Regina v Merlino [2004] NSWCCA 104

Regina v Merlino [2004] NSWCCA 104

The trial judge's summing up separately identified the evidence relevant to each count and did not invite propensity or tendency reasoning; a KRM warning would have been potentially confusing because some evidence was admissible on both counts. The finding of the Hyundai keys in the Nissan was not an indispensable...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 April 2004
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeal dismissed.
Legal Topics
['robbery Armed With an Offensive Weapon' 'circumstantial Evidence Directions' 'multiple Counts Tried Together' 'propensity Reasoning Warning' 'right to Silence' 'alibi Evidence' 'miscarriage of Justice']
['criminal Law' 'evidence' 'criminal Procedure'] ['robbery Armed With an Offensive Weapon' 'circumstantial Evidence Directions' 'multiple Counts Tried Together' 'propensity Reasoning Warning' 'right to Silence' 'alibi Evidence' 'miscarriage of Justice']

Source-derived case record

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ['Whether the trial judge erred in directions to the jury on circumstantial evidence.' 'Whether prejudice from the two robbery counts being tried together resulted in a miscarriage of justice.' 'Whether disclosure that the appellant and his alibi witness had been in custody caused the trial to miscarry.' "Whether Crown cross-examination and address infringed the appellant's right to silence or suggested that the appellant bore an onus to investigate and prove his alibi."]

Ratio Decidendi

The trial judge's summing up separately identified the evidence relevant to each count and did not invite propensity or tendency reasoning; a KRM warning would have been potentially confusing because some evidence was admissible on both counts. The finding of the Hyundai keys in the Nissan was not an indispensable intermediate fact requiring a separate beyond reasonable doubt direction. The volunteered evidence that the appellant and alibi witness were on remand was not materially prejudicial. The Crown's cross-examination and address were directed to the implausibility and consistency of the appellant's account and did not infringe the right to silence or shift the onus of proof. No...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']