Manuel Defrutos v The Queen

[2013] HCASL 121

MANUEL DEFRUTOS

v

THE QUEEN

[2013] HCASL 121
M41/2013

1. On 30 November 2006, after a jury trial in the Supreme Court of Victoria, the applicant was found guilty of attempted murder.  On 11 December 2006, he was sentenced to 11 years imprisonment with a non-parole period of eight years.  The applicant sought leave to appeal to the Court of Appeal against his conviction on the ground that the verdict was unsafe and unsatisfactory, in that the jury should have found a reasonable doubt in relation to identification evidence, and on the ground that the trial judge (Teague J) erred in his charge to the jury in relation to both identification evidence and motive.  The applicant also alleged that Teague J had erred in admitting certain matters into evidence, particularly concerning the prior relationship between the applicant, the victim and a third witness.

2. On 9 April 2008, the Court of Appeal (Buchanan, Vincent and Kellam JJA) dismissed the application for leave.  Vincent JA (with whom the other members of the Court of Appeal agreed) categorised the case as being not one turning on issues of identification, but "one in which the issue was the reliability in the circumstances of evidence of the recognition by one person of another who was well known to him."[1]  The Court found that the trial judge had properly discharged his duty to instruct the jury, and that it was open to the jury on the evidence before it to find beyond a reasonable doubt that the victim recognised the applicant as his attacker.  The Court further found no error with respect to either the trial judge's exercise of discretion to admit into evidence the matters in question, or the trial judge's directions concerning motive.

   [1]R v Defrutos [2008] VSCA 55 at [41] (Vincent JA).

3. The applicant now seeks special leave to appeal to the High Court. As the applicant does not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

4. The applicant requires an enlargement of time of approximately five years within which to file his application.  He has filed an affidavit and submissions in support explaining that he believed he had no further recourse from the decision of the Court of Appeal, and that he could not secure the assistance of Victorian Legal Aid in the intervening period.  An enlargement of time should be granted.

5. Most of the applicant's proposed grounds of appeal were raised before the Court of Appeal.  There is no reason to doubt the correctness of the decision of the Court of Appeal with respect to those grounds.  The applicant further complains that there was no medical or forensic evidence to support the finding that a firearm had been in existence or indeed been fired.  This issue was not agitated in the Court of Appeal.  The complaint is clearly untenable having regard to the evidence before the jury (including, inter alia, the victim's evidence that the applicant had in his possession a handgun which he fired twice, and the expert's evidence that "a bullet had just passed through"[2] the victim).

   [2]R v Defrutos [2008] VSCA 55 at [7] (Vincent JA).

6. An appeal to this Court would enjoy insufficient prospects of success to warrant the grant of special leave.

7. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
14 August 2013 S.J. Gageler