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 the Roseville Cinema and the Revesby Pacific Hotel showing the robberies from a number of angles at each scene, which to a large extent attenuates the need to call oral evidence from witnesses. Some of the witnesses could only have given limited evidence of what occurred. The second consideration is the need to contain the evidence so that the trial is not overly long. I believe to rule on this issue I should discuss the steps outlined by the Crown in the coincidence notice and advert briefly to the evidence to be relied upon by the Crown in that regard and to make a comment on the significance of the evidence.

4. Paragraph 2(a) of the coincidence notice is this:

“At about 12 [noon] on [Monday] 23 September 2013 Amanda Ridden and Daniel Roche checked into the Linwood Lodge, Artarmon, where they were allocated room 333.”

Evidence is to be adduced from Mr Krishna Neupane who was a duty manager at the Linwood Lodge Motel at 312 the Pacific Highway, Artarmon on 23 September 2013. Shortly before noon on that day he was notified by telephone by the reception counter that new guests had arrived. They were a male and a female who could not provide any identification. They paid a $100 cash deposit. Mr Neupane described the female as Australian who was short, about five foot two inches tall, with medium to long hair, a fair complexion and petite build. He thought she was wearing a white T-shirt and black leggings. He described the male as Australian, about five foot eight inches or five foot nine inches tall with blonde short hair, red cheeks, large light coloured eyes, wearing a light coloured T-shirt and perhaps light coloured knee length shorts. His statement goes on to attest to the interaction of that pair with him on the afternoon of 23 September 2013.

5. Paragraph 15 of his statement is this:

“I came back from lunch at 3pm, and at some stage after this, but before 5pm, two males came from the street on foot to the Motel reception. I would describe the first male as tall, maybe over five foot ten inches, thin build, short dark hair, Australian appearance with an Australian accent, possibly wearing a white T-shirt and carrying a black backpack. The second male I would describe as about five foot ten inches tall, chubby build, Australian accent, with tattoos possibly on one of his upper arms, with dark coloured long thick hair in a ponytail. The sides of his head were shaved with the long ponytail at the back.”

Those two men attempted to make contact with guests in the Linwood Lodge. Most of the talking appeared to have been done by the thin, taller male. He told Mr Neupane that he was looking for a “guy, 22 years old just like me, he might be here with a girl”. A number of futile attempts were made by those men to meet up with whoever they wished to meet. Closer to 5pm Mr Neupane saw the pair again. On this occasion the “chubby male”, who was the shorter of the two, was carrying a case of beer which Mr Neupane thought was green in colour. Mr Neupane finished his shift at 5pm. Mr Neupane’s verbal description of the “second male” is apt to describe the accused as he appears on CCTV recorded on this afternoon, which I shall soon discuss.

6. The next morning, that is on Tuesday 24 September 2013, he commenced working at 7am. Eventually he went into room 333. He found the key to the room lying on the table within it and no-one was present in it. The room was “pretty clean” and it did not appear that anyone had even slept in the bed. He believed that the occupants had at some stage smoked cigarettes. The couple who had rented the room never returned to collect their $100 cash deposit.

7. Paragraph 2(b) of the coincidence notice is this:

“At about 4.55pm on 23 September 2013, the accused and Anthony Woodman were at the Freeway Hotel, Artarmon. While there, Woodman paid $52 for a carton of Victoria Bitter stubbies using his Westpac debit card.”

CCTV footage taken at the Freeway Hotel, Artarmon, is exhibit VD2. It is admitted that it shows the accused in company with another male who purchases a case of VB stubbies. The proof of Anthony Woodman’s purchase of the VB stubbies is contained in the statement numbered 40, a statement of Tony Hasbane, the licensee of the Freeway Hotel at Artarmon, and also by banking records of the Westpac Banking Corporation relating to Anthony Alan Lloyd Woodman. There is no dispute, one would, think that at about 4.55pm on the day in question the accused and Woodman were in the company of each other at the Freeway Hotel, Artarmon and at the time Woodman purchased a carton of VB stubbies using a Westpac debit card.

8. The next paragraph in the coincidence notice contains the Crown’s allegation that about 5pm on 23 September 2013 it was the accused and Woodman who went to the Linwood Lodge with one of them carrying a green carton of beer. The carton of beer can be seen in the CCTV footage taken at the Freeway Hotel. A beer was certainly VB beer and one can see that part of the packaging is the usual VB green and some of the packaging appears to be light blue, perhaps a remnant of a promotion at State of Origin time.

9. Paragraph 2(d) of the coincidence notice is this:

“At about 7.30pm on 23 September 2013, the accused, in company with Ridden, Roche and Woodman, took and drove a Nissan Pulsar registration YTG [582] (“the Nissan Pulsar”) the property of Phillip Brighton.”

There are two statements made by Mr Brighton; the first bears date 23 September 2013 and the second bears date 1 October 2013. There is no dispute from the accused that Mr Brighton’s car was taken without his consent. In his first statement he said that a male about six foot tall demanded that he give him the car keys when he was sitting in the driver’s seat, about to alight from it at his residence. Mr Brighton was also promised that he was not to be hurt. Mr Brighton handed over the keys whilst he was still sitting in the driver’s seat. The man took the keys from his hand and told him to get out of the car. Mr Brighton described this six foot tall man as being thin and wearing dark clothing and having an Australian accent. He also noted two other persons to be present. He described all three of the persons he identified as male.

10. In his second statement he identified a young woman walking along the footpath of the road in which he lives, heading downhill - I infer from what I have read - towards his residence. It struck Mr Brighton as odd that the young woman did not appear to be wearing any shoes. He described her as having long brown hair which reached towards the middle of her back and she also was thought by him to be wearing dark coloured clothing. He also in that statement refers to having seen three males earlier on his journey towards his garage and he believed that those three men were the same three men who confronted him in his garage. He also states in his second statement that he was the owner of a walking stick. At the time he made his statement, he was 72 years old. The walking stick was made of a lightweight metal and was black in colour. He thought it bore a label with his name and address on it. He signed three still photographs taken from CCTV footage exposed at the Revesby Pacific Hotel in which he thought he could identify his walking stick being used by one of the four robbers at that place. In that CCTV footage the use of a walking stick is clear; it appears to be wielded by the shortest of the four persons who committed the robbery. The inference to be drawn is that that was the female, Amanda Ridden.

11. Paragraphs 2(e) to 2(h) contain this matter:

“At about 7.55pm on 23 September 2013, the Nissan Pulsar, driven by the accused, stopped outside the Roseville Cinema, 112 Pacific Highway, Roseville. At [the same time], the accused, in company with Ridden, Roche and Woodman, alighted from the Nissan Pulsar and entered the Roseville Cinema building. The accused was in possession of a sawn-off shotgun and Roche was in possession of a small axe. At [the same time], Roche threatened Michael Sheppard, an employee of the Roseville Cinemas, with the axe and said, ‘Give us the money’. The accused then pointed the sawn-off shotgun at Sheppard, and said words to the effect, ‘Do you want to die?’. At about 8pm [on the same date], the accused re-entered the driver’s seat of the Nissan Pulsar and in company with Ridden, Roche and Woodman, drove it south on Pacific Highway.”

The CCTV footage shows a group of four, all wearing dark clothing with their heads covered and material obscuring their faces, entering the Roseville Cinema from the Pacific Highway, and also, later, leaving the Roseville Cinema by the same doors. There are a number of angles of CCTV taken from within the cinema and they clearly show one offender who it can be inferred was male wielding a sawn-off shotgun who can be distinguished from the three others by the fact that his head is swathed in a white garment or cloth. One can also see another of the group wielding a small axe, hatchet or tomahawk. It is so described variously in different places but I shall hereafter refer to it as a hatchet.

12. An inference can be drawn from the bodily habitus of the man with his head swathed in white that he could be the accused, because one is able to distinguish between him and Woodman from the CCTV footage taken at the Freeway Hotel at Artarmon. One can see a person answering the description of Woodman robbing a patron of the hotel, Mr Barry Price, and the smallest of the three people in the background, presumably Amanda Ridden. The Crown case is that it was Roche who was wielding the hatchet on this occasion.

13. Mr Brighton’s car had affixed to it an E-tag used for paying electronic tolls. The records relating to that E-tag indicate that Mr Brighton’s car passed through the southbound toll detection gates on the Sydney Harbour Bridge at 8.39pm and at 9.09pm passed through toll detection gates on the M5 motorway.

14. The Crown’s coincidence notice then contains par 2(k):

“At 9.21pm on 23 September 2013, the Nissan Pulsar was detected by a fixed speed camera situated on the Hume Highway, Lansvale.”

I have spent six and a half hours reading the documentation put before me by the Crown. I have been unable to find the proof of that allegation but I proceed on the basis that that allegation can be proved.

15. The coincidence notice then continues with pars numbered (l) to (s). It contains these allegations:

“At about 9.58pm…, the Nissan Pulsar, driven by the accused, in company with Ridden, Roche and Woodman entered Blamey Place, Revesby and continued along that road turning left into Macarthur Avenue. At about 9.59pm…, the Nissan Pulsar re-entered Blamey Place and came to a stop before being driven away, then turning left into Macarthur Avenue. At about 10pm…, the Nissan Pulsar re-entered Blamey Place, and was parked. At about 10pm…, the accused, in company with Ridden, Roche and Woodman, alighted from the Nissan Pulsar and entered the Revesby Pacific Hotel. At this time Woodman was in possession of the sawn-off shotgun and Roche was in possession of the [hatchet].

Ridden was carrying a metal walking stick, the property of Philip Brighton, that she had taken from the Nissan Pulsar. While inside the Revesby Pacific Hotel, Woodman and Roche threatened staff and patrons, and the accused demanded money from Marshall Becia, the assistant manager. The accused took an amount of cash from behind the bar within the Revesby Pacific Hotel, including $2,058 in $1 ($1,342.00) and $2 ($716) coins. The accused also took three soft style packets of Peter Stuyvesant brand cigarettes. DNA with the same profile as the accused was found to be present on a soft style packet of Peter Stuyvesant brand cigarettes located in a cash register behind the bar, in the hotel. At about 10.02pm...the accused, in company with Ridden, Roche and Woodman exited the Revesby Pacific Hotel, and re entered the Nissan Pulsar. The accused entered the driver's door and Ridden entered the passenger front door. The accused drove the vehicle down Blamey Place before turning left into MacArthur Avenue.”

There is CCTV footage, as I earlier mentioned, at the Revesby Pacific Hotel. It again shows a group of four entering the hotel, the four having a remarkable resemblance or similarity to the four who entered the Roseville Cinema. Indeed, one of the four, who has a bodily habitus akin to that of the accused and wearing the same remarkable white swathing over his head, is one of those who entered. On this occasion that person appears to be armed with a hatchet. Another male also appeared to have a hatchet. The shortest of the four, who is alleged to be the female Amanda Ridden, was carrying a walking stick and the tallest of the four, who is alleged to be Woodman, was wielding the shotgun.

16. There are some factual errors, as I apprehend it, in the coincidence notice. The offenders in question didn’t seek to gain immediate access to the tills. They demanded from the acting manager, Mr Michael Becia, the keys to the safes. He accompanied them to the manager's office where there were two safes and he told the offenders that he would open the safes but there was a time delay on each, of five minutes. The man with the white swathing over his head is seen to take from within the office a money bag which is alleged to contain the gold coins which were the takings from the pool tables. Next to that bag in the office were three packets of Peter Stuyvesant cigarettes. They were soft packs.

17. The Crown case includes a statement from Gary Dickon, the Regulatory Affairs Manager of Imperial Tobacco. Imperial tobacco is a United Kingdom based company that makes and distributes Peter Stuyvesant brand cigarettes. On 1 December 2012 all tobacco products sold or offered for sale or otherwise supplied in Australia needed to comply with the Tobacco Plain Packaging Act 2011 and the Tobacco Plain Packaging Regulations 2011. The three packets of Peter Stuyvesant cigarettes in the manager's office did not comply with the plain packaging legislation and therefore could not be sold to the public, and one infers, therefore, that they were kept in the manager's office, for some reason or another, to keep them out of the hands of potential purchasers of those cigarettes. As I said, the man with his head swathed in white took those three packages of cigarettes from within the office.

18. Three of the offenders then left the office. Only three of them had entered it. They brought the acting manager, Mr Becia, with them. They made him open the tills. Two tills were opened, the till which took the takings from the TAB outlet and the till used for purchases from the bar. One of the tills had its contents taken by the man with his head swathed in white, who was carrying the bag containing coins from the pool table takings. One can see fall, from either his bag or the arm carrying it, that rested against his body, one of the packets of Peter Stuyvesant cigarettes. That packet fell into the till drawer. It is from that packet of cigarettes that the accused's DNA was obtained. An inference can be drawn, therefore, that the man swathed in white was the accused and that he was the same person who wielded the shotgun at the Roseville Cinema. One of the four offenders remained "on guard", and supervising patrons who had been forced to the floor in the sports bar, while the other three were involved in visiting the office and emptying the two tills to which I have referred. The four then decamped via the entrance by which they had entered.

19. I have not seen the CCTV footage from outside the building but I have been told by both counsel for the Crown and counsel for the accused that the car is present on some of the CCTV footage that was not shown to me earlier this morning.

20. Paragraph 2(t) of the coincidence notice states this:

"At about 11pm on 23 September 2013, the Nissan Pulsar, registration YTG 582, was seen, on fire, on the M J Bennett Reserve, Gowrie Crescent, Westmead."

There are two witness statements relating to the “torching” of the vehicle. They are by Cathy Pearce, who made statement numbered 33, and Joanne Baldwin who made statement numbered 34. There are also photographs of the burnt out car taken on the day after, at the place to which it had been towed. It is clearly the vehicle of Mr Brighton. In her statement, Cathy Pearce said that she could see a man in dark clothing standing in front of the bonnet of the car and it looked as if he were filming the car with his mobile phone. What led her to that conclusion is that she could see that the screen of the phone was illuminated and the man was holding the phone out in front of him with both arms extended. She described that man as being about six foot tall, having fair skin and dressed head to toe in dark clothing. She also noticed a second person standing in the middle of M J Bennett Reserve. Where that person was standing was "quite dark" but she could tell that that person was "significantly shorter" than the man near the car. When the Fire Brigade arrived the man who had been filming the car burning walked away, disappearing behind a tuckshop on the reserve, and the person in the middle of the park "sprinted towards the fence line on the right hand side of the park and out of my view".

21. The next significant statement is that of Ms Melissa Langham. That is numbered 36 and that is followed by a transcript of a re-enactment by Ms Langham of a journey she made on the evening of 23/24 September 2013. As at March 2014 Ms Langham had been in a relationship with Anthony Woodman for five years. They have a daughter together who was born in 2010. At the relevant time they were living apart but still were seeing each other. On 23 September 2013, Anthony Woodman was staying at his father's house in Chatswood, near Boundary Street. About 10.47pm on 23 September 2013 she received two messages from Woodman asking her to call. Eventually Woodman phoned Ms Langham's father, who brought his phone into her room and handed the phone to her. She identified the voice of Woodman who asked her to pick him up from "The Oaks" which was a set of shops in Westmead. She thought it was about a twenty minute drive from her place of abode to that venue.

22. When she arrived there Woodman was in company with three others, two males and a female. One of the males was carrying a bag. To accommodate the four passengers she had to remove from her vehicle a baby seat which would accommodate her daughter, who would have been three and a half years old at the time. In her statement of 17 January 2014 Ms Langham described the female as being of small build. She said that she thought the name of one of the two males, who were not well known to her, was Dan and the other male was called "Bulk". She then gave them a lift to premises at which she stayed for about forty-five minutes.

23. The drive re-enactment revealed more cogent evidence. On that occasion she could identify the males as being Dan and Blake and she told police that she had Blake's contact details on her mobile phone and that she could recognise Blake if she saw him again. She then followed a route that took them to Telopea, where she purchased some "pot", and they then drove to premises which Ms Langham described as "Blake's". She indicated a block of units on the corner of Parkes Road and Hampden Road, Artarmon. On the way there, however, she indicated that on the evening in question she stopped to purchase some petrol before reaching the premises on the corner of Parkes Road and Hampden Road. Part of the interview during the drive re-enactment contained this information:

"A [106] That's where I dropped them, or took them to. Yeah I got out, went into Blake's house, unit, we were there, chilled for a little bit and I was in the lounge room, they were in the bedroom at first and I went in there and then, there was coins on the bed.

Q 107 When you say, coins, what, what denomination of coins?

A Gold coins.

[…]

Q 111 Who was in that room at the time?

A Dan, Amanda and Anthony, actually Anthony was out with me, Dan, Amanda and Blake in the room.

Q 112 And what were they counting, doing the coins?

A Counting them.

Q 113 Can you remember specifically who was doing what at the time?

A Amanda was sitting there counting them...and Blake and...were just sitting there on the end of the bed."

When asked how many coins there were, Ms Langham replied, "like hundreds". The number of the coins made her suspicious. She was then asked to collect from other premises a bag of clothing for Dan and Amanda, so she went to that place with Woodman, who knew where it was. She then drove to the Linwood Lodge Motel on the Pacific Highway at Artarmon. She said further in her interview during the re-enactment that Dan and the girl gave to her and Anthony the key to go to "get their stuff". It was a black backpack containing clothes. She identified the room as being number 333. She was of the belief, which is clearly inadmissible, that the four had been there together. When she went into the room she said there were beer bottles everywhere and she picked them all up. They were VB beer bottles. She tidied the room, used the lavatory, and then dropped Woodman back to "Blake's house", together with the bag of clothing for Dan and Amanda, and she then went home. This forms part of the evidence relied upon by the Crown to support the contention that Woodman and the accused, with the carton of VB beer stubbies, met up with Roche and Ridden at the Linwood Lodge around 5pm, that is, the four participants in the joint criminal enterprise met together prior to the taking of Mr Brighton’s car. She also said in the interview, which was conducted in part during the journey simulation, that a gun had been produced whilst she was at "Blake's house".

24. In a statement made on 29 January 2014 she explained that the male called "Blake" was known by the nickname of "Bulk" because of his bulky or chubby build. She said that she believed that Woodman and Blake went to Chatswood High School together. Parts of her statement contained this matter:

"Some time after first meeting he sent me a friend request on Facebook which I accepted. I never really paid attention to what Blake's surname was, however when you look at my Facebook profile "Melissa Langham" Blake's surname is Weismantel.

The profile picture for Blake Weismantel is the Blake I met through Anthony. Since first meeting Blake, I have only met him [in] person twice after that. The second time was on 21 September 2014 when I picked up Anthony, Blake, Dan and Dan’s girlfriend from Westmead.

The third time according to my text messages was on or about 30 December 2013. David Woodman, Anthony’s brother, also knows Blake, asked me to drive him up to Blake’s address to see Blake. I drove David to the same address in Artarmon that I showed police in the video walkthrough. I saw David meet Blake at the bottom of the unit complex, but I didn’t speak with Blake at this time.”

Annexed to her statement are photographs taken from her mobile phone but they are so small that I cannot make out any image of the accused. Presumably the Crown will provide larger images for the use of the jury and the Court and perhaps also provide information downloaded from Facebook.

25. The evidence of Ms Langham clearly places the accused in a group of four persons, three male and one female, one of whom is very well-known to her, Anthony Woodman, another whom is known to her, albeit only in passing, as the accused Blake Weismantel. The inference to be drawn is that this group of four persons who were picked up after the “torching” of Mr Brighton’s car at Westmead had been travelling in it and were the same group of four who robbed the Revesby Pacific Hotel where the accused’s DNA was found, who robbed the Roseville Cinema at which a number of witnesses identified the registered number of Mr Brighton’s car and perhaps the same three males and perhaps the young female nearby Mr Brighton’s residence, the three males being the persons who took Mr Brighton’s vehicle.

26. Section 98 provides this:

“(1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless:

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and

(b) the Court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) Paragraph (1)(a) does not apply if:

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party.”

Subsection (2) is not presently relevant.

27. The Crown has given a reasonable notice. The notice can be criticised for merely saying that it tends to prove that the accused did particular acts, namely that he was involved in a joint criminal enterprise with three others. However, when one refines that to a joint criminal enterprise conducted by four persons, three male and one female, concerning or using one motor vehicle on the same night, one can see some specificity in the coincidence evidence.

28. I have no hesitation in finding that the evidence that the Crown intends to adduce, together with such other evidence as it has, has “significant probative value”. I am not here concerned with the weight of the evidence or its credibility. I am only concerned with the capacity of the evidence to affect the assessment of the probability of the existence of a fact in issue. The fact in issue is whether the present accused was involved in the crimes alleged in the indictment, relevantly counts 1 and 2, they being the alternative, concerning the taking of Mr Brighton’s vehicle, the third and fourth counts relating to an armed robbery of the Roseville Cinema and an armed robbery of Barry Price, a patron at the Roseville Cinema; the fifth count concerning the armed robbery at the Revesby Pacific Hotel and the sixth count relating to the destruction by fire of Mr Brighton’s motor vehicle. The evidence, as I said, has significant probative value meaning that the evidence is important or of consequence in the proof of the fact in issue.

29. In summary my reasons for so finding are:

1. there are significant similarities between the armed robberies at the Roseville Cinema and the Revesby Pacific Hotel:

1. a group of four offenders,

2. three male and one female (Mr Michael Shepard identifies three men and a “young girl” at the cCinema [statement 3], and Mr Michael Becia [statement 18] and Mr Robert Treanor [statement 23] identified three men and a “female”/”girl” at the hotel.

3. all dressed similarly at each robbery site,

4. one carrying a sawn off shotgun,

5. at least one carrying a hatchet,

6. travelling in a blue Nissan sedan,

7. one the same night;

2. all the crimes alleged involved Mr Brighton’s dark blue Nissan Pulsar sedan, YTG 582, although I have not seen CCTV evidence showing its registered number at the hotel;

3. the route of travel from the cinema (where the registered number was identified) towards the hotel can be traced objectively by toll charges and a fixed speed camera;

4. after the car was “torched”, a group of four, three males and a female, required a lift from near where the car was set on fire (Westmead), to Artarmon, to the accused’s residence, and the driver of the car providing the lift can identify the accused;

5. the accused’s DNA was recovered from a packet of cigarettes dropped by the male with his head swathed in white cloth at the hotel and a male with his head swathed, strikingly, in the same way, wielded the shotgun at the cinema;

6. the bodily habitus of that man is the same at the hotel and the cinema and reassembles that of the accused in the film, admitted to be him, exposed at the Freeway Hotel at Artarmon and as he appears in the dock; and

7. the geographical proximity of:

1. the accused’s residence at Artarmon;

2. the Freeway Hotel at Artarmon;

3. Linwood Lodge at Artarmon;

4. Woodman’s father’s residence at Chatswood;

5. Mr Brighton’s house at Lane Cove, and

6. the Roseville Cinema at Roseville,

leading to an inference that the actions on the night of 23-24 September 2013 commenced and finished at Artarmon.

30. Section 101 of the Evidence Act 1995 is also relevant because it provides that coincidence evidence about an accused that is adduced by the prosecutor cannot be used against the accused unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. In my view, there is no prejudicial effect to the accused if the evidence be admitted as coincidence evidence. True it is that it might tend to persuade the jury of the guilt of the accused. That is not a prejudicial effect in the evidence. What the law is concerned about is the misuse of the evidence by the jury and I find it difficult to see in the circumstances of this case that the evidence could be unfairly used by the jury. After all, it is conceded by the accused that the evidence is, in any case, all otherwise admissible. I therefore grant leave to the Crown to adduce the evidence relied upon as coincidence evidence.

Decision last updated: 16 May 2016