R v Cherry - [2005] VSCA 89

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 R v Cherry

Details

AGLC: R v Cherry [2005] VSCA 89
Case: [2005] VSCA 89
Decision Date: 11 April 2005

CaseChat Overview and Summary

In the case of R v Cherry, the respondent, a criminal defendant, appealed against his conviction on the grounds that a fundamental defect in the jury empanelment process had vitiated his trial. The error involved an Associate and the judge erroneously stating that only one peremptory challenge remained, before selecting the next potential juror and subsequently correcting the error. The appeal centred on whether this mistake constituted a fundamental defect that rendered the trial invalid. The court had to consider the relevant statutory provisions, particularly section 39(1)(a) of the Juries Act 2000, which deals with the empanelment of jurors and the use of peremptory challenges.

The primary legal issue before the court was whether the error in stating the number of remaining peremptory challenges constituted a fundamental defect that could invalidate the entire trial. The court examined the statutory framework, specifically the procedures outlined in the Juries Act 2000. It was necessary to determine if the error was of such a nature that it could undermine the fairness or integrity of the trial process. The court also needed to assess the impact of the error on the respondent's right to a fair trial, as guaranteed by the common law and statutory provisions.

The court concluded that the error, while significant, did not amount to a fundamental defect that rendered the trial invalid. The error was promptly identified and corrected, and the court found that the respondent had not suffered any prejudice as a result of the mistake. The court reasoned that the error was an administrative oversight rather than a substantive procedural defect that would have affected the fairness of the trial. It held that the respondent's right to a fair trial was not compromised, and therefore, the trial remained valid. The appeal was dismissed, and the conviction was upheld.

No additional orders were made by the court beyond dismissing the appeal and upholding the conviction. The court did not find it necessary to order a new trial or any other remedy, given its determination that the error did not fundamentally vitiate the trial process.

Orders