R v Merlino - [2004] NSWCCA 104

CITATION: Regina v Merlino [2004] NSWCCA 104

HEARING DATE(S): 7/04/2004

JUDGMENT DATE:
21 April 2004

JUDGMENT OF: Wood CJ at CL at 1; Sully J at 81; Hislop J at 82

DECISION: Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - Appeal against conviction - 2 counts of robbery armed with offensive weapon - plea of not guilty - whether trial judge erred in directions to jury on circumstantial evidence - whether prejudice caused by trials being run together - whether miscarriage due to jury being made aware that appellant and his alibi witness had been in prison - whether Crown cross examination invited adverse inferences relating to onus of proof and right to silence of appellant.

LEGISLATION CITED: Evidence Act 1995 - s 103

CASES CITED: KRM The Queen (2001) 206 CLR 221 at 234
Petty v The Queen (1991) 173 CLR 95
Regina v Anderson [2002] NSWCCA 141
Regina v ITA [2003] NSWCCA 174
Regina v Merritt [1999] NSWCCA 29 at 71
R v Reeves (1992) 29 NSWLR 109
Regina v Zaiter [2004] NSWCCA 35
Shepherd v The Queen (1990) 170 CLR 573 at 585

PARTIES :
Regina
Mario Joseph Merlino

FILE NUMBER(S): CCA 60479/03

COUNSEL: D M L Woodburne (Crown)
H. Dhanji

SOLICITORS: C K Smith (Crown)
S E O'Connor

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/1177

LOWER COURT
JUDICIAL OFFICER : Robison DCJ

- 24 -

60479/03

WOOD CJ at CL
SULLY J
HISLOP J

Wednesday 21 April 2004

Regina v Mario Joseph Merlino

Judgment

1 WOOD CJ at CL: The appellant was convicted by a jury after a trial before his Honour Judge Robison at the District Court at Penrith, in respect of counts that:

1. On 13 October 2001, at Eastern Creek, in the State of New South Wales, being then armed with an offensive weapon, namely a knife, [he] did rob Stephen Galea, of a sum of cash, one mobile phone, a set of keys and motor vehicle, namely a Hyundai Excel sedan, the property of Stephen Galea; and that

2. On or about 14 October 2001, at Eastern Creek, in the State of New South Wales, being then armed with an offensive weapon, namely a knife, [he] did rob Craig Dayball, of one motor vehicle, namely a Nissan pulsar sedan, one wallet containing a sum of money and personal papers, a mobile phone and phone charger, a set of golf clubs, one halogen light, one briefcase, a number of compact discs and a set of keys, the property of Craig Dayball.

2 The appellant was sentenced on 24 April 2003 to an effective head sentence of eight years with a non-parole period of five years. He appeals against the convictions, but not against the sentence.

Facts

3 The victim of the first offence, Mr Galea, gave evidence that he was robbed at knifepoint of the property in question after he stopped at a red light, at about 7:45 PM on 13 October 2001, at the intersection of Wallgrove Road and the Great…

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 Merlino

Details

AGLC: Regina v Merlino [2004] NSWCCA 104
Case: [2004] NSWCCA 104
Decision Date: 21 April 2004

CaseChat Overview and Summary

The appellant, Merlino, was convicted by a jury on two counts of robbery armed with an offensive weapon, for which he was sentenced to imprisonment. Merlino appealed against his conviction on several grounds, including whether the trial judge erred in directing the jury on circumstantial evidence, whether there was prejudice caused by the trials being run together, whether there was a miscarriage of justice due to the jury being made aware that Merlino and his alibi witness had been in prison, and whether the Crown's cross-examination invited adverse inferences relating to the onus of proof and the right to silence of Merlino. The appeal was heard in the Court of Criminal Appeal.

The legal issues the court was required to decide included whether the trial judge's directions to the jury on circumstantial evidence were correct, whether the running together of the trials caused prejudice to Merlino, whether the jury's awareness of Merlino and his alibi witness's prior imprisonment caused a miscarriage of justice, and whether the Crown's cross-examination invited adverse inferences that impacted Merlino's onus of proof and right to silence.

The court found that the trial judge's directions to the jury on circumstantial evidence were correct, as they accurately reflected the law on the matter. The court also found that the running together of the trials did not cause prejudice to Merlino, as the evidence was properly segregated and the jury was properly directed to consider each count separately. Regarding the jury's awareness of Merlino and his alibi witness's prior imprisonment, the court found that this did not cause a miscarriage of justice, as the evidence of the two offences was distinct and there was no suggestion that the jury based their verdict on this information. Finally, the court found that the Crown's cross-examination did not invite adverse inferences that impacted Merlino's onus of proof and right to silence, as the questions asked were proper and relevant to the case.

The appeal was dismissed, and Merlino's convictions and sentences were upheld.

Orders