R. v. Frazer - [2001] VSCA 101

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.31 of 2001

THE QUEEN
	v.
MICHELLE ANNE FRAZER

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JUDGES:	PHILLIPS, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 June 2001
DATE OF JUDGMENT:	29 June 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 101

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CRIMINAL LAW – Appeals against conviction and sentence - Culpable driving – Whether jury verdict unsafe and unsatisfactory because jury excluded a hypothesis of innocence – Fresh evidence – Epilepsy – Psychogenic seizures – Refusal by trial judge to define “gross negligence” – Whether pregnancy unknown at the time of sentencing a mitigating factor – Appeals dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C.	P.C. Wood Solicitor for Public Prosecutions
For the Appellant	Mr. D.G. Wraith	Victoria Legal Aid

PHILLIPS, J.A.:

I agree with Chernov, J.A. It is by no means clear to me that the new material relied upon by the applicant, both in relation to conviction and sentence, is admissible. In any event, the applications fail for the reasons given by Chernov, J.A.

CHERNOV, J.A.:

At approximately 5.25 p.m. on Sunday 31 May 1998 a car which was driven by the applicant in a westerly direction on Ballarat Road, Maidstone careered on to its wrong side of the road at a point a little to the east of the intersection of Ballarat Road with Stanley Street and Havelock Street and collided with an oncoming east-bound vehicle driven by Stanko Mamilovic, killing him and his wife Vera Mamilovic who was his passenger. The collision caused the applicant’s vehicle to spin around and come to a standstill facing in a north-easterly direction thereby blocking the path of an oncoming vehicle driven by Julie Kiriacoudis which collided with it. Ms Kiriacoudis suffered injuries as a result of the second collision. The applicant also suffered injuries but they were not of great magnitude.

As a result of these events, the applicant, who is now aged 28, was presented in the County Court at Melbourne on two counts of culpable driving contrary to s.318 of the CrimesAct 1958 in respect of the deaths of Stanko and Vera Mamilovic. The maximum penalty prescribed by that section is 20 years’ imprisonment or a fine of $240,000 or both. The applicant was also presented on one count of reckless conduct endangering a person contrary to s.23 of the Crimes Act in respect of the collision involving Ms Kiriacoudis. The section prescribes a maximum penalty of five years’ imprisonment. After a trial lasting some six days, the applicant was found guilty on all counts and convicted accordingly. The applicant admitted five previous convictions arising from three local court appearances in New South Wales over a six months’ period at the end of 1995 and early 1996 but the learned judge regarded those prior convictions as of little relevance to the sentencing process with which he was concerned.

After hearing a plea in mitigation made on her behalf, his Honour sentenced the applicant on 19 February 2001 to…

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 R. v. Frazer

Details

AGLC: R. v. Frazer [2001] VSCA 101
Case: [2001] VSCA 101
Decision Date: 29 June 2001

CaseChat Overview and Summary

In the case of R. v. Frazer, the respondent was convicted of culpable driving resulting in death. The respondent appealed against both the conviction and the sentence. The Court of Appeal was tasked with determining the validity of the jury's verdict, the impact of excluding a hypothesis of innocence, and the trial judge's refusal to define "gross negligence". Additionally, the appeal examined whether the pregnancy of the respondent at the time of sentencing constituted a mitigating factor.

The central issues before the court were whether the jury's verdict was unsafe and unsatisfactory, given the exclusion of a hypothesis of innocence, and whether the trial judge's refusal to define "gross negligence" had any bearing on the outcome. Furthermore, the court had to assess the relevance of the respondent's pregnancy at the time of sentencing as a mitigating factor.

The court found that the jury's verdict was not unsafe or unsatisfactory despite the exclusion of a hypothesis of innocence, as the evidence was overwhelming. The court held that the trial judge's refusal to define "gross negligence" did not affect the jury's verdict, as the term was commonly understood. Regarding the pregnancy, the court determined it was not a mitigating factor since it was unknown at the time of sentencing. Consequently, the appeals against conviction and sentence were dismissed.

The court did not provide specific final orders, but it dismissed the appeals against both the conviction and the sentence.

Orders