JUDGES:	PRIEST, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 September 2024
DATE OF JUDGMENT:	18 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 319
JUDGMENT APPEALED FROM:	DPP v Frendo (Unreported, County Court of Victoria, Judge Smallwood, 6 April 2022)

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CRIMINAL LAW – Conviction – Application for extension of time – Practice and procedure – Jury empanelment – Whether applicant given reasonable or adequate opportunity to exercise rights of challenge – Video of empanelment – No irregularity in procedure adopted – Extension of time refused.

CRIMINAL LAW – Conviction – Application for extension of time – Practice and procedure – Jury separation oath or affirmation – Whether separation oath or affirmation required after first jury separation – No irregularity – Extension of time refused.

CRIMINAL LAW – Conviction – Application for extension of time – Sexual penetration of child under 16 – Indecent act with child under 16 – Whether miscarriage of justice due to failure of Crown to call applicant’s wife as witness – Whether prosecution coerced witness to change evidence – Whether police investigation sufficient – Whether verdicts of guilty unsafe and unsatisfactory – Whether complainant attested to truth of video-recorded statement – No error – Extension of time refused.

CRIMINAL LAW – Sentence – Application for extension of time – Whether sentences manifestly excessive – Extension of time granted – Appeal allowed – Appellant re-sentenced.

Juries Act 2000, ss 38, 39, 39(2A), 39(2B), 50; Criminal Procedure Act 2009, ss 367, 368(1)(c).

R v Apostilides (1984) 154 CLR 563, Whitehorn v The Queen (1983) 152 CLR 657, Pell v The Queen (2020) 268 CLR 123, applied; Gardner (a pseudonym) v The King [2024] VSCA 83, Parker (a pseudonym) v The King [2024] VSCA 209, R v Patton [1998] 1 VR 7, Youssef (a pseudonym) v The Queen [2019] VSCA 240, discussed.

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Counsel
Applicant:		In person
Respondent:		Mr J O’Connor
Solicitors
Applicant:	In person
Respondent:	Ms A Hogan, solicitor for Public Prosecutions

PRIEST JA:

Having had the advantage of reading in draft the reasons for judgment of Boyce JA, I agree with them and with the orders proposed.

TAYLOR JA:

I agree with Boyce JA.

BOYCE JA:

PART A:BACKGROUND

On 23 March 2022, the applicant was convicted by jury verdict on indictment K11397498.2 (‘trial indictment’) of four charges of sexual penetration of a child under 16 and three charges of indecent act with a child under 16. The trial indictment related to one complainant. The applicant pleaded guilty in respect of a second indictment, indictment K11397498.4 (‘plea indictment’), to three charges of sexual assault of a child under 16. The offending on the plea indictment related to two different child complainants.
On 6 April 2022, the applicant was sentenced on both indictments as follows:

Charge

Offence

Max Penalty

Sentence

Cumulation

Indictment K11397498.2

2 Sexual penetration…

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 Frendo v The King

Details

AGLC: Frendo v The King [2024] VSCA 319
Case: [2024] VSCA 319
Decision Date: 18 December 2024

CaseChat Overview and Summary

Frendo was convicted of sexual penetration of a child under 16 and an indecent act with a child under 16. The appeal was against the conviction and sentence. The legal issues included whether the trial judge erred in various procedural matters, whether the verdicts were unsafe and unsatisfactory, and whether the sentence was manifestly excessive. The Supreme Court of Victoria considered the application for an extension of time to appeal and the appeal itself.

The court examined whether the applicant was given a reasonable opportunity to exercise his right to challenge the jury, whether there was any irregularity in the separation oath or affirmation of the jury, and whether the Crown’s failure to call the applicant’s wife as a witness constituted a miscarriage of justice. The court found no irregularity in the jury empanelment and separation processes and determined that the Crown’s decision not to call the wife did not result in a miscarriage of justice. The court also rejected the argument that the police investigation was insufficient or that the verdicts were unsafe and unsatisfactory.

The court concluded that while there was no procedural error that warranted setting aside the verdicts, the sentences imposed were manifestly excessive. The appeal was allowed, the sentences were quashed, and the matter was remitted to the County Court for re-sentencing. The court granted an extension of time for the appeal and allowed the appeal in part. The applicant was re-sentenced by the County Court.

Orders