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Court of Criminal Appeal 10 November 2021

Merza v R

[2021] NSWCCA 269

Assault & violencePublic order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT CRIME DIRECTIONS TO JURY INFERENCE OF CONSCIOUSNESS OF GUILT

Citation: Merza v R [2021] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 10 November 2021
Judge(s): Basten JA and Price J (joint judgment); Hamill J (separate judgment)

Background

The appellant was convicted by a jury of two charges: wounding with intent to cause grievous bodily harm, and doing an act intended to cause a 14-year-old victim to give false evidence. The charges arose from a stabbing at Fairfield in August 2016, during which the victim was attacked by three men and stabbed nine times. The appellant was acquitted of the more serious charge of wounding with intent to murder.

While in custody, the appellant made a series of intercepted telephone calls in which he discussed having the victim approached with money, persuading the victim not to testify, and arranging for another person to take blame for the attack in exchange for $50,000. The prosecution relied on those calls both to prove the third charge (interfering with a witness) and as evidence of consciousness of guilt on the wounding charges.

The appeal came before the Court together with two sentence applications. One concerned the sentence imposed for the wounding and related convictions; the other concerned an earlier, separate sentence for drug supply, directing a criminal group, and proceeds of crime offences.

  • Whether the trial judge erred by failing to direct the jury that it could use the intercepted phone calls as evidence of consciousness of guilt on the wounding charges only if it first found beyond reasonable doubt that the calls amounted to an attempt to bribe or coerce the victim.
  • Whether the verdicts on the wounding and witness-interference charges were unreasonable and unsupported by the evidence.
  • Whether the sentencing judge erred by failing to make a finding of "special circumstances" under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) when imposing an aggregate sentence to run partly consecutively upon an earlier term.
  • Whether the sentencing judge in the earlier proceeding erred by taking the appellant's prior criminal record into account when assessing the objective seriousness of the offending.

Decision

Ground 1: Jury direction on consciousness of guilt

The Court examined the distinction between intermediate facts (facts that must themselves be proved beyond reasonable doubt before an inference can be drawn) and circumstances that form one link in a chain of reasoning towards guilt. The phone calls served a dual function: they were both the subject matter of the third charge and a source of consciousness-of-guilt reasoning on the second charge. The Court accepted that some additional direction might have been appropriate to guide the jury on how to use the calls as consciousness-of-guilt evidence. However, because defence counsel had not sought such a direction at trial, and because the risk of prejudice from its absence was remote in the circumstances, leave to appeal was granted but the ground was dismissed.

Ground 2: Unreasonable verdict

The Court reviewed the evidence in detail, including the victim's identification evidence, CCTV footage, phone records, and the evidence of several witnesses. Applying the test from M v The Queen (1994) and as confirmed in Pell v The Queen (2020), the Court found the verdicts were not unreasonable. A jury acting on the whole of the evidence could rationally have been satisfied of guilt beyond reasonable doubt on both counts.

Sentence appeal: special circumstances

The Court found that the sentencing judge had not expressly made a finding of special circumstances, yet had imposed a non-parole period representing a ratio different from the statutory default. The Court accepted this constituted an error. On re-exercise of the discretion, the Court varied the non-parole period while leaving the aggregate head sentence of 12 years undisturbed.

Sentence appeal: prior criminal record and objective seriousness

The Crown conceded error on the ground that the sentencing judge had taken the appellant's prior criminal record into account when assessing the objective seriousness of the earlier offences. The Court accepted this was an error, consistent with the principle in Veen v The Queen [No 2] (1988) that prior convictions may inform assessment of character and the need for protection of the community but cannot increase the objective gravity of the current offending. After re-exercising the sentencing discretion, the Court found the aggregate sentence for the earlier matter was nonetheless appropriate and dismissed that appeal.

Orders Made

  • Leave granted to appeal against conviction; conviction appeal dismissed.
  • Leave granted to appeal against the sentence imposed by O'Brien DCJ on 15 February 2019; that sentence appeal dismissed.
  • Leave granted to appeal against the sentence imposed by Colefax DCJ on 15 May 2020; appeal allowed.
  • Sentence imposed by Colefax DCJ quashed and replaced with an aggregate sentence of 12 years commencing 26 September 2019, with a non-parole period of 8 years and 3 months expiring 25 December 2027.
  • Indicative sentences nominated by Colefax DCJ confirmed.
  • The appellant will be eligible for release to parole at the expiration of the non-parole period.

Key Takeaways

  • Where intercepted phone calls serve a dual purpose at trial (as the subject of one charge and as consciousness-of-guilt evidence for another), the question of whether a special intermediate-fact direction is required depends on the precise role those calls play in the reasoning process, and whether their use as circumstantial evidence requires an antecedent finding beyond reasonable doubt.
  • In dismissing the conviction appeal, the Court reaffirmed that a failure to seek a jury direction at trial bears significantly on whether the absence of that direction constitutes a ground of appeal, particularly where the risk of prejudice is remote.
  • A sentencing court that imposes an aggregate sentence to run consecutively upon an earlier term, and that departs from the statutory non-parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999, must expressly make a finding of special circumstances to support that departure.
  • Prior criminal history may legitimately inform a sentencing court's assessment of an offender's character and the need for community protection, but it cannot, consistent with Veen v The Queen [No 2], be used to elevate the objective seriousness of the current offending.
  • No error was established on the earlier sentence sufficient to reduce the aggregate term, even after the conceded error regarding objective seriousness was corrected on re-exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A
- Crimes Act 1900 (NSW), s 93T
- Criminal Appeal Act 1912 (NSW), s 5
- Evidence Act 1995 (NSW), ss 32, 38
- Summary Offences Act 1988 (NSW), s 27DA

Cases
- Edwards v The Queen (1993) 178 CLR 193
- GP v R [2017] NSWCCA 200
- Hoare v The Queen (1989) 167 CLR 348
- Huang v R [2019] NSWCCA 144
- Kentwell v The Queen (2014) 252 CLR 601
- Lonsdale v R [2020] NSWCCA 267
- Matthews v R [2014] NSWCCA 185
- McKittrick v R [2014] NSWCCA 128
- Muldrock v The Queen (2011) 244 CLR 120
- Pell v The Queen (2020) 268 CLR 123
- R v Baden-Clay (2016) 258 CLR 308
- R v GDR (1994) 35 NSWLR 376
- R v McNaughton (2006) 66 NSWLR 566
- R v Way (2004) 60 NSWLR 168
- Shepherd v The Queen (1990) 170 CLR 573
- SKA v The Queen (2011) 243 CLR 400
- Veen v The Queen [No 2] (1988) 164 CLR 465
- Vincent v R [2020] NSWCCA 271