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Supreme Court 4 May 2017

R v Evans (No 1)

[2017] NSWSC 741

Assault & violenceHomicideTheft & propertyPublic order & justice offences
CRIMINAL LAW EVIDENCE AGGRAVATED DETAIN FOR ADVANTAGE RISK OF UNFAIR PREJUDICE OUTWEIGHED EVIDENCE ADMISSIBLE ON BOTH BASES

Citation: R v Evans (No 1) [2017] NSWSC 741
Court: Supreme Court of New South Wales
Date: 4 May 2017
Judge: R A Hulme J

Background

The accused faced seven charges arising from two separate home invasions committed approximately one month apart. Counts one to three related to a home invasion at Badgerys Creek on 30 May 2014, involving the murder of one victim and the serious wounding of another. Counts four to seven related to an earlier home invasion at Medway on 28 April 2014, involving aggravated break, enter and steal, and the detention of multiple occupants.

The Crown alleged that both incidents followed a similar pattern: the accused and associates entered rural residential properties in the early hours of the morning, carried pre-prepared restraint equipment, used violence against occupants, and stole cash and other valuables. A co-accused had pleaded guilty to charges arising from both incidents before the trial of the accused Evans commenced.

The Crown sought to use evidence from each set of charges to support the other, relying on both tendency evidence and coincidence evidence provisions under the Evidence Act 1995 (NSW). The accused objected to that use and, if the objections succeeded, sought severance of the two sets of charges for separate trials.

  • Whether the evidence relating to the Medway charges was admissible as tendency evidence under s 97 of the Evidence Act 1995 (NSW) in proof of the Badgerys Creek charges, and vice versa.
  • Whether the evidence relating to both sets of charges was admissible as coincidence evidence under s 98 of the Evidence Act 1995 (NSW).
  • Whether, even if admissible under those provisions, the probative value of the evidence was outweighed by the risk of unfair prejudice to the accused under s 101(2).
  • Whether the Medway counts should be severed from the Badgerys Creek counts and tried separately.

Decision

Hulme J concluded that the evidence from each home invasion was admissible both as tendency evidence and as coincidence evidence in relation to the other set of charges. The principal fact in issue was whether the accused was present at both incidents. Neither the existence of the joint criminal enterprises nor the mental elements of the offences had been conceded, which meant the cross-incident evidence carried real work to do in the Crown case.

The court identified a series of substantial similarities between the two incidents: both occurred in the early hours of the morning at rural residential properties, both involved multiple offenders equipped with duct tape and rope, both involved the use of a blunt weapon to inflict serious injury, both involved demands for cash and other valuables, and both involved knowledge of the target property's layout or financial circumstances. The court was satisfied that, taken together, these similarities gave the evidence significant probative value capable of rationally affecting the assessment of whether the accused was involved in both incidents.

On the question of unfair prejudice, the court acknowledged the risk but concluded it did not outweigh the probative value of the evidence. The similarities between the incidents were specific and numerous enough that the evidence was not merely "general propensity" material but pointed, more precisely, to the presence of the same person in both events.

The court also held the evidence admissible on relevance grounds alone, independent of either the tendency or coincidence frameworks. The application to sever the Medway counts from the Badgerys Creek counts was refused.

Orders Made

  • The evidence of events at Medway and at Badgerys Creek was ruled admissible as tendency evidence and as coincidence evidence.
  • The evidence was also held admissible on relevance grounds, independent of the tendency and coincidence bases.
  • The application for severance of counts four to seven (Medway charges) from counts one to three (Badgerys Creek charges) was refused.

Key Takeaways

  • Tendency and coincidence evidence provisions in the Evidence Act 1995 (NSW) can operate together: the same cross-incident evidence may satisfy both s 97 and s 98 where distinct admissibility criteria are met under each section.
  • Where the presence of the accused at multiple offences is the principal fact in issue, evidence of striking operational similarities across incidents can carry significant probative value, particularly when the similarities go beyond general modus operandi to specific, convergent details.
  • Under s 101(2) of the Evidence Act 1995, the risk of unfair prejudice must be weighed against probative value; the court found that the specificity and number of similarities here tilted the balance in favour of admissibility.
  • A co-accused's guilty pleas before trial did not automatically resolve the admissibility question for the remaining accused, since the mental elements and joint enterprise allegations against that accused remained in issue.
  • Severance of counts under the Criminal Procedure Act 1986 (NSW) s 143 was refused where the cross-admissibility of evidence across charge groups made a single trial appropriate.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 97, 98, 101(2)
- Criminal Procedure Act 1986 (NSW), s 143

Cases:
- Aravena v R [2015] NSWCCA 288
- Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
- Hughes v R [2015] NSWCCA 330
- R v Matonwal & Amood [2016] NSWCCA 174
- Saoud v R [2014] NSWCCA 136; 87 NSWLR 481