New South Wales Court of Criminal Appeal CITATION : REGINA v. MERRITT [2003] NSWCCA 14 HEARING DATE(S) : Tuesday 11 February 2003 JUDGMENT DATE : 11 February 2003 JUDGMENT OF : Mason P at 19; Greg James J at 1; Kirby J at 20 DECISION : The application for extension of time is refused. CATCHWORDS : Criminal law - appeal against conviction - application for extension of time - armed robbery - long delay before application - no merit in application - application refused. LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED : Young [1999] NSWCCA 275 Beattie [2000] NSWCCA 201 PARTIES : REGINA v. MERRITT, Noel Joseph FILE NUMBER(S) : CCA No. 60274/02 COUNSEL : Crown: D. Frearson App: In person SOLICITORS : Crown: S.E. O'Connor App: In person LOWER COURT District Court JURISDICTION : LOWER COURT 96/11/0418 FILE NUMBER(S) : LOWER COURT Luland, DCJ. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60274/02 MASON, P. GREG JAMES, J. KIRBY, J. TUESDAY 11 FEBRUARY 2003 REGINA v. NOEL JOSEPH MERRITT Judgment 1 GREG JAMES, J: The applicant, Noel Joseph Merritt, seeks an extension of time to appeal against his convictions on two counts in the Sydney District Court following a trial commencing on 6 March 2000 and concluding on 17 March 2000. Those counts were one of steal motor vehicle on or about 13 September 1995, and one count of attempted armed robbery with wounding on 13 September 1995. 2 The sentences imposed in respect of those convictions were examined in a decision of this court on 13 September 2000 following a Crown appeal against their asserted inadequacy. In lieu of the sentence imposed by the trial judge for the armed robbery offence, a sentence of 18 years commencing on 2 June 1999 was imposed. An overall non-parole period of one and a half years commencing on that date was imposed. 3 This was not the applicant's first trial in respect of these matters. He had come forward for trial at the Sydney District Court in August 1997 when he was convicted of both of the offences. Following that trial, there was an appeal to the Court of Criminal Appeal brought by him which was successful. That appeal was determined on 10 March 1999. The reasons of the court were delivered by the Chief Judge at Common Law, Wood, J., and therein his Honour examined questions relating to the sentence and the criminal history of the applicant. These were matters that had to be considered in relation to the modification of other sentences he was serving in consequence of the appeal being allowed. 4 His Honour made the following remarks:- "Should the appellant be retried and again convicted, the sentences then to be imposed will need to take into account the principle of totality. However, we would not wish that anything that we have said to lead the court then charged with the duty of sentencing the appellant to assume that the sentences passed by the District Court in respect of the outstanding charges were appropriate. To the contrary, we are of the view that the argument that they were unjustifiably lenient to be a strong one in light of the appellant's criminal history, the maximum sentences provided by the Parliament and the extreme seriousness of the circumstances of the robbery offence which place it well towards the upper end of seriousness for this kind of crime. We mention this only because, in the event of a new trial and fresh convictions, the court will need to consider the application of Gilmore (1979) 1 A. Crim. R. 416 and Bedford (1986) 28 A. Crim. R. 311." 5 The applicant's notice of appeal was dated 8 May 2002. No grounds were supplied. 6 There was a subsequent document headed "Notice of Application for Extension of Time" dated the same date. That document was apparently completed on his behalf. It says:- "Mr. Merritt was under the impression that legal documents that he had signed in gaol were for his appeal. After receiving there (sic) instructions I phoned the CCA Registry and discovered that no appeal had been lodged. I have asked the welfare officer in past to get Mr. Merritt's signature to waiver court fees for transcripts. He may have thought that this was his appeal papers." 7 In a handwritten document dated 16 October 2002, Mr. Merritt addressed the court saying:- "I wish to appeal on these grounds unsafe and unsatisfactory verdict that can't be sustained by the evidence and the undertaking to have my matters looked into." 8 By a further document dated 29 November 2002, again addressed to the court, Mr. Merritt said:- "My grounds for appeal. Incompitant (sic) conviction by jury was not based on facts. The initial decision by Justice James Woods (sic) allowing a retrial, divorcing himself from a judicial inquiry into all past convictions to see how it relates to this conviction. That judicial inquiry should be looking at this conviction." 9 Mr. Merritt has addressed us today in respect of those matters. As best I can understand his submissions concerning what it was that Wood, CJ. at CL. had said or done, he appears to be contending that in some way what was said in the reasons of his Honour on the earlier appeal, is a matter that should now be taken into account such as to show that the conviction is somehow tainted. He appears to be contending that there should have been some enquiry into the evidence by somebody to which Wood, CJ. at CL. could have referred the matter. No explanation is given other than that to which I have referred on the notice of extension of time for the long delay in the launching of any proceedings before this court to challenge the convictions. 10 I am unable to ascertain any matter which might go to taint this conviction arising from what was said by Wood, CJ. at CL., nor can I see any basis in these circumstances in which there should be some enquiry, nor any jurisdiction this court might have as the circumstances stand to undertake one. I see no basis for the extension of time. 11 In Regina v. Young [1999] NSWCCA 275, the court examined the circumstances surrounding the time limits imposed for the launching of appeals in this court, and in particular, the application of s.19 of the Criminal Appeal Act 1912, as it then stood. Section 10 provided, applicable to this application for extension of time and to any appeal, that the appeal might be launched within 28 days of the date of conviction or sentence and that by subsection (3), the court might, at any time, extend the time to appeal. 12 In Young (supra), an extensive examination was made of the application of those provisions in the various forms in which they had existed since the passing of the Criminal Appeal Act in 1912. Suffice it to say that their Honours, in accordance with authority, were of the view that a crucial matter to consider, no matter whether the application was launched long out of time or not, was whether there might be any substance in the appeal if brought. 13 I turn therefore to the grounds of appeal Mr. Merritt has asserted. I have already referred to that raised concerning the remarks of Wood, CJ. at CL. It is of no substance. The remaining grounds assert that the verdicts were unreasonable or not supported by the evidence. In his oral argument today, the appellant has given us little assistance. However, it is incumbent upon us to turn to the evidence when such a ground is raised to ascertain whether there might be any substance in it. The circumstances in which the offence is said to be committed have been outlined in a document prepared for us and included in the Crown's submissions summarising the evidence at trial. What I now say is taken from that summary, but I will, in addition, make some further observations. "Overnight on 12-13 September 1995, a Holden Commodore sedan with Victorian registration number DZC 481 was stolen from Nelson Street, Annandale where it had been parked by Mark Edwards, who had possession of his work vehicle. At about 9.30 am on 13 September 1995, three men, being the appellant, the co-offender Steven Lord and an unknown co-offender were seen getting into a white Commodore with green and white number plates in the carpark of some townhouses at 150 Wigram Road, Glebe, close to the Royal Alexandra Hospital for Children at Camperdown ("the Children's Hospital"). The car was then driven to the Children's Hospital on Pyrmont Bridge Road. They awaited the arrival of Armaguard employees about to deliver $12,000 in cash to a branch of the Endeavour Credit Union, located off a corridor on the ground floor of the building known as Linsday Dey Outpatient's Building. The corridor linked the building to the casualty unit of the hospital. At about 10.00 am, the Armaguard truck arrived at the hospital, driven by security guard Bryan Wallis. The two guards, Robert Leggett and Timothy Malone, left the vehicle with the bag of cash. Mr. Wallis remained in the truck while Mr. Malone carried the cash, MR. Leggett following behind him. Mr. Malone entered the inner office of the credit union whilst Mr. Leggett stood at the door separating the credit union offices from the corridor of the hospital. Mr. Malone and grace Barone, the sole credit union employee on the premises, commenced counting the money and attending to the documentation. Mr. Leggett, who was standing in the doorway, was confronted by the offender Lord, wearing a balaclava and pointing a gun at Mr. Leggett's chest. Mr. Leggett grabbed the gun by the barrel and forced it down. In the struggle, the sawn-off rifle being carried by Lord, discharged so that Mr. Leggett was shot in the lower abdomen. Mr. Leggett fell to the ground and lost consciousness for a few seconds. Mr. Malone looked from the inner office of the credit union and saw Lord standing over the fallen guard and the other offender, the appellant, at the entrance of the credit union office. He was also holding a gun in his hand and wearing a balaclava. Mr. Malone fired two or three shots at the two offenders with his Smith & Wesson .38 revolver and heard one of the offenders scream as he fired. He pursued them along the corridor of the hospital firing two or three more shots and followed them onto the driveway immediately outside the entrance to the hospital, where he stopped to reload. It was later established that the offender Lord had been shot twice. Mr. Malone gave evidence that he was a trained marksman and had shot with the intention of hitting the offenders, not firing warning shots. He said that at the time he thought he had shot one or both of the offenders. He did not recall if they were wearing gloves. … Lord returned to the car driven by the third offender and was driven off at high speed. Poppy Vass, a psychologist employed by the hospital, noted the licence plate number as OCZ 481. Wendy Hawker, the head physiotherapist at the hospital, also saw him get into a white car with green and white number plates beginning with DSV or DCV. The appellant was seen running across Pyrmont Bridge Road and as he did so he took off his balaclava. Paul Yarrow gave evidence that he was sitting in his van, stopped at lights when he saw a man running across the road in front of him. He described the man as Aboriginal, aged in his late twenties, thin, five feet eight or nine inches tall and wearing white gloves. The man ran across the road and into the carpark of the Johanna O'Dea block of units. In cross-examination, Mr. Yarrow said that he considered himself able to distinguish one Aboriginal person from another and the appellant did not have the appearance of the man who ran in front of his van. Mrs. Hawker saw the appellant run across Pyrmont Bridge Road, pausing in the middle of the road where he took off his balaclava. She saw him run through the carpark of the block of units and throw something underneath one of the cars. She later accompanied police to the place where she had seen the appellant throw something under the car. She looked under the car and saw a black balaclava and white surgical gloves. Police located the stolen vehicle DZC 481 in the carpark at 15 Wigram Road, Glebe with the engine still running. Inside the car police found a pair of yellow coloured Rigger brand gloves, a balaclava and a black handled kitchen knife. The front passenger's seat was stained with blood. Fingerprint experts subsequently examined the latex gloves discharged by the appellant and the fingerprint of the appellant's right little finger was found on one of the gloves. The guard, Mr. Leggett, was taken to Royal Prince Alfred Hospital and treated for the gunshot injury. He did not undergo surgery to remove the bullet, which remains in his body." 14 The calibre of the weapon used by Mr. Malone was found, by medical opinion, to be consistent with these wounds. 15 There was evidence at the trial of medical opinion that the wounds suffered by the applicant were of an age generally consistent with the infliction of those wounds by Mr Malone. At trial, the appellant did not give evidence or call evidence, but relied instead on cross-examination of Crown witnesses. In particular, there was no evidence to the contrary of it being his fingerprint in the glove, nor evidence suggesting some alternative cause of the applicant's wounds. 16 This was a case of a circumstantial nature. It raised for the jury the question of whether they might be satisfied on that material beyond reasonable doubt that it was the appellant who committed the crime, ie. That there was no other rational hypothesis. 17 Before us, the only ground that is raised asserts an inadequacy of evidence for the jury to be so satisfied. In my view, it was entirely open to the jury to be so satisfied. 18 I am of the view, therefore, that there is no substance in the criticism that has been mounted and no basis upon which, in accordance with such authority as Young (supra) and The Queen v. John Patrick Beattie [2000] NSWCCA 201, that the application for extension of time should be granted. In my view, the application should be dismissed. 19 MASON, P: I agree. 20 KIRBY, J: I also agree. 21 MASON, P: The application for extension of time is refused. ********** Last Modified: 03/12/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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