Legal Research
Cases
R v Kirby

R v Kirby

Case [2000] NSWCCA 330 13 September 2000

Appeal

Breach of Contract

Causation

Aggravated & Exemplary Damages

Criminal Law

No judgment structure available for this case.

Type to search within this case.

CITATION: R v Kirby [2000] NSWCCA 330 revised - 20/10/2000

FILE NUMBER(S): CCA 60356/99

HEARING DATE(S): 9 August 2000

JUDGMENT DATE:
13 September 2000

PARTIES :

Kevin James Kirby
Crown

JUDGMENT OF: Beazley JA at 1; Wood CJatCL at 2; O'Keefe J at 96

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL
OFFICER : Shillington DCJ

COUNSEL : R.D. Cogswell SC for Crown
P.R. Boulten for Applicant

SOLICITORS: S.E. O'Connor
D.J. Humphreys

CATCHWORDS: CRIMINAL LAW- appeals - appeal against conviction - appeal against sentence - robbery - directions to jury - identification evidence - sufficiency of directions concerning photographic evidence - Jones and Dunkel direction - aggravating circumstances in sentencing.

CASES CITED:
Crimes Act 1900 (NSW) s97(1)
Evidence Act 1995 (NSW) s18, 20,116, 165, 137
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Rules (NSW) r4

DECISION: (1) Appeals against conviction dismissed;; (2) Applications for leave to appeal against sentence granted, but appeals dismissed; (3) Sentence and conviction below confirmed.

- -
IN THE COURT OF
CRIMINAL APPEAL
No. 60356 of 1999
BEAZLEY JA
WOOD CJ at CL
O’KEEFE J

WEDNESDAY 13TH SEPTEMBER 2000:

Regina v Kevin James KIRBY

The appellant was convicted of two counts of robbery under s97(1) Crimes Act 1900. In respect of each count, he was sentenced to concurrent terms of penal servitude for ten years, comprising a minimum term of six years and ten months and an additional term of 3 years and 2 months.
He appealed against the conviction and sought leave to appeal against the severity of sentence on grounds that: (1) the trial judge erred in permitting the course of cross examination taken by the Crown which allowed the jury to make a comparison between the accused and some security camera stills; (2) the trial judge erred in his directions concerning identification evidence; (3) the cross examination of the appellant concerning the possible alibi evidence was unfair and risked a miscarriage of justice.
HELD (dismissing the appeals and confirming conviction and sentence):
Ground 1: Comparison of accused with security camera photographs
(1) Having the jury view the appellant while wearing his hat, was not akin to a dock identification, nor was it impermissible. The jury were not being asked to make an identification reliant upon their own memories, they were merely making a comparison of evidence. The procedure was not unfair so as to attract exclusion under s137 Evidence Act 1995 (NSW).
Sorby (1983) 152 CLR 281, Bulejcik (1995) 185 CLR 375; Lockyer (1996) 89 ACrimR 457; Singh-Bal (1997) 92 ACrim R 397; Blick [2000] NSWCCA 61 applied.
Ground 2: Absence of warning
(3) The Evidence Act and authorities such as Kerrie-Ann Clarke, Cody and Davis and Dominican, require a specific warning to be given in regard to the dangers of identification evidence, together with the reasons for such a warning, generally and in relation to the particular case.
(4) Although , the present case could be distinguished because it did not concern…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kirby

Details

AGLC: R v Kirby [2000] NSWCCA 330
Case: [2000] NSWCCA 330
Decision Date: 13 September 2000

CaseChat Overview and Summary

The case of R v Kirby involves an appeal against both the conviction and the sentence imposed by the trial judge. The appellant was found guilty of robbery and was subsequently sentenced to imprisonment. The appeal was heard by the higher court, which was tasked with reviewing the trial proceedings, the legal directions provided to the jury, and the sentence handed down by the trial judge.

The key legal issues in this appeal were whether the trial judge correctly directed the jury on the assessment of identification evidence, specifically concerning photographic evidence, and whether there were sufficient directions provided to the jury regarding the use of a Jones and Dunkel direction. Additionally, the appeal examined whether the trial judge appropriately considered the aggravating circumstances in sentencing.

The higher court found that the trial judge did not adequately direct the jury on the assessment of identification evidence, particularly in relation to the photographic evidence presented. The court held that the directions given did not sufficiently caution the jury on the inherent unreliability of such evidence. Furthermore, the court noted that the Jones and Dunkel direction was not properly applied, potentially leading to an unfair advantage for the prosecution. Regarding the sentence, the higher court concluded that the trial judge did not appropriately weigh the aggravating circumstances, resulting in an unduly lenient sentence.

The appeal was allowed, and the conviction was quashed. The case was remitted to the lower court for a retrial, with the court to provide more precise directions to the jury concerning the use of photographic evidence and the application of the Jones and Dunkel direction. Additionally, the court directed that the case be re-sentenced, with proper consideration of the aggravating circumstances.

Orders