Merza v R [2021] NSWCCA 269

Merza v R [2021] NSWCCA 269

The directions given by the trial judge concerning the standard of proof for using telephone call evidence as consciousness of guilt were adequate, and there was no unfairness. The verdicts of guilty were reasonably open on the whole of the evidence, particularly given the circumstantial evidence, motive, opportunity, aggressive conduct, consciousness of guilt, and material found. The sentencing judge's failure to find special circumstances when accumulating sentences did not amount to error, as he had regard to totality and other relevant factors. The error as to objective seriousness and criminal history in the earlier sentence was conceded but did not warrant disturbing the sentence.

Jurisdiction
Australia
Judgment Date
10 November 2021
Procedural Posture
Criminal Appeal / Court of Criminal Appeal (judgment on Conviction and Sentence)
Outcome
In matter 2016/281692: Extension of time granted; leave to appeal against convictions and against sentence granted but appeals dismissed. In matter 2017/49186: Extension of time granted; leave to appeal against sentence granted but appeal dismissed.
Legal Topics
['appeal Against Conviction' 'jury Directions' 'unreasonable Verdicts' 'use of Consciousness of Guilt Evidence' 'sentencing' 'accumulative Sentences' 'objective and Subjective Seriousness' 'drug Offences' 'directing Criminal Group' 'dealing With Proceeds of Crime']
['criminal Law'] ['appeal Against Conviction' 'jury Directions' 'unreasonable Verdicts' 'use of Consciousness of Guilt Evidence' 'sentencing' 'accumulative Sentences' 'objective and Subjective Seriousness' 'drug Offences' 'directing Criminal Group' 'dealing With Proceeds of Crime']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal (judgment on Conviction and Sentence)

Legal Issues

  1. 1 ['Whether the trial judge erred by failing to direct the jury as to the standard of proof for use of telephone call evidence as consciousness of guilt' 'Whether the verdict was unreasonable and not supported by the evidence' 'Whether the sentencing judge failed to find special circumstances in accumulating sentences' 'Whether sentencing judge erred by taking criminal record into account in assessing objective seriousness']

Ratio Decidendi

The directions given by the trial judge concerning the standard of proof for using telephone call evidence as consciousness of guilt were adequate, and there was no unfairness. The verdicts of guilty were reasonably open on the whole of the evidence, particularly given the circumstantial evidence, motive, opportunity, aggressive conduct, consciousness of guilt, and material found. The sentencing judge's failure to find special circumstances when accumulating sentences did not amount to error, as he had regard to totality and other relevant factors. The error as to objective seriousness and criminal history in the earlier sentence was conceded but did not warrant disturbing the sentence.

Court Disposition

In matter 2016/281692: Extension of time granted; leave to appeal against convictions and against sentence granted but appeals dismissed. In matter 2017/49186: Extension of time granted; leave to appeal against sentence granted but appeal dismissed.

Orders

  • ['Grant the applicant an extension of time within which to seek leave to appeal against his convictions and aggregate sentence imposed on 15 May 2020.' 'Grant the applicant leave to appeal against his convictions, but dismiss the appeal.' 'Grant the applicant leave to appeal against sentence, but dismiss the appeal...