Citation: R v Evans (No 2) [2017] NSWSC 742
Court: Supreme Court of New South Wales
Date: 11 May 2017
Judge: R A Hulme J
Background
The accused faced charges arising from two violent home invasions, one at Medway on 28 April 2014 and one at Badgerys Creek on 30 May 2014. In both incidents, residential premises were broken into during the night, occupants were assaulted and restrained, and cash and valuables were stolen. One occupant was killed and two others were seriously injured.
The Crown alleged the accused participated in both home invasions as part of a joint criminal enterprise with two co-offenders, referred to in the judgment by pseudonyms as "Kurt Sinclair" and "Sam Franklin." The central issue at trial was whether the Crown could prove beyond reasonable doubt that the accused was present at each location.
Before the trial proper, a question arose as to whether evidence of the accused's involvement in the use and sale of methamphetamine ("ice"), along with that of his alleged co-offenders, was admissible. Hulme J ruled on that question in this judgment.
Legal Issues
- Whether evidence of the accused's and his co-offenders' involvement in the use and sale of ice was admissible under s 137 of the Evidence Act 1995 (NSW)
- Specifically, whether the probative value of that evidence was outweighed by the danger of unfair prejudice to the accused
- Whether any risk of unfair prejudice could be adequately addressed through jury directions
Decision
Hulme J ruled the evidence admissible. The Crown argued that the ice-use evidence was relevant on multiple grounds: it explained the relationship between the accused and his alleged co-offenders, and it provided a powerful motive for the accused to participate in crimes designed to obtain large sums of money quickly.
The accused's counsel contended the evidence was either irrelevant or only marginally relevant, arguing that the nature of the home invasions already made clear they were carried out by people in desperate need of money, and that the specific reason for that need added nothing. Counsel also raised the risk that jurors might reason improperly that ice users were people of bad character more likely to commit violent crime.
Hulme J rejected the argument that the reason for the accused's need for money was irrelevant. His Honour found that a jury could reasonably conclude that a regular ice user at the level described would inevitably face desperate financial pressure, and that without this evidence the jury would have no basis to understand why the accused might have been motivated to participate in such extreme criminal conduct.
On the question of unfair prejudice, the court accepted that the risk identified by defence counsel was a real one. However, Hulme J was satisfied that appropriate jury directions could adequately address that danger. He also noted that a tendency direction, already required following a pre-trial ruling, would in fact provide a useful framework for explaining to the jury the distinction between legitimate and illegitimate reasoning from that evidence.
Orders Made
• Evidence concerning the accused's involvement with the drug methamphetamine, or "ice", was admissible
Key Takeaways
- Under s 137 of the Evidence Act 1995 (NSW), evidence must be excluded where its probative value is outweighed by the danger of unfair prejudice to the accused; the question is one of proportionality, not mere prejudice.
- Evidence of an accused's involvement in heavy drug use was found to be highly probative as motive evidence where it could explain why the accused would have been desperately in need of money at the relevant time.
- The Supreme Court rejected the proposition that the reason behind an accused's need for money is irrelevant simply because the criminal conduct itself appears financially motivated; without motive evidence, a jury may find the conduct inexplicable.
- A risk of unfair prejudice, specifically that jurors might treat drug involvement as evidence of general bad character, does not automatically render evidence inadmissible where appropriate directions can neutralise that risk.
- Tendency directions, sometimes seen as compounding the prejudice from propensity-type evidence, were identified in this case as a mechanism that could assist in guiding the jury toward legitimate reasoning.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 137
Cases cited:
No cases were cited in the judgment.