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[2003] NSWCCA 14
respondent. The application for an extension of time to appeal was refused.
No linked legislation citations have been extracted yet.
Merritt applied well after his convictions for an extension of time to appeal. The court looked at the grounds he eventually advanced rather than treating the delay alone as decisive. It found that his complaint about an earlier judge’s remarks did not show that the convictions were tainted, and that the circumstantial evidence could support the jury’s verdicts. Since the proposed appeal had no substance, the court refused extra time.
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2,250 words · generated 29/09/2026
The decision is Regina v Merritt [2003] NSWCCA 14, delivered by the New South Wales Court of Criminal Appeal on 11 February 2003. Greg James J gave the principal reasons, with Mason P and Kirby J agreeing ([19]–[20]). The application before the court was not the appeal itself. It was an application to extend the time for Merritt to appeal his convictions. The court refused it ([21]).
The convictions followed a retrial in the Sydney District Court. The charges arose from events on 13 September 1995: stealing a motor vehicle and attempted armed robbery with wounding. The retrial began on 6 March 2000 and concluded on 17 March 2000 ([1]). Merritt had previously been convicted of both offences at a trial in August 1997. His appeal from that trial succeeded, and the Court of Criminal Appeal delivered its reasons on 10 March 1999 ([3]). The judgment does not set out the full basis on which that earlier appeal succeeded.
After the retrial, the Crown appealed against the asserted inadequacy of the sentences. On 13 September 2000, the Court of Criminal Appeal substituted an 18-year sentence for the armed robbery offence, commencing on 2 June 1999, and imposed an overall non-parole period of one and a half years from that date ([2]). That sentencing history formed part of the background, but the application decided in 2003 concerned the timing and substance of a proposed appeal against conviction.
Merritt’s notice of appeal was dated 8 May 2002 and contained no grounds ([5]). A document of the same date, apparently completed on his behalf, said he believed documents he had signed in gaol were appeal papers. It also referred to a welfare officer seeking his signature for waiver of transcript fees ([6]). In October 2002, Merritt said he wished to appeal because the verdicts were unsafe and unsatisfactory. In November, he complained that the jury’s verdict was not based on facts and raised an issue about Wood CJ at CL’s earlier decision ([7]–[8]).
The court considered those complaints and the evidence summarised in the Crown’s submissions. That summary described the alleged attempted robbery at a credit union located in a hospital building, the shooting and wounding of a security guard, and evidence said to link Merritt to the events. The court treated the case as circumstantial and asked whether the proposed challenge to the verdicts had substance ([13]–[17]).
The court’s approach to the extension application was that lateness mattered in context, but was not the sole or decisive question. James J referred to the statutory time provisions as described in the judgment: an appeal could be launched within 28 days, and the court could extend time “at any time” ([11]). He then relied on Young [1999] NSWCCA 275 for the proposition that a crucial consideration, even where an application was brought long out of time, was whether there might be substance in the appeal if it were brought ([12]).
The court therefore examined the grounds Merritt advanced. One concerned Wood CJ at CL’s remarks in the earlier appeal. Those remarks discussed sentencing considerations if Merritt were retried and convicted again, including totality and the seriousness of the robbery. In 2003, Merritt appeared to argue that those remarks somehow tainted his later conviction or meant there should have been an inquiry into the evidence. James J said he could identify no matter arising from the earlier reasons that tainted the conviction, no basis for the suggested inquiry, and no basis for extending time on that ground ([4], [9]–[10], [13]).
The other proposed ground was that the verdicts were unreasonable or unsupported by the evidence. Although Merritt’s oral submissions provided little assistance, James J stated that the court should examine the evidence when that type of ground is raised ([13]). The account of the evidence in the reasons was drawn from a document prepared for the court and included in the Crown’s submissions, with further observations by James J. It should therefore be understood as the evidence summary used in this application, rather than a fresh trial judgment or a complete transcript.
The summary included evidence that a stolen Holden Commodore was associated with the incident; that three men were seen together beforehand; and that two masked men confronted the security guards during the attempted robbery. The guard carrying the money was shot during a struggle. A second guard fired at the offenders, and one offender was later established to have been shot twice. The reasons also recount that Merritt was seen running across a road and removing a balaclava, that a witness saw him throw something under a car, and that police found a balaclava and white surgical gloves there. A fingerprint identified as Merritt’s right little finger was found on one of the gloves. Medical opinion placed the age of Merritt’s wounds generally consistently with their having been inflicted by the guard’s shots. The judgment noted that Merritt did not give evidence or call evidence at trial to contradict the fingerprint evidence or suggest an alternative cause for his wounds ([13]–[15]).
James J recognised that the case was circumstantial. The question for the jury, as he framed it, was whether the material could satisfy it beyond reasonable doubt that Merritt committed the crime, with no other rational hypothesis ([16]). He concluded that it was “entirely open” to the jury to be so satisfied ([17]). On that basis, the evidentiary ground did not give the proposed appeal substance. Combined with the lack of substance in the complaint about Wood CJ at CL’s remarks, that conclusion led to refusal of the extension ([18]).
The judgment describes the relevant timing framework by referring to provisions of the Criminal Appeal Act 1912. It states that an appeal could be launched within 28 days of conviction or sentence and that the court could extend that period at any time ([11]). The reasons also refer to “s.19” in describing the subject examined in Young, and then refer to “Section 10” and subsection (3) when setting out the time limit and extension power ([11]). This account reports the provisions as described in the judgment; it does not resolve the difference in section references or purport to state the Act’s current form.
For the decision in Merritt, the key proposition was not that delay was irrelevant, or that any late application must be considered on the same basis as a timely appeal. Rather, James J said that the possible substance of the proposed appeal was a crucial consideration “no matter whether” the application was brought long out of time ([12]). The decision applies that proposition by considering the proposed grounds despite the substantial lapse between the 2000 convictions and the 2002 notice.
The judgment’s practical distinction is between delay and merit. The application was late, but the reasons do not say that lateness alone required refusal. Instead, the court examined whether the grounds disclosed a potentially substantive challenge. It found that the complaint about the earlier judicial remarks did not identify a taint or a proper basis for inquiry, and that the evidence could support the verdicts ([10], [13]–[18]). The decision therefore illustrates how the court applied the approach it attributed to Young in a particular case.
The judgment cites The Queen v John Patrick Beattie [2000] NSWCCA 201 alongside Young as authority supporting its conclusion that the extension should not be granted ([18]). The supplied judgment gives no detailed account of Beattie’s facts or reasoning, so it would go beyond this source to describe its rule more fully. Nor does the supplied material establish how the statutory framework or the authorities have developed since 2003.
At [12], James J says the crucial question is whether the proposed appeal might have substance, even if the application is very late. In plain English, the court did not treat the number of days or years of delay as a complete answer. It assessed what Merritt was proposing to argue.
At [10], James J says he could not identify anything in Wood CJ at CL’s earlier remarks that tainted the conviction, or a basis for the suggested inquiry. This is a conclusion about the argument as presented in this application. It is not a general statement that judicial remarks can never raise an issue about a later trial.
At [16], James J calls the case circumstantial and frames the jury’s task as deciding whether the evidence established guilt beyond reasonable doubt, with no other rational hypothesis. This explains why the court focused on whether the evidence could support the verdict, rather than on a single item considered in isolation.
At [17], he says it was “entirely open” to the jury to be satisfied on the evidence. In context, this means the court did not see the evidentiary ground as showing that the verdicts lacked a sufficient basis. It does not mean that the Court of Criminal Appeal conducted a new trial or made its own verdict after hearing witnesses.
At [18], James J concludes there was no substance in the criticism and no basis to grant the extension, referring to Young and Beattie. Mason P and Kirby J agreed ([19]–[20]), and the formal disposition was that the application was refused ([21]).
The decision is most directly relevant to an application to extend time to appeal a criminal conviction where the proposed appeal grounds can be identified and assessed. In Merritt, the initial notice had no grounds, but the applicant later advanced complaints about the verdicts and about remarks in an earlier appeal ([5]–[8]). The court considered those grounds when deciding whether an extension had a sufficient basis.
It is also relevant where an applicant relies on an alleged evidentiary insufficiency. Merritt’s complaint was that the verdicts were unsafe or unsupported. The court examined the material summarised for it, acknowledged that the case was circumstantial, and decided that the jury could be satisfied beyond reasonable doubt ([13]–[17]). The judgment does not establish that every circumstantial case with similar types of evidence must be decided in the same way. Its assessment depended on the evidence described in the reasons.
A further potentially relevant pattern is a proposed appeal relying on a prior appellate judge’s comments made in the course of earlier proceedings. Merritt argued, as the court understood him, that Wood CJ at CL’s remarks about sentencing and an earlier retrial somehow affected the later conviction or called for an inquiry. The court found no such basis on the material presented ([4], [9]–[10]).
The decision does not provide a checklist of all factors relevant to every extension application. In particular, although the documents gave an explanation involving confusion about signed papers and transcript-fee arrangements, the reasons do not separately formulate a general test for evaluating such explanations. The specific stated focus was whether there might be substance in the proposed appeal ([6], [12]).
The supplied judgment contains no decisions after 11 February 2003 and therefore cannot establish how later courts treated Merritt. It would not be sound, on this source alone, to say that it was followed, distinguished, limited, or overruled by later authority.
The decision itself refers to two earlier authorities. It relies on Young [1999] NSWCCA 275 for the approach that the possible substance of an appeal is crucial even when the application is long out of time ([11]–[12]). It also cites The Queen v John Patrick Beattie [2000] NSWCCA 201 as authority supporting refusal on the facts ([18]). The reasons do not set out the full reasoning or facts of either case.
For research purposes, the treatment shown by this judgment is therefore limited: Young is expressly used for the governing consideration; Beattie is cited with it in support of the disposition. Any account of subsequent treatment would require sources beyond the judgment supplied here.
The reasons do not explain in detail how the court would weigh the possible substance of an appeal against other features of a late application. They identify substance as a crucial consideration, but do not set out an exhaustive list of relevant matters or say that substance is the only consideration ([11]–[12]).
The judgment’s account of the statutory provisions contains different section references: it mentions s.19 in connection with Young, then refers to s.10 and subsection (3) when describing the 28-day period and extension power ([11]). The reasons do not explain that difference. The decision should therefore not be used as a stand-alone account of the legislation’s present numbering or operation.
The court’s assessment of the evidentiary ground was made on the application before it, using a summary prepared for the court and the applicant’s oral submissions. The reasons do not reproduce the full trial transcript or set out every evidentiary dispute. They also do not explain the earlier appeal’s full basis, beyond recording that it succeeded, or address any possible issue that was not raised by Merritt ([3], [13]).
Finally, the judgment reports no later treatment, legislative change, or subsequent factual applications of its reasoning. Its grounded contribution is narrower: it shows the Court of Criminal Appeal examining the proposed grounds of a late appeal, finding them insubstantial on the material presented, and refusing an extension.
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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. **********
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The application for an extension of time to appeal was refused.