R v McKeon - [2004] NSWCCA 232

CITATION: R v McKeon [2004] NSWCCA 232

HEARING DATE(S): 6 July 2004

JUDGMENT DATE:
12 July 2004

JUDGMENT OF: Studdert J at 1; Kirby J at 84; Hislop J at 85

DECISION: Appeals against conviction dismissed; leave to appeal against sentences granted but appeals dismissed.

LEGISLATION CITED: Crimes Act, ss 97(2), 94, 154A

CASES CITED: R v Bavardra (2000) 115 A Crim R 152
R v Henry (1999) 46 NSWLR 346
R v Itamua [2000] NSWCCA 502
R v Kain [2004] NSWCCA 143
R v Lemene (2001) 118 A Crim R 131
R v Middis (unreported, Hunt J, 27 March 1991)
R v Patsalis (1999) 107 A Crim R 432
R v Privett [2001] NSWCCA 518
R v Skaf & Ors [2004] NSWCCA 74

PARTIES :
Regina v Glen Peter McKeon

FILE NUMBER(S): CCA 60057/04

COUNSEL: D. Arnott (Crown)
W. Terracini SC (Appellant)

SOLICITORS: S. Kavanagh (Crown)
P. White (Appellant)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/21/3079

LOWER COURT
JUDICIAL OFFICER : Latham DCJ

60057/04

STUDDERT J
KIRBY J
HISLOP J
Monday 12 July 2004

REGINA v GLEN PETER M c KEON

Judgment

1 STUDDERT J: The appellant, Glen Peter McKeon, was convicted on a number of counts of aggravated armed robbery and of stealing motor vehicles. These convictions followed a number of trials. The appellant appeals against his convictions following two of these trials, namely those which commenced on 12 November 2002 and 25 November 2002. He also seeks leave to appeal against the severity of sentences imposed upon him.

2 It will, of course, be necessary in considering the appeals against conviction to consider the grounds of appeal as they relate to each trial discretely.

The first trial

3 The first trial concerning which the appellant appeals against his conviction commenced on 12 November 2002 and the indictment presented contained two charges:

(a) that with his co-accused, Morgan Paul Kain, he stole a motor vehicle on 21 December 2000;

4 On 25 November 2002 the jury found both accused guilty on both counts.

5 The prosecution case was that the appellant and his co-accused participated in an armed robbery at the Westpac Bank at Picton. Both men entered the bank wearing black balaclavas and the appellant was carrying a gun. He stayed at the counter whilst the co-offender jumped the counter and stole $9965. The two men left the scene using the stolen vehicle, the subject of the first count in the indictment.

6 The case against the appellant was based upon circumstantial evidence alone. One of the Crown witnesses selected the co-offender’s photograph from photos shown some two months after the robbery, expressing the view that she was “I would say about eighty percent sure” that the photo was of the co-accused (T 63, 13 November 2002). However there was no identification of the appellant.

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 McKeon

Details

AGLC: R v McKeon [2004] NSWCCA 232
Case: [2004] NSWCCA 232
Decision Date: 12 July 2004

CaseChat Overview and Summary

Glen Peter McKeon was convicted on multiple counts of aggravated armed robbery and stealing motor vehicles. He appeals against his convictions from two separate trials and seeks leave to appeal against the severity of the sentences imposed. The Court of Criminal Appeal, consisting of Studdert J, Kirby J, and Hislop J, dismissed the appeals against conviction but granted leave to appeal against the sentences, though the appeal against the sentences was also dismissed. The first trial involved McKeon and his co-accused, Morgan Paul Kain, in an armed robbery at a Westpac Bank at Picton. The prosecution's case was based on circumstantial evidence linking McKeon to the crime, including fingerprints on a vehicle and a hotel booking under a false name. The jury found both men guilty on all counts. McKeon's appeal against conviction focused on the trial judge's refusal to discharge the jury, which the court found to be justified. The evidence, though circumstantial, was deemed sufficient to support the jury's verdict. The second trial involved McKeon and Kain in the armed robbery of a City Coast Credit Union. Again, the prosecution relied on circumstantial evidence, including security camera footage, witness descriptions, and forensic evidence linking McKeon to the crime scene. The jury found both men guilty, and McKeon's appeal against conviction was similarly dismissed. The Court held that the evidence was sufficient to support the verdict. Regarding sentencing, McKeon was sentenced to a total of twenty-four years imprisonment with a non-parole period of fifteen years for multiple counts of aggravated armed robbery and stealing motor vehicles. The Court granted leave to appeal against the severity of the sentences but ultimately found no error in the sentencing process. The lengthy sentence was justified given the number and gravity of the offences committed while McKeon was on parole for a previous armed robbery conviction.

Orders