Merrilees v R [2014] ACTCA 10

Court of Appeal (ACT)|2014-04-29|Before: Refshauge J

[2014] ACTCA 10 (29 April 2014)

APPEAL - GENERAL PRINCIPLES - In General and Right of Appeal - Appeal against Registrar's decision to grant leave for the convicted person to appeal out of time - Registrar is not an officer with statutory independence - Application to be heard de novo

APPEAL - GENERAL PRINCIPLES - In General and Right of Appeal - Appeal against Registrar's decision to grant leave for the convicted person to appeal out of time - Insufficient prospect of success on the appeal - Application dismissed

Court Procedures Rules 2006 (ACT), r 5506, 5508, 5509, 5510, Subdiv 5.4.7.2,

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616

Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218

Commonwealth v Pillifeant [1990] FCA 179; (1990) 23 FCR 397

Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250

Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84

Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344

Jess v Scott (1986) 12 FCR 187

Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198

M v The Queen (1994) 181 CLR 487

Parker v The Queen [2002] FCAFC 133

Ratnam v Cumarasamy [1964] 3 All ER 933

R v Orchard [2013] NSWCCA 342

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588

The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618

The Queen v Meyboom [2012] ACTCA 2; (2012) 256 FLR 450

Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 77 FLR 98

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 24 of 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 24 of 2012

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On 27 April 2010, Marko Zanatta was, after police officers followed a motor vehicle which they alleged he was driving, arrested and charged with the two offences of refusing to provide a breath sample as required by a police officer and driving whilst disqualified.

2. The proceedings against him came on for hearing in the Canberra Magistrates Court on 18 November 2010. The appellant, Gregory Jason Merrilees, gave evidence to the Court that he, not Mr Zanetta, was the driver of the motor vehicle the police pursued on that night.

3. Mr Zanatta was, however, convicted of the charges in the Magistrates Court.

4. As a result of giving the evidence he had in the Magistrates Court, Mr Merrilees was charged with making a false sworn statement in a legal proceeding with the intention of procuring someone else's acquittal, being reckless about whether the statement was false, an offence of aggravated perjury against s 702(1) of the Criminal Code 2002 (ACT). He was tried by judge alone in the Supreme Court.

5. On 4 April 2013, Mr Merrilees was found guilty and convicted of the offence. On 11 June 2013, he was sentenced to a term of two years' imprisonment, part of which was to be served by full-time custody and for part of which the learned sentencing Judge set a period of periodic detention, suspending the balance with a good behaviour order for three and a half years.

6. On 8 July 2013, Mr Merrilees filed a Notice of Appeal against the sentence imposed.

7. On 18 July 2013, however, Mr Merrilees also applied for leave to appeal out of time against the conviction entered on 4 April 2013.

8. The Court Procedures Rules 2006 (ACT) set out, in Subdiv 5.4.7.2, special provisions relating to leave to appeal out of time by a convicted person.

9. Under r 5506, such an application is made in the first instance to the Registrar and must be accompanied by an affidavit showing the nature of the case, the questions involved and the reasons why leave should be given, together with a draft notice of appeal.

10. In this case, such an application was made and was supported by an affidavit and a draft notice of appeal.

11. Under r 5508, the application, with the accompanying affidavit and draft notice of appeal, must be served on the Director of Public Prosecutions who, under r 5509, must file a response stating whether the application is opposed, consented to, or not opposed and whether the Director proposes to file any affidavits in response to the application.

12. This procedure allows for summary decisions as to leave to appeal where there is no contest about it. The applicant still has to prepare an affidavit, which, if the leave is not granted, should be in a form where it can be used before a judge or the Court of Appeal if the application has ultimately to be heard there. The Director does not have to make an affidavit if the application is unopposed and neither party is put to the expense of an appearance in court.

13. There is no additional material that must be prepared, but it allows for the process, which would otherwise require the parties to appear in Court, to be dealt with expeditiously and more cheaply.

14. Under r 5510, the Registrar must make a decision to give or refuse leave to appeal out of time.

15. By letter dated 31 July 2013, the Registrar informed the Director and Mr Merrilees that she had decided to grant leave for Mr Merrilees to appeal out of time.

16. Under r 5510(2), the Director of Public Prosecutions may, if the Registrar gives such leave, apply to the Court of Appeal for an order that the application made by Mr Merrilees be refused.

17. The Director has made such an application. The application may be heard by a single judge of the Court of Appeal: s 37J(1)(b) of the Supreme Court Act 1933 (ACT).

18. The rules are silent as to the basis on which such an application to the Court of Appeal is to be heard. Rule 5510 does not specify that the Court, in considering the application of the Director, is engaged in an appeal from the decision of the Registrar. Indeed, the rule seems to proceed on the basis that the Court of Appeal is required to consider the application afresh. The rule is in the following terms:

(1) The registrar must tell the convicted person, and the director of public prosecutions, of the registrar's decision to give or refuse leave to appeal out of time.

(2) If the registrar gives leave, the director of public prosecutions may apply to the Court of Appeal for an order that the application mentioned in rule 5505 (Application - sdiv 5.4.7.2) be refused.

(3) If the registrar refuses leave -

(a) the registrar must give the convicted person a copy of the form to be used for applying to the Court of Appeal when telling the person about the refusal; and

(b) the convicted person may apply to the Court of Appeal to have the application mentioned in rule 5505 decided by the Court of Appeal.

(4) The application to the Court of Appeal must be filed not later than 14 days after the day the convicted person is told about the registrar's decision.

19. Given that the Registrar is not a judicial officer with statutory independence, it seems to me that the application to be made to the Court of Appeal is to be heard de novo. Such an approach is consistent with the principles set out in Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 94-5, even though the strict separation of powers doctrine may not apply in this Territory: Lewis v Chief Executive, Department of Justice and Community Safety [2013] ACTSC 198. It also seems to me to be consistent with the approach of the Federal Court, on appeal from the Supreme Court of the ACT, in Commonwealth v Pillifeant [1990] FCA 179; (1990) 23 FCR 397 at 408-9, though on somewhat different statutory provisions. Further, it is consistent with the general approach set out in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621.

20. I am conscious of the caution expressed by Lockhart J in Traut v Faustmann Bros Pty Ltd [1983] FCA 137; (1983) 77 FLR 98 at 99-100

The classification of appeals into three categories is sometimes helpful, but it is impermissible to treat each category as being necessarily distinct from the others or as having immutable characteristics or inflexible boundaries. Ultimately the true character of an appeal must depend on the interpretation of the particular legislation; the jurisdiction, powers, composition and functions of the tribunal from whose decision the appeal lies; and the nature of the rights and liabilities of the persons affected by the tribunal's decision.

21. My view is reinforced, however, by the fact that it appears that the Registrar is not required to, and does not, give reasons for her decision. That makes the notion of an appeal in the ordinary sense inappropriate.

22. I am, accordingly, satisfied that, when the Director of Public Prosecutions seeks an order under r 5510(2), the applicant must make out in the ordinary way his, her or its case for an extension of time within which to appeal.

23. I have set out in The Queen v Meyboom [2012] ACTCA 2; (2012) 256 FLR 450 (Meyboom) the approach that should be taken to the consideration of an application for leave to appeal out of time in these circumstances.

24. In the first place, time limits are important in litigation to protect the important value of finality in litigation. See Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 223; [15].

25. In this context, it is relevant to note what fell from the Privy Council in Ratnam v Cumarasamy [1964] 3 All ER 933 at 935:

The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.

26. Next, in Meyboom, I followed what had been said by the Full Court of the Federal Court in Parker v The Queen [2002] FCAFC 133, which adopted the approach that had been established in Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and Jess v Scott (1986) 12 FCR 187 for applications to appeal out of time, even though these were civil cases. The matters that were said to require consideration in Hunter Valley Developments Pty Ltd v Cohen were summarised in Parker v The Queen at [6] as follows:

Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an "acceptable explanation for the delay"; it must be "fair and equitable in the circumstances" to extend time;
Action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;
Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;
However, the mere absence of prejudice is not enough to justify the grant of an extension; and
The merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

27. In Parker v The Queen, the Court also referred (at [9]) to the conclusion of the Court in Jess v Scott as follows:

[L]eave to appeal out of time is to be determined by the court's view of the demands of justice in accordance with a broad judicial discretion, and not simply upon the application of any verbal formula.

What the Court will look for, above all else, in an application to extend the time within which to file a notice of appeal against a conviction which has led to a term of imprisonment, is satisfaction that there has not been, and will not be, a miscarriage of justice if leave is refused ...

There will always be an onus on the applicant to explain the reasons for the delay - and the question of prejudice to the Crown cannot be overlooked. However, these and like matters cannot prevail if the Court is of the opinion that there is a reasonable probability that there might be a miscarriage of justice if leave is not granted.

30. The evidence supporting the application before the Registrar was thin to say the least. It annexed a copy of the reasons for conviction published by the Supreme Court, deposed that instructions had been received on 2 July 2013 and referred to the appeal against sentence, a copy of the sealed Notice of Appeal for which was annexed. The substantive paragraphs of the affidavit were as follows:

After considering the matter and obtaining advice from experienced counsel Alyn Doig, I verily believe that the applicant has reasonable prospects of a successful appeal against conviction.
In circumstances where there is already an appeal against sentence, if leave is granted the appeal against conviction could be heard at the same time. This would not add to the length of the matter or the business of the Court of Appeal.

31. The application came on for hearing on 18 September 2013 in this condition, but the Applicant's legal representatives appreciated that further evidence was required. He sought, and was granted, an adjournment to permit him to file further evidence. A further affidavit made on 2 October 2013 was filed.

32. It deposed to the following further information:

(a) The present solicitors did not act for Mr Merrilees on the trial though, at the time of the trial, they were acting for him in respect of a separate and unrelated charge;

(b) At the time, the financial resources of Mr Merrilees were limited and he was not in a position to retain counsel;

(c) The present lawyers for Mr Merrilees did not act further for him until 2 July 2013 when they received instructions from him in connection with an appeal against the conviction and sentence for the offence of aggravated perjury;

(d) The lawyers sought, and received, from the previous lawyers acting for Mr Merrilees the transcript of the trial;

(e) As the conviction had been entered on 4 April 2013 and so the time for appeal had expired, the lawyers considered it was necessary and appropriate to retain counsel to advise on the prospects of success of the appeal;

(f) On 8 July 2013, counsel advised that an appeal against conviction enjoyed reasonable prospects of success on the grounds that the Trial Judge made findings of fact that were not open and that the conviction was unsafe and unsatisfactory;

(g) Mr Merrilees then instructed his current lawyers to seek leave to appeal and progress the appeal which they did by lodging the application for leave to appeal on 15 July 2013. It was, however, requisitioned and re-lodged in the correct form on 18 July 2013;

(h) In correspondence with the former lawyers for Mr Merrilees, they advised as follows:

I discussed the issue of an appeal with Mr Merrilees generally on several occasions in the weeks immediately following his conviction on 4 April. I informed him that he had a right to appeal against both conviction and the sentence that would follow. During the course of those discussions I advised him that whilst the Act did not set a time period for the filing of an appeal, the rules required leave of the Court in the event an appeal was not filed within 28 days.

I was initially of the view that any appeal against conviction would be difficult given the nature of a judge alone trial and the operation of the proviso. I subsequently advised Mr Merrilees that it would be prudent to obtain an independent advice as to prospects before doing so. At that time I understood his resources were extended in circumstances where he was facing another trial and had related matters pending in the Magistrates Court - I was not instructed in those matters. I advised Mr Merrilees that he could still lodge an appeal at a later time and that leave was usually granted where the delay was not substantial and there was little or no prejudice to the Crown.

33. Reference was made to the position of Mr Merrilees. The current position is that Mr Merrilees has now been released from custody at the Alexander Maconochie Centre but his periodic detention has been stayed pending the hearing of his appeal against sentence.

34. The case made at trial showed that police officers travelling in a police vehicle were at an intersection in Kambah when a motor vehicle, travelling at excessive speed, nearly collided with the police vehicle. It was followed by another vehicle, a Toyota Hilux utility.

35. The police officers followed the utility, which parked outside the residence at which Mr Zanatta was then living. When the police officers arrived quite shortly after, Mr Zanatta was at the passenger's side door of the utility and, on seeing the police officers, he apparently closed and locked the door and then he ran away. One of the police officers chased him and ultimately caught up with him, when Mr Zanatta said, "All right, you got me". When asked "Why did you run?", he said "My mate almost hit you and I don't have a licence". He was found to have the keys to the utility on him.

36. The other police officer, who initially remained with the utility, then spoke to the occupant of the residence, who had come out as a result of the noise of the incident. The police officer did not see anyone else in the vicinity and the occupant of the premises denied knowing who owned the motor vehicle, even though it was owned by Mr Zanatta, who was then living in the same premises.

37. In his evidence at the trial, the occupant said that he did not speak to anybody but that he walked back inside with Mr Merrilees. He asserted definitely that Mr Merrilees was present, despite the police officer not seeing him.

38. Mr Zanatta was subsequently required to submit to a breath test but refused to do so on the basis that he had not been the driver. He refused to say who had been driving.

39. Ultimately, when he was convicted, he was interviewed by a Probation Officer for the purpose of the preparation of a Pre-Sentence Report and he said that he had been driving and offered an expression of remorse for his actions.

40. In his evidence at the trial of Mr Merrilees, Mr Zanatta said that, as the learned Trial Judge put it, "he had been given a message, if not a statement expressly made by [the Probation Officer], that it would be better if he 'owned up'". He said that what he told the officer was a lie. It appears the learned Trial Judge accepted the submissions of the Crown prosecutor that Mr Zanatta was vague and evasive in his evidence.

41. The Probation Officer gave evidence and denied telling Mr Zanatta that it would be better if he owned up. The learned Trial Judge found the Probation Officer to be "clearly a truthful witness" who was "not challenged on any aspect of his evidence" on this point.

43. Reliance was placed on his statements made in the course of the Magistrates Court hearing. He had said that, after he and Mr Zanatta had been drinking at a local tavern, he drove to Mr Zanatta's home. On the way, a car overtook them at speed and drove past the police vehicle. They continued on and parked outside the premises where Mr Zanatta was living and he returned the car keys to Mr Zanatta and stood outside the home on a grassed area. He saw a conversation with the occupant of the premises and said he thought that Mr Zanatta was on "an alcohol ban" which had expired the day before.

44. The draft Notice of Appeal contained two grounds as follows:

The learned trial judge made factual findings not open on the evidence.
the conviction is unsafe and unsatisfactory.

45. Mr A Doig, who appeared for Mr Merrilees on the application, submitted that the prosecution case depended on two things: the discounting of the presence of Mr Merrilees at the premises where the utility was parked and also the fact that Mr Zanatta said "I don't have a licence".

46. Having read his Honour's judgment, that is too simplistic an assessment. The two important things his Honour noted were, in fact, the two statements Mr Zanatta made - one to the police officer who chased him and the other to the probation officer. Further, his Honour noted that Mr Zanatta did not say that he was getting out of the passenger seat when the police arrived and he did not say who was driving.

47. There were, however, other, significant things that seemed to me to contribute to his Honour's findings. These included the fact that Mr Zanatta ran away and was found with the keys of the utility. It also included the fact that the occupant had said he did not know who owned Mr Zanatta's car and the observations of the police officers.

48. Mr Doig submitted that the alleged admission contained in "I don't have a licence" was not an admission of guilt but was evidence of Mr Zanatta being stupid. This, he said, was re-inforced by the fact that Mr Zanatta had thought that he was under what his Honour described as an "alcohol ban" at the time when, in fact, it had expired about six weeks earlier.

49. He submitted that, taking a global approach, it was open to come to another conclusion than that of the learned Trial Judge.

50. So far as the admission to the Probation Officer was concerned, Mr Doig pointed to the actual evidence given by the Officer. It was as follows:

If [Mr Zanatta] didn't say anything you would have told him that you would have simply put in the report he was unwilling to provide any information? --- Yes.

You would have pointed out to him that if he indicated what had occurred and said he was sorry that would probably go better for him and would be taken into account? --- I wouldn't have said things like it could go better for him because I don't, sort of, second guess what the court's going to do. I often get asked questions about what's the court going to do to me and I just say, 'You know, if you put your life in the court's hands that's what happens'.

51. He accepted that this could not be characterised as duress or improper pressure but submitted that there was some influence to encourage Mr Zanatta to make an admission. It seems unlikely, however, that it was pressure to make a false confession.

52. Ultimately, Mr Doig submitted that there were other inferences available which were consistent with the innocence of Mr Merrilees. He submitted that, while it is necessary to consider the whole of the evidence, the weakness of the individual pieces of evidence did undermine the totality of the case presented.

53. Mr Doig, appropriately, referred to M v The Queen (1994) 181 CLR 487 where the High Court had to consider how a court should approach a challenge to the verdict of a jury that was unsafe or unsatisfactory. Mason CJ, Deane, Dawson and Toohey JJ said at 493 in a passage that has often been cited:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

(Footnotes omitted)

54. As can be seen there is considerable overlap, if not complete identity, though under different formulations, with the two proposed grounds of appeal.

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

56. M v The Queen was, of course, a trial by jury whereas in the case here, the trial was by judge alone. The High Court, however, in Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 considered that, generally, the same approach should be taken. Thus, it said at 262; [26]

Thirdly, the first limb of s 6(1), which deals with the unsatisfactory quality of 'the verdict of the jury', must now be seen through the prism of s 33(1). The first limb will address attention to the evidence upon which the trial judge acted, or upon which it was open to the trial judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding 'unreasonable' or one which 'cannot be supported'?

57. I note that the reference to s 6(1) was to the section of the Criminal Appeal Act 1912 (NSW) which sets out the grounds on which an appeal may be upheld. Although in quite different terms, s 370 of the Supreme Court Act 1933 (ACT) has been considered by the High Court in The Queen v Hillier [2007] HCA 13; (2007) 228 CLR 618 at 632; [25] to give the Court of Appeal the same kind of powers as those under s 6(1).

58. I note that the reference to s 33(1) was to that section of the Criminal Procedure Act 1986 (NSW) which is in relevantly identical terms to s 68C(1) of the Supreme Court Act.

59. Thus, the approach approved in Fleming v The Queen applies in this Territory.

60. Of course, in a trial by judge alone, unlike a jury trial, the appeal court has the benefit of the trial judge's reasons.

61. In R v Orchard [2013] NSWCCA 342 at [160]- [163], the Court noted three relevant matters:

(a) The reasons of the trial judge will ordinarily include findings on credibility that will often have been informed by the advantages of the trial judge having observed the witnesses giving their evidence and some allowance in such a case should be made for that.

(b) The reasoning of a trial judge may be sufficiently persuasive to show that the verdict was not unreasonable or unsupported having regard to the evidence.

(c) Counsel has an important role in identifying with particularity the aspects of the verdict that were unsafe and the alleged basis for the doubts, so as to warrant the characterisation of the trial judge's verdict as unreasonable.

62. I now apply these principles to the case at hand.

63. In the first place, an important, if not central, issue in the proceedings was the credibility of, in particular, Mr Zanatta, but also the occupant of the premises at which the utility was stopped and the Probation Officer.

64. Despite the reservations about demeanour expressed by Kirby J in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at 617-8, the position remains that appellate courts are reluctant to interfere with decisions based on factual findings which are based on the evidence of witnesses whose credibility is in issue and whom the court below has had the advantage of seeing and hearing. See, for example, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-6; [23], 127; [27]; 146-7; [90] and 165-6; [148].

65. In this case, his Honour made clear findings about the way in which the critical witnesses gave their evidence and how that influenced his findings which had to be based on their credibility. By and large, these findings were not challenged by Mr Doig and, insofar as they were, it was not suggested that the findings were not open to the learned Trial Judge.

66. Secondly, there was no reference to other evidence of any substance that undermined the conclusions reached by the learned Trial Judge or could have done so, or any of the matters referred to in M v The Queen in the passage cited above (at [55]).

67. The burden of the submissions was that his Honour had made an error in his findings. Such an assertion of error, it is clear, may not be enough. In an adversarial trial, each party will contest that the case of the other party is wrong. Ordinarily, however, it has to be shown that his Honour made findings that were not reasonably open to him. That was not submitted to be the case. Rather, it was submitted that there were other inferences that could be drawn from the facts.

68. Thus, Mr Doig submitted that other inferences could be drawn from the comment by Mr Zanatta, "I don't have a licence". One was that he was explaining that he could not have been driving because he did not have a licence. Apart from the fact that such an inference did not seem to be offered at the trial to the learned Trial Judge, it is not one easily to be drawn from the question Mr Zanatta was asked; it would be an explanation for why he would not run rather than why he would run. Thus, the inference his Honour drew was clearly open on the evidence.

69. The learned Trial Judge, however, rejected the other inferences and that was, in part, based on his Honour's assessment of the credibility of the witnesses which was, in my view, reasonably open to his Honour. What Mr Merrilees had to show to succeed in this application was that the rejection of those inferences was not reasonably open to his Honour and none of the submissions on his behalf went beyond merely asserting that his Honour was wrong.

70. It further seemed to me that the applicant's submissions went dangerously close to falling into the error identified in The Queen v Hillier where Gummow, Hayne and Crennan J said at 637; [46]

It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

71. Mr Doig's submissions in response to that, however, suggested that by undermining the probative value of elements of the evidence individually, the whole case could be undermined. However, that may be, and I do not comment on it as to whether it could be appropriate in any particular case, this was not really what was achieved here.

72. Mr Doig challenged really three of his Honour's findings, but failed to show that they were even arguably not open to his Honour. As a result these were not shown to be an arguable case that his Honour had failed to take into account an inference consistent with the innocence of Mr Merrilees and which inference was reasonably open on the evidence accepted by the learned Trial Judge.

73. In my view, the prospects of success on the appeal are not sufficient to justify the grant of leave to appeal. The application must be dismissed.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Respondent: ACT Director of Public Prosecutions

Procedures Rules 2006

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