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District Court 12 August 2008

R v Bryant

[2008] NSWDC 346

Theft & propertyFirearms & weaponsPublic order & justice offences
CRIMINAL LAW EVIDENCE PROPENSITY, TENDENCY AND CO INCIDENCE ADMISSIBILITY AND RELEVANCE TENDENCY AND CO

Citation: R v Bryant [2008] NSWDC 346
Court: District Court of New South Wales
Date: 12 August 2008
Judge: Bennett SC DCJ

Background

The accused faced nine counts on a single indictment arising from a series of armed robberies and related offences committed across regional New South Wales between April 2006 and April 2007. The offences included five armed robberies (at fast-food restaurants and a services club), two counts of break and enter with intent, one count of being armed with intent to commit robbery, and one firearms possession charge. In each of the armed robbery counts, the weapon alleged was a sawn-off shotgun.

Before the jury was empanelled, two pre-trial applications came before the court. The accused sought to have each count tried separately. The Crown sought leave to adduce evidence from each of the charged offences on the other counts, plus evidence from a further guilty-plea robbery (Mittagong, April 2007) and two uncharged ACT robberies (Belconnen, March 2007), as tendency and coincidence evidence under the uniform evidence law.

The Crown also sought to rely on evidence gathered at the time of the accused's arrest in Queanbeyan on 23 April 2007, including items found on his person, in his vehicle, and at his home, as circumstantial evidence connecting him to the charged offences.

  • Whether the evidence from the other charged offences, the guilty-plea offence, and the uncharged ACT offences was admissible as coincidence evidence in relation to Counts 1 to 7
  • Whether evidence from the Mittagong guilty-plea offence was admissible as tendency evidence in relation to Count 8 (being armed with intent to commit robbery)
  • Whether evidence of the accused's arrest and the search of his person, vehicle, and home was admissible as circumstantial evidence linking him to the offences in Counts 1 to 8
  • Whether the indictment should be severed so that each count was tried separately

Decision

The court found that the points of similarity across the charged and uncharged offences were sufficiently striking to satisfy the requirements for coincidence evidence under the Evidence Act 1995. The methodology employed, clothing worn, and equipment used in each offence were compared in a detailed Comparison Chart accompanying the judgment. The court was satisfied the evidence of those shared features was capable of establishing that the offences were related events, making it irrational to conclude they were mere coincidence.

For Count 8, the court admitted evidence of the Mittagong armed robbery (to which the accused had pleaded guilty) as tendency evidence. That evidence was capable of demonstrating that the accused had a tendency to be armed with a sawn-off shotgun while intending to commit robbery, which was directly relevant to the mental element of that count.

Evidence of the circumstances of the accused's arrest, including his attire, items found on his person, and items located in his vehicle and home (notably bank bags identified as coming from the Belconnen robberies) was admitted as circumstantial evidence. This evidence was capable of supporting an inference that the accused was responsible for the charged offences and that the series of offences were related.

On the severance application, the court refused to order separate trials. Applying section 29 of the Criminal Procedure Act 1986, the court was satisfied the offences formed a series of the same or similar character and arose from a related set of circumstances. The court was not persuaded that the accused would be prejudiced or embarrassed in his defence by the joint trial, provided the jury received appropriate directions to consider each count separately on the relevant evidence.

Orders Made

  • The application for separate trials on each count was refused
  • The Crown was permitted to adduce coincidence evidence in relation to Counts 1 to 7, including:
  • Evidence of methodology, clothing, equipment, and characteristics observed across those counts
  • Evidence of the Mittagong robbery (guilty plea) methodology and equipment
  • Evidence of methodology, clothing, and characteristics from the two Belconnen robberies (March 2007)
  • The Crown was permitted to adduce evidence of the arrest and search of the accused on 23 April 2007 (person, vehicle, and home) as circumstantial evidence in relation to Counts 1 to 7
  • In relation to Count 8, the Crown was permitted to adduce:
  • The same arrest and search evidence as circumstantial evidence going to intent
  • Tendency evidence from the Mittagong robbery (guilty plea)

Key Takeaways

  • The District Court confirmed that coincidence evidence under the Evidence Act 1995 can be drawn from a combination of charged offences, offences to which an accused has already pleaded guilty, and uncharged offences, provided the evidence is capable of establishing the events were related and not coincidental.
  • A guilty-plea offence can serve as the foundation for tendency evidence on a separate, contested charge where the facts of that offence are directly probative of an element of the contested charge.
  • Where an accused is arrested in circumstances that connect them to a series of offences, evidence of that arrest and associated search can be admitted as circumstantial evidence across multiple counts, not merely the count arising from the arrest itself.
  • Under section 29 of the Criminal Procedure Act 1986, joint trials are appropriate where offences form a series of the same or similar character, and severance will not be ordered simply because the accused faces multiple counts, absent demonstrated prejudice to the defence.
  • The court noted that careful jury directions are required in joint trials, instructing the jury to consider each charge separately on the relevant evidence and to avoid a global approach to their deliberations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 97(2), 113(1), 114(1)(a)
- Criminal Procedure Act 1986 (NSW), ss 21(2), 29(1), 29(3)
- Evidence Act 1995 (NSW)
- Firearms Act 1996 (NSW), s 7(1)

Cases
- Pfennig v R (1995) 182 CLR 461
- R v De Jesus (1986) 68 ALR 1
- R v Ellis (2003) 58 NSWLR 700
- R v Folbigg [2002] NSWSC 1127
- R v Lockyer (1996) 89 A Crim R 457
- R v Martin [2000] NSWCCA 332
- R v Mason [2003] NSWCCA 331
- Samadi & Djait v R [2008] NSWCCA 330
- Sutton v R (1984) 152 CLR 528