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Merritt v The Queen

Merritt v The Queen

Case [2018] NZCA 610 19 December 2018

Mens Rea & Intention

Unjust Enrichment

Expert Evidence

Admissibility of Evidence

Res Judicata

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA184/2017
[2018] NZCA 610

BETWEEN	ALEXANDER MERRITT Appellant
AND	THE QUEEN Respondent

Hearing:	12 November 2018
Court:	Miller, Dobson and Mander JJ
Counsel:	T Ellis and S M Shone for Appellant K S Grau for Respondent
Judgment:	19 December 2018 at 10.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Merritt appeals his conviction for the murder of Karin Ross at Dunedin on 2 December 2015.[1]
[1]R v Merritt [2017] NZHC 232 [sentencing notes].
He has never accepted that he killed Ms Ross, but in the face of powerful forensic and circumstantial evidence he does not challenge the jury verdict on that ground. He says rather that his trial counsel failed to pursue a diagnosis of Autism Spectrum Disorder (ASD) made shortly before trial, and in the result he lost the opportunity to pursue a defence that he lacked mens rea. There was and is no evidence that his autism might have affected his capacity to form murderous intent, but he says it is sufficient that he lost the opportunity to explore the issue at trial.
The challenge to the conduct of trial counsel extends to two other aspects of the trial. It is said that trial counsel ought to have resisted the admission of his police video interview, and that he did not give informed consent to being absent when the jury took a view of the scene.
Mr Merritt also challenges aspects of the jury directions given by the trial Judge, Davidson J, contending that unanimity ought to have been required as to the kind of murderous intent proved and the jury ought to have been required to give reasons specifying which kind of intent they found proved.
We record that there is no appeal against the sentence of life imprisonment with a minimum period of imprisonment of 12 years, but Dr Ellis signalled that one is likely. We observe that such an appeal is out of time and we express no view about its prospects, beyond saying that some of the arguments advanced in this appeal might be of relevance to sentence.
The appeal was filed out of time, but the delay is explained and the Crown does not oppose an extension. Accordingly, we grant the necessary extension of time.

The narrative facts

Mr Merritt, who was then aged 20, worked at Spotless Cleaning. Ms Ross was his supervisor. She had occasion to chastise him for repeatedly parking in a mobility carpark at his regular place of work, a polytechnic, and for his attitude and behaviour. She reduced his working hours. In conversation with workmates he made comments such as he would like to burn her family alive in front of her and he would be happy if she died.
A formal disciplinary process was triggered by a letter of…

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 Merritt v The Queen

Details

AGLC: Merritt v The Queen [2018] NZCA 610
Case: [2018] NZCA 610
Decision Date: 19 December 2018 at 10.00 am

CaseChat Overview and Summary

Alexander Merritt appeals against his conviction for the murder of Karin Ross, seeking to have the conviction quashed on the basis of alleged trial counsel errors. The Court of Appeal of New Zealand dismissed the appeal and granted an extension of time for the appeal. The appellant's counsel submitted that trial counsel failed to pursue a diagnosis of Autism Spectrum Disorder (ASD), resulting in the loss of an opportunity to pursue a defence that the appellant lacked mens rea. The Court of Appeal found that trial counsel had discharged her duty to advise the appellant about a mens rea defence and found no reason to think that she ought to have advised him to seek an adjournment so Dr Bathgate's diagnosis could be explored further and her advice revisited. Counsel also argued that counterintuitive evidence about ASD should have been adduced to explain the appellant's demeanour at trial and in his police interview. The Court of Appeal found that there is no room for an argument that a jury must give reasons and found that the jury must be unanimous as to the essential ingredients of the offence.

Orders