Bryant v R

Judgment 1McCLELLAN CJ at CL : I agree with Howie AJ. 2SIMPSON J : I agree with Howie AJ. 3HOWIE AJ : This is an appeal against conviction following a trial by jury in the District Court of an indictment containing eight counts. The appellant was represented by counsel at trial but was unrepresented on the hearing of the appeal. He has conducted the appeal by way of written submissions to which he did not wish to add any oral argument at the hearing in this Court. The submissions on which the appellant relies are set out in a handwritten document of 25 pages. The submissions are clear, rational and precise and the appellant appears to be intelligent. The Crown filed lengthy written submissions in reply and did not wish to add to those submissions at the hearing of the appeal. 4Although the applicant apparently has no legal training, he has some awareness of the rules of this Court because he addresses rule 4 of the Criminal Appeal Rules in his written submissions and argues for the grant of leave for matters that were not raised by his trial counsel. He quotes from authorities of this Court that discuss when leave should be granted to an appellant to rely upon a point not taken at trial. 5The indictment upon which the appellant was tried alleged that the appellant committed the following offences: Count 1: On 29 April 2006, at Marulan in the State of New South Wales, did rob Sean Whitby of certain property, namely, two thousand and eighty dollars cash, the property of Jack Cowen trading as Hungry Jack's whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun. Count 2: On 24 May 2006, at Marulan in the State of New South Wales, did rob Phillip Caffery of certain property, namely, one thousand dollars cash, the property of Saint Marinas Pty Ltd trading as Kentucky Fried Chicken whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun. Count 3: On or about 2 January 2007, at Marulan in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at George Street with intent to commit a serious indictable offence therein, namely, to steal. Count 4: On 2 January 2007, at Yass in the State of New South Wales, did break and enter the Kentucky Fried Chicken Restaurant situated at Yass Valley Way with intent to commit a serious indictable offence therein, namely, to steal. Count 5: On 15 January 2007, at Yass in the State of New South Wales, did rob Joanne Garner of twenty seven thousand dollars cash, the property of Chekah Pty Ltd trading as McDonald's Family Restaurant whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun. Count 6: On 26 February 2007, at Goulburn in the State of New South Wales, did rob Sancha Waters of four thousand dollars cash, the property of Kisumu Pty Ltd trading as McDonald's Family Restaurant South Goulburn whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun. Count 7: On 9 April 2007, at Moss Vale in the State of New South Wales, did rob Karen Casser of thirty thousand nine hundred and twenty dollars cash, the property of Moss Vale Services Club Ltd whilst being then armed with a dangerous weapon, namely a sawn off .410 gauge single barrel shot gun. Count 8: On 23 April 2007, at Queanbeyan in the State of New South Wales, was armed with a weapon, namely a sawn off .410 gauge single barrel shot gun, with intent to commit an indictable offence, namely, robbery whilst armed with a dangerous weapon. Count 9: On 23 April 2007, at Queanbeyan in the State of New South Wales, did possess a shortened firearm that was not a pistol, without being authorised to do so by permit. 6Before the jury was empanelled, Bennett DCJ, the trial judge, heard an application by defence counsel for separate trials of each of the counts on the indictment. The Crown opposed the application on the basis that evidence in respect of each of the counts was said to be admissible in respect of each of the other counts by way of tendency, coincidence or circumstantial evidence. 7The Crown also wanted permission to lead evidence of other armed robbery offences not charged in the indictment. Two of these uncharged offences occurred in the Australian Capital Territory, being at Belconnen on 8 March 2007 and 23 March 2007. The third offence was an armed robbery that took place at Mittagong, being an offence to which the appellant had already pleaded guilty in separate proceedings. Again the Crown asserted that the evidence relevant to these three offences was admissible as tendency and coincidence evidence to prove each of the counts on the indictment. 8There was a voir dire hearing before the trial judge during the course of which the Crown tendered a large number of documents including witness statements, images obtained from footage of various security videos and an ERISP with the accused. In his judgment refusing the application for separate trials, the Judge particularises the various exhibits that he considered in respect of each of the charges on the indictment and the three additional armed robbery offences: see R v Bryant [2008] NSWDC 346. 9Before the jury were empanelled the Judge made the following relevant orders, as subsequently amended by him: