R v Merriman; R v Dalais [2007] VSCA 133

2 The applicants were jointly presented before the County Court at Melbourne, on 7 February 2006, on one count of aggravated burglary (count 1) and two counts of armed robbery (counts 2 and 3). Merriman was also presented on a further count of possessing a drug of dependence (count 4). Each pleaded not guilty to all counts pertaining to him, with the exception that Merriman pleaded guilty to count 4.[1] On 3 March 2006, the jury returned verdicts of guilty on all counts.

3 Both now seek leave to appeal against their convictions.**

**4 At this stage brief reference is required to the central features of the case presented against each of the applicants.

5 At the trial, evidence was adduced that Merriman had been employed by an enterprise known as Vic State Concrete Services for a three-year period leading up to September 2003. This business was owned and operated by David Purton and his wife, Vanessa Purton. David Purton's son, Michael Purton, was an employee. Merriman had been to David Purton's home on occasions and was aware that employee wages were processed at this residence each Wednesday. During 2002, Michael Purton witnessed his housemate, Clifford Gilchrist, the brother-in-law of Merriman, alter a shotgun by sawing it down with a grinder. Merriman was present as this was taking place. Merriman's employment with Vic State Concrete Services ceased in September 2003.

6 It was alleged by the prosecution that on Wednesday 3 December 2003, Merriman was at the house shared by the applicant Dalais, a man named Simon Hickman and Hickman's girlfriend, Carly Pearson. Ms Pearson, whose evidence was strenuously contested by counsel appearing for the applicants, asserted that on this evening Dalais and Merriman asked Hickman whether he wanted to "go and do something with them", and Hickman agreed. The three men left the house shortly afterwards. Hickman had a balaclava in his possession that he had made during the evening.

7 It was uncontroverted that in the early hours of Thursday 4 December 2003, David and Vanessa Purton were set upon in their home by two male intruders, one of whom was wearing a balaclava. The other was not disguised, but was subsequently identified by Mrs Purton, by way of photo-board, as Hickman. The intruders sought "the pays or the money". They stole cash contained within pay envelopes, a DVD player and some jewellery, prior to driving off in the Purtons' red Toyota Landcruiser.

8 Ms Pearson asserted that Merriman, Dalais and Hickman returned to her home at approximately 1.00 or 1.30am on 4 December 2003. She disposed of Hickman's clothing, at his request, and observed the men in possession of large amounts of money, pay envelopes, items of jewellery and a DVD player.

9 Police located the Purtons' red Toyota Landcruiser at 4.25 am. A home-made balaclava, on which a mixture of DNA was subsequently detected, was found next to the vehicle. The match between the major component of the DNA on this balaclava and a reference sample provided by Dalais was calculated by the Crown expert called at the trial to be such that it was at least 98 million times more likely that the major components came from Dalais than another male chosen at random from the Victorian Caucasian population.

10 On 20 May 2004, a male person sold three rings and a watch to a jewellery store in Chelsea, producing a Health-care card in the name of Mark Alan Merriman. In August 2004, police attended the shop with Mrs Purton, who was able to identify the rings as those stolen on 3 December.

11 When Merriman was subsequently arrested, a sawn-off shotgun was located in his vehicle. His health-care card in the name of Mark Alan Merriman was in his possession at the time. A search of his home was conducted and shotgun cartridges were seized.

12 Ms Pearson appeared in the Magistrates' Court on 18 April 2005. She pleaded guilty to one charge of handling stolen goods for her part in the events of the night of 3 December and gave an undertaking to give evidence in future proceedings relating to this matter. She entered into a good behaviour bond for a period of two years without a conviction being recorded.

13 Although a number of different complaints have been advanced in support of each of the applications before the Court, in view of concessions made by the Crown in the case of Merriman, and the decision at which I have arrived, I consider that it is necessary to address only ground 2 of Merriman's application and ground 7 of that made by Dalais, and to make brief reference to ground 4 of Dalais' application.

14 The contention is made in ground 2 of the application by Merriman that:**

"The learned trial judge erred in law in directing the jury that even if they were satisfied that the weapon found in the applicant's possession in June 2004 was not the weapon used at the time of the commission of the offence, they were entitled to use his possession of that weapon as some evidence of a disposition to commit the precise type of crime. "

The same complaint is advanced, although slightly differently expressed, by Dalais in ground 7 of his application.

"[The prosecutor] has two positions; (1) he argues you should find it was the gun, but if you are not prepared to find it was the gun you would, so he argued, be prepared to find that it was similar to the one used in the armed robbery of the Purtons, and if that was the case, if you were prepared to make that finding, that is some evidence of a disposition to commit the precise type of crime that was committed against the Purtons. So there is the distinction between just simply attributing criminal tendencies to an individual as distinct from in this, if I can use the expression, exquisite circumstance - you are entitled, and it is a matter for you, but you are entitled to use the circumstance of the finding of that gun as to say, well, it is some evidence of a disposition to commit the precise type of crime, that is, the usage of a sawn-off shotgun, to commit a crime such as we are concerned with."[2] (My emphasis)

16 The Crown properly conceded in this matter that this direction was fundamentally erroneous and that the ground of appeal is made out. His Honour's view was based, it appears, upon his misunderstanding of a passage in the judgment of Tadgell JA in R v Theos,[3] where he stated, in a case involving the finding of a shotgun at the house of an accused subsequent to the occurrence of an armed robbery -

"Having adduced the evidence of the finding of the shotgun, its seizure and its characteristics, the Crown was entitled to invite the jury to conclude that the gun was used in the robbery. Such a conclusion would no doubt provide powerful evidence in corroboration of the other evidence of identification of the applicant. Alternatively, even if the jury were not prepared to conclude positively that the seized gun was used in the robbery, the evidence of its being found at the applicant's house, and being of exactly the same kind as that used in the robbery, could be added to the other circumstantial evidence of his involvement in the robbery. The argument for the Crown would then be the axiomatic one that, while no one piece of evidence, taken alone, might satisfy the jury beyond reasonable doubt of the applicant's guilt, the evidence in its totality, including that of the seized gun, could do so. This was not a case in which the Crown sought to rely on evidence of similar facts, raising the question whether evidence of propensity might properly be directly or incidentally admitted. That elaborate question has received the detailed attention of the High Court in recent years in cases such as Hoch v The Queen ..., Harriman v The Queen ... and, most recently, in Pfennig v The Queen, supra. To the extent that the evidence of the discovery and seizure of the gun revealed any criminal propensity (if it did so at all) it was in my opinion not on that account rendered inadmissible by reason of the exclusionary rule that was under discussion in the three cases last mentioned. The rule is stated in Cross on Evidence (5th Australian ed, 1996) para 21010, thus -

'The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions (including the possession of discreditable material) if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is highly probative of a fact in issue.'

The rule had no application in this case because the evidence of the discovery and seizure at the applicant's house of the gun did not in truth reveal the applicant's commission of, or disposition to commit, any offence other than the offences with which he stood charged or, at all events, any offence of the same general character as those offences. In these circumstances there was no room for the application of the exclusionary rule."[4]

It is, I consider, apparent that Tadgell JA was saying no more in that passage than that the evidence of the finding of a gun, even one that could not be associated with the crime under consideration, might constitute a piece of circumstantial evidence to which the jury could have regard in determining whether or not they were satisfied of the involvement of the accused in the particular offence. Of itself, in the circumstances of the case before him, Tadgell JA indicated that the evidence provided little, if any, evidence of the disposition of the accused, and the exclusionary principle relating to propensity evidence to which he referred could not be seen to have been attracted. Neither that judgment nor any other authority of which I am aware supports the provision of the instructions given by the trial judge in this case.

**17 There is no need in the present circumstances to embark on an exposition of the principles to be applied with respect to the admission of propensity evidence[5] as they have been expounded in numerous cases both before and since the passage of s398A of the Crimes Act 1958. It is enough to say that nothing approaching an adequate foundation existed in his case for the use of the evidence contemplated by the judge's directions.

18 It is also accepted by the Crown, and again quite properly, that in the circumstances of the matter as it relates to Merriman, the application of the proviso to s568 of the Crimes Act would be inappropriate. In those circumstances, the verdicts in his case cannot stand.

19 However, it is not accepted by the Crown that these considerations necessarily have application to the case of Dalais. The evidence with respect to the shotgun only bears upon the issue of the participation of Merriman in the offences, it is said. The jury were instructed that they were required to give separate consideration to each accused and to base their verdicts only upon the evidence admissible in the case of a particular accused. There is no reason, counsel contended, to suspect that they may not have understood, or that they may have failed to comply with, that instruction. The difficulty with this approach is that his Honour stated in his charge:**

"This is a case where two accused are in the dock and in fact there are two separate trials. Quite often you have cases where there are jointly charged accused and there are different trains of evidence which have to be separate out. But in this case, as you have been told, the main thrust of the Crown case is directed against the two accused and the two accused really have to deal with the same body of evidence through their counsel.

It is the fact that separate consideration has to be given to each case. In an ideal world you would have a different jury deciding each individual's charges, but there would be difficulties with that. There is the possibility of inconsistent verdicts and the requirement that people would have to go through evidence time and time again.

It is a convenient means of dealing with jointly charged accused, but it is very important that you don't let that concept of convenience interfere with your obligation to give separate consideration to the cases being made out against each accused.

As I say in this case, the evidence really isn't sifted out. The Crown case, the totality of the evidence is directed to each accused. But it is the fact that you have these two accused that are being tried before you. The Crown case put against the accused is that they have acted in concert."

20 Although the jury were instructed to consider the cases of the two accused separately, they were in effect directed that the whole of the evidence was cross-admissible. It is distinctly possible, if not highly likely, that the jury would have regarded this instruction as indicating that the cases against the two men were so closely connected that the conviction of one would almost, if not inevitably, lead to the conviction of the other. His Honour provided no adequate directions to address this risk. Although, as counsel for the Crown pointed out, he did give instructions with respect to particular pieces of evidence affecting one or other of them, the general thrust of his instructions was, it seems to me, to have been that they stood to be convicted or acquitted together. Indeed, at one point in his charge when addressing the situation of Merriman, his Honour stated:

"The Crown argument is that you should accept the evidence of Pearson that the three men left together and the three men came back together and were distributing or poring over the loot as it were."

**21 In the particular circumstances of this case, the prosecutor at the trial argued that the two accused had embarked on a joint enterprise, relying to a substantial extent upon the same evidence to establish their association before, during and after the events. Given that it is accepted that there has been a miscarriage of justice in the case of one, I find myself unable to discount the possibility that there may have been a miscarriage of justice in the case of the other.

22 Accordingly, I would set aside the convictions in the case of Dalais also.

23 Finally, I would add, with respect to ground 4 of the Dalais application, that I consider there is considerable force in the complaint that the judge erred in directing the jury that Merriman's sale of the stolen jewellery after the commission of the offences could properly be used to corroborate the evidence of Ms Pearson concerning Dalais' involvement in the offences.

24 That evidence could only be seen to support or confirm the reliability of the evidence of Ms Pearson concerning Dalais if there was independent material indicating the existence of a relevant connection between Dalais and Merriman with respect to the items concerned. The evidence that the jewellery was taken in the**

robbery and that Merriman disposed of it could, of course, provide support for her claim that Merriman left the house on the night of the robbery and returned to it. Without more, that evidence could not, however, support her claim that Dalais was involved. So much was accepted by counsel for the Crown in this Court, who then quite fairly informed us that he was unable to point to any such independent supporting or linking material. It follows, then, that that evidence should not have been put before the jury as possible corroborative support for the evidence of Ms Pearson.

**25 With regard to the other two pieces of evidence that the trial judge instructed the jury could be used to corroborate the evidence of this witness concerning Dalais, namely, Mrs Purton's evidence as to the form of the stolen money and pay envelopes, and her identification of Hickman, not having heard full argument concerning these matters, in the context of the totality of the evidence in the case, I am hesitant to express a concluded view. It may well be that when regard is had to the totality of the evidence, including, for example, the finding of the balaclava and DNA, both these items could reasonably be regarded as supportive of the evidence of Ms Pearson in the relevant sense. These questions will require the attention of a trial judge.

26 There is, in my view, ample evidence upon which a jury would be entitled to find each of the applicants guilty of the various offences with which we are concerned. It is, I consider, in the interests of justice that a re-trial be held in the circumstances.

27 I agree that the verdicts should be quashed for the reasons given by Vincent JA. I also agree with his Honour's observation on the question of corroboration and the question of re-trial.**

28 I too agree with the reasons for judgment of Vincent JA and with the orders he proposes.**

29 The orders of the Court in each application will be:

1. The application for leave to appeal against conviction is granted.**

1. The appeal is treated as instituted and heard instanter and allowed.
2. The conviction sustained by the appellant in the court below is quashed and the sentence passed thereon is set aside.
3. The Court directs a new trial to be had.
4. The appellant is remanded in custody pending the new trial.

30 In each case the Court grants to the appellant an indemnity certificate pursuant to s14 of the Appeal Costs Act 1998 and directs that there be included in that certificate any additional costs that the appellant will pay, or will be ordered to pay, as a consequence of the order for a new trial.

[1] A third alleged co-offender, Simon Hickman, made an application seeking a separate trial. This was granted by his Honour on 7 February 2006. His trial date has been set down for 23 July 2007.

[3] (1996) 89 A Crim R 486,

[4] (1996) 89 A Crim R 486, 492, 493.

[5] R v Best [1998] 4 VR 603; Pfennig v R [1995] HCA 7; (1995) 182 CLR 461; Thompson and Wran v R (1968) CLR 313.