R v Kirby [2000] NSWCCA 330

R v Kirby [2000] NSWCCA 330

The appeals failed because the security photograph comparison was a permissible comparison of evidence rather than an impermissible dock identification and was not unfair under s137; the trial judge's directions adequately warned the jury to exercise extreme caution when using the photographs and no miscarriage arose from the timing of the warning; the Crown's questioning about possible alibi witnesses was inappropriate but, given the re-examination, absence of a Jones v Dunkel direction and the trial context, caused no unfairness or miscarriage; and the sentences were within range having regard to the seriousness of two planned armed robberies, aggravating circumstances and the...

Jurisdiction
Australia
Judgment Date
13 September 2000
Procedural Posture
Criminal Appeal Against Conviction and Applications for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal From Convictions and Sentences Imposed in the District Court After Jury Trial
Outcome
Appeals against conviction dismissed; applications for leave to appeal against sentence granted, but appeals dismissed; convictions and sentences confirmed.
Legal Topics
['robbery Under S97(1) Crimes Act 1900 (nsw)' 'identification Evidence' 'photographic and Security Camera Comparison Evidence' 'jury Directions' 'jones V Dunkel Direction' 'alibi Evidence' 'armed Robbery Sentencing' 'aggravating Circumstances']
['criminal Law' 'evidence' 'sentencing' 'appellate Procedure'] ['robbery Under S97(1) Crimes Act 1900 (nsw)' 'identification Evidence' 'photographic and Security Camera Comparison Evidence' 'jury Directions' 'jones V Dunkel Direction' 'alibi Evidence' 'armed Robbery Sentencing' 'aggravating Circumstances']

Case Brief

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Procedural Posture

Criminal Appeal Against Conviction and Applications for Leave to Appeal Against Sentence / New South Wales Court of Criminal Appeal From Convictions and Sentences Imposed in the District Court After Jury Trial

Legal Issues

  1. 1 ['Whether the trial judge erred in permitting the Crown cross-examination and jury comparison between the appellant wearing an Akubra hat and security camera stills.' "Whether the trial judge's directions concerning identification or photographic comparison evidence were inadequate or given too late." "Whether Crown cross-examination about the appellant's failure to call his de facto wife and another possible alibi witness was unfair or risked a miscarriage of justice." 'Whether the concurrent sentences of ten years penal servitude were manifestly excessive or special circumstances should have been found.']

Ratio Decidendi

The appeals failed because the security photograph comparison was a permissible comparison of evidence rather than an impermissible dock identification and was not unfair under s137; the trial judge's directions adequately warned the jury to exercise extreme caution when using the photographs and no miscarriage arose from the timing of the warning; the Crown's questioning about possible alibi witnesses was inappropriate but, given the re-examination, absence of a Jones v Dunkel direction and the trial context, caused no unfairness or miscarriage; and the sentences were within range having regard to the seriousness of two planned armed robberies, aggravating circumstances and the...

Court Disposition

Appeals against conviction dismissed; applications for leave to appeal against sentence granted, but appeals dismissed; convictions and sentences confirmed.

Orders

  • ['Appeals against conviction dismissed.' 'Applications for leave to appeal against sentence granted, but appeals dismissed.' 'Convictions and sentences below confirmed.']