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Court of Criminal Appeal 13 September 2000

R v Kirby [2000] NSWCCA 330 revised - 20

[2000] NSWCCA 330

Theft & property
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION APPEAL AGAINST SENTENCE ROBBERY DIRECTIONS TO JURY

Citation: R v Kirby [2000] NSWCCA 330
Court: NSW Court of Criminal Appeal
Date: 13 September 2000
Judge(s): Beazley JA; Wood CJ at CL; O'Keefe J

Background

The appellant was convicted in the District Court on two counts of robbery under s 97(1) of the Crimes Act 1900 (NSW), arising from armed robberies at two Sydney railway stations in July 1997. In both incidents, the offenders entered station booking offices at night, threatened staff at gunpoint, and made off with cash. Security camera stills from both scenes were tendered in evidence and played a significant role at trial.

For each count, the appellant received a concurrent sentence of ten years' penal servitude, with a minimum term of six years and ten months and an additional term of three years and two months. He appealed against both conviction and sentence.

  • Whether the trial judge erred by permitting the Crown to have the jury compare the appellant's appearance (while wearing his hat) with security camera stills, on the basis that this was akin to an impermissible dock identification
  • Whether the trial judge's directions on identification evidence were adequate, given that the case involved photographic comparison rather than direct eyewitness identification
  • Whether the Crown's cross-examination of the appellant about his failure to call potential alibi witnesses was unfair and risked a miscarriage of justice
  • Whether the sentences imposed were manifestly excessive, and whether special circumstances existed to justify a different sentencing structure

Decision

Ground 1: Photographic comparison exercise

The Court held that having the jury observe the appellant wearing his hat for the purpose of comparing his appearance with security camera stills was not equivalent to a dock identification. The jury were not being asked to rely on their own memories to make an identification; they were comparing two pieces of evidence before them. The procedure was not unfair, and there was no basis to exclude it under s 137 of the Evidence Act 1995 (NSW).

Ground 2: Adequacy of identification warning

The Court acknowledged that, under the Evidence Act and relevant authorities, a specific warning about the dangers of identification evidence is required, along with reasons for that warning both generally and as applied to the particular case. However, it distinguished the present case from direct eyewitness identification scenarios, noting that the evidence involved a comparison exercise rather than a witness identifying a person from memory. A warning of the kind contemplated by s 165(1) of the Evidence Act was still appropriate, and the Court found that the direction given by the trial judge was sufficient. The fact that the warning was not given at the precise moment of the comparison exercise did not occasion a miscarriage of justice, given that the trial was not lengthy or complex, the prosecution case was compelling, and no warning had been sought at the time.

Ground 3: Alibi cross-examination

The Court found that the Crown had, without objection, inappropriately questioned the appellant in cross-examination about his failure to call his wife and another woman who appeared on the face of the electronically recorded interview to be potential alibi witnesses. No Jones v Dunkel direction was given. However, the defence had itself placed the contents of the wife's statement before the jury, and an explanation for the other witness's absence had been provided. In those circumstances, no unfairness to the appellant resulted.

Sentence

The Court found that the sentences were within the legitimate range for offences of this seriousness. A range of aggravating circumstances was present, and the Court noted that staff working at night for public utilities such as the State Rail Authority are particularly vulnerable to armed robbery. General and personal deterrence warranted stern sentences. The appellant's drug problem provided no excuse, and neither family hardship nor his attempts at rehabilitation while in custody rose to the level required to establish special circumstances or justify a reduction in the overall sentence.

Orders Made

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

Key Takeaways

  • Having a jury compare a defendant's appearance with security camera stills is not equivalent to a dock identification, and does not necessarily attract exclusion under s 137 of the Evidence Act 1995 (NSW), provided the jury are comparing evidence rather than relying on independent memory.
  • A s 165(1) Evidence Act warning about the dangers of identification evidence applies even where the evidence involves photographic comparison rather than direct eyewitness identification, though the precise form of the direction is not prescribed by the Act or by authority.
  • In dismissing the alibi cross-examination ground, the Court of Criminal Appeal confirmed that inappropriate Crown questioning about the failure to call witnesses does not automatically occasion a miscarriage of justice where the defence has itself addressed the issue and no unfairness results.
  • No Jones v Dunkel direction was required in circumstances where the defence had placed the potential alibi witness's statement before the jury and offered an explanation for the other witness's absence.
  • Upholding the ten-year sentences, the Court reaffirmed that serious armed robberies targeting vulnerable public utility workers at night attract a stern sentencing approach, with strong elements of both general and personal deterrence, and that family hardship or drug dependency must reach a high threshold before qualifying as special circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 97(1)
- Evidence Act 1995 (NSW), ss 18, 20, 116, 165, 137
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Rules (NSW), r 4

Cases
- Sorby (1983) 152 CLR 281
- Bulejcik (1995) 185 CLR 375
- Lockyer (1996) 89 ACrimR 457
- Singh-Bal (1997) 92 ACrimR 397
- Blick [2000] NSWCCA 61
- Kerrie-Ann Clarke (distinguished)
- RPS 74 ALJR 449
- Jones v Dunkel (direction discussed)
- Henry (1999) 46 NSWLR 346
- Readman (1990) 47 ACrimR 181
- Roberts (1994) 73 ACrimR 306
- Samuela Antonio [2000] NSWCCA 266
- T (1990) 47 ACrimR 29
- Boyle (1987) 34 ACrimR 202