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Merza v The Queen

Merza v The Queen

Case [2021] NSWCCA 269 10 November 2021

Appeal

Jurisdiction

Admissibility of Evidence

Sentencing

Breach of Trust

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Merza v R [2021] NSWCCA 269
Hearing dates: 19 July 2021
Date of orders: 10 November 2021
Decision date: 10 November 2021
Before: Basten JA and Price J at [1];
Hamill J at [270]
Decision:
In matter 2016/281692:
1.   Grant the applicant an extension of time within which to seek leave to appeal against his convictions and aggregate sentence imposed on 15 May 2020.
2.   Grant the applicant leave to appeal against his convictions, but dismiss the appeal.
3.   Grant the applicant leave to appeal against sentence, but dismiss the appeal.
In matter 2017/49186:
1.   Grant the applicant an extension of time within which to seek leave to appeal against the aggregate sentence imposed on 15 February 2019.
2.   Grant the applicant leave to appeal against sentence, but dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against conviction – unreasonable verdict
CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote
EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence
SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked
SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A
Crimes Act 1990 (NSW), s 93T
Criminal Appeal Act 1912 (NSW), s 5
Evidence Act 1995 (NSW), ss 32, 38
Summary Offences Act 1988 (NSW), s 27DA

Cases Cited:
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
GP v R [2017] NSWCCA 200
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Huang v R [2019] NSWCCA 144
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lonsdale v R [2020] NSWCCA 267
Matthews v R [2014] NSWCCA 185
McKittrick v R [2014] NSWCCA 128
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R Close (1993) 31 NSWLR 743 at 748
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v GDR (1994) 35 NSWLR 376
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Simpson (1992) 61 A Crim R 58
R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56
SKA v The Queen (2011) 243 CLR 400; [2011]…

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 Merza v The Queen

Details

AGLC: Merza v The Queen [2021] NSWCCA 269
Case: [2021] NSWCCA 269
Decision Date: 10 November 2021

CaseChat Overview and Summary

Merza was convicted of a range of drug-related offences and appealed against his conviction and sentence. The appeal against conviction centred on the alleged unreasonableness of the verdict and the court's direction to the jury regarding the use of phone call evidence. The appeal against sentence was based on the alleged failure of the sentencing judge to make a finding of special circumstances and the impact of the criminal record on the assessment of the objective seriousness of the offending.

The court held that the jury was properly directed and that the failure to give further direction regarding the phone call evidence did not prejudice the appellant. The court held that it was open to the jury to infer consciousness of guilt from the evidence and that the alternative inference did not need to be raised by the appellant. The court also held that the burden of proof did not shift to the appellant to prove that the intermediate facts did not exist, and that the inference of consciousness of guilt constituted a link in the chain on one offence and an essential element of another offence.

The appeal against conviction was dismissed, and the appeal against sentence was partially allowed. The court held that the failure to make a finding of special circumstances did not affect the earlier sentence, and the aggregate sentence was unaffected. The court also held that the criminal record could be taken into account in assessing the objective seriousness of the offending, and that the error in not taking it into account did not affect the aggregate sentence.

The final orders of the court included the dismissal of the appeal against conviction and the partial allowance of the appeal against sentence. The aggregate sentence remained unchanged, and the court's failure to make a finding of special circumstances did not affect the earlier sentence. The court also held that the criminal record could be taken into account in assessing the objective seriousness of the offending, and that the error in not taking it into account did not affect the aggregate sentence.

Orders