R v Frugtniet - [1999] VSCA 58

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted
No. 158 of 1998 No. 159 of 1998

THE QUEEN
v
BRIAN OWEN REGINALD WORRELL FRUGTNIET
AND
SUZANNE MARIE FRUGTNIET

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JUDGES: BROOKING, PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 20-21, 28 April 1999
DATE OF JUDGMENT: 19 May 1999
MEDIA NEUTRAL CITATION:

[1999] VSCA 58 1st Revision - 19 July 1999

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Criminal law - Evidence - Conspiracy - Counterfeiting of travellers' cheques - State offences - Citizen's arrest by federal currency squad member -- Detention of suspect in custody - Admission of record of interview - Questioning and investigation by federal police officer - Whether by an "investigating official" within Subdivision (30A) or by one having like powers and duties - Whether Subdivision (30A) applicable - Whether breaches of Subdivision (30A) established - Application to appeal dismissed - Crimes Act 1958 (Vic.) ss.458, 464, 464A, 464C, 464H.
Criminal law - Conspiracy - Counterfeiting of travellers' cheques - Co-accused -
Whether separate trial required - Application to appeal dismissed.
Criminal law - Sentencing - Totality - Parity - Whether double punishment for "making"
and "using" false document - Application to appeal dismissed - Crimes Act 1958
s.83A(1), (2).

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APPEARANCES: Counsel Solicitors
For the Crown Mr L. Lasry, Q.C. and Solicitor for Public
Mr M.P. Taft Prosecutions (C'th)
For the Applicants Mr D. Grace, Q.C. and Victoria Legal Aid
Ms S. Stokes

BROOKING, J. A.:
PHILLIPS, J.A.:
BUCHANAN, J.A.:

On 5 December 1991, as part of the culmination of police investigations into the production of counterfeit American Express travellers' cheques with a face value of over US$2.8m., Brian Frugtniet, a travel agent, was arrested at the Hilton Hotel in Melbourne. Six and a half years later, on 19 June 1998, he and his wife, Suzanne Frugtniet, who had also been a travel agent, were convicted in the County Court at Melbourne of two offences against the Crimes Act 1958, conspiracy to make false documents and conspiracy to use them. In the meantime - on 12 December 1994 - Brian Frugtniet had been convicted in the District Court of New South Wales on ten counts, five of making and five of using a false instrument, namely, a counterfeit bank cheque. The Victorian convictions resulted in his being sentenced to a total effective five years six months' imprisonment with a non-parole period of three years six months and to Suzanne Frugtniet's being sentenced to a total effective two years' imprisonment with a non-parole period of 12 months. Each of them seeks leave to appeal against conviction. Each of them also applied for leave to appeal against sentence, but Suzanne Frugtniet has abandoned that application.
The proceedings
There are eight grounds of Brian Frugtniet's application for leave to appeal
against conviction:

"(1)

The learned Trial Judge erred in failing to permanently stay the trial as an abuse of process arising from the Crown's failure to call Brent John Dallimore during the Crown case.

(2)

The learned Trial Judge erred 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: [1999] VSCA 58
Decision Date: 19 May 1999

CaseChat Overview and Summary

The case of R v Frugtniet involved a criminal dispute regarding the counterfeiting of travellers' cheques. The appellant, Brian Frugtniet, was convicted of offences under the Crimes Act 1958 (Vic.), including conspiracy to counterfeit travellers' cheques. The dispute centred on several legal issues, including whether certain evidence was admissible under the relevant legislation, whether the appellant's rights under Subdivision (30A) were breached, and if separate trials for co-accused were required. The court also considered whether the appellant's sentence for "making" and "using" false documents constituted double punishment.

The court held that the evidence was admissible as the questioning by the Australian Federal Police officer was not continuous and did not breach the statutory requirements under Subdivision (30A). The court found that the officer's powers and duties were similar to those of a member of the Victoria police, thus the provisions of Subdivision (30A) did not apply. Consequently, the record of the interview that commenced at about 6.40 p.m. was properly admitted into evidence. The court further held that no separate trial was required for the co-accused, as their evidence did not prejudice the appellant's right to a fair trial. Lastly, the court determined that the appellant's sentence did not amount to double punishment for "making" and "using" false documents, as the offences were distinct and warranted separate penalties.

The final orders of the court were to dismiss the appeals made by the appellant. The convictions and sentences imposed by the trial judge were upheld, and no further appeal was allowed.

Orders

Orders of the court

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Background

Background to the litigation

We make it plain that none of our criticisms is in any way directed to the trial judge in this case, who, in the environment which we judges have created, did his best to keep things on the move and who conducted the proceedings with exemplary patience and fairness and the most painstaking care. Nor is anything we say critical of Mr Grace, who came into these matters at a late stage. It is indicative of the fairness and diligence of the judge that none of the grounds of appeal - including the numerous jettisoned ones - calls in question anything said or not said in the charge after a long and onerous trial in the notoriously difficult field of conspiracy. The facts We return to the underlying facts in the present case. On 26 November 1991 Det. Sgt. McLeod was in charge of the Australian Federal Police ("AFP") Currency Squad. This squad was based in Melbourne and was the principal federal police agency dealing with investigations into suspected counterfeiting. On 26 November McLeod was informed by Det. Sgt. Vickery of the New South Wales police force that information had been received from a man named Dallimore suggesting that counterfeit travellers' cheques were in Melbourne or were being produced in Melbourne. McLeod believed that there might be a connection with a suspected project to counterfeit both travellers' cheques and United States currency that had been investigated by his squad earlier in 1991. Shortly after his initial conversation with Vickery, McLeod received further information from him to the effect that a man named Seyfarth (Brian Frugtniet's brother) would be coming to Melbourne to pick up the counterfeit travellers' cheques, that Brian Frugtniet appeared to be implicated and that a false passport was to be used at the time of negotiating the counterfeit cheques. On 3 December McLeod was told by Vickery that he had been informed that Seyfarth was coming to Melbourne the following day to collect counterfeit travellers' cheques. Seyfarth was placed under AFP surveillance and was seen to travel from Sydney to Melbourne in company with the informer (Dallimore) and a man named Chapman. From Tullamarine the men went to the Hilton Hotel. On the same day they visited the hotel again. On 4 December the men visited the Travel Trend office in Melbourne. McLeod understood that Brian Frugtniet was the proprietor of the Travel Trend business in Sydney and that another of his brothers, Rudi, was the proprietor of the Travel Trend business in Melbourne. Later again on the same day the men negotiated a counterfeit American Express travellers' cheque at one bank and attempted to negotiate one at another. That night Seyfarth and Dallimore returned to Sydney. The next day, 5 December, McLeod learnt that Brian Frugtniet was staying at the Hilton Hotel in Melbourne and was due to leave the hotel that same day. The New South Wales police told McLeod that they had learnt that Seyfarth would shortly go overseas and that they intended to arrest him at once. The Crown case was that it was intended that the great bulk of the counterfeit cheques should be cashed in Europe.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As Toohey, J. said in Heatherington at 386:- "The issue is very much one of fact. A decision on such a matter made by a trial judge is one with which an appellate court would not ordinarily interfere unless the trial judge had misunderstood the legislation or had applied a test which was inconsistent with the legislation." We see no such error here. Having considered the arguments put, we are not persuaded that the questioning which began at about 6.40 p.m. "built upon" earlier questions and answers in such a way as to make the earlier part of the later. The trial judge considered this submission and rejected it on the basis that, while the questions asked before 6.40 p.m. were part of the continuing investigation, they were nonetheless discrete and formed no part at all of "the questioning" which fell to be tape-recorded under s.464H(1)(d). The judge was criticised for referring to a submission of counsel for the accused which, as he apprehended it, emphasised "deferral of the interviewing rather than asserting that it commenced ... in the afternoon of 5 December 1991". Mr Grace submitted that this misapprehended counsel's submission, but we do not think it matters: that was not a necessary part of his Honour's reasoning. Essentially, the question raised by the submission was to be determined as a question of fact and degree and, having read again those portions of the record of interview which were said to be linked to earlier questions and answers, we reject the submission that "the questioning" which fell to be tape- recorded according to s.464H(1)(d) commenced before the formal interview. Conclusion on Brian Frugtniet's conviction These then were the alleged breaches of ss.464A, 464C and 464H. In our view, none of the submissions made by Mr Grace in this respect was made out. It follows that the provisions of Subdivision (30A) afforded no basis for the rejection of the record of the interview that commenced at about 6.40 p.m. It remains true that if, contrary to the opinion we expressed earlier, McLeod did not have the powers and duties of a member of the Victoria police (including those powers and duties found in Subdivision (30A)), McLeod was in default under s.458 when he failed to deliver Frugtniet to a member of the Victoria police at some time (which need not be fixed) before 6.40 p.m.; but, had the correct procedure been followed, Mr Frugtniet's position would not have been materially different thereafter. As Mr Grace has not established that there was a breach of the provisions of Subdivision (30A), we cannot regard the mere failure of McLeod to deliver Frugtniet to a member of the Victoria police as such a default as in itself to warrant rejection of the record of interview in the exercise of discretion. After all, McLeod was apparently doing his best, in line with the advice he twice received from Pedley, to act according to State laws: certainly there was no deliberate or reckless breach of statutory requirements of the type referred to by Deane, J. in Pollard at 204. Each case must depend upon its own facts and in the circumstances here, given the nature of the attack made upon the judge's decision, we cannot say that the judge's discretion miscarried when he admitted the record of interview into evidence. Brian Frugtniet's sentence

Ratio Decidendi

Legal Principle Established

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr L. Lasry, Q.C. and	Solicitor for Public
Mr M.P. Taft	Prosecutions (C'th)
For the Applicants	Mr D. Grace, Q.C. and	Victoria Legal Aid
Ms S. Stokes

"(1)	The learned Trial Judge erred in failing to permanently stay the trial as an abuse of process arising from the Crown's failure to call Brent John Dallimore during the Crown case.
(2)	The learned Trial Judge erred in…