Merza v The Queen

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.