HAYDN FRANK MERRETT, KENNETH MICHAEL PIGGOTT and STEVEN JOSEPH FERRARI
Applicants
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JUDGES:
MAXWELL, P., CHERNOV, J.A. and HABERSBERGER, A.J.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
15 January 2007
DATE OF JUDGMENT:
1 February 2007
MEDIUM NEUTRAL CITATION:
[2007] VSCA 1
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CRIMINAL LAW – Conviction – Defence of alibi – Whether judge erred in failing to give specific direction that Crown has onus of disproving evidence of alibi beyond reasonable doubt – Whether appreciable danger of jury thinking that accused bore onus of establishing alibi – Whether judge erred in failing to give direction regarding consequences of rejection of evidence of alibi – Application for leave to appeal against conviction refused.
CRIMINAL LAW – Sentencing – Inordinate delay in prosecution of case – Powerful mitigatory factor – Whether judge erred in failing to give proper weight to matters of delay and rehabilitation – Sentencing discretion re-opened – Parity between co-offenders – No substantial distinction between co-offenders’ criminal records and prospects for rehabilitation.
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APPEARANCES:
Counsel
Solicitors
For the Crown
Mr P.A. Coghlan, Q.C. with Mr T.C. Wallwork
Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant (Merrett)
Mr O.P. Holdenson, Q.C.
Ronald V. Tait
For the Applicant (Piggott)
Mr C.B. Boyce
Patrick Dwyer & Associates
For the Applicant (Ferrari)
Mr C.J. Pearson
C. Hanneberry
MAXWELL, P.:
Some time after 4:30 pm on 16 June 2001, a Mitsubishi tray truck was stolen from a locked yard in Blackburn. A pair of bolt cutters was used to gain access to the yard. Shortly after 9:00 pm that evening, a bobcat parked at a work site in Kew was loaded onto the stolen truck, and taken to a property in Warrandyte. The movement of the bobcat triggered a tracking device, and police were notified. They attended at the Warrandyte property and, soon after, intercepted the applicants driving a white van away from the property. The police searched the property and located the stolen truck and bobcat parked nearby.
On 5 June 2006, a County Court jury found each of the applicants guilty of two counts of theft (of the truck and the bobcat respectively). Each applicant was sentenced to three years’ imprisonment on each count. In each case it was ordered that one year of the sentence on the second count be served cumulatively on the sentence on the first, giving a total effective sentence of four years’ imprisonment. In each case, the non-parole period was fixed at two and a half years.
The first applicant (“Merrett”) seeks leave to appeal against conviction and sentence. The other two applicants (“Piggott” and “Ferrari”) seek leave to appeal against sentence only. I will deal first with the appeal against conviction.
The alibi defence
The grounds of appeal against conviction concern what are said to be errors in the directions given to the jury concerning the defence of alibi, as to which only Merrett…
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.
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Details
AGLC
R v Merrett [2007] VSCA 1
Case
[2007] VSCA 1
Decision Date
CaseChat Overview and Summary
In the case of R v Merrett, the appellant was convicted by a jury of charges related to a serious criminal offence and subsequently appealed against his conviction and sentence. The central issue in this appeal was whether the trial judge erred in certain respects in relation to the direction given to the jury about the appellant's alibi defence and the consequences of rejecting such evidence. Additionally, the appeal contested the sentencing decision, arguing that the judge did not adequately consider the substantial delay in the prosecution and the appellant's rehabilitation as mitigating factors.
The court examined whether the trial judge should have provided a specific direction that the Crown bore the onus of disproving the appellant's alibi beyond reasonable doubt, and whether there was an appreciable danger that the jury might have thought the appellant bore the onus of establishing his alibi. Furthermore, the court considered whether the judge should have directed the jury regarding the consequences of rejecting the evidence of alibi. The appeal also contested the sentencing decision, arguing that the judge did not give proper weight to the significant delay in the prosecution and the appellant's rehabilitation as powerful mitigating factors.
The court found that while there was some merit in the contention that the trial judge should have given more specific directions regarding the alibi evidence, there was no appreciable danger that the jury misunderstood the onus of proof. As for the sentencing, the court determined that the judge had indeed failed to give proper weight to the significant delay in prosecution and the appellant's rehabilitation, which are strong mitigating factors. Consequently, the appeal against conviction was dismissed, but the sentencing decision was quashed and the matter was remitted to the sentencing judge for reconsideration.
The court did not find any substantial distinction between the criminal records and prospects for rehabilitation of the co-offenders, thereby ensuring parity in the sentencing process. This decision underscores the importance of considering all relevant mitigating factors, including significant delays in prosecution and the appellant's efforts towards rehabilitation, when determining an appropriate sentence.