THE QUEEN v WILLIAM SEAN O'NEILL [1999] NZCA 72 (6 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca457/98

THE QUEEN

V

WILLIAM SEAN O'NEILL

Coram:	Gault J Henry J Keith J
Judgment (ex parte):	6 May 1999

judgment of the court DELIVERED BY KEITH J

[1]The appellant was found guilty by a jury of aggravated robbery.He was sentenced to 4 years imprisonment.He now appeals against his conviction.

[2] Briefly, the facts were that on 17 June 1997 two men entered the Wainuiomata branch of the Bank of New Zealand.One of the men carried a firearm which he used to threaten staff and customers of the bank while the other man leapt on to the counter and demanded money.Cash was placed in a bag and a short time later the two exited the bank.They ran to a car driven by a third man and after driving a short distance the three offenders transferred to a car driven by a fourth offender.The Crown case was that the appellant was the driver of the first getaway car and he was convicted by a jury on that basis.

[3] The appellant applied for legal aid to appeal against his conviction. After consideration of his case by three judges of this Court that application was declined.The appellant further applied for a review, but the Registrar's decision to refuse legal aid was confirmed.The appeal has been determined on the basis of written submissions received from the appellant.

[4] The appellant's first ground of appeal relates to an alleged alibi.The appellant submits, first, that the Police failed to investigate properly his alleged alibi and, second, that the delay between the commission of the offence and the appellant's arrest meant that security tapes at a service station that might have proved his alibi were unavailable.This alibi defence was plainly a matter for the appellant to pursue at trial and we are not convinced that the issues now raised should lead us to interfere with the conviction.

[5] The appellant's second ground of appeal concerns the process by which he was identified as an offender.In particular the appellant criticises the Police's failure to include photos of another man in photo montages shown to two of the identification witnesses.The photo montages do not, however, appear to have been crucial to the identification and no foundation is laid for the allegation that this other man was involved.

[6] For his third ground of appeal the appellant relies on inconsistencies in Police records of the number plate of the car said to have been driven by him. It appears that the number plate of the car that the appellant was convicted of driving was different to that broadcast over Police radio immediately after the robbery.Having considered this submission we are satisfied that all the relevant evidence was before the jury.It was for the jury to decide whether the evidence connected the appellant, and the car he drove, to the robbery.

[7] The appellant's fourth and final ground of appeal is that the trial Judge's direction on identification evidence was insufficient.Having considered the Judge's summing-up to the jury we can see no basis for that ground

[8] The appeal is dismissed.