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Supreme Court 1 December 2020

R v Evans; Evans; XE (No 1)

[2020] NSWSC 1698

Assault & violenceHomicide

Citation: R v Evans; Evans; XE (No 1) [2020] NSWSC 1698
Court: Supreme Court of New South Wales
Date: 1 December 2020
Judge: Ierace J

Background

Three accused, a father, his son, and his daughter, faced trial for the murder of a man shot in Wyong on 3 July 2017. The Crown alleged the three pursued another vehicle through residential streets, and the son fired a shotgun into that vehicle, killing the deceased. The son faced an additional charge of wounding a separate complainant the previous day.

The key prosecution witness was Jayke Rodgers, who had been in the front passenger seat of the vehicle carrying the deceased. He initially gave police a false "road rage" account before returning to the station and providing a truthful statement, explaining he had wanted to seek revenge before reconsidering.

During the trial, the father (John Evans) sought to rely on evidence of Mr Rodgers' alleged tendencies toward violence and intimidation. The son (Keith Evans) sought to cross-examine Mr Rodgers on aspects of his criminal history and Facebook messages. Ierace J heard the applications over several days and published consolidated reasons declining most of them.

Legal Issues

  • Whether evidence of Mr Rodgers' prior and subsequent criminal conduct was admissible as tendency evidence under section 97 of the Evidence Act 1995 (NSW), establishing tendencies to threaten and to commit acts of intimidation, assault, and property damage
  • Whether that same material was alternatively admissible on the basis of its general probative value, by analogy with R v Cakovski [2004] NSWCCA 280
  • Whether Keith Evans could cross-examine Mr Rodgers on his criminal history and Facebook messages under section 103(1) of the Act as evidence capable of substantially affecting the assessment of his credibility
  • Whether John Evans could cross-examine Mr Rodgers on his post-shooting Facebook messages to the applicant's sister under section 103(1), given passages in cross-examination where Mr Rodgers suggested his temperament had changed

Decision

Issue 1: Tendency evidence (John Evans, section 97)

Ierace J declined to admit the tendency evidence, finding that the proposed material lacked the capacity to rationally affect the probability of any fact in issue (at [47]). The threshold question, following IMM v The Queen (2016) 257 CLR 300, is relevance: each item of proposed evidence must be capable of rationally affecting the assessment of a fact in issue by reference to the formulated tendency (at [45]). Mr Rodgers' criminal record disclosed no offence more serious than assault occasioning actual bodily harm, no involvement with firearms, and no instance of attending a confrontation armed or with armed associates (at [47]). That record carried little probative weight when the Crown case already placed before the jury explicit threats by Mr Rodgers to kill Keith Evans and evidence that his group attended the confrontation with weapons (at [51]).

The threats Mr Rodgers sent to John Evans' sister after the shooting were motivated by revenge for the killing itself, not by any pre-existing attitude toward the Evans family (at [48]). Likewise, an alleged incident outside the courtroom during the trial was similarly motivated by the shooting and therefore shed no light on Mr Rodgers' attitude to the applicant's family before 3 July 2017 (at [49]).

Issue 2: The Cakovski alternative basis

John Evans argued, in the alternative, that the material was admissible on the broader probative value reasoning adopted by the Court of Criminal Appeal in Cakovski, where a murder appellant was permitted to lead evidence of the deceased's violent history that had been unknown to him at the time of the killing. Ierace J distinguished Cakovski on two grounds (at [51]-[52]). First, in Cakovski, there was no other evidence of the deceased's capacity for real violence, whereas here the Crown case already included Mr Rodgers' explicit pre-incident threats to kill Keith Evans and his group's attendance with weapons. Second, Mr Rodgers' criminal record was relatively minor: only one pre-incident matter resulted in imprisonment, and only because he failed to comply with an earlier community service order.

Issue 3: Cross-examination on criminal history and Facebook messages (Keith Evans, section 103)

Keith Evans sought to cross-examine Mr Rodgers on his criminal history and messages to Ms Timbery to undermine his credibility as a witness. Ierace J held that the criminal history, framed as evidencing a "pattern of behaviour," did not have the capacity to substantially affect an assessment of the veracity or accuracy of Mr Rodgers' evidence (at [62]). Accepting a pattern of assault and property damage still did not explain how that history bore on Mr Rodgers' reliability as an eyewitness to a shooting, particularly when the defence for Keith Evans did not suggest he acted in self-defence (at [62]). The Facebook messages to Ms Timbery bespoke criminal conduct but, on examination, Mr Rodgers' account in them was broadly consistent with his police statements; cross-examining on them would damage his character without meaningfully affecting the truth or reliability of his evidence on the facts in issue (at [64]-[65]).

Issue 4: Cross-examination on Facebook messages (John Evans, section 103)

During cross-examination, Mr Rodgers made statements suggesting his temperament had changed since the shooting. John Evans then applied to cross-examine him on his post-incident offending and the messages to Ms Timbery. Ierace J found that the 2018 and 2019 offences had minimal probative value on the question of Mr Rodgers' current temperament, because the cross-examination itself had already been qualified by Mr Rodgers clarifying he was referring only to changes in his attitudes toward drugs, socialising, and police charging, rather than asserting a law-abiding lifestyle (at [80]-[81]). Under section 135, that minimal probative value was substantially outweighed by the danger of unfair prejudice to the prosecution (at [81]). However, the judge granted leave to cross-examine on two specific aspects of the Facebook messages: Mr Rodgers' claim in those messages that he had been stabbed on 2 July 2017 (which had no support in his evidence or medical records) and his threats to kill Keith Evans, both of which directly contradicted aspects of his trial evidence (at [83]).

Orders Made

  • Leave granted to John Evans to rely upon a tendency notice served out of time
  • Leave refused to John Evans to rely upon tendency evidence as outlined in that notice and the further material tendered in court
  • Leave refused to Keith Evans to cross-examine Mr Rodgers on certain COPS entries and Facebook messages
  • Leave granted to John Evans to cross-examine Mr Rodgers on certain Facebook messages (limited to the allegation of being stabbed and the threat to kill Keith Evans)

Key Takeaways

  • Under section 97 of the Evidence Act 1995 (NSW), the first step is to assess whether each proposed item of tendency evidence has the capacity to rationally affect the probability of a fact in issue by reference to the formulated tendency; credibility and reliability are set aside at that threshold stage (at [45]).
  • Where the Crown case already places before the jury explicit evidence of a witness's threats and violent conduct, additional criminal history evidence of lesser seriousness may lack the probative capacity required for admission as tendency evidence (at [47], [51]).
  • Post-incident threats and conduct by a witness are unlikely to establish a tendency relevant to events predating the incident if the threats are clearly motivated by the incident itself (at [48]-[49]).
  • Section 103(1) requires that proposed cross-examination material could "substantially affect" the assessment of credibility; material that damages a witness's character without bearing on the truthfulness or reliability of their evidence on the facts in issue will not clear that bar (at [62], [65]).
  • Distinguishing Cakovski, the Supreme Court confirmed that the alternative "probative value" basis for admitting evidence of a witness's or victim's violent propensity depends heavily on whether that propensity is already before the jury through other evidence (at [51]-[52]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Criminal Procedure Act 1986 (NSW)

Cases
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280
- R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290