R v Kirby [2000] NSWCCA 330

New South Wales Court of Criminal Appeal

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 Shillington DCJ OFFICER :

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. Crimes Act 1900 (NSW) s97(1) CASES CITED: 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.