R v Weismantel (No 1)

[2015] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:	R v Weismantel (No 1) [2015] NSWDC 122
Hearing dates:	22 June 2015
Date of orders:	22 June 2015
Decision date:	22 June 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Grant leave to the Crown to adduce the evidence relied upon as coincidence evidence
Catchwords:	EVIDENCE – Coincidence evidence – Evidence relied on to prove that the accused was a member of a joint criminal enterprise involved in armed robberies and other offences
Legislation Cited:	Evidence Act 1995 Criminal Procedure Act 1986
Cases Cited:	O’Leary v The King (1946) 73 CLR 566
Category:	Procedural and other rulings
Parties:	Director of Public Prosecutions (NSW) (Crown) Blake Weismantel (Accused)
Representation:	Counsel: Mr P Kerr (Crown) Mr S Schaudin (Accused) Solicitors: Director of Public Prosecutions (NSW) (Crown) Sydney Criminal Lawyers (Accused)
File Number(s):	2014/94525
Publication restriction:	No

Judgment

1. HIS HONOUR: This is an application by the Crown to adduce coincidence evidence. The coincidence notice forms part of exhibit VD1. There is no dispute that the evidence is admissible and learned counsel for the accused relies upon O’Leary v The King (1946) 73 CLR 566 per Dixon J at 577 as support for the proposition that where an incident and the alleged offence form an integral part of the same transaction, and the transaction cannot be understood without it, and the offence in isolation could only be presented in an unreal and unintelligible form, the evidence relating to that incident is admissible. The defence does not seek a severance of the counts in the indictment and points out that the events fall within s 29(1)(b)-(c) of the Criminal Procedure Act 1986. The defence, however, resists the admission of the evidence as coincidence evidence, which would enable the evidence relating to each separate count in the indictment to be evidence in each other count in the indictment.

2. In [3] of the coincidence notice the following is stated:

“The evidence is to be tendered to prove that the accused did a particular act or acts, namely that he was involved in a joint criminal enterprise with Ridden, Roche and Woodman to:

• steal a motor vehicle;

• drive the stolen motor vehicle to the Roseville Cinema, and then to rob the cinema and its patrons of money or other valuables;

• drive the stolen motor vehicle to the Revesby Pacific Hotel, and then to rob the hotel of money or other valuables; and

• drive the stolen motor vehicle to a place and to then destroy, by fire, the stolen motor vehicle.”

The coincidence can be further refined to this proposition that the accused was a member of a joint criminal enterprise conducted by four persons, three male and one female, concerning or using one motor vehicle on the same night.

3. The evidence to be adduced has been abbreviated. A number of the witnesses whose statements are contained in exhibit VD1 will not be called. That is for a number of reasons. Firstly, there is CCTV footage taken at both…