Citation: Regina v Merritt [2003] NSWCCA 14
Court: New South Wales Court of Criminal Appeal
Date: 11 February 2003
Judge(s): Mason P, Greg James J, Kirby J
Background
The applicant had been convicted in the Sydney District Court of stealing a motor vehicle and attempted armed robbery with wounding, both arising from events on 13 September 1995. His first conviction in August 1997 was overturned on appeal. Following a retrial in March 2000, he was again convicted on both counts. A Crown appeal against the sentences led to a substantially increased sentence for the armed robbery offence, with 18 years imposed commencing June 1999.
The applicant filed a notice of appeal in May 2002, well outside the 28-day time limit prescribed by the Criminal Appeal Act 1912. No grounds accompanied the initial notice. The explanation offered for the delay was that the applicant had believed documents he signed in custody related to an appeal, when in fact no appeal had been lodged.
In subsequent documents and oral submissions, the applicant raised two principal contentions: that the verdicts were unsafe and not supported by the evidence, and that remarks made by Wood CJ at CL during the earlier successful appeal had somehow tainted the second conviction.
Legal Issues
- Whether the court should grant an extension of time to appeal against conviction, given the substantial delay in filing
- Whether there was any arguable merit in the grounds of appeal, specifically the claim that the convictions were unreasonable or unsupported by the evidence
- Whether remarks made by Wood CJ at CL in the earlier appeal created grounds to challenge the second conviction
Decision
Greg James J, with whom Mason P and Kirby J agreed, applied the principle established in Young [1999] NSWCCA 275 that the central question on an application for extension of time is whether there is any substance in the proposed appeal. The length of the delay did not itself determine the outcome; the presence or absence of merit was the critical consideration.
On the ground concerning Wood CJ at CL's remarks, the court found no substance whatsoever. The applicant appeared to argue that observations made during the earlier appeal about the leniency of the original sentences somehow tainted the retrial conviction. The court could identify no jurisdictional basis or factual foundation for this contention.
On the unreasonable verdict ground, Greg James J reviewed the evidence summarised by the Crown. The circumstantial case included eyewitness accounts placing the applicant at the scene, a fingerprint identified on a latex glove discarded during the getaway, wounds suffered by the applicant consistent in age and nature with the struggle, and the recovery of the stolen vehicle nearby. The applicant did not give or call evidence at trial. In those circumstances, the court found it was entirely open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt, and that no other rational hypothesis was available on the evidence.
Finding no merit in either ground, and consistent with the approach confirmed in Beattie [2000] NSWCCA 201, the court refused the extension of time.
Orders Made
- The application for extension of time is refused.
Key Takeaways
- Under the Criminal Appeal Act 1912, a court may extend time to appeal at any time, but the presence or absence of merit in the proposed grounds is the crucial consideration regardless of the length of delay.
- Remarks made by a judicial officer in an earlier appeal about sentencing severity do not, without more, provide grounds to challenge the validity of a subsequent conviction at retrial.
- Where circumstantial evidence at trial included eyewitness identification, fingerprint evidence, and physical injuries consistent with the offence, and the accused did not give or call evidence, the Court of Criminal Appeal found it entirely open to the jury to be satisfied beyond reasonable doubt.
- Refusing the extension of time, the court applied the approach from Young [1999] NSWCCA 275 and Beattie [2000] NSWCCA 201, treating the absence of arguable merit as determinative.
- A bare assertion that a verdict was "incompetent" or not based on facts, unsupported by specific factual or legal argument, will not satisfy the merit threshold required for an extension of time.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 10, 19
Cases
- Regina v Young [1999] NSWCCA 275
- The Queen v Beattie [2000] NSWCCA 201
- Gilmore (1979) 1 A Crim R 416 (referenced in earlier appeal)
- Bedford (1986) 28 A Crim R 311 (referenced in earlier appeal)