R v Cherry

[2004] QCA 328

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cherry [2004] QCA 328

PARTIES:

R
v
CHERRY, Rodney Michael
(appellant)

FILE NO/S:

CA No 380 of 2002
SC No 235 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

10 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

9 June 2004

JUDGES:

McPherson and Jerrard JJA and Philippides J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of two counts of murder - whether on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty

CRIMINAL LAW – ANCILLARY LIABILITY – COMPLICITY – COMMON PURPOSE – CODE PROVISIONS – where Crown case relied on s 8 of the Criminal Code with respect to the murder charged on the first count on the indictment – where person directly responsible for the killing was convicted of manslaughter but the appellant was convicted of murder – whether circumstances of appellant’s conviction for murder a miscarriage of justice

CRIMINAL LAW – COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES – POWER OF CROWN TO CALL OR REFUSE TO CALL WITNESSES – DISCRETION OF CROWN – GENERALLY –where Crown did not call three people as witnesses in the Crown case despite requests from defence to do so – whether the prosecutor was justified in the view that evidence from them would not contradict the Crown case but should be the subject of cross-examination by it – whether decision of prosecutor not to call those witnesses constituted a miscarriage of justice

CRIMINAL LAW – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF COUNTS – BY STATUTE – SAME FACTS OR SERIES OF OFFENCES OF SAME OR SIMILAR CHARACTER – where judge allowed the joinder of two counts of murder – whether sufficient nexus between the charges – whether the joinder resulted in a miscarriage of justice at trial

Criminal Code 1899 (Qld), s 8, s 567(2), s 688E

Richardson v R (1974) 131 CLR 116
R v Apostilides (1984) 154 CLR 563, applied
R v Barlow (1997) 188 CLR 1, applied
R v Collins; ex parte Attorney-General [1996] 1 Qd R 631, applied

COUNSEL:

The appellant appeared on his own behalf
R G Martin, with B G Campbell, for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. McPHERSON JA:  I agree with the very thorough and exhaustive analysis of the facts, the inferences to be drawn from them, and the conclusion reached by Jerrard JA in his reasons that the appeals against conviction should be dismissed.

1. I would only add two comments. One is to say that, on an appeal after conviction, a…