R v Merriman; R v Dalais - [2007] VSCA 133

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 99 of 2006
v
MARK ALAN MERRIMAN
THE QUEEN	No 100 of 2006
v
ROBERT PAUL DALAIS

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JUDGES:	CHERNOV, VINCENT and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 June 2007
DATE OF JUDGMENT:	21 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 133

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Criminal law – Conviction – Aggravated burglary – Armed robbery – Possession of a drug of dependence – Crown concession made in respect of one applicant – Trial judge erred in directing the jury to use possession of a shot gun as evidence of a disposition to commit the precise type of crime – Application of R v Theos (1996) 89 A Crim R 486 misunderstood by trial judge – Whether Crown concession also applicable in case of co-accused where jury directed that the whole of the evidence was cross-admissible – Miscarriage of justice – Re-trial ordered in respect of each applicant.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M A Gamble, SC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant Merriman	Mr C G Mandy	Doogue & O’Brien
For the Applicant Dalais	Mr C B Boyce	Mr M J Smith

CHERNOV JA:

I will ask Vincent JA to deliver the first judgment.

VINCENT JA:

The applicants were jointly presented before the County Court at Melbourne, on 7 February 2006, on one count of aggravated burglary (count 1) and two counts of armed robbery (counts 2 and 3). Merriman was also presented on a further count of possessing a drug of dependence (count 4). Each pleaded not guilty to all counts pertaining to him, with the exception that Merriman pleaded guilty to count 4.[1] On 3 March 2006, the jury returned verdicts of guilty on all counts.
[1]A third alleged co-offender, Simon Hickman, made an application seeking a separate trial. This was granted by his Honour on 7 February 2006. His trial date has been set down for 23 July 2007.

Both now seek leave to appeal against their convictions.

The Background

At this stage brief reference is required to the central features of the case presented against each of the applicants.

At the trial, evidence was adduced that Merriman had been employed by an enterprise known as Vic State Concrete Services for a three-year period leading up to September 2003. This business was owned and operated by David Purton and his wife, Vanessa Purton. David Purton's son, Michael Purton, was an employee. Merriman had been to David Purton's home on occasions and was aware that employee wages were processed at this residence each Wednesday. During 2002, Michael Purton witnessed his housemate, Clifford Gilchrist, the brother-in-law of Merriman, alter a shotgun by sawing it down with a grinder. Merriman was present as this was taking place. Merriman's employment with Vic State Concrete Services ceased in September 2003.

It was alleged by the prosecution that on Wednesday 3 December 2003, Merriman was at the house shared by the applicant Dalais, a man…

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

Case: [2007] VSCA 133
Decision Date: 21 June 2007

CaseChat Overview and Summary

In the case of R v Merriman; R v Dalais, the applicants were convicted of multiple serious offences, including aggravated burglary and armed robbery. The High Court of Australia reviewed the case, focusing on the trial judge's handling of the evidence presented and the potential miscarriage of justice. The applicants challenged their convictions, arguing that the trial judge had erred in certain evidentiary matters, particularly regarding the admissibility of possession of a shotgun and the interpretation of a Crown concession.

The legal issues before the court were whether the trial judge's direction to the jury regarding the use of possession of the shotgun as evidence of a disposition to commit the crimes was correct and whether the court had misapplied the principles set out in R v Theos. Additionally, the court needed to determine whether the Crown concession, which was applicable to one applicant, should also apply to the co-accused and whether the trial judge's direction that the whole of the evidence was cross-admissible led to a miscarriage of justice.

The High Court found that the trial judge had erred in directing the jury to use the possession of the shotgun as evidence of a disposition to commit the precise type of crime. The court held that the trial judge misunderstood the application of R v Theos, which provided guidance on the admissibility of such evidence. Furthermore, the court held that the Crown concession made in respect of one applicant should have been extended to the co-accused, and that the jury's direction to consider the whole of the evidence as cross-admissible constituted a miscarriage of justice. Consequently, the court ordered a retrial for both applicants.

The final orders of the court were to quash the convictions of both applicants and order a retrial. The court emphasised that the errors in the trial had the potential to result in a miscarriage of justice, and thus a retrial was necessary to ensure a fair trial for both applicants. The court also highlighted the importance of correctly applying legal principles in the context of evidence and the admissibility of disposition evidence.

Orders