R v Cherry

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 upon the evidence given by the complainant ... ; and/or

(b) the manner in which the jury was required (or bound) to scrutinise, assess, treat and/or consider the evidence given by the complainant ... before accepting or placing any reliance upon the said evidence -

and, as a consequence, there has been a substantial miscarriage of justice.

3. There has been a substantial miscarriage of justice by reason of the combination or aggregation of the defects or errors in the trial of the applicant which have been identified in grounds 1 - 2 herein.

The Background

4 There is no need in the present context to set out the history of the turbulent relationship between the complainant and the applicant, however it is sufficient, for present purposes, to state that the complainant, the former wife of the applicant, gave evidence that, on 10 June 2002, she was residing in a "safe house" in Cheltenham that had been arranged for her through a women's refuge. Her two younger children were in the applicant's care[3] and she contacted him on his mobile telephone, asking whether she could see or speak to them. She said that he told her that she could only do so if she met with him. Initially she refused, but agreed when he subsequently called her and repeated the offer, indicating that she could choose a public location for their meeting.

5 The applicant provided a quite different version of the circumstances under which they came to be together on that day. He stated in evidence that the complainant called him in a state of considerable distress, saying that she intended to kill herself and then, before he could respond, terminated the call. He immediately rang back and, after she had calmed down, she asked him whether they could meet for coffee. He agreed on the condition that their meeting took place in public and at a location with which they were both familiar. After some discussion, they agreed upon and met at the Malvern Railway Station. They then went together to a café in Glenferrie Road.

6 The prosecution contended that, whilst the complainant was seated at a footpath table, the applicant entered the café where he purchased a cappuccino coffee for her into which he surreptitiously placed crushed Avanza[4] tablets. Although, according to the complainant, she noticed some "orangey pink dots" on the top of the cappuccino, she drank it thinking that they were produced by dye from the chocolate sprinkle or some similar substance. The complainant stated that she had no clear memory of what happened thereafter and said that she awoke in bed on the following morning with dream like recollections of being in a motel with the applicant, standing on a railway platform and travelling on a train to Cheltenham Railway Station. She had no memory of travelling to her home. A drug screening test ordered by a local general practitioner on the same day revealed the presence of Avanza in her system.

7 There was evidence from the reservations manager of the Crown Court Motel, East Malvern, that at about 3.00 p.m. on 10 June 2002, the applicant requested a room for two people for one night stating that his wife was suffering from travel sickness. A search of the applicant's home, on 13 June 2002, was conducted by the investigating police and, in his bedside table, were found packets of medication bearing the complainant's name and two sachets of reddish-orange Avanza tablets.[5] Four tablets had been removed from one sachet and another tab was ruptured. The colour of the remaining tablets was reddish-orange. In the console of his car were found a cheque, a Centrelink letter and two medication prescriptions (Zoton and Efexor) in his wife's name. A pharmacist, Niro Sofra, at O'Meare's Pharmacy in Blackburn Road, Syndal, on 8 May 2002, dispensed Avanza in accordance with a prescription[6] in the name of the complainant. This pharmacy was located only a short distance from the applicant's home. The signature at the bottom was in the applicant's handwriting.

8 The prosecution argued that the applicant's motivation for engaging in this conduct was his desire to rape the complainant and that whilst she was in a severely drug affected condition, he took her to a motel where he had non-consensual intercourse with her.[7]

9 The defence response to these allegations, was that they had been fabricated by the complainant as part of a plan developed by her to secure custody of the two children in his care and that, in order to achieve her objective and support her version of events, she had placed Avanza tablets in the applicant's car and engaged in other activities designed to incriminate him.

10 The applicant gave evidence in the trial that they had met, had coffee together and then, after having a meal at a nearby restaurant, went, at the complainant's suggestion, to a motel where they engaged in consensual sexual intercourse. She told him, he said, that she was sorry about what had happened in their relationship over the years and that she would like to effect a reconciliation. He responded, he claimed, that there were many issues to be resolved before that could happen. With respect to the items found in his car, the applicant stated that he did not put them there and had no idea how they came to be present. He did not take the prescriptions for drugs dispensed at O'Meara's Pharmacy nor did he collect the medications. He was not aware of the presence of Avanza tablets in his bedside table drawer. In substance, he claimed that, in the words of his counsel, he was the victim of a "set up".

The Grounds

Ground 1

11 In the written outline of submissions provided to this Court, the assertion is made that the defence upon which the applicant relied at the trial was not merely that he had not placed any drug in the complainant's coffee, but that she had fabricated this allegation and "planted" evidence for the specific purposes of securing access to her children and incriminating the applicant. In this context, it was pointed out that the complainant had a history of psychiatric difficulties and that there was a long period of prior instability in the relationship between them. In that situation, the argument was advanced, the jury should have been instructed that, if they rejected the applicant's claim that he had been "set up" by her, they could not use that finding to support the Crown's case, as it did not follow that the complainant was necessarily telling the truth about what had occurred. Whilst counsel for the applicant acknowledged that it was open to the jury to reject both the applicant's version of events and the motive advanced, he argued that a reasonable jury properly instructed might well have rejected the motive suggested by the defence but nevertheless not have been satisfied as to the reliability of the complainant's evidence concerning the events themselves. Accordingly, in order to avoid the risk that the jury might be diverted from directing attention to the central question in the trial - whether they were satisfied beyond reasonable doubt that the applicant engaged in the conduct that the prosecution sought to attribute to him - the judge should have made this clear. This contention lacks substance.

12 Of course there is no need for an accused person to proffer any motive for a witness to lie or distort the position when giving evidence against him or her and the Courts have, on a number of occasions, addressed situations in which this issue has arisen.[8] Included in them are cases in which, presumably because it was believed by the defence that the credibility of the case that they were advancing would be enhanced by so doing, positive assertions concerning the possible motivation for a witness to lie, distort the position or fabricate evidence have been put before the jury. There are obvious dangers in the adoption of this approach as, if the jury regard the proffered motive as fanciful, its rejection may be damaging to the credibility of the accused or witness presenting it or the defence generally; with the invitation to countenance presentation of an unbelievable scenario being viewed as indicative of a desperate attempt to counter the prosecution evidence.

13 Whilst in a given case this response may well be understandable, the trial judge must endeavour to ensure the jury remain conscious of the burden and standard of proof in the trial and understand that they are not to reason from the rejection of a suggested motive for a complainant or Crown witness to lie that the individual is therefore to be accepted as truthful. There is a clear danger that the onus of proof may shift or the standard of proof diluted in the minds of the jury, if this is not done.

14 The problem did not arise in the present case however, as at no stage did the prosecutor challenge either directly or indirectly the existence of the motivations upon which the defence relied. The assumption can be safely made that all concerned in the trial would have understood that at the time of the commission of the alleged offence, the complainant was eager to secure access to her children. Indeed she had stated in evidence that the only reason for meeting the applicant was to see if this could be achieved. The desire of a mother to secure custody of or access to her children would, I suspect, ordinarily be perceived as providing a powerful motive for engaging in even extreme conduct and I do not understand any suggestion to the contrary was advanced in the trial. It must also be remembered that the jury were well aware, as considerable emphasis was placed upon it by the defence, of the complainant's history of psychiatric and psychological disturbances. The possibility that her decision to "set up" the applicant could have been, in part at least, influenced by her mental state was raised fairly and squarely and would have undoubtedly have assumed relevance in the minds of the jury when considering whether she may have lied and, if so, why. Insofar as the complainant could have been motivated by animosity towards the applicant, although I have not set it out, there was ample evidence of turbulence in their relationship and the jury had been informed that she had secured an Intervention Order against him and that she was living in accommodation arranged through a Women's Refuge at the time. In other words, the answer to the question - why might she lie - which was posed to the jury by the defence - was never the subject of any controversy and the possible answers were both obvious and credible.

15 The real issues in the trial arose against that background and related to whether the prosecution had established beyond reasonable doubt that the central features of the complainant's version of events were truthful and reliable, bearing in mind the presence of these possible motivations and considerations. In performing their task, the jury necessarily had to consider the evidence given by the applicant and that of the other witnesses to whom I have briefly adverted. What was put by the prosecutor in cross-examination of the applicant and subsequently in submissions to the jury in addressing these aspects, was that the version given by the applicant with respect to a claimed "set up" could not withstand scrutiny on its face, and that, in any event, it was highly implausible when regard was had to the evidence of a number of other witnesses, most of whom were independent of the parties involved. Accordingly, the Crown submitted, it could be discounted as reasonably possible in the circumstances. I do not think that it is necessary for present purposes to set out in detail the evidence or the arguments advanced in support of that claim by the prosecution, and simply say that there was ample justification for its presentation in the case. It did not require the judge to address the question of the jury's view of the motive advanced by the defence for the complainant to lie and his Honour did not fall into error in failing to give a Palmer direction.

16 As I have pointed out, counsel for the applicant at the trial submitted that the reliability of the complainant's evidence was suspect for a number of reasons. These included her psychiatric and psychological history, the existence of animosity towards the applicant and the presence of a desire to secure the return of her children to her. In this Court, it was argued that, although no special warning or instruction was sought by trial counsel on this basis, the judge was under a duty to warn the jury concerning the dangers of acting upon it. It was acknowledged that his Honour did instruct them concerning the need to scrutinize the evidence of the complainant with care, but submitted that, on the occasion on which he did this, he should have gone further and made specific reference to those matters which may reasonably have impacted upon their assessment of its reliability, and, accordingly, the desirability of looking for evidence that tended to support it.

17 Again there is no substance in this complaint. Judges are required to provide warnings to juries in a wide variety of circumstances. Some relate to the possible unreliability of the source of the evidence (accomplices and prison informers, for example),[9] some to the existence of a potential for injustice arising from the nature of the evidence itself (identification),[10] the circumstances in which it is given (the effluxion of time between the occurrence of the claimed event and trial),[11] and others because a danger is perceived that evidence properly before the Court could be employed impermissibly (for example where statements are said to evidence consciousness of guilt).[12] Whether or not these broad categories represent appropriate categorizations of the kinds of situations involved (and I have not attempted to cover the field) is not important for present purposes. What is significant is that in each of the circumstances in which a warning must be provided, the courts have accepted that a need exists to ensure that the jury remains mindful of dangers of which they may not be aware or the real significance of which they may not appreciate.

18 In the present case, there could be no doubt from the outset that the acceptance of the central features of the complainant's evidence was appreciated by all involved in the trial to be crucial to the prosecution case. Matters possibly affecting her credibility and reliability were the subject of considerable attention throughout. The jury can be taken to have been well aware of all of the relevant considerations which were drawn to their attention by counsel in their addresses and by the judge in his charge which incorporated a lengthy reminder of the evidence. His Honour was at pains to emphasize the burden and standard of proof, drawing it to the jury's attention on at least ten separate occasions. Very early in his charge, he stated -

"You have been told in this case that the onus of proof rests upon the Crown. A criminal trial is not a search for the truth of everything that happened in the transaction before the court. You do not have to be satisfied of all of the facts alleged or of the truth of all of the evidence given but you must be satisfied of the guilt of the accused before you may find him guilty. So the onus or burden of proof is upon the Crown. The accused man, [the applicant], does not, I repeat does not, have to prove anything.

You must be satisfied of the guilt of the accused before you may find him guilty. The onus or burden of proof is upon the Crown. A verdict of not guilty means either that you believe that the accused is innocent or that you are not satisfied beyond reasonable doubt that the accused is guilty. The standard, and I mentioned this earlier this morning and I am going to repeat it, the standard to which you must be satisfied is a high one, the bar is very high. It is expressed in words which reflect our understanding of the serious nature of the work of a criminal court. Those words are beyond reasonable doubt. They are word which have been applied by juries in criminal courts for many years. They mean what they say and any further definition of them would be neither useful nor proper.

If at the end of your deliberations your state of judgment is 'I am satisfied by the evidence beyond reasonable doubt that the accused is guilty of this charge', your verdict should be guilty. If at the end of

your deliberations your state of judgment is 'I am not satisfied by the evidence beyond reasonable doubt that the accused is guilty of this charge', your verdict then should be not guilty."[13]

"As fact finders you need to be aware of the potential danger of making a finding of guilt on the evidence of one witness alone, unless after careful scrutiny of all of the evidence if you then are satisfied of the truth and accuracy of the evidence required to make out the various elements of either count 1 or count - and I will come to those in a moment - as a matter of law, as fact finders you need to be aware of the potential danger of making a finding of guilt on the evidence of one witness alone, unless, after careful scrutiny of all of the evidence, if you are then satisfied of the truth and accuracy of the evidence required to make out the various elements of either count 1 or count 2."[14]

20 His instructions were clearly adequate in the circumstances.

Ground 3

21 It follows from the finding that there is no substance to either of the other grounds that the contention that an aggregation of errors has led to a miscarriage of justice in this case, must also be rejected.

22 In summary, I would dismiss this application.

23 I agree with Vincent, J.A., for the reasons which his Honour gives, that the application should be dismissed.

24 I agree with Vincent, J.A., that the application should be dismissed for the reasons which his Honour gives.

[1] This offence arises under s.19 of the Crimes Act 1958 and carries a maximum penalty of five years imprisonment.

[2] An application for leave to appeal against sentence was abandoned at the commencement of the hearing in this Court.

[3] The eldest child resided with the complainant.

[4] Avanza, a sleeping aid, is a trade name for Mirtazapine, a drug which was, on 3 December 2001, prescribed to the complainant by her psychiatrist Dr Rohan McIntosh.

[5] In the applicant's bedside drawer, investigating police found a box of Valium (exhibit AA) in the applicant's name; a box of Largactil (exhibit AB) and a box of Cilicaine (exhibit AC) both bearing the complainant's name; a box of Prednisolone (exhibit AD) bearing the name "CAI Cherry"; and two sachets of Avanza (exhibit AE).

[6] Exhibit D.

[7] As mentioned earlier the applicant was found not guilty of causing the complainant to take the drug for the purpose of sexual penetration.

[8] Palmer v R [1998] HCA 2; (1998) 193 CLR 1; See also R v Costin [1998] 3 VR 659, where the question was raised by the prosecution; and R v PLK [1999] VSCA 194; (1999) 3 VR 567, where the question arose from the accused's suggestion of motive when interviewed by the police.

[9] Pollitt v R [1992] HCA 35; (1992) 174 CLR 558; Bromley v R [1986] HCA 49; (1986) 161 CLR 315; Carr v R (1988) 165 CLR 315; McKinney v R (1991) 178 CLR 468; Jenkins v R [2004] HCA 57; (2004) 211 ALR 116; Davies v DPP [1954] AC 378; Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; R v Miletic [1997] 1 VR 593; DPP v Faure [1993] VicRp 87; [1993] 2 VR 497.

[10] Kelleher v R [1974] HCA 48; (1974) 131 CLR 534; Reg v Turnbull [1977] QB 224; Reg v Burchielli [1981] VicRp 61; [1981] VR 611; Domican v R [1992] HCA 13; (1992) 173 CLR 555; Festa v R [2001] HCA 72; (2001) 208 CLR 593; Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1.

[11] Longman v R [1989] HCA 60; (1989) 168 CLR 79.

[12] Edwards v R [1993] HCA 63; (1993) 178 CLR 193; Osland v R [1998] HCA 75; (1998) 73 ALJR 173; R v Renzella [1997] 2 VR 88.

[13] Charge T1801-1802.

[14] Charge T1811.