Citation: R v Weismantel (No 1) [2015] NSWDC 122
Court: District Court of New South Wales
Date: 22 June 2015
Judge(s): Neilson DCJ
Background
The accused faced an indictment containing multiple counts arising from a series of violent offences committed on the night of 23 to 24 September 2013. The counts included the taking of a motor vehicle belonging to a 72-year-old victim (Mr Brighton), armed robberies at the Roseville Cinema and the Revesby Pacific Hotel, the armed robbery of a patron, and the destruction by fire of Mr Brighton's car. The Crown alleged that the accused participated in a joint criminal enterprise with three others, two males and a female, and that the same group was responsible for all of these offences.
The Crown applied under section 98 of the Evidence Act 1995 for leave to adduce coincidence evidence, seeking to use the evidence relating to each separate count as evidence on every other count. The defence did not contest the individual admissibility of the evidence, and did not seek severance of the counts, but opposed the Crown using the evidence as coincidence evidence specifically, which would allow it to carry cross-count weight before the jury.
Legal Issues
- Whether the Crown had given reasonable notice of the coincidence evidence as required by section 98 of the Evidence Act 1995.
- Whether the coincidence evidence had "significant probative value" for the purposes of section 98.
- Whether, under section 101 of the Evidence Act 1995, the probative value of the evidence substantially outweighed any prejudicial effect it may have on the accused.
Decision
Issue 1: Reasonable Notice
The court accepted that the Crown had given reasonable notice of the coincidence evidence through the coincidence notice forming part of exhibit VD1. Neilson DCJ acknowledged that the notice could be criticised for broadly stating that the evidence tended to prove the accused's involvement in a joint criminal enterprise, but found that, when refined to a joint criminal enterprise conducted by four specific persons using one motor vehicle on the same night, there was sufficient specificity (at [27]).
Issue 2: Significant Probative Value
The court had no hesitation in finding that the Crown's evidence had "significant probative value" within the meaning of section 98 (at [28]). The court was not assessing the weight or credibility of the evidence, but only its capacity to affect the probability of a fact in issue, namely whether the accused was involved in the charged offences (at [28]).
Several interlocking strands of evidence supported this conclusion. The accused's DNA was obtained from a packet of Peter Stuyvesant cigarettes that fell from the robber's bag during the Revesby Pacific Hotel robbery (at [18]). CCTV footage and the bodily habitus of the man with his head swathed in white supported the inference that person was the accused (at [12]). Ms Langham's evidence placed the accused in a group of four persons who were picked up from Westmead after the torching of Mr Brighton's car (at [25]). E-tag records showed Mr Brighton's car passing through toll gates on the Sydney Harbour Bridge at 8:39pm and on the M5 motorway at 9:09pm on the night in question, consistent with the Crown's narrative of the group's movements (at [13]).
Issue 3: Prejudicial Effect under Section 101
The court found no relevant prejudicial effect to the accused from admitting the evidence as coincidence evidence (at [30]). Neilson DCJ distinguished between evidence that might persuade a jury of guilt, which is not a prejudicial effect in the relevant legal sense, and the unfair misuse of evidence by a jury. In circumstances where the accused had conceded that all of the evidence was otherwise admissible, the court found it difficult to identify any basis on which the jury could unfairly use the evidence (at [30]).
Orders Made
- Leave granted to the Crown to adduce the evidence relied upon as coincidence evidence.
Key Takeaways
- Under section 98 of the Evidence Act 1995, coincidence evidence will be admitted where it has "significant probative value"; the court's task at that stage is to assess the capacity of the evidence to affect the probability of a fact in issue, not to weigh its credibility or ultimate persuasive force (at [28]).
- A coincidence notice need not achieve perfect specificity provided it identifies, with reasonable particularity, the nature of the joint enterprise alleged; general language can be rescued by the underlying facts narrowing the inference to a specific group acting in a specific way on a specific occasion (at [27]).
- Under section 101 of the Evidence Act 1995, the prejudice that must be weighed against probative value is the risk of the jury misusing the evidence, not the ordinary persuasive effect that properly admitted evidence has on a jury's assessment of guilt (at [30]).
- Where an accused concedes that all of the Crown's evidence is otherwise individually admissible, that concession bears directly on the section 101 balancing exercise and militates against a finding of unfair prejudice from admitting the same evidence in coincidence form (at [30]).
- Physical trace evidence such as DNA, combined with CCTV footage, electronic toll records, and witness identification evidence, can collectively satisfy the significant probative value threshold for coincidence evidence even where no single item of evidence is conclusive on its own (at [18], [12], [13], [25]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995
- Criminal Procedure Act 1986
Cases
- O’Leary v The King (1946) 73 CLR 566