Legal Research
Cases
R v Cherry (No 2)

R v Cherry (No 2)

Case [2006] VSCA 271 8 December 2006

Criminal Liability

Admissibility of Evidence

Motive

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 155 of 2006

THE QUEEN
	v.
ANTHONY NORMAN CHERRY (NO. 2)

---

JUDGES:	VINCENT and ASHLEY, JJ.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 November 2006
DATE OF JUDGMENT:	8 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 271

---

Criminal Law – Conviction – Causing a person to take a substance capable of interfering substantially with bodily functions – Turbulent marital relationship between applicant and complainant – Defence contention that complainant “set up” the applicant to gain access to children – Motive to lie – Whether trial judge erred in failing to give a Palmer direction – Palmer v R (1998) 193 CLR 1 – Reliability of complainant’s evidence suspect – Complainant with a history of psychiatric and psychological difficulties – Whether trial judge’s warning in respect of complainant’s evidence was adequate in the circumstances – Whether miscarriage of justice – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C.J. Ryan, S.C.	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C.	Younger & Swinburne

VINCENT, J.A.:

The applicant was found guilty in the County Court at Melbourne on 10 April 2006 of causing a person to take a substance capable of interfering substantially with bodily functions (count 2),[1] and acquitted on one count of causing the taking of a drug for the purpose of sexual penetration (count 1).
[1]This offence arises under s.19 of the Crimes Act 1958 and carries a maximum penalty of five years imprisonment.

After hearing a plea in mitigation of penalty, the sentencing judge, on 24 May 2006, ordered that he be imprisoned for a period of 16 months with a non-parole term of four months for this offence. [2]
[2]An application for leave to appeal against sentence was abandoned at the commencement of the hearing in this Court.

He now seeks leave to appeal against his conviction, relying upon the grounds that:

1.The learned trial judge erred in his directions to the jury in that he failed to direct the jury that, if the jury rejected the applicant’s defence that he had been “set up” by the complainant:
(a)the jury could not use that rejection to support the Crown case; and
(b)that rejection did not mean that the complainant was necessarily telling the truth; and
(c)that rejection did not have the effect of strengthening the evidence of the complainant; and
(d)that rejection did not constitute evidence of the applicant’s guilt; and
(e)the critical issue was that the Crown at all times bore the onus of proof and, as a consequence, the Crown had to satisfy the jury beyond reasonable doubt that the complainant was telling the truth with respect to her evidence as to the applicant’s guilt –

and, as a consequence, there has been a substantial miscarriage of justice.
2.The learned trial judge erred in failing to warn the jury, either sufficiently or at all, concerning:
(a)the dangers of accepting or in placing any reliance…

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 (No 2)

Details

AGLC: R v Cherry (No 2) [2006] VSCA 271
Case: [2006] VSCA 271
Decision Date: 8 December 2006

CaseChat Overview and Summary

The case of R v Cherry (No 2) involved a criminal conviction where the applicant was found guilty of causing a person to take a substance that interfered substantially with bodily functions. The dispute arose in the context of a turbulent relationship between the applicant and the complainant. The applicant contended that the complainant had "set up" the applicant to gain access to their children and had a motive to lie. The High Court of Australia was tasked with determining whether the trial judge erred in failing to give a Palmer direction, and whether the warning given by the trial judge regarding the reliability of the complainant’s evidence was adequate. Additionally, the court considered whether a miscarriage of justice had occurred.

The primary legal issues addressed by the court included whether the trial judge should have directed the jury to consider the possibility that the complainant had fabricated the evidence against the applicant. The court also evaluated whether the trial judge’s warning about the reliability of the complainant's evidence was sufficient, given the complainant’s history of psychiatric and psychological difficulties. The court’s task was to assess if these considerations affected the fairness and reliability of the trial process.

The court found that the trial judge did not err in failing to give a Palmer direction, as the evidence presented did not warrant such a direction. Furthermore, the court determined that the trial judge’s warning to the jury about the reliability of the complainant’s evidence was adequate, considering the complainant's history and the circumstances of the case. The court held that no miscarriage of justice had occurred, and the conviction was upheld.

Consequently, the High Court dismissed the application, affirming the conviction of the applicant. The court concluded that the trial judge had appropriately managed the issues of reliability and credibility in the evidence presented, and there were no grounds for overturning the conviction based on the arguments raised.

Orders