Frengos v The Queen
[2012] VSCA 18
•21 February 2012
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 was guilty.
2. The trial miscarried by reason of the prosecutor’s cross-examination of the applicant and his address to the jury on:
a. the applicant’s failure to call corroborative evidence; and
b. the applicant’s counsel’s failure to comply with the rule in Browne v Dunn[1] and by the trial judge’s failure, adequately or at all, to warn the jury against the vice inherent in each and both those lines of cross-examination.
[1](1893) 6 R 67.
The facts
The applicant and the complainant commenced a relationship in 2002. They saw each other frequently and the applicant regularly stayed at the complainant’s home although he did not have a key to the property.
On 6 May 2006, police were called to the complainant’s home where she and the applicant had been arguing. When they arrived, the applicant answered the door and told them to ‘fuck off’. When he attempted to close the door, he was sprayed with capsicum spray. The complainant subsequently spoke to the police, which agitated the applicant.
On 8 May 2006, the applicant tried to contact the complainant by telephone. When the complainant returned his call, he asked if she could give him a lift to another part of Melbourne in her car. She declined and told him that she did not want anything further to do with him. He accused her of lying and of ‘seeing’ someone else. He said ‘maybe you’ll tell me the truth if I put my hands around your throat, maybe I should just kill you’ or words to that effect (count 1 ― threat to kill). The complainant was afraid and did not know what to do.
On her way to collect her children from school, the complainant telephoned police and made inquiries about obtaining an intervention order. She then returned home, locked all the doors and did not answer her telephone. The applicant tried to phone her several times.
Soon after returning home, the complainant heard the applicant’s truck arrive. She heard the applicant swearing and abusing her. He banged on the front door and demanded she open it. She managed to phone ‘000’ and, while speaking to the operator, went upstairs and barricaded herself in a bedroom, moving her daughter’s bed to brace the bedroom door. The applicant ripped off the front security door, broke the front wooden door and ran upstairs (count 2 ― aggravated burglary). He then smashed through the bedroom door where the complainant was hiding (count 3 ― intentionally damaging property).
As the applicant was breaking through the bedroom door, he threatened the complainant, saying ‘I should fucking knock you’ (count 5 ― threat to kill). He then entered the room, put his arm around her mouth and neck, attempted to take the phone from her hand and asked her who she was hiding (count 4 ― common assault). The complainant understood to ‘knock’ someone meant to ‘kill’ them as the applicant had previously told her that this was what it meant. A recording of the ‘000’ call made by the complainant, in evidence at the applicant’s trial, recorded him saying ‘Who are you on the phone to?’ whilst she is heard to say ‘Stop it’ three times.
Whilst the applicant searched the house, the complainant was able to escape. She ran to a nearby convenience store and asked the attendant to ring the police. She was observed to be in a distressed state by three witnesses. The police arrived and she was taken to the local police station where her bruises were photographed.
This appeal
Ground 1
There was no issue on this appeal that the evidence led by the Crown on count 1 could not sustain a conviction. The Crown conceded that the words and conduct of the applicant during the phone call on 8 May 2006, taken at their highest, could not amount to a threat to kill. Accordingly, the applicant must succeed on this ground. It might be noted that it seems that the trial judge was really of this opinion also, although he must have considered that there was some evidence to go to the jury as he left this count for their consideration.
Ground 2
This ground concerns three short passages in the prosecutor’s cross‑examination of the applicant at trial. The first passage was as follows:
From early 2004, I suggest to you, she made it quite clear to you that she did not want a relationship with you?---Definitely not true.
Did she tell you in October 2005 that she had slept with someone else?---She had actually told me something else, and that.
And the something else that she told you was she did not want to sleep with you?---No. She told me that she had paid sex in an illegal brothel in the early stages when we first met.
That was never put to her in cross-examination, was it?---That's what she told me.
It was never put to her in cross-examination, was it?---Well, it wasn't at the committal.
Never put to her in this trial, was it?
Immediately after this passage, counsel for the applicant appears to have raised an objection to the admissibility of this evidence or the propriety of the prosecutor’s cross-examination. The following exchange between him and the trial judge took place:
[COUNSEL FOR THE APPLICANT]: Yes, but, Your Honour, to be fair, this was opened up by cross-examination. It was never gone to in the trial, but it has now been opened up by my learned friend.
HIS HONOUR: Issues that arise in this trial that come from the accused which are significant and were not raised during this trial, I think it is legitimate for [the prosecutor] to exploit that.
[COUNSEL FOR THE APPLICANT]: I understand that, sir, but this is certainly something that wasn't raised throughout the trial for obvious reasons. Now it has been opened by [the prosecutor].
HIS HONOUR: Well, your client is in the witness box. He is entitled to be cross-examined.
[COUNSEL FOR THE APPLICANT]: Yes, I understand that, Your Honour.
HIS HONOUR: All right. I am against you. Go on, [Mr Prosecutor].
The applicant contends that this cross-examination was unfair. There is nothing in this contention. The relationship between the applicant and the complainant was, as the trial judge commented, a ‘significant’ issue in the trial. It was legitimate for the prosecutor to follow up the applicant’s non-responsive answer to his question regarding whether the complainant had told him that she had slept with someone else. The applicant proffered the (somewhat ambiguous) information that the complainant had told him that she had ‘had paid sex in an illegal brothel’ at some earlier time. He conceded that this matter was not put to the complainant in cross‑examination.
The transcript makes it clear that the applicant’s counsel at trial did not seek to elicit the reason the complainant was not so cross-examined in re-examination and the matter was never raised again by either counsel or the trial judge. Nor was any request made by the applicant’s counsel at trial for any specific direction as to this issue and no exception was taken to his Honour’s charge. In the context of the trial, this matter was of so little importance that it did not call for any specific direction from the trial judge as now contended by the applicant. There is nothing in this part of ground 2.
The second issue raised by ground 2 is concerned with the applicant’s evidence that, in the 8 May 2006 telephone conversation, the complainant threatened to commit suicide. His evidence in chief as to this was as follows:
[COUNSEL FOR THE APPLICANT]: Okay. Did she say anything else to you?---She said to me that, um, she's sick of everything, she might as well just take a handful of pills and just end it all, you know, that morning.
What did you think she meant when she said that?---Well, she's spoken about suicide before so for me it was uncommon - like, it was a normal thing to - and I just said to her: ‘Look, I'll come over later on and we'll talk’, you know, and - - -
Just hold it there for a moment. When you say it was a normal thing for her, what are you saying, that - - - ?---Well, she's always up and down. She's always crying and, you know, she's a very depressed person. I don't actually know anything about depression but - - -
All right, just hang on a second. So you are saying that [the complainant] had said to you before that she contemplated suicide?---Well, she - when I first met her, she was an emotional wreck. She wanted to kill the kids and kill herself as well.
The applicant’s evidence was thus that, in this telephone conversation, the complainant referred to ‘tak[ing] a handful of pills and just end[ing] it all’. He did not say that she used the word ‘suicide’ although he said she had spoken in such terms on previous occasions.
The prosecutor cross-examined the applicant about this matter as follows:
It was never put to [the complainant] that she had spoken about suicide; that's correct, isn't it?---I believe at the committal it was.
In this trial it was never put?---No.
To [the complainant] that she had ever talked about suicide?---No, I didn't hear it, no.
But in cross-examination as to the same phone call, counsel for the applicant at trial had put to the complainant:
And, in fact, you said to him that you were so stressed about all of this that you might as well just take a handful of pills; is that right?
The complainant denied the applicant’s version of the conversation.
In his address to the jury, the prosecutor referred to this denial in criticising the applicant’s account of events. He also raised again that the applicant’s trial counsel had not put to the complainant that she had referred to suicide on earlier occasions. In his address, counsel for the applicant did no more than make a passing reference to the same matter.
At the conclusion of the trial judge’s charge to the jury, the prosecutor sought a further direction as to the failure of the applicant’s trial counsel to cross-examine the complainant as to suicidal ideation she was said to have referred to on occasions prior to the 8 May 2006 phone call. He appears to have been seeking a Brownev Dunn direction. The trial judge refused his application. The applicant’s counsel took no exception to the judge’s charge at all and sought no further direction with respect to this issue.
In this Court, counsel for the applicant contended that the prosecutor’s conduct was so unfair as to produce a miscarriage of justice. This submission must be rejected. First, the prosecutor’s cross-examination of the applicant as to this matter and his comments during his closing address were, in the context of this case, of so little moment that they could not possibly have had any effect on the jury’s consideration of the case as put to them by the trial judge. Secondly, the question of any reference to suicidal ideation by the complainant prior to the telephone conversation of 8 May 2006 is of so little relevance to the issues in this case (if it was relevant at all) that it did not call for any action on the part of the judge either of condemnation of the prosecutor or of redirection to the jury. There is nothing in this part of ground 2.
The applicant gave evidence at his trial that, during the 8 May 2006 telephone conversation, he was with or near a person named ‘Lisa’. The existence of ‘Lisa’ and her presence at the applicant’s mother’s home with the applicant was first introduced into the trial by the applicant’s counsel in his cross-examination of the complainant. When asked whether she knew Lisa was with the applicant when he answered her phone call, the complainant said she did not. In his evidence, the applicant said that Lisa had been a girlfriend of his for a long time and that the complainant ‘knows of her’. He said that after the phone call he continued ‘chit-chatting’ with Lisa. Cross-examination of the applicant on this issue was as follows:
You say that at the time of the phone call you were with a girlfriend, Lisa?---That's right.
When you say girlfriend, were you in a relationship with Lisa?---No, my girlfriends are my girlfriends. I have got some female friends. My ex-es are girlfriends, you know?
No. Were you in a relationship with Lisa?---No.
She was just a friend?---A girlfriend, yeah.
And she was there when you made the call?---She was, yes ... no, [the complainant] rang me actually, yeah.
When the call was ongoing?---Well, I was talking to [the complainant] in the loungeroom and Lisa was in the kitchen.
Is Lisa coming to give evidence?---For what?
This trial?---For what reason?
I am asking you - please answer my questions - is Lisa coming to give evidence?---I haven't spoken to Lisa for years.
You knew that she could give evidence about the phone call, about being there at the time, about what you said; isn't that right?---I don't talk about my relationships to Lisa or, you know, anyone else.
But you said she was there when the phone call was made so she may have heard something; isn't that right?---Well, probably she could have heard something, yeah.
Well, why didn't you ask Lisa to come and give evidence?---What would she have known what was said in the phone call? It is a personal relationship. I'm going out with [the complainant] and I'm talking on the phone with Lisa - I mean I am with Lisa at my house.
You see, you never asked Lisa to go and give evidence because you knew she would not back you up?---About what, the phone call?
Yes?---No, not true.
Because if you believed she would back you up, you would have asked her to give evidence?---[the complainant] has already said she called me when I was at home so what does it matter?
Because she heard what you said; isn't that right?---How could she, she's in another room? How could she hear what I'm talking about with [the complainant] when I'm in the loungeroom. It's a concrete wall.
I thought you said Lisa was there when you were making the call?---No. What do you mean making the call?
Lisa was there during the course of the call?---When I spoke to [the complainant], Lisa was in the kitchen and I was in the loungeroom, yeah, talking to [the complainant] in the loungeroom, because it's got nothing to do with Lisa what I am talking about with [the complainant] on the phone, you know.
This evidence was not objected to nor, it appears, was Lisa mentioned in any significant way again in the trial by either counsel or the judge. No direction was sought by the applicant’s counsel as to the cross-examination or as to the jury not drawing any inference from it. No request was made of the trial judge for any special direction concerning Lisa.
In this Court, counsel for the applicant submitted that the trial judge should not have permitted the prosecutor to cross-examine the applicant so as to suggest that Lisa should have been called (if that was the purport of the cross-examination). He argued that such cross-examination was unfair and the trial judge ought to, at least, have so directed the jury.
There is force in the argument that the prosecutor should not have cross-examined the applicant as to whether Lisa was going to be called as a witness. First, because whether Lisa was to be called was a matter for his counsel, not for the applicant himself. Secondly, and more importantly, because such cross-examination was irrelevant to any legitimate issue in the trial. It could only have been intended to lay the foundation for a Jonesv Dunkel[2] argument against the applicant. But a Jones v Dunkel argument is not available to the Crown in a criminal trial. Since at least the High Court decision in Dyers v The Queen,[3] the Crown has been precluded from putting argument to a jury, as might a party in civil litigation, to the effect that the failure of an accused to give evidence or to call any particular witness may be used to draw inferences adverse to him or her. In Dyers, the Court held that the application of the principle stated in Jones v Dunkel to an accused person in a criminal trial was incompatible with the presumption of innocence and the right of an accused person neither to give nor call evidence as he or she wished. Thus, any cross-examination or submission to the jury by a prosecutor which suggests the existence of a witness who could corroborate the accused’s evidence if it were true would tend to infringe this principle.[4]
[2](1959) 101 CLR 298.
[3](2002) 210 CLR 285 (‘Dyers’).
[4]See also RPS v The Queen (2000) 199 CLR 620; Azzopardi v The Queen (2001) 205 CLR 50.
In this instance, although the prosecutor cross-examined the applicant to lay the foundation for a Jones v Dunkel argument, no such argument was put and no direction such as that held to be materially erroneous by the High Court in Dyers was given by the trial judge. Although the cross-examination referred to ought not to have been engaged in by the prosecutor, it cannot be said to have had any effect on the applicant’s right to a fair trial or to have caused the trial to miscarry for any other reason. This is particularly so because no objection was ever taken to it and the evidence elicited by it was never referred to in any way adverse to the applicant after it was given.
Further, the impugned cross-examination could only ever have been relevant to count 1 on the presentment. But the Crown has conceded that the applicant’s conviction on count 1 must be set aside as there was insufficient evidence to support it. Accordingly, the presence or absence of ‘Lisa’ at the time of the telephone conversation the basis of count 1 was immaterial.
In the circumstances, there is no warrant for any interference by this Court in respect of the applicant’s convictions on counts 2, 3, 4 and 5 on the presentment. The Crown case against the applicant on these counts was strong and, in part at least, corroborated by significant evidence. The verdicts of the jury are as unsurprising as they are unimpeachable.
Disposition
The success of the applicant with respect to ground 1 necessitates his being re-sentenced. On the issue of re-sentencing, his counsel submitted that not only should the sentence in respect of count 1 be set aside but that adjustment should also be made to the sentence imposed in respect of count 5, the other charge of making a threat to kill. He argued that a sentence of two years’ imprisonment was unwarranted.
This submission should not be accepted. The applicant has an appalling criminal history including numerous prior convictions for offences of violence. His threat to the complainant in her own home that he should ‘knock’ her merits condign punishment. In the circumstances, I would set aside the sentence imposed in respect of count 1 on the presentment, thereby reducing the applicant’s total effective sentence to three years and six months’ imprisonment in respect of which a new non-parole period of two years and two months should be fixed. That new non-parole period is fixed taking into account the order for cumulation made by the sentencing judge in respect of the sentences imposed on the counts of being a prohibited person in possession of a registered and an unregistered firearm.
Orders
The orders I propose are as follows:
1. The application for leave to appeal against conviction is granted.
2. The appeal is treated as instituted and heard instanter and is allowed in part.
3. The conviction sustained by the applicant in the Court below on count 1 on presentment U01093334.3 and the sentence passed thereon are set aside and the Court directs that a judgment and verdict of acquittal be entered in respect of that count.
4. All other convictions, sentences, and orders for cumulation are confirmed, resulting in a total effective sentence of three years and six months’ imprisonment.
5. A non-parole period of two years and two months is fixed. (This non-parole period is a new non-parole period taking into account not only the offences for which the applicant is now being re‑sentenced but also the order for cumulation made by the sentencing judge in respect of the offences of which he was convicted at the trial immediately following the trial the subject of this application.)
HOLLINGWORTH AJA:
I also agree with Bongiorno JA.
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Addendum
BUCHANAN JA:
BONGIORNO JA:
HOLLINGWORTH AJA:
Since preparing this judgment and fixing the time for its publication, the Court’s attention has been drawn to an error in the pre-sentence detention declaration made by her Honour Judge Wilmoth at the time of sentence. The source of this error is not disclosed but it is almost certainly not that of the sentencing judge.
The parties are now in agreement that at the time of passing sentence it was thought that the appropriate pre-sentence detention period to be declared was 788 days (later corrected to 790 days), whereas the correct figure was 479 days. The error occurred because two periods of detention served by Frengos were designated as pre-sentence detention when they were, in fact, sentences imposed in respect of other offending.
Had the true situation been known at the time Judge Wilmoth sentenced Frengos, she would have taken those two periods into account in the exercise of her sentencing discretion in a Renzella[5] sense. This would probably have resulted in a reduction in Frengos’ sentence but not a reduction to the full extent of the difference between 790 days and 479 days (311 days).
[5]R v Renzella [1997] 2 VR 88 (‘Renzella’).
Having regard to all that has occurred since Judge Wilmoth passed sentence on Frengos, substantial justice will be achieved if the matter is allowed to rest where it is. Certainly, Frengos will be no worse off for having succeeded on his conviction appeal and having, as a consequence, had his total effective sentence reduced by this Court. He will retain the full benefit of the mistake.
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