Frengos v The Queen - [2012] VSCA 18

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0249

JIM FRENGOS
	Applicant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and BONGIORNO JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 February 2012
DATE OF JUDGMENT	21 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 18
JUDGMENT APPEALED FROM	DPP (Vic) v Frengos (Unreported, County Court of Victoria, Judge L C Ross (trial) and Judge Wilmoth (sentence), 23 October 2009 (date of verdict), 14 April 2010 (date of sentence))

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CRIMINAL LAW – Application for leave to appeal against conviction – Applicant found guilty of making threat to kill, aggravated burglary, intentionally damaging property and common assault – Whether evidence relating to count of making threat to kill sufficient to support conviction – Whether trial miscarried by reason of prosecutor’s cross-examination of applicant as to his failure to adduce corroborative evidence or his counsel’s failure to comply with rule in Browne v Dunn (1893) 6 R 67 – Crown concession that evidence was insufficient to support conviction on count of making threat to kill – Appeal allowed in respect of that count but otherwise dismissed – Jonesv Dunkel (1959) 101 CLR 298 – Dyers v The Queen (2002) 210 CLR 285 – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Kassimatis	Victoria Legal Aid
For the Crown	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Bongiorno JA.

BONGIORNO JA:

On 23 October 2009, following a five-day trial by jury in the County Court, the applicant (now aged 40) was convicted of two counts of making a threat to kill, one count of aggravated burglary, one count of intentionally damaging property and one count of common assault. On 14 April 2010, he was sentenced as follows:

Counts

Offence

Sentence

Cumulation

1

Making a threat to kill

Two years’ imprisonment

Six months

2

Aggravated burglary

Two years’ imprisonment

Base sentence

3

Intentionally damaging property

12 months’ imprisonment

Two months

4

Common assault

18 months’ imprisonment

Nine months

5

Making a threat to kill

Two years’ imprisonment

Six months

The applicant was also sentenced at that time for offending the subject of a trial before the same judge which immediately followed this trial. He was found guilty at the later trial of two counts of being a prohibited person in possession of a registered and an unregistered firearm. One month of the sentence imposed in respect of one of those counts was cumulated on the sentence imposed in respect of the aggravated burglary count. He thus received a total effective sentence of four years’ imprisonment. A non-parole period of two years and eight months was fixed.

The applicant seeks leave to appeal against his convictions on the following grounds:

1. The verdict on count 1 (threat to kill) is unsafe and unsatisfactory in that, upon the whole of the evidence, it was not open to the jury,

properly directed, to be satisfied that the applicant…

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 Frengos v The Queen

Details

AGLC: Frengos v The Queen [2012] VSCA 18
Case: [2012] VSCA 18
Decision Date: 21 February 2012

CaseChat Overview and Summary

In the case of Frengos v The Queen, the applicant, Mr Frengos, was found guilty of various criminal offences including making a threat to kill, aggravated burglary, intentionally damaging property, and common assault. Mr Frengos sought leave to appeal against his conviction, arguing that the evidence was insufficient to support the conviction on the count of making a threat to kill and that there was a mistrial due to the prosecutor's cross-examination regarding his failure to provide corroborative evidence, or his counsel's failure to comply with the rule in Browne v Dunn (1893) 6 R 67. The central legal issues were whether the evidence was sufficient to uphold the conviction on the count of making a threat to kill and whether the trial was compromised by the prosecutor’s conduct or the applicant's counsel's actions.

The court examined the sufficiency of the evidence regarding the count of making a threat to kill. It was noted that the Crown conceded that the evidence was insufficient to support the conviction on that count. The court also reviewed the prosecutor's cross-examination and counsel's conduct during the trial. It found that while the prosecutor's cross-examination was inappropriate, it did not amount to a mistrial. Furthermore, the court held that the counsel's failure to object to the cross-examination did not breach the rule in Browne v Dunn. However, the court found that the evidence was indeed insufficient to support the conviction on the count of making a threat to kill. Based on these findings, the appeal was allowed in respect of the count of making a threat to kill but dismissed in all other respects.

Consequently, the conviction on the count of making a threat to kill was quashed, but the other convictions remained intact. The court referenced Jones v Dunkel (1959) 101 CLR 298 and Dyers v The Queen (2002) 210 CLR 285 in reaching its decision. The court did not find any point of principle that would necessitate further appeal to a higher court. Thus, the appeal was allowed in part, resulting in the quashing of the conviction on the count of making a threat to kill, while the remaining convictions were upheld.

Orders