R v Merrett

Case [2007] VSCA 1


SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 203 of 2006
200 of 2006
190 of 2006

THE QUEEN

v.

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.:

  1. 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.

  1. 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. 

  1. 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

  1. 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…

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R v Merrett [2007] VSCA 1
Case
[2007] VSCA 1
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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.

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