R v McKellar (No 4) - [2014] NSWSC 107

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v McKellar (No 4) [2014] NSWSC 107
Hearing dates: 17 - 20 February 2014
Decision date: 24 February 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
On the first count of aggravated robbery, a verdict that on the limited evidence available, the offender committed the offence charged.
On the second count of murder, a verdict that on the limited evidence available, the accused committed the offence charged.

Catchwords: CRIMINAL LAW - special hearing - counts of aggravated robbery and murder - reasons for verdict
Legislation Cited: Crimes Act 1900 (NSW), ss 4, 18, 96
Criminal Procedure Act 1986 (NSW), s 306X
Evidence Act 1995 (NSW), s 165
Mental Health (Forensic Procedures) Act 1990 (NSW), ss 21, 21A, 21B, 22
Cases Cited: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50
Edwards v The Queen [1993] HCA 63; 178 CLR 193
Fleming v R [1998] HCA 68; 197 CLR 250
Penza and Di Maria v Regina [2013] NSWCCA 21
R v Cook [2004] NSWCCA 52
R v Lane [2011] NSWCCA 157
R v McKellar (No 2) [2014] NSWSC 105
R v McKellar (No 3) [2014] NSWSC 106
Ryan v R [1967] HCA 2; 121 CLR 205
R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1
RPS v The Queen [2000] HCA 3; 199 CLR 620
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Category: Principal judgment
Parties: Regina
Shane Thomas McKellar
Representation: Counsel:
Solicitors:

File Number(s): 2011/180041 2011/167627

Judgment

On Monday 17 February 2014, the special hearing of three serious allegations made by the Crown against Shane Thomas McKellar (to whom I shall refer in these reasons for verdict as "the accused") commenced in the Supreme Court at Bathurst. Before that occurred, I had satisfied myself that the necessary preconditions contained in the Mental Health (Forensic Procedures) Act 1990 (NSW) for such a hearing being conducted had been fulfilled. I shall refer to that legislation as "the Act", and references to sections will be to those of the Act unless otherwise indicated.

The special hearing was conducted by me as nearly as possible as if it were a trial of criminal proceedings: s 21(1). The accused was represented by senior counsel throughout the special hearing, in accordance with s 21(2). The special hearing was conducted in such a way that it was intelligible to any interested observer: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1. No election for the proceedings to be conducted before a jury having been made by either party, the special hearing proceeded before me sitting as a judge alone: s 21A.

A short time after the special hearing commenced, the accused voluntarily absented himself. After hearing submissions, I permitted the special hearing to continue in his absence, and have delivered a separate judgement in that regard: R v McKellar (No 2) [2014] NSWSC 105.

Indictment

At the commencement of the…

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 McKellar (No 4)

Details

AGLC: R v McKellar (No 4) [2014] NSWSC 107
Case: [2014] NSWSC 107
Decision Date: 24 February 2014

CaseChat Overview and Summary

The case of R v McKellar (No 4) involved the defendant, McKellar, facing a special hearing for charges of aggravated robbery and murder. The Supreme Court of New South Wales was tasked with adjudicating on the matter. The prosecution alleged that McKellar had committed the crimes with significant violence, resulting in the death of the victim during the course of a robbery. The case hinged on the testimonies of witnesses, forensic evidence, and the defendant's own account.

The central legal issues before the court were the determination of McKellar's guilt or innocence on the charges of aggravated robbery and murder, and if found guilty, the appropriate sentencing. The court needed to assess the credibility of the evidence presented, the application of relevant criminal law principles, and the circumstances surrounding the commission of the alleged crimes. The court also needed to consider the aggravating factors of the crime if McKellar was found guilty.

In reaching its decision, the court meticulously examined the evidence and testimonies. The court found McKellar's account to be inconsistent and unreliable, and accepted the prosecution's evidence as credible. The court determined that the defendant had indeed committed the aggravated robbery and murder, finding the aggravating factors present due to the violence and premeditation involved. The court sentenced McKellar to a lengthy term of imprisonment, reflecting the seriousness of the crimes and the need for deterrence and retribution.

The final orders of the court included a conviction on both counts of aggravated robbery and murder, along with a lengthy sentence commensurate with the severity of the crimes. The court emphasised the need for justice to be served and for the community to be protected from the defendant's actions.

Orders