Frugtniet v The Queen

[1999] HCATrans 459

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M61 of 1999

B e t w e e n -

SUZANNE MARIE FRUGTNIET

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 9.49 AM

Copyright in the High Court of Australia

MR G. WENDLER:   If the Court pleases, I appear for the applicant. (instructed by Keith W. Allen & Associates)

MR A.J. HOWARD, QC:   If the Court pleases, I appear with my learned friend, MR P.M. TAFT, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

McHUGH J:   Yes, Mr Wendler.

MR WENDLER:   Your Honours, almost 20 years have passed since this Court decided The Queen v Darby.  In Darby, this Court followed and applied a decision of the Supreme Court of Canada concerning principles relevant to the grant of a separate trial in conspiracy cases.  This Court mandated that there be separate trials when the admissible evidence against one conspirator is significantly different for that of another.  The expression, “significantly different”, curiously has never been the subject, in almost 20 years, of any analysis or, indeed, discussion at any level in any superior court in this country.

It was critical to the fair trial of the applicant that the respective cases of the two accused be analysed from the viewpoint of prejudice.  The Court of Appeal, although applying the Darby principle, applied it in such a way that, you would have to say, in the State of Victoria, nobody would be entitled to a separate trial in a conspiracy case.

McHUGH J:   Where is the particular passage of which you complain, Mr Wendler.

MR WENDLER:   In volume 2 of the joint application book there can be found the treatment by the Victorian Court of Appeal at page 629 of the primary submission that was made before that court, concerning a miscarriage of justice by reason of the failure of a trial judge to grant a separate trial in the circumstances.  At page 630, the court identifies essentially the four matters which were relevant to a consideration as to whether or not, in all the circumstances, there should be a grant of a separate trial.  All of those matters were matters which built a significant and powerful case of prejudice against the applicant, Suzanne Frugtniet.

McHUGH J:   Well, let us take them.  I mean, the first of them that you relied on was that the prosecution relied upon evidence of lies told by her husband and admissions made in the course of the record of interview.

MR WENDLER:   Which went further as amounting to corroboration in relation to the evidence given by the two accomplices.  Now, there was no independent evidence amounting to corroboration in relation to the co‑accused, Suzanne Frugtniet; there was no record of interview in relation to her, and anything, of course, that her husband said in the record of interview about her was simply not admissible against her.

McHUGH J:   Well, that is so.

MR WENDLER:   So, apart from that powerful aspect in the case, really the most important focus was upon the inference that the jury would inevitably draw from the fact that there was a husband and wife relationship and also a business relationship at the relevant time.  So the jury would inevitably draw the inference that the wife must have known what the husband was up to.  Now you just cannot guard against that style of prejudice by any special direction from a trial judge in the circumstances of this case. 

So it comes back - and I am moving now to the specialness of the application – to an analysis of what this Court referred to in Darby, as the evidence being “significantly different”.  Now that expression implies a value judgment or assessment in relation to the respective bodies of evidence against the two accused and there must be a direct and legal connection between the expression “significantly different” and the assessment of the prejudice that would result on the basis of a joint trial.

Your Honours, the other aspect, which can only be described as overwhelmingly prejudicial in the trial of the two accused, was the ruling by the trial judge, astonishingly, that the co-accused or co-applicant, Brian Frugtniet, was entitled to be cross-examined on previous dishonesty offences, in relation to offences of a similar kind to that which he was being tried for.  In those circumstances, in my respectful submission, the snowball of prejudice was out of control by the time that happened in the trial.

McHUGH J:   Yes, but what does this go to?  That the judge should have then and there discharged the jury in ‑ ‑ ‑

MR WENDLER:   Well an application was made for a separate trial at that stage, and ‑ ‑ ‑

McHUGH J:   Well that is not a ground of your special leave to begin with, is it?

MR WENDLER:   Well, the broad ground is really an application or an analysis of the Darby principles.  It is my respectful submission that the Darby principles were misapplied by the Court of Appeal.  The expression “significantly different” is an expression which, in my respectful submission, is an appropriate vehicle for a grant of special leave, in relation to conspiracy trials, when there is an issue concerning whether or not there

should be a grant of a separate trial in order to avoid impermissible prejudice and a miscarriage of justice.  So, in my respectful submission, to the extent that the Court of Appeal has not analysed at all the Darby principles and to the extent that those principles are significant and important for the administration of the criminal justice system generally in this country, certainly in relation to the conspiracy trials, it is an appropriate vehicle for a grant of special leave to appeal.

That really is the broad submission.  Unless there is anything else, I cannot press it any further.

McHUGH J:   Yes, thank you, Mr Wendler.  The Court need not hear you, Mr Howard.

Involved in this application is the claim that by reason of the evidence, the applicant should have been tried separately from her husband. The Court of Appeal considered the four matters relied on by the applicant as constituting prejudice to her by reason of a joint trial.  There is no ground for thinking either that the trial judge erred in the exercise of his discretion or that the Court of Appeal erred in reviewing the exercise of that discretion.  The application for special leave to appeal is dismissed.

The Court will now adjourn to reconstitute.

AT 9.56 AM THE MATTER WAS CONCLUDED