Frugtniet v The Queen - [1996] HCATrans 407

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S114 of 1996

B e t w e e n -
BRIAN OWEN REGINALD WORRELL FRUGTNIET
Applicant
and
THE QUEEN
Respondent
Application for bail and application for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 19 DECEMBER 1996, AT 9.29 AM

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

MR G.S. HOSKING, SC: If it please the Court, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (New South Wales))

MR WENDLER: If the Court pleases, before the Court this morning is a summons which seeks certain orders: first, the applicant’s application for special leave to appeal which was filed in June of this year be expedited.

HER HONOUR: It may have been filed in June, but the steps taken to prosecute it have been somewhat tardy.

MR WENDLER: I understand, or at least I am instructed that the application book was due to have been filed, I think, last Monday. That has not occurred. Your Honour will appreciate the applicant is in custody and is without, in effect, legal representation in relation to his application for special leave to appeal.

HER HONOUR: I understand he now has solicitors.

MR WENDLER: So far as this application is concerned, he has. His solicitors in relation to this present application - the application on the summons appear on a pro bono basis, as I do this morning, but I have no instructions in relation to the application for special leave to appeal and, as I understand it, neither do the solicitors have any instructions in relation to prosecuting that aspect of the litigation.

HER HONOUR: I trust you are in a position of some familiarity with it, though, if you are seeking its expedition.

MR WENDLER: Yes, I understand the history and background of it. The alternative order that is sought on the summons or, indeed, an additional order on the summons is that the applicant be released on bail.

This morning there was filed a further affidavit by the wife of the applicant. It is dated today’s date, 19 December, and it consists of three pages, together with an annexure of some 10 pages. The purpose of this affidavit is really to set out or provide a vehicle which sets out the history, to some extent lamentable history, of the litigation before the County Court of Victoria.

HER HONOUR: Yes. What relevance has that got?

MR WENDLER: The relevance of it is this, that if expedition is granted, then there would be no impediment necessarily - and assume for a moment that expedition is granted and the application for special leave to appeal is dismissed, there would be no impediment then - legal impediment - in the transfer of the applicant to the State of Victoria in order to reactivate the proceedings that are in, in…

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.

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Details

Case: [1996] HCATrans 407
Decision Date

CaseChat Overview and Summary

In Frugtniet v The Queen, Gaudron J, sitting in chambers, considered an application for special leave to appeal against a conviction for a criminal offence. The applicant, Frugtniet, sought to challenge the decision of the Supreme Court of Victoria, which had dismissed his appeal against his conviction and sentence.

The primary legal issue before Gaudron J was whether there were sufficient grounds to grant special leave to appeal to the High Court. This involved an assessment of whether the applicant's proposed grounds of appeal raised a question of law that was of general public importance, or whether there was any other reason why the High Court should entertain the appeal.

Gaudron J refused special leave to appeal. Her Honour found that the grounds of appeal raised by the applicant did not disclose any arguable error of law by the Supreme Court of Victoria. The application did not demonstrate that the case involved a question of law of general public importance, nor were there any other compelling reasons for the High Court to grant leave.

Orders