R v Neal

Statement of Agreed Facts - Exhibit A

1. The Crown tendered by consent a Statement of Agreed Facts pursuant to s 191 of the Evidence Act 1995. The agreed facts are as follows.

"Insignia Hair and Day Spa

1. On 6 September 2018, Melissa Byrne was working at the Insignia Hair and Day Spa at 14/69 York Road, Penrith. She was the Manager. The day spa is in the upstairs area above the Anytime Fitness Centre. The normal operating hours for the store on a Monday are 10.00am until 4.00pm, Tuesday is 10.00am until 6.00pm, Wednesday and Thursday are 9.00am until 9.00pm, Friday is 9.00am until 6pm and Saturday is 8.00am until 3pm. On 6 September 2018 she started work at 2.00pm.
2. At about 8pm she was sitting at the front desk of the Day Spa. There were three other employees working at this time as well as Melissa Byrne and there were some customers. At this time Melissa Byrne saw a man walk into the store. The man was wearing a matt black motor cycle helmet. The man approached her and said "Give me your money" and she said "what?". The man said "Give me all your money or ill stab or shoot you with this." While he was speaking he reached into his jacket although Melissa Byrne did not see any weapon at this time. Melissa Byrne then said "Well come around and get it."
3. The man then walked around the counter and Melissa Byrne opened the cash register. The man then began removing money from the register. $677 was stolen by him. While the man was behind the counter he tried to take two mobile phones that were on the desk. Melissa Byrne managed to wrestle the phone from his grip. The man said "Fuck you." The man then walked from the day spa and went down the stairs and left. A client who was in the day spa then rang the NSW Police. Melissa Ryan accessed the CCTV in the day spa and gave this to NSW Police officers.
4. One of the employees at the day spa at this time was Alix Smithard. She had just started to cut a client's hair when she saw the man walk in. She describes him as wearing a black coloured helmet which had a clear plastic shield in the front. She saw him approach the counter but she could not hear what was being said. She did however hear the man say "Fuck off" and she saw him run towards the stair well and leave.
5. About 5 seconds after the man ran down the stairs, Alix Smithard ran down the stairs to see where the man went. She saw the man sitting on a motor cycle and the registration of the motor cycle was BCY-[xx]. She then saw the man on the motor cycle ride away and exit onto Batt Street.
6. Crime Scene police examined the cash register till, the counter surface adjacent to the till and a pink iphone case, to see whether they could recover any DNA. An expert forensic scientist found that the DNA recovered was not able to be analysed.

Rawson Ave Penrith and Methylamphetamine

1. On 6 September 2018, Oliver Scroope was at his home, ie [x] Rawson Ave Penrith. He lived there with his father James Scroope, his grandmother Hatida Ekmescic and his brother Ben Scroope. In the afternoon of 6 September 2018 he had closed the door to his grandmother's bedroom as she was staying at his Uncle's house that night.
2. At about 9.00pm Oliver Scroope was in his bedroom listening to music on his headphones. Ben Scroope was in his own room and the father was not at home at this time. At about 9.00pm Oliver Scroope heard the sound of the front door ringing. The doorbell rang more than once. Oliver Scroope thought that his brother Ben would open the door. About two minutes later Oliver Scroope heard a banging noise. He took off his headphones and walked out of his room and into the hallway. When he got into the hallway he heard some movement coming from his grandmother's bedroom. His grandmother's bedroom is directly next to his bedroom. He saw that the door to his grandmother's room was open.
3. Oliver Scroope walked to the doorway of her bedroom and looked into his grandmother's bedroom. He saw a man standing in the room. The man was wearing a black motorcycle helmet. The helmet had a visor which was open.
4. Oliver Scroope saw the man going through his grandmother's chest of drawers. Oliver Scroope observed him for about 10-20 seconds. Oliver Scroope said to his brother, "Call the police. Someone's here that we don't know."
5. Ben Scroope called the police. At some stage Oliver Scroope saw the man standing in the hallway. He saw the man holding a drawer in his hand.
6. The man then ran through the hallway and out towards the kitchen area. Shortly after, NSW police officers arrived. Oliver Scroope told the police officers what he had observed. Police found a drawer directly outside the kitchen side door, ie on a wooden deck. The drawer contained some dvd's and some other personal items which were spilled out onto the deck. Oliver Scroope recognised the drawer as one from his bedside chest of drawers.
7. NSW police also found a clear plastic bag with a crystal substance inside, near the kitchen side door. The clear plastic bag and the crystal substance were analysed by expert forensic scientists. The accused's DNA was found on the inside and outside of the seal area of the plastic bag. The crystal substance was found to be 27.7 grams of methylamphetamine.
8. Crime Scene police examined the doorbell, the internal handle of the back door and the drawer handle and knob at the back door, to see whether they could recover any DNA. An expert forensic scientist found that either the DNA testing was unsuccessful or that the DNA recovered was not suitable for analysis. The DVD cover was examined for fingerprints but the print obtained contained insufficient details for any analysis.

Motor cycle collision

1. On 15 September 2018 NSW police investigated a motor cycle collision on Cassola Place, Penrith. The motor cycle was a black Honda motor cycle with a registration plate which at first appeared to read as BOY [xx]. However, on closer examination the true registration plate was in fact BCY [xx].
2. Investigations by NSW police found that registration plate BCY [xx] was owned by Evan Ulbricht, who was the owner of a Yamaha motor cycle. Evan Ulbrict advised police that his registration plate had been stolen from his motor cycle, which had been parked at Penrith Railway Station, early on 6 September 2018.
3. The driver of the black Honda motorcycle on 15 September 2018, was Robert Weyman. He had run away from the collision but police found him not far from Cassola Place. He was injured and was taken to Nepean hospital. At Nepean hospital police seized Robert Weyman's property which included a black motor cycle helmet with a clear visor as well as a pair of gloves which were predominately black and blue, with some bright coloured parts.
4. Crime Scene police examined the black motor cycle helmet and the gloves. The DNA recovered from a swab of the interior mouth/chin area of the helmet, is a mixture that originates from at least two individuals. The DNA of Robert Weyman was recovered and was the major contributor to the mixture. The DNA recovered from the minor contributor was not suitable for analysis due to the low level of DNA recovered. The inner palm area of the right glove was analysed and the DNA of the accused and Robert Weyman was recovered.
5. Investigations by NSW Police reveal that Robert Weyman was in custody on 6 September 2018.
6. At 12pm on 15 October 2018, Detective Tyler Ryan and some other police officers, went to [xx] Parker St Kingswood, where the accused's partner, Karen Day lived. Upon walking towards [xx] Parker St, Kingswood, Detective Ryan found a white hospital wristband, from Nepean Hospital, in the name of Robert Weyman. The wristband was found on the ground, about 3-5 metres from the common driveway of [xx] Parker St. The wristband was photographed and seized. A short time later he knocked on the door of [xx] Parker St Kingswood. At this time Detective Ryan saw Robert Weyman outside of these premises.

The Chicken Run Cranebrook

1. Bassam Abu Mansour is the owner of The Chicken Run shop at 7/80 Borrowdale Way, Cranebrook, which is a takeaway store located within the Cranebrook Shopping Centre. At the close of business on 3 October 2018, the shop was locked and secured by one of the employees of the shop, ie Imran Dip.
2. At about 9.00am on 4 October 2018 one of the staff members attended the shop and entered through the front door. He realised that the cash register was missing. $870 was stolen from the cash register. The drawer to the cash register was also stolen. CCTV footage from the shop was given to police.

Search warrants

1. On 11 October 2018 police lawfully searched [xx] Parker St Kingswood. Police had a search warrant for the premises.
2. NSW Government transport records show that the accused is the holder of a licence in his name and his address is listed as [xx] Illawong Ave, Penrith. On 11 October 2018 police lawfully searched [xx] Illawong Ave, Penrith. Police had a search warrant for the premises." (sic).

Evidence of Melissa Byrne

1. The first witness called in the Crown case was Melissa Byrne, who in September 2018 was working as the manager of the Insignia Hair and Day Spa at Penrith. She commenced her shift at 2pm and at around 8pm was at the front desk of the salon. At around 8pm, a man walked into the salon wearing a motorcycle helmet. She gave evidence that he was wearing a black North Face jacket, some green cargo pants, shoes that were like Converse or Adidas and also blue and black gloves. He said, "Give me your money", and "give me all your money or I'll stab or I'll shoot you with this".
2. Ms Byrne was sitting at her desk and gave evidence that she felt shock. As he said those words, he pointed to his jacket on the left hand side and she said to him, "Well come around and get it". The man then walked around the counter and opened the cash register and stole $677. He also tried to take some mobile phones which were on the reception desk, however, Ms Byrne managed to wrestle them from him and he left the salon.
3. CCTV footage taken inside the salon was played, which became part of Exhibit C.
4. In cross-examination, Ms Byrne clarified that the North Face she referred to was the brand name of the jacket and there was insignia or something on the jacket to that effect. It was on the left hand side of the jacket.

Evidence of Alix Smithard

1. Ms Smithard gave evidence that on the evening of 6 September 2018, she was working at the Insignia Hair and Day Spa and had just started to cut someone's hair when at about 10 minutes past 8pm, a man came into the salon wearing a black motorcycle helmet. She gave evidence that she did not hear him say anything, however, she saw him walk around the reception bench. She observed him to try to snatch a phone from Melissa Byrne then heard him say, "Fuck you" or "Fuck off" and then left the salon, running down the stairs.
2. Ms Smithard gave evidence that she followed him downstairs to the car park where she crouched behind a car and saw him leaving on a motorcycle. She got the number-plate and then ran upstairs where she wrote the registration number down. It was BCY-[xx]. She identified herself in the CCTV footage played of the entrance area to the salon (Exhibit C).
3. In cross-examination, she gave evidence that she told police the man was wearing cargo style pants which were khaki in colour.
4. Exhibit B was entitled "Judge Alone Exhibit Book" and comprised a copy of the Indictment with twenty exhibits adduced into evidence by consent numbered Exhibits B2 to B21.

Evidence of Oliver Scroope

1. Consistent with the agreed facts, Mr Scroope gave evidence that on 6 September 2018 he was living at premises at Penrith owned by his father, James Scroope. His grandmother and his brother also lived there. At 9pm that night he was listening to music in his bedroom through headphones. He heard the sound of the front doorbell ring, and heard a banging noise. He then walked out of his bedroom into the hallway and heard some movement from his grandmother's bedroom. When he looked into her bedroom he saw a man in her room wearing a black motorcycle helmet with the visor open. He described him as wearing "a black like jacket and pants". After refreshing his memory from his police statement, he described the male as wearing a "black puffy jacket and had black gloves on his hand."
2. Mr Scroope gave evidence that he then went to his brother's room and told him to call the police. He then went into his own room and grabbed a baseball bat before going back to his brother's room. He observed the man in the motorcycle helmet to then go into his room. He walked out into the hall and yelled at the man to leave. The man disappeared down the hall towards the kitchen door that led outside. By the time Mr Scroope got to the kitchen, the man had left.
3. Mr Scroope gave evidence that shortly thereafter the police arrived and they found a drawer outside the kitchen side door which had come from his bedside chest of drawers. He drew a sketch of the premises which became Exhibit B2.
4. The attending police exposed a body worn video during their attendance. That video was played to the court and Mr Scroope identified the places in the home shown in the video. That video comprised part of Exhibit C.
5. In cross-examination, Mr Scroope was asked whether he was asked by police to provide a sample of his DNA and said, "I don't think so". He also identified the location of his father's bedroom.

Evidence of Sergeant Simon Kleyn

1. By consent, the Statement of Sergeant Kleyn became Exhibit D. On 15 September 2018, he was working in a highway patrol vehicle and responded to a police radio broadcast to attend a motorcycle collision at Cassola Place, Penrith at 6.30am. On his way to the scene of the accident, he heard another radio broadcast that police were attempting to catch the rider of the motorcycle who had run from the scene into a nearby business. Sergeant Kleyn attended that business where police had detained Robert Weyman. He was wearing grey tracksuit pants, a grey tracksuit top and black running shoes. Mr Weyman was taken to an ambulance for treatment to his wrist and Sergeant Kleyn observed a police officer picking up a dark coloured motorcycle jacket which was on the ground within the property. He then attended the scene of the accident at Cassola Place, where he observed the Honda motorcycle with registration plates BCY-[xx] affixed to the rear of the motorcycle. He observed that the capital C was altered with black texta to resemble the letter 'O'. A search of the area revealed a black coloured full face motorcycle helmet with a clear visor which was heavily scratched and broken on one side.
2. Sergeant Kleyn gave evidence confirming his observations of the registration plate on the motorcycle. He identified photos of that motorcycle in Exhibit B20. He also confirmed a photograph of the motorcycle helmet taken by him at Exhibit B14.
3. In cross-examination, Sergeant Kleyn gave evidence that he wore gloves when he retrieved the helmet and gave it to other police.

Evidence of Senior Constable Michael Smith

1. Senior Constable Smith gave evidence that at 9.20pm on 6 September 2018, together with other police, he responded to a police radio broadcast to attend premises at Rawson Avenue, Penrith. When he arrived, other police officers were already there and Sergeant Jones was speaking to a male occupant of those premises. Senior Constable Smith gave evidence that he walked down the left side of the house on the property to make sure there was no one in the backyard. He saw Senior Constable Colburn standing on a patio next to a doorway with his short torch shining on a clear resealable bag with a white substance on it, which was located on the ground at the rear doorway to the premises. Senior Constable Smith exposed his body worn video, which was part of Exhibit C, and identified Senior Constable Colburn at the location and Sergeant Jones approaching the doorway. The footage showed the police officer putting on latex gloves and picking up the resealable plastic bag. The body worn video, which had no audio, showed the occupant of the house with some other police officers.
2. In cross-examination, Senior Constable Smith gave evidence that at no time did he put on latex gloves whilst he was at the house.

Evidence of Senior Constable Phillip Colburn

1. Senior Constable Colburn was rostered on general duties at Penrith Police Station at 6 September 2018. He heard a broadcast on police radio at about 8pm in relation to an alleged robbery at a hairdressing salon. At 9.30pm, he heard another broadcast about an alleged break and enter at Rawson Avenue, Penrith. He arrived at those premises shortly after 9.30pm and there were other police officers already present. He observed Sergeant Jones to be speaking to the occupant and Senior Constable Colburn walked to the left hand side of the house. On a wooden deck outside the rear door to the premises, he observed a wooden drawer with some items spilled out. He opened the screen door and in between the screen door and the wooden door, he observed a clear bag with a crystal substance inside. He heard Sergeant Jones opening that door from the inside of the premises and as soon as the door opened he pointed out the bag to him. Sergeant Jones advised him to leave it in place. Constable Smith attended with the body worn video camera and recorded the scene. Senior Constable Colburn gave further evidence that Sergeant Jones told him that Detectives had been contacted and a crime scene was established.
2. Senior Constable Colburn identified a photo of the resealable plastic bag with the white crystal substance at Exhibit B19 in the location where he found it to the doorway to the premises. There was no cross-examination.

Constable Thomas Verhelst

1. Constable Verhelst gave evidence that on 4 October 2018 at about 10.30am he attended Cranebrook village shopping centre with Senior Constable Hattch in response to a message on police radio of an alleged break and enter at the chicken run shop. The owner of the shop showed him CCTV footage from cameras inside the shop which he placed onto a USB device. That footage was part of Exhibit C and was played to the court. It showed at 2.36am a motorcycle with a rider and pillion passenger stopping outside the shop and the rider breaking into the shop and then leaving it. The rider was wearing dark clothing and a motorcycle helmet with visor. There was no cross-examination.

Evidence of Senior Constable Bethany Elder

1. Senior Constable Elder has, since 2015, been attached to the fingerprint operations branch of the NSW Police Force and there was no issue as to her qualifications. She prepared two statements, Exhibit E was a statement dated 18 February 2019 and Exhibit F was a statement dated 19 February 2019. The first statement detailed work she carried out at premises at Rawson Avenue, Penrith. She had been advised by the Officer in Charge that the offender was wearing gloves at the time of the offence on 6 September 2018. During the course of her examination, she developed two separate areas of fingerprints relating to the wooden drawer left at the back exit of the property, which she labelled and photographed. She also swabbed three areas of the back door for trace DNA analysis, namely, the doorbell, the internal handle of the back door and the handle/knob at the back door.
2. In her statement dated 19 February 2019, Senior Constable Elder set out her attendance at the Insignia Hair and Day Spa at Penrith on 6 September 2018 at 10.02pm. She reviewed the CCTV footage which clearly showed the offender wearing gloves and did not conduct an examination for fingerprints. She did, however, swab three surfaces for trace DNA analysis. Namely, the cash register till, the counter surface adjacent to the till and an iPhone pink case. Photographs of the premises were identified in Exhibit B15.
3. In cross-examination, Senior Constable Elder explained the process of taking a swab. She gave evidence that only one swab was used to conduct a search for trace DNA in each area.

Evidence of Senior Constable Benjamin Collings

1. The Statement of Senior Constable Collings dated 16 April 2018 by consent became Exhibit G. He gave evidence that he was rostered on general duties on 15 September 2019 when he attended with other police officers an industrial property where he observed Senior Constable McAlpine and Sergeant Kleyn with a male in custody. The male refused to supply his name and Senior Constable Collings gave evidence that a number of items belonging to the male were seized, including one black and yellow motorcycle jacket, one black and green backpack containing a number of items and a set of gloves which were blue and black in colour. The male was taken to Nepean Hospital and placed under guard. He was identified there as Robert Weyman. The items seized were handed to the Officer in Charge.
2. In cross-examination, Senior Constable Collings confirmed that hospital staff had located a clear plastic bag with a small satchel of white powder secreted on Mr Weyman. In re-examination, he gave evidence that he did not know whether the contents of that plastic bag were subject to forensic analysis.

Evidence of Sienna Heidi Collins

1. Ms Collins is employed at the Forensic Biology DNA lab of the NSW Health, Pathology, Forensic and Analytical Science Service. Her qualifications as a forensic biologist were not challenged. She prepared two expert certificates, the first headed "Alleged Armed Robbery at Insignia Hair and Day Spa, South Penrith". Her certificate detailed certain DNA swabs she received on 11 September 2018.
2. Ms Collins gave evidence that she also received swabs from the inside and outside of a sealed area of a resealable plastic bag. In relation to the swabs received from the Insignia Hair and Day Spa, no match was achieved. A similar result occurred in respect of swabs received from the internal handle and other parts of the back door of the premises at Rawson Avenue.
3. Ms Collins gave evidence that the result of her examination of the swab of the inside and outside of the sealed area of the resealable plastic bag, the partial DNA profile recovered had the same profile as Daniel Shane Neal. On 18 October 2018 she had received buccal samples from Mr Neal.
4. Ms Collins gave evidence that "it is greater than one hundred billion times more likely to obtain this profile if it originates from Daniel Shane Neal rather than if it originates from an unknown, unrelated individual in the Australian population."
5. Ms Collins gave evidence that her second certificate related to the "alleged resist/hinder assault at Cassola Place, Penrith". She gave evidence that on 21 September 2018, she had received a tape lift of the inner palm area of the right glove, referred to as "MXF pro rider glove". Ms Collins gave evidence that her testing showed "the DNA recovered is a mixture that originates from at least four individuals and Robert John Weyman and Daniel Shane Neal cannot be excluded as contributors to this mixture." She went on to state: "Assuming there are four contributors, it is greater than one hundred billion times more likely to obtain this mixed profile if it originates from Robert John Weyman, Daniel Shane Neal and two unknown, unrelated individuals, rather than if it originates from four unknown, unrelated individuals in the Australian population."
6. Ms Collins gave further evidence that swabs she had received from the interior mouth and chin area of the black motorcycle helmet resulted in the mixture that originated from at least two individuals, the major contributor having the same profile as Robert John Weyman.
7. In cross-examination, Ms Collins was asked about the four DNA profiles located on the mxf pro rider glove. She agreed that she could not say which of those profiles was put on the glove first, or when each contributor in fact contributed to that profile. She gave further evidence that she could not say the circumstances in which that contributor came to be a part of the mixed profile.
8. Ms Collins gave the following evidence about transference of DNA: "Q. I want to ask you some questions about transference and before we get there I'll ask you this. In respect to the contributors to the profile, and there are four of them, it could be that one of those persons has caused their own plus three others to be on that particular surface? A. Yes, that's possible. Q. If I could just run this scenario past you? Person A, B, C and D - and I'll firstly deal with person A and B. Person A pours a drink for person B, in doing so holds onto the cup that's filled up with the drink. A. Yes. Q. Person A then passes the cup to person B. A. Yes. Q. It's possible that person A has left some type of biological material upon the cup as it's handed to person B? A. Yes, that's correct. Q. It could be, say, skin cells in this case, is that correct? A. Yes, that's correct. Q. It may be that person A in fact does not deposit any skin cells or other biological material upon the cup, is that possible too? A. Yes, that is correct. Q. Assuming that person A's biological material was on the cup and person B picks up the cup and drinks from it, it's possible that person A's DNA material gets onto the hand of person B, is that possible? A. Yes, that would be an example of indirect transfer of DNA. Q. Could you give us an example of direct transfer of DNA, please? A. Yes. Direct transfer is when DNA is transferred from the source of the DNA, for example, person A onto a cup that that person has touched, that would be direct transfer and the factors that affect direct transfer would be the amount of starting material on the hands and the amount of DNA available for transfer and the length and the nature of the contact with the glass and the nature of the surface of the cup, whether it's a smooth, hard surface or a rough surface. So those factors can affect the likelihood of transfer of DNA directly onto the cup. If then that cup is touched by a second person there could be an indirect transfer of person A's DNA and that simply means that the cup is acting as an intermediary, so a second step of transfer of the DNA. So it's gone from the source of the DNA to the cup and then from the cup to another person, that's two steps and that's secondary transfer, it is an example of indirect transfer and the factors that affect indirect transfer are the number of transfer steps. So, for example, two steps to secondary transfer onto person B's hand, if person B then touches something else you could have tertiary transfer and so on and the number of transfer steps will affect the likelihood of DNA being transferred indirectly because there is a finite amount that's deposited on the cup and then every transfer step of that DNA will be lost. So the further of the number of steps that you have, the more number of steps, reduces the likelihood of transfer. Also the time in between the transfer steps and the circumstances in between the transfer steps. So, for example, if person A touches the cup and then person B immediately touches the cup the likelihood of transfer indirectly is higher than if, for example, person A touches the cup and then the cup is left there for several hours or days where someone else may have touched the cup or the cup may have been washed et cetera in between those transfer steps and that would remove some of the DNA available for transfer. So there is numerous factors affecting the transfer of DNA either directly or indirectly."
9. Ms Collins was cross examined about the swab that was taken of the inside and outside seal area of the resealable plastic bag located on 6 September 2018 at Rawson Avenue, Penrith. She confirmed that one swab had been taken from both the inside and outside area. She agreed it could not be concluded that the DNA profile came from the inside of the seal or the outside. She agreed that if it was on the outside of the seal, using the same swab, it could have been transferred from the outside to the inside of the seal.

The evidence of the Officer in Charge, Detective Senior Constable Tyler Ryan

1. Detective Senior Constable ('DSC') Ryan gave evidence that at 8.40pm on 6 September 2018, he attended the Insignia Hair and Day Spa at Penrith with DSC Moy. He spoke to Ms Byrne and accessed the CCTV footage and whilst he was at those premises, he received a report about an alleged break and enter at premises at Rawson Avenue, Penrith. He attended those premises where there were other police present and was shown a clear resealable bag with a crystal substance. He arranged for crime scene officers to attend the premises.
2. On 15 September 2018, he was advised about a motorcycle accident at Cassola Place, Penrith, involving a black Honda motorcycle with registration number BCY-[xx], which registration plate had been altered. He attended Nepean Hospital and the rider of the motorcycle was identified as Robert Weyman. A number of items of his property were seized.
3. DSC Ryan identified the EFIMS exhibit summary in Exhibit B5, which listed the items seized as exhibits.
4. DSC Ryan gave evidence identifying the photographs of the helmet and gloves seized from Mr Weyman in Exhibit B10. He gave further evidence that police checks revealed that Mr Weyman was in custody on 6 September 2018.
5. DSC Ryan gave evidence that he arranged for the execution of two search warrants at premises at Parker Street, Kingswood, and Illawong Avenue, Penrith. Videos taken of the execution of those search warrants were played. They were part of Exhibit C. In respect of the first premises, DSC Ryan identified a blue and white backpack found there as the backpack that one of the motorcycle riders was using in the break and enter at the Chicken Run store. Further, a black and white motorcycle helmet was located, which he identified was worn by the pillion passenger on the motorcycle that stopped outside the Chicken Run shop. A black and white jacket was identified as the jacket worn by the person entering the Chicken Run shop.
6. DSC Ryan identified Nike shoes located at the Parker Street premises as shoes worn by the person who went into the Chicken Run shop. He also identified another pair of Lacoste shoes as the shoes that police alleged were worn by the person who robbed the Insignia Hair and Day Spa.
7. DSC Ryan also identified some blue track pants with white piping which were alleged to be the track pants worn by the person who broke into the Chicken Run shop.
8. The video of the execution of the search warrant at premises at Illawong Avenue (part of Exhibit C), was played. DSC Ryan identified a motorcycle helmet located outside the premises which was alleged to be the same helmet worn by the person who broke into the Chicken Run shop. DSC Ryan gave evidence that at 9.30am on 11 October 2018, he went with other police to the premises at Parker Street, Kingswood. When he went inside, he saw the accused and his partner, Ms Karen Day, inside the apartment. The accused was placed under arrest for aggravated break and enter and a robbery. He was cautioned, following which the accused asked for a jumper and he assisted in retrieving a jumper from the accused's bedroom. He gave evidence that that involved walking with the accused to the bedroom where the accused pointed out where he wanted the jumper from and DSC Ryan retrieved it for him.
9. DSC Ryan gave evidence that on 14 October 2018, he went to an address at Kareela Avenue, Penrith, where he spoke to Ms Tahlia Gregory, who took him to the backyard of the premises where he found a Yamaha trail bike which had been spray painted. He identified a photograph of that motorcycle at Exhibit B10 (last photo). The trail bike was seized.
10. DSC Ryan gave evidence that on 15 October 2018, he went to the premises at Parker Street, Kingswood, with other police. At a location about three to five metres from the common driveway of that location, he located a wristband on the grass just off the footpath. It was the hospital wristband of Mr Weyman and a photograph of the wristband became Exhibit B3. When he knocked on the door to the premises, it was answered by Ms Karen Day. Inside the premises he recognised the accused's mother, Sharon Neal and Robert Weyman.
11. DSC Ryan identified Exhibit B4, which was a certificate in accordance with the Road Transport Act 2013 showing the driver's license number of the accused, his name and address at premises at Illawong Avenue, Penrith.
12. DSC Ryan identified in Exhibit B11, still photographs taken from the CCTV footage outside the Insignia Hair and Day Spa on 6 September 2018. The CCTV footage from which the stills were taken was then played to the court (part of Exhibit C). Those stills showed the helmet, clothing and shoes worn by the person who robbed the Insignia Hair and Day Spa.
13. DSC Ryan identified in Exhibit B18 the Certificate of Analysis issued pursuant to the Drug Misuse & Trafficking Act 1985, which certified that the sample taken from the resealable plastic bag found at Rawson Avenue, Penrith on 6 September 2018, was analysed and found to be methylamphetamine.
14. DSC Ryan identified the photographs in Exhibit B21 of the motorcycle gloves from which a tapelift was taken for DNA analysis.
15. DSC Ryan was then asked about photographs in Exhibit B6. In that exhibit, he matched the black motorcycle helmet with clear visor seized on 15 September 2018 with the helmet worn by the person who robbed the Insignia Hair and Day Spa on 6 September 2018. He also matched the gloves worn by that person with the gloves seized on 15 September 2018 (and shown in Exhibit B21). Both the helmet and gloves were seized from Robert Weyman following his motorcycle accident on 15 September 2018.
16. DSC Ryan also matched the shoes seized from Parker Street with the shoes worn by the person who robbed the Insignia Hair and Day Spa on 6 September 2018. Those shoes were seized on 11 October 2018.
17. DSC Ryan identified Exhibit B7 as a Google Map showing the location of the Insignia Hair and Day Spa, the Rawson Avenue premises and the Parker Street premises. The map indicated a travel time of 12 minutes between each of the three locations.
18. DSC Ryan then identified Exhibit B8 as photographs in which he had matched various items seized with those depicted in the CCTV footage of the motorcycle rider involved in the Chicken Run break and enter offence on 4 October 2018. In the first photograph, a match was made between the blue Lacoste pants seized from the Parker Street premises on 11 October 2018 with the pants worn by the motorcycle rider. Also matched was the black motorcycle helmet seized from the Illawong Avenue premises on 11 October 2018 with the helmet worn by that person.
19. In a second set of photographs, a match was made between the motorcycle helmet seized on 11 October 2018 from the Parker Street premises and the helmet worn by the pillion passenger. DSC Ryan also matched the motorcycle seized from the premises at Kareela Avenue, Penrith, on 14 October 2018, with the motorcycle ridden by the two persons. A further match was made of a black Fox jacket seized from the Parker Street premises on 11 October 2018 with the jacket worn by the person who committed the break and enter of the Chicken Run premises.
20. A further set of photographs were identified by DSC Ryan, in which he matched the blue and orange Nike shoes seized from the Parker Street premises on 11 October 2018 with the shoes worn by the rider of the motorcycle and a blue and white Caribee backpack seized from the Parker Street premises and worn by the rider of the motorcycle.
21. DSC Ryan identified Exhibit B9 as being a Google Map showing the location of the premises at Parker Street, the location of the Chicken Run shop at Cranebrook Village and premises said to be the home of Mr Weyman, as well as the Illawong Avenue premises and the Kareela Avenue premises. The document indicated a travel time between all five locations by car of 22 minutes.
22. The death certificate of Karen Louise Day was tendered through DSC Ryan. It showed that she had died between 25 April 2019 and 26 April 2019, that her de facto spouse was the accused, that they had a daughter aged 11 months and that she had died of "multi-drug toxicity" or an overdose of prohibited drugs.
23. DSC Ryan identified in Exhibit B13 photographs of the Lacoste shoes, the Nike shoes, the blue and white backpack and blue pants and black Fox jacket seized from the premises at Parker Street, Kingswood, on 11 October 2018. He also identified photographs of the black motorcycle helmet seized on the same date from premises at Illawong Avenue Penrith, as well as the black and white motorcycle helmet seized on 11 October 2018 from the Parker Street premises.
24. In cross-examination, DSC Ryan confirmed that following his arrest on 11 October 2018, the accused went into custody for a lengthy period of time beyond the date of death of Ms Day.
25. DSC Ryan confirmed that he had been provided information that led him to conclude that Robert Weyman and Mark McCutchen had been at the premises at Illawong Avenue, Kingswood, on 10 October 2019. He knew that as at October 2018, both of them were drug users. At that time, he did not know the accused was also a user of drugs.
26. DSC Ryan was asked about speaking to Tahlia Gregory at premises at Kareela Avenue, Penrith, on 14 October 2018. He was aware at that time that the accused, Mr McCutchen and Mr Weyman were associates of Robert Steadman, who was also a user of drugs. DSC Ryan confirmed that the motorcycle seized on that day was not subject to a forensic examination, however, he took the faring panels off and could see the difference in colour, meaning the motorcycle had been re-painted.
27. DSC Ryan was also asked whether he knew in October 2018 a person of interest by the name of Nathan Izzard. He did not know where he lived and did not know whether he was a user of drugs.
28. DSC Ryan also gave evidence that in 2018, he was aware of a person by the name of Apisia Bavadra who was also a user of drugs. He was not aware that Robert Steadman would attend the premises at Parker Avenue in September or October 2018, but he was aware that Robert Weyman would attend those premises, as did Mark McCutchen. He was not aware whether Apisia Bavadra or Nathan Izzard would attend those premises.
29. From a property list prepared from the search warrant at the Parker Street premises (MFI #5), DSC Ryan confirmed that 15 grams of cannabis were seized. It was found on the lounge room floor. Other items listed were 40 small resealable bags containing white crystals and a powder substance locate on the lounge room coffee table. Also listed were three bottles containing 50 tablets each, being 2mg of Alprazolam, or Xanax. They were located in a freezer.
30. DSC Ryan also confirmed that a motorbike was found at the premises during the execution of the search warrant, which was not one of the motor bikes already identified in the evidence.
31. DSC Ryan was cross examined about a conversation he had with DSC Moy, in which she had informed him that on 9 October 2018, she had seen a trail bike in the driveway of the premises at Parker Street, Kingswood. He confirmed that based on that information, there was some similarity between the bike she saw and the description of the bike involved in the offence at the Chicken Run shop at Cranebrook.
32. DSC Ryan confirmed that when the accused was arrested and asked to obtain a jumper, applying best practice, he would not have allowed the accused to go to his room to obtain it. When asked what he did to assist the accused in retrieving the jumper, he said, "I would have asked him to either point it out or indicate where it was and I would have picked it up while I was there." It was put to him that he was assuming that it was the accused's bedroom and he answered, "No, there was, there was men's clothing in there and the residence was clearly lived in by a male and a female based on the clothing and the items in the house, so we walked to that room, yes, I assumed that was his bedroom. There was no other beds in the property."
33. DSC Ryan confirmed that at the time of the search warrant on 11 October 2018, there were no other males present.
34. DSC Ryan gave evidence that the items seized on that day including blue and white backpack, the black and white helmet, the black Fox jacket, the Lacoste shoes and the Nike blue and orange shoes, the blue tracksuit pants, were not subject to any forensic examination.
35. DSC Ryan confirmed that the black helmet with the clear visor depicted in photographs in Exhibit B10 showed significant scratching on the visor. That scratching was also identified in the third photograph in Exhibit B6, which in his evidence in chief, the OIC had identified as the same helmet as worn by the person at Insignia Hair and Day Spa. He was asked: "Q. Do you think a better way of putting it, it looks like the same type of helmet? A. Yeah, I believe it's the same helmet, yeah."
36. DSC Ryan agreed that he didn't know how many of those helmets were made, nor did he know how many of them were in Penrith in 2018.
37. In re-examination, DSC Ryan confirmed that there were two bedrooms at the Parker Street property.

Evidence of Melanie Phillips

1. Ms Phillips is a crime scene officer employed by the NSW Police. She identified that she swabbed the resealable plastic bag containing a white crystalline substance for trace DNA and that she packaged it, labelled it and sealed it in an evidence envelope. She confirmed that one swab was taken of the entire sealed area which included the inside and outside of the bag.
2. Ms Phillips gave evidence that she weighed the crystalline substance and gave the mass quantity of 27.7 grams. She gave further evidence in relation to the trace DNA swab of the plastic resealable bag, that it was "fairly standard procedure to swab all areas that you deem relevant of a particular seal over the seal of the plastic bag with one swab".
3. There was no cross-examination.

The accused's evidence

1. The accused was asked about Count 1 on the Indictment and whether he was the person seen in the CCTV footage who committed that offence. He answered "no". He was asked: "Q. Do you have any idea where you were on that occasion? A. I couldn't tell you. Q. Your next charge on count 2 on the indictment, that you went to the premises at [x] Rawson Avenue at Penrith and that you broke into the place and took some property, no people were inside. Were you the person that Mr Scroope spoke about having been inside his house? A. No. Q. You understand that the police on that occasion found a resealable plastic bag that contained a prohibited drug, do you understand that? A. Yes. Q. You understand that was found between an external door and the wire door; I think near the rear of the premises, the rear door? A. Yes. Q. You understand that a DNA profile that matches you was found somewhere on the seal of that particular bag? A. Yes. Q. Did you drop that bag in that location? A. No. Q. Do you have any idea how your DNA profile may have got onto that bag? A. I'd just be speculating, I guess."
2. The accused denied that he was either of the two people on the motorbike shown on CCTV footage outside the Chicken Run shop at Cranebrook in the early hours of the morning on 4 October 2018. He did not know where he was that night.
3. The accused was asked about the DNA evidence of Ms Collins, in which he was a DNA match on the motorcycle gloves seized from Robert Weyman following his motorcycle accident on 15 September 2018. He was asked: "Q. Do you have any idea how it was that your DNA profile got into those gloves? A. We go riding together. We're constantly with - like, there's a few of us that we've shared gloves, helmets. So, quite possibly I've worn them gloves before."
4. During the search warrant of the premises at Parker Street, he identified on the CCTV footage a box in the lounge room in which there were gloves or motorbike gloves. He agreed that he was in a relationship at that time with Karen Day and that they had a child. He described it as "a rocky relationship". He gave evidence that he was living with his parents at the Illawong Avenue premises in Penrith. He gave evidence that he visited Ms Day's premises on a daily basis and that he stayed there "maybe two nights a week".
5. The accused gave evidence that he had known Robert Weyman since he was a kid. He had grown up in the Penrith area from 10 years of age. He had first met Mark McCutchen when he was 16 or 17. He first met Robert Steadman in 2017 and he had known Apisia Bavadra since he was a kid. He had also met Clint Bradbury and Nathan Izzard in 2017.
6. Having been issued with a certificate pursuant to s 128 of the Evidence Act 1995, the accused gave evidence that in 2018, he and Robert Weyman were using drugs, which included ice, heroin and pills. He was smoking and injecting ice and to smoke it they used a "shabilly". A photograph taken from the CCTV footage at the Parker Street premises on 11 October 2018 was tendered as Exhibit 1.
7. The accused gave evidence that the pills he took were Xanax but the three bottles of Alprazolam seized at the premises were not his. He gave further evidence that the bags of methylamphetamine or ice seized by the police during the search warrant were his. The 15 grams of cannabis found in the loungeroom was also his.
8. The accused gave evidence that he also used drugs with Mark McCutchen and that involved heroin, ice and "benzos, the pills". He also used drugs with Robert Steadman, however, "he more just bought drugs off me".
9. The accused gave evidence that he also, in 2018, used ice and marijuana with Apisia Bavadra, Clinton Bradbury and Nathan Izzard.
10. The accused gave further evidence that he used drugs with both Robert Weyman and Mark McCutchen in 2018 at Ms Day's house at Parker Street. Similarly, he had used drugs at that premises with Mr Bavadra, Mr Bradbury and Mr Izzard and Karen Day was also using drugs, mainly heroin but also "a little bit of ice".
11. The accused gave evidence that he was not working in 2018. Mr Weyman was "couch surfing" and would have stayed at the Parker Street premises overnight.
12. The accused gave evidence that he was using drugs daily in 2018. Mark McCutchen visited the Parker Street address, but he could not remember him staying there. When asked about the sleeping arrangements there, he said that he would "just pass out wherever so I could fall asleep on the lounge". He gave evidence that Mr Weyman did not have a place, that he was mainly couch surfing, and would bring clothes with him in a backpack.
13. The accused gave evidence that he had most of his clothes at his parents' house at Illawong Street, but that he did have clothing at Parker Street as well. In 2018, he would lend his clothes to others who would come to Parker Street and either consume drugs or sell drugs.
14. The accused gave evidence that he had been riding motorbikes since he was four. In 2018, he rode motorbikes with Robert Weyman and Mark McCutchen. He gave evidence that he would wear a helmet, gloves, a jacket and sometimes "protective armour". Further, he had seen other men using motorbike gloves contained in the box in the lounge room at the Parker Street premises. He had seen Robert Weyman get gloves from there.
15. The accused was shown a photograph of the helmet Mr Weyman was wearing on 15 September 2019. He gave evidence that he had never seen that helmet before. The accused described the photo of the motorcycle gloves with blue features seized from Mr Weyman on 15 September 2018 as "looking very familiar". He gave evidence that he could have worn those gloves previously.
16. The accused was shown the photo of the painted motorcycle in Exhibit B10 that was seized from the Kareela Avenue premises. He gave evidence that he had seen the motorbike before and had seen Robert Steadman ride it.
17. The accused identified the Lacoste shoes shown in a photograph in Exhibit B13. He gave evidence that he obtained them from Nathan Hickey a few weeks before his arrest.
18. The accused also identified the blue and orange Nike shoes shown in a photograph in Exhibit B13. He gave evidence that he had obtained them from a "one-legged man" who he had given drugs to.
19. The accused denied that the blue pants with Lacoste branding on the side panels shown in Exhibit B13 were his, and said he had never seen them before.
20. The accused gave evidence that the blue and white backpack shown in Exhibit B13 looked "familiar", but he had no memory of using it.
21. When shown the photo of the black Fox jacket in Exhibit B13, the accused gave evidence that it does "look familiar" and that he had quite possibly worn it.
22. The accused identified the black motorcycle helmet depicted in Exhibit B13. He gave evidence that he had worn it "lots". He also identified the black and white helmet and gave evidence that Mr Weyman owned it. When asked whether he ever used it, he said, "Not off the top of my head, no. Yeah, no."
23. The accused gave evidence that his wallet was located at the Parker Street house on 11 October 2018 and contained $1,200. After being issued with an extension of the certificate pursuant to s 128 of the Evidence Act 1995, the accused identified a receipt from a pawn shop, "Mega Cash", dated 7 October 2018, in which he had obtained a loan for $2,000 in return for his bike. When asked where the money in his wallet on 11 October came from, he said, "That was the remainder of - remainder of what the $2,000 that was - that was left of the $2,000." The receipt became Exhibit 2.
24. Exhibit 3 was a bundle of documents relating to the prior custody of the accused which was tendered to support his evidence that his primary residence upon his release from custody was his parents' house at Illawong Street.

Cross-examination of the accused

1. In cross-examination, the accused confirmed his daily drug use in 2018 included heroin, ice and pills. He confirmed that he was receiving a Centrelink benefit and agreed that drugs cost a lot of money. He gave the following evidence: "Q. The only way, I suggest, you could purchase all these drugs was indeed the offences that you've committed; what do you say? A. No. Q. You were saying that you were using all these drugs; you had to pay for them clearly; yes? A. Not necessarily with money, no. Q. Not necessarily with money? A. No. Q. Most of the time would you say you had to purchase them? A. No, I'm not - I'm more like, like if people had something to sell, I'd sell it for them and they'd shout me, stuff like that. That was, that was more how I was trying to support my habit and people have a shower, whatever, stay just, yeah, more bludging. Q. I suggest you're not telling the truth; what do you say? A. No, I'm telling the truth. Q. You're trying to suggest that you would allow someone to shower and for that they would give you drugs; is that right? A. It wasn't just, it wasn't, it wasn't, how do you put it, it wasn't like agreed like that. It wasn't agreed like that, but yeah. Q. No, it wasn't because it wasn't agreed like that at all, was it? A. It sort of happened like - it did happen like that though and, and I'd sell - they'd come around and I'd sell items for them all the time, so, yeah, that's how I would support my habit. Q. You said you sold items for people? A. Yeah, people would come around with, with items and I'd sell them. Q. What were these items? A. It could be all different things. It could be a, a speaker, a speaker that they've stolen from the shop or some clothing that they've stolen from the shop, and they just want to sell it, you know, but I was also selling a little bit of drugs too to support my habit, so that's, that's how I was getting by. Q. With the item like the speaker, that money would have to go to the owner of the speaker? A. Yeah, that's right and then they'd shout me."
2. The Crown suggested that the only way the accused could support his habit was to commit the robberies and he answered, "No. No. I've never committed a robbery in my life."
3. The accused confirmed that he stayed at the Parker Street property with Ms Day two nights per week but visited daily. He agreed that some of the clothing there was his, but not all of it. He gave evidence that DSC Ryan had chosen the jumper that he took for him. He denied that the blue tracksuit pants in the exhibit book were his and gave evidence that he obtained the blue and orange Nike shoes from a one-legged man, to whom he sold a point of ice for $50. He agreed the shoes were his, but denied that he wore them when he went to commit the break in at the Chicken Run shop. The accused also agreed that the Lacoste shoes were his but denied that he wore them when he went to commit a robbery at the Insignia Hair and Day Spa. He denied that the only way he was supporting his drug habit was to commit robberies and break and enters. He denied that he wore the blue and white backpack to commit the Chicken Run offence and further denied that he wore the black Fox jacket to commit the same.
4. The accused further denied that the helmet that was seized in the search warrant execution at Illawong Avenue was the helmet he wore in order to commit the Chicken Run offence. The accused further denied that Mr Weyman had used his motorcycle helmet on 15 September 2018. He denied that he had worn that helmet when he committed the robbery at Insignia Hair and Day Spa on 6 September 2018.
5. The accused denied that he purchased the bag of methylamphetamine that was found at the Rawson Avenue address, stating: "A. No. It wasn't' in - in - in the, in the evidence it says that it was 27.7 grams. That's nearly an ounce. That's like $5,000. Where am I going to get $5,000 from? Are you serious?"
6. The accused denied being the person who was at Rawson Avenue and he denied being the person at the Chicken Run incident who ran into the store and grabbed the cash register.
7. There was no re-examination.

The Crown address

1. The Crown noted that the agreed facts satisfied proof beyond reasonable doubt that each of the four offences on the Indictment occurred and the only issue to be determined was whether it was the accused who committed any or all of the offences. This was accepted from the outset of the trial by the accused.
2. In relation to Count 1, the Crown relied on the summary document of DSC Ryan (Exhibit B6) in which he did a comparison of stills from the CCTV footage and some of the exhibits found during the execution of search warrants at the Parker Street and Illawong Avenue premises on 11 October 2018, the Kareela Avenue property on 14 October 2018 and following Mr Weyman's motorcycle accident on 15 September 2018. The Crown case in respect of Count 1 was that the helmet worn by the person committing the offence was the same helmet worn by Mr Weyman on 15 September 2018. Similarly, the gloves worn by that person had distinctive blue coloured markings on the upper-side. Those gloves were also worn by Mr Weyman and seized from him following the accident on 15 September 2018. Forensic testing revealed the accused's DNA, together with that of Mr Weyman and two unknown persons on the inner palm of the right glove.
3. The Crown also relies on the Lacoste brand shoes worn by the person who committed the offence and the shoes seized at the Parker Street property on 11 October 2018, which the accused admitted were his.
4. The Crown further relied, in respect of Count 1, on the evidence of Ms Smithard that the registration number of the motorcycle was BCY-[xx]. The same number plate, albeit altered, was on the Honda motorcycle which Mr Weyman rode on 15 September 2018. The Crown also relied on the close proximity of the Insignia Hair and Day Spa to both Rawson Avenue and Parker Street, which were all within a 12 minute drive of each other. It was an agreed fact that Mr Weyman was in custody on 6 September 2018. The accused and Mr Weyman had known each other for many years, and they used drugs together in 2018 at Karen Day's home at Parker Street where Mr Weyman would often visit, which was supported by the fact that police found his white hospital wristband outside the premises on 15 October 2018. The Crown submitted that it was an inescapable conclusion that the person who committed the robbery in Count 1 was the accused.
5. In relation to Counts 2 and 3, which occurred at the home of Mr Scroope, the Crown relied on the physical proximity of that property to both the Insignia Hair and Day Spa and the Parker Street address of Ms Day and the close proximity in time of this offence, which occurred at about 9.20pm following the Insignia Hair and Day Spa offence which occurred after 8.10pm. The Crown case was that it was significant evidence that the accused's DNA was on the seal to the plastic resealable bag containing 27.7 grams of methylamphetamine. It was an inevitable inference that that bag had been dropped by the person committing the offence on his way out of the property as Mr Oliver Scroope had followed him towards the back of the house and to the kitchen, which was adjacent to that door. Mr Scroope had described the person as wearing a "black puffy jacket and black gloves" which was a relatively close description of what the person at the Insignia Hair and Day Spa had been wearing. The person was also wearing a motorcycle helmet with a visor which was open. As the amount of methylamphetamine exceeded 3 grams, Count 3 constituted a deemed supply charge.
6. In relation to Count 4, which occurred at the Chicken Run shop at Cranebrook village, the Crown relied on the CCTV footage in Exhibit B, which showed the two people arrive on a motorbike, similar to that seen outside the Parker Street premises and similar to that seen by the police at the Kareela Avenue premises on 14 October 2018. Those premises were owned by a person known to be an associate of Robert Steadman, who was known to the accused. The motorcycle had, by that time, been repainted, relying on the evidence of DSC Riley who identified it as being white in colour, having removed the faring.
7. The rider of the motorcycle was wearing a helmet, which the Crown allege was the same helmet as that seized from the accused's parents premises at Illawong Avenue on 11 October 2018. He was also wearing a backpack which was blue and white in colour, similar to the backpack seized at the Parker Street property on 11 October. In addition, he was wearing a black jacket with a white stripe on the left upper arm similar to that seized at the Parker Street premises on 11 October, Nike shoes similar to the blue and orange Nike shoes seized at Parker Street on 11 October and blue pants with a Lacoste stripe similar to those seized at the Parker Street premises on 11 October.
8. Further, the pillion passenger was wearing the black and white helmet seized by police at the Parker Street premises on 11 October 2018, of which the accused gave evidence was owned by Weyman.
9. The Crown submitted that this amounted to a substantial amount of different pieces of clothing and items which were linked to the accused, and the inescapable conclusion was that it was the accused who was the person that ran into the Chicken Run shop and committed the offence in Count 4.
10. The Crown submitted that there were significant credit issues in relation to the evidence of the accused. The Crown submitted that his evidence in large part supports the Crown case, in that it identified his association with Weyman and also that he had a significant drug habit at the relevant time. This supported the Crown case in that it first linked him to the methamphetamine found at the Rawson Street property in that he was likely to have been the person who handled that plastic bag in order to feed his own drug habit. Secondly, the evidence of his drug habit supported the Crown case in that the "inescapable conclusion" was that in order to have such a significant drug habit, there had to be funds to pay for it and the Crown suggested the only way he was able to do that, to any significant extent, was to commit these offences.
11. The Crown submitted the accused's evidence was completely implausible. His explanation about selling things for other people to support his drug habit would only go part way to achieving that.
12. The Crown further submitted that the evidence of the search warrant at Parker Street revealed a plastic bag full of coins and notes which resembled something like that taken from a cash register. The Crown submitted the accused's explanation as to how he came about owning the shoes was also completely implausible and his evidence about DSC Ryan picking a jumper for him was not believable evidence. The Crown concluded that the evidence established beyond reasonable doubt that the accused was the person who committed all of the offences and he should be found guilty of each of the offences on the Indictment.

The accused's address

1. Counsel for the accused referred to the evidence brought by the Crown in support of Count 1 on the Indictment. Ms Byrne had given a description of the person as wearing a black North Face jacket, green cargo pants, shoes like Converse or Adidas, blue and black gloves and a helmet with a dark visor. It was submitted that she gave no evidence of the height, build or eye colour of the person. Similarly, Ms Smithard gave a description of the person wearing a black helmet wearing cargo-style pants which were khaki in colour. The CCTV evidence was described as the primary evidence in support of that offence.
2. In respect of Count 2, the occupier of the premises, Oliver Scroope, had given evidence that the man was wearing a motorcycle helmet with the visor open, a black puffy jacket and gloves. Again, there was no mention of his height or build and the only common element between Count 1 and Count 2 was that the person was wearing a motorcycle helmet. This gave rise to the possibility that it may not have been the same person. In respect of the motorcycle helmet, no witness gave evidence identifying the extensive vertical scratching on the visor. The evidence established that the helmet seized from Mr Weyman on 15 September 2018 had a raised ridge on the top and the accused's evidence was that he had never worn that helmet before. Further, no DNA of the accused was found on it.
3. In respect of Count 4, the offence at the Chicken Run shop, counsel conceded that, "Items of similar type and colour of clothing and shoes" were found at Parker Street and a similar motorbike was found and seized at the Kareela Avenue premises.
4. Referring to Exhibit B13, and the comparison made by DSC Ryan, it was conceded that the Lacoste shoes were similar to those worn by the person committing the offence at the Insignia Hair and Day Spa. The blue and orange Nike shoes were similar to those worn by the person who committed the Chicken Run offence. The blue pants shown were an item that the accused said were not his. He conceded that the blue and white backpack looked familiar, but the accused was not sure whether he had ever used it. The accused conceded that he had worn the black Fox jacket previously and the black motorcycle helmet seized at Illawong Avenue was his. The black and white helmet seized from Parker Street was that of Mr Weyman. Counsel submitted that none of the items were subjected to DNA or forensic testing.
5. It was submitted that the court knew of the accused's lifestyle in 2018. He had a longstanding drug addiction and a chaotic lifestyle. All of his associates used drugs and that occurred in their company. The Parker Street premises occupied by Ms Day was described as an "open house".
6. In respect of Count 3, counsel submitted that the DNA trace lifted from the plastic resealable bag involved one swab only. The only conclusion was that the accused's DNA was lifted from somewhere on that bag. The DNA of the accused was located on the inner palm of the right black and blue glove, however the accused gave evidence that he had used those gloves previously.
7. Counsel submitted that the evidence of Ms Collins established that the DNA evidence says nothing as to how the DNA got on the items or when it did so. Here, there were four contributors of DNA on the glove, two of whom were unknown. It could not be said in what order the DNA was placed on the glove.
8. Counsel submitted that the Crown has to exclude that someone else committed the offences on 6 September 2018. Two unknown contributors on the DNA profile raised that possibility and the accused denied any involvement. Therefore, the Crown had not excluded an inference consistent with the accused's innocence. In respect of Count 3 on the Indictment, there was an inference available that the value of the methylamphetamine in the bag was $5,000. The accused's evidence was, "If I had that, I wouldn't be doing this."
9. Counsel submitted that the accused's interaction with other drug users gave some explanation as to how his DNA profile was on the seal of the bag.
10. Counsel further submitted that whilst Mr Weyman was in custody when offences in Counts 1, 2 and 3 were committed, the Crown had not excluded the possibility that he had committed the offence in Count 4. The court knew that certain items of motorcycle paraphernalia were found and seized at the Parker Street premises and there was a third motorcycle found there. The motorcycle clothing found was used by persons other than the accused. This raised an alternative inference as to who committed the offences.
11. It was submitted that the receipt in Exhibit 2 from Mega Cash provided an explanation for the $1,200 in cash found in the accused's wallet on 11 October 2018, four days after he received $2,000 in exchange for his bike from that business.
12. It was submitted that the court would accept the accused's denials of committing the offences on the Indictment. The evidence established that he sold goods to buy drugs and was consistent in his evidence. It was submitted the Crown had not excluded all reasonable hypotheses consistent with his innocence and the accused had no onus on him to prove anything.

Directions of law

1. Section 133 of the Criminal Procedure Act 1986 provides as follows: "133 Verdict of a single Judge (1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury. (2) A judgment by a Judge in any case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied. (3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter."
2. As set out above, the accused has the presumption of innocence in his favour, that is, he is presumed to be innocent unless and until the Crown has proved the offence beyond reasonable doubt. I am mindful that the onus of proof remains at all times on the Crown to prove the elements of the charge beyond reasonable doubt. In this case, the only issue is whether it was the accused who committed each of the four offences, the accused having conceded that all other elements have been made out. Speculation cannot enter into my considerations and inferences may only be drawn from established facts, and only if such an inference is a rational inference.
3. I give myself the following directions when considering all of the evidence: 1. Circumstantial Evidence - Strands in the Cable The onus of proving Daniel Neal's guilt in respect of the four charges which it brings against Mr Neal, is on the Crown. It must establish his guilt beyond reasonable doubt. This means that, in respect of each of the essential legal ingredients or elements of the charges, I must be satisfied beyond reasonable doubt that the Crown has established its case before I would be entitled to bring in a verdict of guilty on each charge. As noted above, the accused has conceded that all of the elements have been established in respect of the four counts on the Indictment and the only issue is whether it was the accused who committed the offences. In this case, the Crown relies on circumstantial evidence from which it asks the court to draw a conclusion that it was the accused who committed each of the four offences on the Indictment. Circumstantial evidence can be contrasted with direct evidence. Direct evidence is what a witness says that he or she saw or heard or did. It may be a witness saying that he or she saw an accused person do the act which the Crown says constitutes the alleged crime charged. It may be a video recording showing an accused person committing an act that the Crown relies upon as part of its case or it can be evidence from a witness that he or she heard an accused person admit to committing the crime. In a direct evidence case, if the evidence is accepted beyond reasonable doubt, it is capable of proving the guilt of the accused. In a circumstantial case, the Crown lacks direct evidence of that kind. This does not mean that a circumstantial case is for that reason weaker than a case based upon direct evidence. Some direct evidence can be of very dubious quality. For example, direct evidence from a witness identifying an accused person as being the offender can be very unreliable because identification evidence can be honest but mistaken. But in a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the court is asked to reason in a staged approach. The Crown first asks the court to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. Here, many of those facts are set out in the agreed facts in Exhibit A. The court is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks the court to find based upon the basic facts is that it was the accused person who committed the offences and that he is guilty of the offences charged. A case based on circumstantial evidence may be just as convincing and reliable as a case based upon direct evidence. This will depend upon the number and nature of the basic facts relied upon by the Crown when considered as a whole (not individually or in isolation). And it will depend upon whether all of the evidence leads to an unavoidable conclusion that the Crown has established the guilt of the accused. It is important that I approach a circumstantial case by considering and weighing, as a whole, all the facts I find established by the evidence. It is wrong to consider any particular fact in isolation and ask whether that fact proves the guilt of the accused, or whether there is any explanation for that particular fact or circumstance which is inconsistent with the accused's guilt. The correct approach is first to determine what facts I find established by the evidence. Any particular fact to be taken into account by me does not need to be proved beyond reasonable doubt. I then consider all of those facts together as a whole and ask myself whether I can conclude from those facts that Daniel Shane Neal is guilty of the offences charged. If such a conclusion does not reasonably arise, then the Crown's circumstantial case fails because I am not satisfied of the accused's guilt beyond reasonable doubt. Of course, it follows that I must find the accused not guilty in that case. But if I find that such a conclusion is a reasonable one to draw based upon a combination of those established facts then, before I can convict Daniel Shane Neal, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt. Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition. In order to satisfy myself beyond reasonable doubt of the accused's guilt of the offences, the Crown must first persuade me that the inference or conclusion it relies upon is a reasonable one to draw from the facts that I find established by the evidence. It then must prove to me that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts viewed as a whole is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks me to find, then the Crown's circumstantial case has failed. 1. Multiple Counts - Markuleski direction Giving separate consideration to the individual counts means that I am entitled to bring in verdicts of guilty on one count and not guilty on the other count, if there is a logical reason for that outcome. If I were to find the accused not guilty on any count, particularly if that was because I had doubts about the honesty or reliability of any witness' evidence, I would have to consider how that conclusion affected my consideration of the remaining counts. If I have a reasonable doubt about any witness' credibility in relation to any one count, I might believe it difficult to see how the evidence of any witness could be accepted in relation to the other count. 1. Accused's Evidence - Liberato direction The accused relies on an account of events in the evidence he gave. That account is to the effect that he is not the person who committed each offence charged. It is important I understand that the accused must be found not guilty if his guilt has not been proved beyond reasonable doubt and that he is entitled to the benefit of any reasonable doubt I may have at the end of my deliberations. It follows from this: First, if I believe the accused's evidence, obviously I must acquit. Second, if I have some difficulty accepting the accused's evidence, but think it might be true, then I must acquit. Third, if I do not believe the accused's evidence, then I should put it to one side. Nevertheless, the question will remain; has the Crown, upon the basis of evidence that I do accept, proved the accused's guilt beyond reasonable doubt? As I have previously stated, the onus remains on the Crown to establish beyond reasonable doubt the charges which it brings against the accused, and there is no onus on the accused to prove that he is not guilty.

Findings of fact

1. In this case, many of the facts establishing that the offences were committed are set out in the agreed facts, which I adopt. There is no need for me to repeat them here.
2. I have also taken into account the CCTV footage and body worn video footage set out in Exhibit C. I have paid close regard to the CCTV evidence taken from various camera angles inside and outside the premises of Insignia Hair and Day Spa, and the CCTV evidence of the offence committed at the Chicken Run shop (Count 4). I have also had regard to the body worn video exposed by police at the premises at Rawson Avenue, Penrith on 6 September 2018 and in particular, the depiction of the plastic resealable bag containing methylamphetamine found at the rear door of those premises through which the person who committed the break and enter offence exited the premises.
3. As set out above, the Crown also relies on the still photography taken from the CCTV footage, and the comparison evidence of DSC Ryan based on those photographs. I am mindful that the interpretation of photographs is usually a matter for expert evidence - see Goode v Angland [2017] NSWCA 311. In Amante v R [2020] NSWCCA 34, N Adams J held at [60] that a photograph cannot be used as the sole method by which a primary fact is proved where that fact is not revealed on the face of the photograph. Here, the photographic evidence is taken from the various CCTV footage which is tolerably clear in its depiction of the relevant events. I bear in mind the passage from Lord Reid's speech in Van Der Lely NV v Bamfords Ltd (1963) RPC 61 at 71 referred to by N Adams J at [60]: "… the judge ought not, in my opinion, attempt to read or construe the photograph himself; he looks at the photographs in determining which of the explanations given by the witnesses appears to be the most worthy of acceptance."
4. In Amante (supra), Beech-Jones J (as his Honour then was) agreed with N Adams J's finding in respect of the inference drawn by the trial Judge on photographic evidence, and noted at [6]-[8] that if photographs are adduced into evidence, pursuant to the Evidence Act 1995 (NSW), it is a matter for the trial or sentencing Judge as to what weight is to be attached to them.
5. In respect of Count 1, I find that on a close comparison of what was depicted in the CCTV footage, that the helmet worn by the person committing the offence was the same helmet seized from Mr Weyman following his motorcycle accident on 15 September 2018. As Mr Weyman was in custody at the time of this offence, he was not the person depicted in the footage. I also find that the gloves worn by the person committing the offence in Count 1 were the same gloves worn by Mr Weyman and seized from him on 15 September 2018. Those gloves, upon forensic examination, revealed a DNA match to both Mr Weyman and the accused, together with two unknown persons.
6. I further find that the Lacoste shoes worn by the person committing the offence were the Lacoste shoes seized by the police from the Parker Street premises on 11 October 2018 and those shoes belonged to the accused.
7. I find that the motorcycle upon which the person left the car park bore a registration number plate BCY-[xx] which was the same number plate, albeit altered to read 'BOY-[xx]', attached to the Honda motorcycle which Mr Weyman was riding when he was involved in a motorcycle accident on 15 September 2018.
8. I find the offence in Count 1 occurred shortly after 8.10pm on 6 September 2018 and that at approximately 9.20pm a person wearing a black motorcycle helmet with its visor open and gloves broke into premises at Rawson Avenue, Penrith, to commit the offence in Count 2 on the Indictment. Those premises were in close proximity to the Insignia Hair and Day Spa at Penrith and I find that the person was wearing a black jacket and black gloves. I further find that the accused's DNA was found on the resealable plastic bag that contained 27.7 grams of methylamphetamine found at the rear door of the premises, near the seal of that bag.
9. The witnesses to Count 1, namely Ms Byrne and Ms Smithard, and witness to Count 2, namely, Oliver Scroope, gave no description of the height or build of the person committing the offence. However, in respect of Count 1, that was clearly evidenced from the CCTV footage. Further, nothing turns on the witnesses not providing a description, for example, of the colour of the person's eyes, as he was wearing a motorcycle helmet. In the case of Counts 2 and 3, I find that Mr Scroope only had a fleeting opportunity to observe the intruder in his home through a bedroom door and then as he followed him down the hallway from behind.
10. Little turns on the descriptions given by Ms Byrne and Ms Smithard of the person in Count 1, given the circumstances of what must have been a traumatic experience for them. I accept counsel for the accused's submission that the primary evidence in respect of Count 1 was the CCTV evidence, and it was also the primary evidence in respect of Count 4, the offence of break and enter at the Chicken Run shop at Cranebrook on 4 October 2018. The CCTV evidence in that case established that a motor cycle was ridden to the premises and was similar to a motor cycle seen outside the Parker Street premises. It was also similar to the motor cycle seized at the Kareela Avenue premises on 14 October 2018 and I find that the occupier of those premises was known to the accused through a mutual drug acquaintance. The motor cycle had obviously been spray painted and I find that it was the same motor cycle as used in the offence.
11. I further find that the helmet worn by the rider of the motorcycle was the same black helmet seized from the accused's parents' home at Illawong Avenue on 11 October 2018.
12. I also find established as a fact that the backpack worn by the rider of the motorcycle was the blue and white backpack seized at the Parker Street premises on 11 October 2018. I am also satisfied that the jacket, Nike blue and orange shoes and the blue pants with the Lacoste piping worn by the rider of the motorcycle were the same items that were seized from the Parker Street premises on 11 October 2018.
13. I am satisfied that the accused lived at both his parents' house at Illawong Avenue and with Ms Day at the Parker Street premises in September and October 2018.
14. I am further satisfied that the accused and Mr Weyman knew each other well, having known each other for many years and both being drug users in 2018. I am satisfied that Mr Weyman spent time at the Parker Street premises and that his hospital wristband was located outside those premises when police attended on 15 October 2018. I accept the accused's evidence that they shared some clothing and motorcycle gear, such as gloves and helmets from time to time.
15. I also find that in 2018, the accused had an addiction to heroin, ice and Xanax and used a combination of those drugs on a daily basis. He was also associated with other drug users, including Weyman, McCutchen, Bavadra and Steadman.
16. I do not accept the accused's evidence that he supported his drug habit merely by selling things or exchanging goods with other drug users, for example, the two pairs of shoes about which he gave evidence. I accept the Crown submission that that evidence was implausible and it was also inconsistent with his evidence that he was "also selling a little bit of drugs," and that he exchanged his bike with a pawn broker for a loan of $2,000 on 4 October 2018. The Centrelink benefit would not have supported his drug habit and experience demonstrates that a daily habit involving heroin, ice and Xanax would require considerable sums of money, beyond the means of the accused. The accused's evidence painted a false picture of his drug addiction and how he supported it, not only the purchase of the prohibited drugs for his own consumption but also the purchase of drugs for the purpose of on-supply to others. In accordance with the direction I have given myself, having rejected the accused's evidence to that effect, I set it to one side. I also reject his denial of the offences, and set that to one side.

Determination

1. In accordance with the direction I have given myself as to the Crown's circumstantial evidence case, having determined the facts set out above as established by the evidence, I have to consider all of those facts together as a whole and ask myself whether I can conclude from those facts that the accused is guilty of any or all of the offences charged. In respect of Counts 1, 2 and 3, all of which occurred on the evening on 6 September 2018, I am satisfied that the person depicted in the CCTV footage at the Insignia Hair and Day Spa in Count 1 was the accused. Although he was wearing a helmet that appears to have been owned by Mr Weyman and was seized following Mr Weyman's motorcycle accident on 15 September 2018, Mr Weyman was in custody at that time and I draw the inference that the accused had access to that helmet at the Parker Street premises where there was a large amount of motorcycle paraphernalia. The gloves worn during that offence were seized from Mr Weyman on 15 September 2018 but had traces of DNA which matched the accused. I am satisfied that the accused was wearing his Lacoste shoes during the offence, and having regard to the whole of the evidence including the proximity of the premises to the Rawson Avenue and Parker Street premises, the only reasonable conclusion is that the person who committed the offence in Count 1 was the accused.
2. In respect of Counts 2 and 3, the DNA evidence on the seal of the plastic resealable bag found at the Rawson Avenue address clearly places the accused at the scene. Again, he was wearing the black motorcycle helmet and gloves and the only available inference to be drawn is that it was the accused who dropped the plastic resealable bag in his rush to exit the premises, having been discovered inside by the occupants. No alternative hypothesis arises to explain the presence of this bag at the premises with the accused's DNA, and only his DNA, on the seal. I reject the submission made on behalf of the accused that "the accused's interaction with other drug users gave some explanation as to how his DNA profile was on the seal of the bag."
3. In respect of the offence in Count 4, the offence of break and enter the Chicken Run shop and commit a serious indictable offence, namely larceny, I am satisfied that it was the accused who rode the motorbike to those premises in the early hours of the morning on 4 October 2018. As set out above, I am satisfied that the accused was wearing a helmet seized by police at his parents' house at Illawong Avenue on 11 October 2018, and was wearing a blue and white backpack, the black Fox jacket, the blue Lacoste pants and the Nike shoes, which were subsequently seized by police from the Parker Street premises on 11 October. I am satisfied the accused lived partly at those premises with Ms Day and that his clothes were located in a bedroom there.
4. Having regard to the whole of the evidence, I find that the only reasonable inference or conclusion to draw is that it was the accused who committed the offence in Count 4 on the Indictment.
5. I reject the submission on behalf of the accused that an inference arises that Mr Weyman may have committed that offence. Rather, an inference may arise that Mr Weyman was the pillion passenger, as that person was wearing the black and white helmet seized by police from the Parker Street premises on 11 October 2018. Such an inference was entirely inconsistent with the accused's helmet being worn, together with the other items which were seized from the Parker Street premises, by the rider of the motorcycle.
6. I am also satisfied that there is no other reasonable conclusion arising from the facts that are established, that is inconsistent with the guilt of the accused. It would be speculative in the extreme to infer that any of the other known drug associates somehow had access to the various items referred to above, including motorcycle helmets, gloves, jackets, backpack, two pairs of the accused's shoes and the motorcycles involved, so as to perpetrate the offences. Rather, the only reasonable inference that can be drawn from a consideration of all of the established facts viewed as a whole, is that it was the accused who committed the offences in Counts 1, 2, 3 and 4 on the Indictment.

Order

1. I find the accused guilty of each of Counts 1, 2, 3 and 4 on the Indictment.

Amendments 20 June 2022 - various - anonymised personal identifiers DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022