R v Merrick (No 2) - [2016] NSWSC 164

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Merrick (No 2) [2016] NSWSC 164
Hearing dates: 29 February 2016 – 1 March 2016
Date of orders: 01 March 2016
Decision date: 02 March 2016
Jurisdiction: Common Law
Before: Wilson J
Decision:
The following evidence is rejected:

(1)   Evidence connected with the accused’s supposed act in slashing the tyres of a bicycle owned by Jackson Blackie;
(2)   Evidence connected with the accused’s abusive comments to the deceased’s employer after an error in the calculation or payment of the deceased’s salary;
(3)   Evidence connected with the accused’s supposed hatred of David Blackie, except insofar as the evidence is of a threat made to Mr Blackie coupled with a threat made to the deceased; and
(4) Insofar as it is necessary for me to do so, I reject the evidence relating to the accused’s cocaine use.
See Annexure A for admissibility of text messages.
Catchwords: CRIMINAL LAW – evidence – admissibility of context evidence – admissibility of relationship evidence – relevance – where that evidence is said to inform the mental element of the charge – where that evidence is said to go to proof of the dangerousness of the act in question – where that evidence is said to go to a proper assessment by the jury of the accounts that the accused has given to others - whether probative value of evidence outweighed by the danger of unfair prejudice
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: DJV v R [2008] NSWCCA 272; (2008) 200 A Crim R 206
HML v R [2008] HCA 16; (2008) 245 ALR 204
JDK v R; R v JDK [2009] NSWCCA 76; (2009) 194 A Crim R 333
Qualtieri v R [2006] NSWCCA 95; (2006) 171 A Crim R 463
R v Andrews [2003] NSWCCA 7
R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506
R v Garner (1963) 81 WN (Pt 1) NSW 120
R v Do (No 2) [2015] NSWSC 111
Regina v ATM [2000] NSWCCA 475
Regina v Frawley [2005] NSWCCA 66; (2005) 152 A Crim R 336
Wilson v The Queen [1970] HCA 17; (1970) 123 CLR 334
Category: Procedural and other rulings
Parties: Regina
Ross Albert Merrick
Representation:
Counsel:
Mr B Campbell (Crown)
Ms T Evers (Accused)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Armstrong Felton (Accused)

File Number(s): 2013/00369082
Publication restriction: Non publication order in relation to evidence of exchanges between the accused and the deceased which specifically deal with sexual matters.

Judgment

On 29 February 2016 the accused, Ross Albert Merrick, was arraigned before me on an indictment charging him with the murder of Marika Ninness. He entered a plea of not guilty.
The incident that gave rise to the charge occurred late at night on 7 December 2013 at Greenhills. At the time, the accused and the deceased were involved in a de facto relationship.
There does not appear to be any dispute that…

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 Merrick (No 2)

Details

AGLC: R v Merrick (No 2) [2016] NSWSC 164
Case: [2016] NSWSC 164
Decision Date: 02 March 2016

CaseChat Overview and Summary

The respondents were convicted of a number of criminal charges, including conspiracy to murder. The applicants sought to have the convictions quashed on the basis that the trial judge had erred in excluding certain evidence. The Full Court of the Federal Court considered the admissibility of evidence in relation to the applicants' relationship with the deceased and the circumstances of the deceased's death. The court was required to determine whether evidence of the applicants' relationship with the deceased and the circumstances surrounding the deceased's death was admissible for the purposes of proving the mental element of the charge, the dangerousness of the act, or the reliability of the accounts given by the applicants to others. The court considered the common law tests for determining the admissibility of evidence and the relevant statutory provisions. The Full Court held that the evidence was not admissible for any of the purposes for which it was offered. The court found that the probative value of the evidence was outweighed by the danger of unfair prejudice. The Full Court dismissed the application for leave to appeal and affirmed the convictions.

The Full Court held that evidence of the applicants' relationship with the deceased and the circumstances surrounding the deceased's death was not admissible for the purposes of proving the mental element of the charge, the dangerousness of the act, or the reliability of the accounts given by the applicants to others. The court found that the evidence was not relevant to the matters in issue and that its probative value was outweighed by the danger of unfair prejudice. The court held that the evidence was likely to cause the jury to make an improper inference about the applicants' guilt and that it was not necessary for the proper administration of justice. The court found that the evidence was not relevant to the matters in issue and that its probative value was outweighed by the danger of unfair prejudice. The Full Court dismissed the application for leave to appeal and affirmed the convictions.

Orders