRANZE
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 11.45 AM

MS C.A. BOSTON: May it please the Court, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR D.D GURVICH, for the respondent. (instructed by Director of Public Prosecutions (Cth))

HAYNE J: Yes, Ms Boston.

MS BOSTON: Little attention has been paid to the topic in this country, but for the reasons set out by the Court of Appeal, the likely position at common law is that it is not an offence to attempt to enter an agreement to commit an offence - so, in other words, to attempt to enter a joint criminal enterprise – but that it is an offence to attempt to commit an offence as part of a joint criminal enterprise. The cases that touch on the topic are, however, few and far between, presumably because unsuccessful joint crimes are generally prosecuted as conspiracies.

But even presuming the common law does draw this distinction, the crux of the applicant’s contention is that the Criminal Code (Cth) does not and that section 11.1(7) comprehensively precludes criminal liability for the inchoate offence of attempt under the Code being further extended on the basis of joint commission.

Now, as the applicant was prosecuted for a federal offence purely on the basis of joint commission, it is respectfully submitted that he has been convicted of those offences on a basis not known to the law. As the Court is aware, as this Code was passed in 1995, it contained provisions relating to conspiracy and aiding and abetting, but it did not contain section 11.2A.

As this Court confirmed in Handlen and Paddison v The Queen, the common law concept of joint criminal enterprise did not survive the implementation of the Code. Thus, in the years following the Code’s commencement in 1997, there was no ability at all to prosecute a person for a Commonwealth offence on any basis resembling joint criminal enterprise. In 2010, of course, an amending Act inserted section 11.2A and also amended significantly section 11.1(7) to include a reference to section 11.2A. That subsection now read and still reads:

It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission) –

and so on and so forth. Now, it is clear that read literally that subsection would be of no effect insofar as it pertains to section 11.2, 11.2A and 11.3, since those provisions do not create offences. Rather, they provide for extensions of criminal responsibility for other offences, and…

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 Franze v The Queen

Details

AGLC: Franze v The Queen [2015] HCATrans 119
Case: [2015] HCATrans 119
Decision Date

CaseChat Overview and Summary

The case of *Franze v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Franze, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the directions given to the jury by the trial judge.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the appellant's prior convictions and whether the judge's directions to the jury regarding the use of that evidence were adequate. Specifically, the court considered whether the prejudicial effect of admitting evidence of prior convictions, which were similar in nature to the offence charged, outweighed its probative value. The appeal also raised questions about the proper application of the principles governing the admissibility of such evidence under the *Uniform Evidence Law*.

In its reasoning, the High Court emphasised the importance of the exclusionary rule concerning evidence of a person's character or previous convictions, particularly when that evidence is adduced for the purpose of suggesting that the person committed the offence charged because they have a disposition to do so. The Court held that the trial judge had erred in admitting the evidence of prior convictions, as it was not relevant for any purpose other than to suggest that the appellant had a propensity to commit the offence. The judge's directions to the jury were found to be insufficient to mitigate the prejudicial impact of this evidence.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders