Merza v R [2021] NSWCCA 269

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Merza v R [2021] NSWCCA 269 Hearing dates: 19 July 2021 Date of orders: 10 November 2021 Decision date: 10 November 2021 Before: Basten JA and Price J at [1]; Hamill J at [270] Decision: In matter 2016/281692: 1. 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. 2. Grant the applicant leave to appeal against his convictions, but dismiss the appeal. 3. Grant the applicant leave to appeal against sentence, but dismiss the appeal. In matter 2017/49186: 1. Grant the applicant an extension of time within which to seek leave to appeal against the aggregate sentence imposed on 15 February 2019. 2. Grant the applicant leave to appeal against sentence, but dismiss the appeal. Catchwords: CRIME – appeals – appeal against conviction – unreasonable verdict CRIME – directions to jury – direction regarding use of phone call evidence – inference of consciousness of guilt – no further direction sought – chance of prejudice from not giving further direction remote EVIDENCE – evidence of consciousness of guilt – alternative inference – burden of proof – intermediate facts – inference constituting link in chain on one offence and an essential element of another offence SENTENCING – appeal against sentence – alleged failure by sentencing judge to make a finding of special circumstances – sentence partly accumulated on prior term – variation of statutory ratio – no finding of special circumstances – effect on earlier sentence not overlooked SENTENCING – appeal against sentence – criminal record taken into account in assessing objective seriousness – error conceded – re-exercise of sentencing discretion – aggregate sentence unaffected Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54A Crimes Act 1990 (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 Cited: Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 GP v R [2017] NSWCCA 200 Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 Huang v R [2019] NSWCCA 144 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 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; [2011] HCA 39 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 R Close (1993) 31 NSWLR 743 at 748 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 R v GDR (1994) 35 NSWLR 376 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Simpson (1992) 61 A Crim R 58 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14 Vincent v R [2020] NSWCCA 271 Zreika v The Queen [2020] NSWCCA 345 Category: Principal judgment Parties: Olevar Merza (Applicant) Regina (Respondent) Representation: Counsel: 2016/281692: Mr D Dalton SC (Applicant) Ms M Millward (Respondent)