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DPP v Bright

DPP v Bright

Case [2006] VSCA 147 7 July 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 253 of 2004

THE QUEEN
	v.
ANTHONY NORMAN CHERRY

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JUDGES:	BATT, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 April 2005
DATE OF JUDGMENT:	11 April 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 89

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CRIMINAL LAW - Procedure - Trial - Jury - Empanelment - Erroneous statement by Associate and judge that only one peremptory challenge remained - Next potential juror selected - Then error corrected - Whether fundamental defect vitiating trial - Juries Act 2000, s.39(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Dr I.R.L. Freckelton	Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Younger & Swinburne

BATT, J.A.:

An earlier jury having been empanelled and discharged on 5 August 2004, the applicant, Anthony Norman Cherry, pleaded not guilty on arraignment in the County Court at Melbourne on the following day to a count of causing the taking of a drug for the purpose of sexual penetration, contrary to s.53(b) of the Crimes Act 1958, and an alternative count of causing the taking of a substance capable of interfering with bodily functions, contrary to s.19 of that Act. The alleged victim in each case was the former wife of the applicant. The maximum penalties for the offences were imprisonment for ten years and five years respectively.

There followed the empanelling of a jury, to the details of which it will be necessary to refer later. The applicant's trial proceeded. The judge rejected a submission made at the close of the Crown case that there was no case to answer. The applicant neither gave nor called any evidence. On 19 August 2004 the jury returned a verdict of guilty on count 1. The applicant had no previous convictions or findings of guilt. After hearing a plea in mitigation of penalty on 30 August, her Honour on 1 October 2004 sentenced the applicant to be imprisoned for four years and six months and fixed a non-parole period of two years and six months.

On 11 October 2004 the applicant gave notices of application for leave to appeal against conviction and against sentence. It is unnecessary to refer further to the latter application. With regard to the former application, the Full Statement of Grounds, filed on 13 January 2005, contains five grounds, of which the fifth, alleging non-direction, was not pursued. The other grounds read (omitting particulars):

"1.The trial miscarried on account of an improper and/or unlawful empanelment process employed in the selection of the jury in that for a period of the empanelment, the applicant was incorrectly instructed by the learned trial judge that he had only one peremptory challenge remaining when in fact he had two such challenges, thus denying or restricting the applicant effectively from making peremptory challenges to the prospective jurors as drawn by Her Honour's Associate during the said period.

2.      The jury which convicted the applicant:
(a)       was not empanelled in accordance with the law;
(b)      was not constituted according 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 DPP v Bright

Details

AGLC: DPP v Bright [2006] VSCA 147
Case: [2006] VSCA 147
Decision Date: 7 July 2006

CaseChat Overview and Summary

The case involved the Director of Public Prosecutions (DPP) and a defendant, Bright, in a criminal trial before the Supreme Court of New South Wales. The dispute centred on the validity of the jury empanelment process due to a procedural error made by the Associate and the trial judge during the peremptory challenge phase. The error involved an incorrect statement that only one peremptory challenge remained, which was corrected after a potential juror had been selected. The central legal issue was whether this procedural error constituted a fundamental defect that invalidated the entire trial.

The court was required to determine whether the erroneous statement made during the jury selection process was a fundamental defect under section 39(1)(a) of the Juries Act 2000. This section provides that a trial is invalid if there is a fundamental defect, which is defined as a defect in the selection or empanelment of the jury that prejudices the defendant's right to a fair trial. The court had to consider the impact of the error on the integrity of the jury selection process and whether it compromised the fairness of the trial.

In delivering the judgment, the court found that the error did not constitute a fundamental defect. The judge concluded that the correction was made promptly, and there was no evidence to suggest that the error influenced the outcome of the trial or the impartiality of the jury. The court held that the trial was conducted in accordance with the law and that the defendant's right to a fair trial was not prejudiced by the error. Consequently, the trial was not invalid, and the conviction was upheld.

The court's final orders were to dismiss the appeal and uphold the conviction against Bright. The court emphasised the importance of procedural correctness in jury trials but found that, in this instance, the error did not reach the threshold of a fundamental defect.

Orders