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.
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| 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) |
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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).
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| 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…
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- AGLC
- Frazier (a pseudonym) v The Queen [2017] VSCA 370
- Case
- [2017] VSCA 370
- Decision Date
CaseChat Overview and Summary
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.
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