Citation: Regina v Merlino [2004] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 21 April 2004
Judge(s): Wood CJ at CL; Sully J; Hislop J
Background
The appellant was convicted by a jury in the District Court at Penrith on two counts of robbery while armed with an offensive weapon, a knife. Both offences occurred on the night of 13 to 14 October 2001, when two men were robbed at knifepoint at the same intersection in Eastern Creek within hours of each other.
Police arrested the appellant in the early hours of the morning while he was driving the second victim's stolen vehicle. The first victim's keys were found in that vehicle, the second victim's phone and wallet were recovered, and a knife was located in the door compartment beside the driver's seat.
The appellant did not identify himself as the robber during police interview, exercising his right to silence, and gave alibi evidence at trial placing himself elsewhere at the relevant times. The jury rejected that account and convicted him. He appealed against conviction only.
Legal Issues
The appeal raised four grounds:
- Whether the trial judge erred in his directions to the jury on circumstantial evidence
- Whether the appellant was prejudiced by having both robbery counts tried together
- Whether a miscarriage of justice arose because the jury became aware that the appellant and his alibi witness had previously been in prison
- Whether the Crown's cross-examination invited adverse inferences that undermined the appellant's right to silence and the presumption of innocence
Decision
On the circumstantial evidence directions, the Court found no material error. The trial judge's directions adequately addressed the relevant principles, including how the jury should treat the combination of circumstances, and the defence had not objected or sought any supplementary directions at the time.
On the joinder of the two counts in one trial, the Court held that no real prejudice had been established. The judge had made a preliminary ruling that the case would not proceed on a coincidence evidence basis, and appropriate directions were given. The overlap in evidence concerning opportunity and possession of incriminating items was properly managed.
Regarding the prison references, the Court found that the mention of the appellant's and alibi witness's prior imprisonment did not produce a miscarriage of justice on the facts of this case. The Crown case was characterised as strong, and any prejudicial effect was not sufficient to render the convictions unsafe.
On the right to silence ground, the Court was satisfied that the trial judge had given a specific and adequate direction during the evidence of the investigating officer at the time the electronically recorded interview was tendered. The Court also found that neither the Crown's cross-examination nor its address had impermissibly invited the jury to draw adverse inferences from the appellant's silence, or suggested that he bore any onus of proof. The absence of any objection from defence counsel at trial, and the failure to seek additional directions when expressly invited to do so, were noted. Leave was refused on grounds not raised below, as no miscarriage of justice was demonstrated.
Orders Made
- Appeal dismissed.
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that adequate jury directions on the right to silence, if given at the time the relevant evidence is tendered, can satisfy the requirements identified in R v Reeves (1992) 29 NSWLR 109.
- A failure by defence counsel to object to cross-examination or seek additional directions, particularly when a trial judge expressly invites counsel to do so, will weigh against an appellant raising those complaints for the first time on appeal.
- Where two counts arise from closely connected events and potentially overlapping evidence, a preliminary ruling removing coincidence evidence from the trial's framework can address concerns about prejudice from joinder, provided appropriate directions follow.
- Sufficient circumstantial evidence existed, including possession of the stolen vehicles and property, proximity in time and place, physical description consistent with post-arrest photographs, and the presence of a knife, to support the guilty verdicts.
- The Court declined to state the Crown case broadly, noting specifically that none of the identified deficiencies, individually or collectively, produced a miscarriage of justice on the particular facts before it.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 103
Cases:
- KRM v The Queen (2001) 206 CLR 221
- Petty v The Queen (1991) 173 CLR 95
- R v Reeves (1992) 29 NSWLR 109
- Shepherd v The Queen (1990) 170 CLR 573
- Regina v Anderson [2002] NSWCCA 141
- Regina v ITA [2003] NSWCCA 174
- Regina v Merritt [1999] NSWCCA 29
- Regina v Zaiter [2004] NSWCCA 35