Legal Research
Cases
Frazier (a pseudonym) v The Queen

Frazier (a pseudonym) v The Queen

Case [2017] VSCA 370 1 December 2017

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0247

MARTIN FRAZIER (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

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

---

JUDGES:	MAXWELL P and KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2017
DATE OF JUDGMENT:	1 December 2017
DATE OF REASONS:	14 December 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 370
JUDGMENT APPEALED FROM:	DPP v [Frazier] (Unreported, County Court of Victoria, Judge Ryan, 30 November 2017)

---

CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify – Course of conduct charges – Sexual penetration of child under 16 – Whether charges sufficiently particularised – Judge refused stay application – No error – Application refused – Criminal Procedure Act 2009 ss 295–6, sch 1 cl 4A, Crimes Act1958 s 45(1).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Gibson	Victoria Legal Aid
For the Respondent	Mr N Hutton	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA:

Summary

The applicant is facing trial in the County Court on six charges of sexual offending against a child under 16. The most serious are charges 2 and 3, for each of which the indictment identifies the offence as being:

sexual penetration of a child under 16 contrary to s 45(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 2000.

Importantly for present purposes, each of charge 2 and 3 is stated in the indictment to be ‘a Course of Conduct Charge’.

As will appear, a course of conduct charge is ‘a charge for a relevant offence that involves more than one incident of the offence’. That definition, and the requirements for particularisation and proof of such a charge, are set out in detail in cl 4A of sch 1 to the Criminal Procedure Act 2009 (‘Schedule’).

The applicant applied for a stay of those charges, principally on the ground that the prosecution had not provided sufficient particulars of the ‘incidents of the offence’ said to constitute the course of conduct in each case. The judge refused the application, pointing out correctly that the provisions in the Schedule expressly relieve the prosecution of the obligation to particularise a course of conduct charge in the way contended for.

Counsel for the applicant then asked the judge to certify under s 295(3)(b) of the Criminal Procedure Act2009 (‘Act’) that the interlocutory decision was:

of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

The judge refused to certify, saying that:
the arguments that were put in support of a stay were without merit and I regard the prospects of appeal as hopeless.

Undeterred, the applicant applied under s 296(1) of the Act for a review of his Honour’s refusal to certify. The application was filed on the afternoon of Thursday 30 November 2017. It was heard…

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 Frazier (a pseudonym) v The Queen

Details

AGLC: Frazier (a pseudonym) v The Queen [2017] VSCA 370
Case: [2017] VSCA 370
Decision Date: 1 December 2017

CaseChat Overview and Summary

The case of Frazier v The Queen involves an interlocutory appeal by the defendant, referred to as Frazier, against the refusal of a judge to certify certain questions for appeal. Frazier is facing charges related to a course of conduct involving sexual penetration of a child under 16. The central issue in this appeal is whether the charges against Frazier were sufficiently particularised to warrant a certification for appeal under the Criminal Procedure Act 2009.

The court was tasked with determining if the judge's refusal to certify the appeal questions was correct. The primary legal question was whether the charges against Frazier were adequately specific, as required by the statutory framework. The court considered the relevant provisions of the Criminal Procedure Act 2009 and the Crimes Act 1958 to assess the sufficiency of the particulars. The court examined the nature of the alleged offences and the details provided in the charges to decide if they met the necessary legal standards.

In reaching its decision, the court found that the charges were sufficiently particularised and that the judge had not erred in refusing the application to certify the appeal. The reasoning involved a detailed examination of the statutory requirements and an assessment of the particulars of the charges. The court held that the charges were clear and specific enough to meet the legal standards, and thus, the refusal to certify the appeal was justified. Consequently, the appeal was dismissed, and the application for a stay was refused.

Orders