R v Frengos
[2005] VSCA 122
•5 May 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 68 of 2004
| THE QUEEN |
| v. |
| DIMITRIOS (JIM) FRENGOS |
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JUDGES: | WINNEKE, P., BYRNE and OSBORN, A.JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 May 2005 | |
DATE OF JUDGMENT: | 5 May 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 122 | |
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Criminal Law - Recklessly causing serious injury -Sufficient evidence upon which jury entitled to convict - Verdict not unsafe or unsatisfactory.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr O.P. Holdenson, Q.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Applicant | In person |
WINNEKE, P.:
I will ask Osborn, A.J.A. to give the reasons of the Court.
OSBORN, A.J.A.:
The applicant in this matter seeks leave to appeal against conviction on one count of recklessly causing serious injury to David John Richards, a Senior Constable of Police. The application is made despite the fact that the applicant has already served his sentence. It is made, as he says, out of grievance at the justice of the conviction. The sole ground of appeal is that the jury's verdict was unsafe and unsatisfactory. Consideration of this question requires the Court to ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. This assessment is to be made in accordance with the principles stated in M. v. The Queen[1].
[1](1994) 181 C.L.R. 487.
It was first submitted by the applicant that it would have been apparent to the jury at his trial that he, the applicant, was in custody. In my view this is not sufficient of itself to lead to the conclusion that the jury acted other than impartially and in accordance with the trial judge's clear directions to act in an unbiased manner.
Turning then to the evidence and dispute as to the facts in the case, it was not disputed at the trial that on 14 March 2002 Senior Constable Richards, together with Constable McGeorge, observed the applicant's motor vehicle parked next the south-bound lane of the Hume Freeway near the Whitfield Road overpass. After making radio enquiries, they returned to look for the applicant's brother, Nick Frengos. The applicant and a co-accused, Rachel Thiele, were asleep in the motor vehicle. The police officers woke them and sought to ascertain whether the applicant was Nick Frengos. Richards then indicated he intended to search the vehicle, having observed certain items of interest to police within it. The applicant objected, and a confrontation ensued, which resulted in the applicant being handcuffed. The nature of this confrontation was contested at the trial, but it was common ground that after securing the applicant with handcuffs, Richards searched the motor vehicle and found a number of items, including a tin containing cannabis. Richards then searched Thiele's handbag. It appears from the evidence of both Richards and McGeorge that, while Richards was doing so, she rushed at him. Richards then pushed Thiele to the ground and she kicked out at him with what was described by the police officers as a flurry of kicks. Richards then grappled with Thiele's legs and Richards himself fell to the ground. He was lying on the ground seeking to restrain Thiele when the incident forming the basis of the offence in issue occurred.
This incident was described in evidence by McGeorge. In short, the applicant rushed at and deliberately kicked Richards to the head in the area of the face and nose. Following the kicking, Richards was dazed and bleeding. If this evidence were accepted, it is clear Richards suffered serious injury at this point in time, even if, as the applicant has pointed out, Richards was subsequently kicked again to the face by Thiele as McGeorge maintains.
Richards himself gave evidence that he did not recollect the kicking because of a loss of memory associated with a loss of consciousness during the incident. The fact of the kicking and the serious injury consequent upon it is, however, evidenced not only by the observations of McGeorge but by the following matters: First, a passing truck driver observed a 'fellow' kicking a police officer, then on his hands and knees, albeit to the area of the body. I would interpolate that what the truck driver did not see was what the applicant contends occurred, namely the applicant making a rugby tackle with his shoulder upon a police officer. Next, police attending the scene shortly after the incident observed that Richards was bleeding from the face and had suffered swelling in and around the nose. Next, medical examination of Richards showed that he had suffered a fracture to a facial bone, an injury requiring the infliction of some substantial force. Next, dental examination of Richards showed that he had suffered broken teeth, also resulting from the infliction of substantial force.
When interviewed by the police, the applicant gave a "no comment" record of interview. At his trial, neither he nor his co-accused Thiele gave evidence of what occurred. It is difficult to see that the police can be criticised, in the circumstances of a "no comment" record of interview, to the effect that there should have been further investigation of what the applicant contends was the account of both the applicant and Thiele as to what occurred. Likewise, the fact that neither the applicant nor his co-accused gave evidence meant that the jury were left with the evidence of the other witnesses to be considered on its own.
It was contended by the defence at the trial that the Crown could not disprove the reasonable possibility that the applicant acted in legitimate self-defence of Thiele. The case was mounted on the basis of two principal suggestions. Firstly it was suggested in cross-examination that Richards had a propensity for unjustified violence. In so far as this is concerned, it must be said, however, that there was no positive evidence of such propensity adduced before the court. Next, it was suggested that the applicant sought to restrain Richards in the only manner open to him at a time when he, the applicant, was handcuffed and Richards was assaulting Thiele. Once again, there was an absence of positive evidence of matters supporting the defence case. In this regard I note in particular that McGeorge specifically denied that Richards shoved Thiele down and went after her in anger, falling on top of her and punching her, and that it was in the course of this that the applicant, in order to defend Thiele from Richards, charged at Richards with his chest in an attempt to knock him off her.
Richards himself had no recollection of the confrontation after the point where Thiele was kicking up at him with her legs. He denied that he lost his temper and assaulted first the applicant and then Thiele, and that the applicant then ran at him with his chest, bowling Richards over. He did, however, concede that he may have punched Thiele in seeking to subdue her when she was kicking at him. It seems to me that this concession means that, even if further photographs had been taken of Thiele as the applicant contends should have occurred after the incident, they would not and could not have done more in terms of the applicant's case than establish the possibility of what Richards himself conceded, namely, that he may have punched Thiele.
The possibility of punching by Richards also derived arguable support from the evidence of a passing motorist, Nolan, who, while travelling at 110 kilometres per hour, observed four persons engaged in a fight involving fisticuffs. He could not be more precise. When he returned to the scene some ten minutes later, Richards was suffering from a head injury. It can be seen, however, that this formed a very thin basis for the defence.
There was thus little or no evidence which positively supported the account of events for which the defence contended at trial. Conversely there was a body of evidence which supported the Crown case on this particular count. It was a matter for the jury to assess the credibility of the Crown witnesses in the context of the evidence as a whole.
In my view, there was sufficient evidence upon which the jury were entitled to convict the applicant of the offence charged. The fact that the jury acquitted the applicant on the charge of intentionally causing serious injury, but convicted only on the charge of recklessly causing serious injury, confirms that they carefully evaluated the evidence in accordance with the learned trial judge's directions. The fact that, as the applicant has pointed out, there were some inconsistencies in the evidence given by witnesses as to what they observed is hardly surprising, given the nature of the events in issue. Further, in so far as there were also some inconsistencies between the detail of evidence given at the first trial relating to this matter and the trial now in issue, that is also not surprising. The jury were well able to assess the inconsistencies in issue and whether considered individually or together such inconsistencies did not, in my view render the verdict unsafe or unsatisfactory.
Accordingly, the application for leave to appeal must be refused, despite the clarity with which the applicant's arguments were put forward this morning.
WINNEKE, P.:
I agree. A ground of appeal based on the unreasonableness of the verdict of the jury is a very difficult ground of appeal to make out in this Court, particularly where the circumstances reveal that the person who is making the argument has not himself given evidence at the trial.
Frengos has put in argument before this Court this morning, and done so very eloquently, a number of reasons or matters why he says that this verdict was unreasonable. Those are matters which the members of this Court have considered with a degree of care. At the end of the day, in order for us to intervene and set aside this verdict as unreasonable, we would need to be satisfied that there was no evidence upon which the jury acting reasonably could have arrived at the verdict which it did. In the long run, I agree with Osborn, A.J.A. that that ground cannot be made good. There was evidence upon which this jury could arrive at that verdict.
Notwithstanding the able argument put by Mr Frengos, I agree that the application should be dismissed.
BYRNE, A.J.A.:
I too agree that the application should be dismissed. My consideration of the transcript of the proceedings at trial makes it clear that there was evidence on which a jury properly instructed might have convicted, and it is clear that they did so. I accept in general the principles and the conclusions expressed by Osborn, A.J.A. I concur with the result proposed by the President.
WINNEKE, P.:
The formal order of the Court, Mr Frengos, is that the application for leave to appeal against conviction is dismissed.
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