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Court of Criminal Appeal 10 February 2023

Evans v R

[2023] NSWCCA 11

Homicide
CRIMINAL LAW MURDER TACTICAL DECISION OF TRIAL COUNSEL TWO HOME INVASIONS COINCIDENCE EVIDENCE CONSUMPTION OF ICE

Citation: [2023] NSWCCA 11
Court: NSW Court of Criminal Appeal
Date: 10 February 2023
Judge(s): Bell CJ, Price J, Lonergan J

Background

The appellant was convicted by jury of the murder of a man whose home was invaded at Badgerys Creek in May 2014. The victim died from blunt head injuries. The appellant was also convicted of four offences arising from a separate home invasion at Medway approximately one month earlier, during which another occupant suffered serious traumatic brain injury. Both invasions involved a high degree of violence and were carried out in company.

The Crown relied on coincidence evidence at trial, pointing to strong similarities between the two invasions. The appellant's case at trial was simply that he was not present at either invasion. Trial counsel did not seek a direction from the judge that the jury could return an alternative verdict of manslaughter, and there was no suggestion at trial that the appellant may have been intoxicated at the time of the Badgerys Creek invasion.

On appeal, the appellant sought leave to appeal out of time against the murder conviction only. He argued the trial judge had been obliged to direct the jury on manslaughter as an alternative verdict, relying on evidence that he may have smoked methylamphetamine (ice) shortly before the Badgerys Creek invasion.

  • Whether the trial judge was obliged to leave the alternative verdict of manslaughter by unlawful and dangerous act to the jury, even absent a request from trial counsel
  • Whether there was sufficient evidence of intoxication by ice to support a finding that the appellant lacked the specific intent required for murder, such that manslaughter should have been left to the jury
  • Whether, even if intoxication evidence existed, s 428C(2) of the Crimes Act 1900 (NSW) would have prevented reliance on it, because the appellant had resolved to carry out the relevant conduct before becoming intoxicated

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, though it extended time and granted leave to appeal.

On the first issue, the Court confirmed that a trial judge's duty to leave an alternative verdict is not extinguished by tactical decisions of counsel. The judge remains obliged to direct on manslaughter if there is evidence on which a jury, acting reasonably, could find manslaughter rather than murder. This principle, drawn from Pemble v The Queen (1971) 124 CLR 107 and subsequent authorities, was not in dispute.

The appeal failed on the facts. The Court held there was no evidence from which a jury could rationally conclude that the appellant was intoxicated by ice at the time of the murder, let alone determine the extent of that intoxication or its effect on his intent. There was no evidence of how much ice was actually smoked beforehand. A jury left to reason on those matters would have been engaged in impermissible speculation rather than inference.

The Court also accepted, as a further and independent basis for dismissal, that s 428C(2) of the Crimes Act would have blocked any reliance on intoxication evidence in any event. That provision prevents intoxication being taken into account where the person had resolved before becoming intoxicated to carry out the relevant conduct. The combination of the appellant's knowledge of the earlier Medway invasion, weeks of planning for the Badgerys Creek invasion, and the equipment carried by the group (including duct tape, balaclavas, gloves, and a pick handle) demonstrated that the relevant intent had been formed well before any consumption of ice that evening.

Orders Made

  • Time for leave to appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A trial judge's duty to leave an alternative verdict of manslaughter to the jury exists independently of any request by counsel. The duty is engaged only where there is evidence on which a jury, acting reasonably, could return that verdict rather than the principal charge.
  • No evidence of intoxication arose simply from the possibility that the appellant had smoked some ice before the offence. Without evidence of the quantity consumed and its effect on the appellant's state of mind, any finding that he lacked specific intent would have amounted to impermissible speculation.
  • Under s 428C(2) of the Crimes Act 1900 (NSW), intoxication evidence cannot be taken into account where a defendant had resolved to carry out the relevant conduct before becoming intoxicated. Planning and preparation occurring over weeks prior to the offence, including the assembly of specific equipment, can establish that prior resolution.
  • In dismissing the appeal, the Court distinguished Douglass v R [2020] NSWCCA 284 and Carbone v R [2020] NSWCCA 318, finding those cases did not support leaving manslaughter on the evidence here.
  • The three-judge bench applied a consistent analytical framework: the availability of an alternative verdict direction depends on whether evidence, not mere possibility or inference upon inference, actually supports the alternative verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 27, 86, 112, 421, 428A, 428B, 428C
- Drug Misuse and Trafficking Act 1985 (NSW), Sch 1
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Pemble v The Queen (1971) 124 CLR 107
- James v The Queen (2014) 253 CLR 475
- R v Kanaan (2005) 157 A Crim R 238; 64 NSWLR 527
- Lane v R (2013) 241 A Crim R 321
- Xie v R [2022] NSWCCA 185
- Douglass v R [2020] NSWCCA 284
- Carbone v R [2020] NSWCCA 318
- The Queen v Baden-Clay (2016) 258 CLR 308
- The Queen v Lavender (2005) 222 CLR 67
- Burns v The Queen (2012) 246 CLR 334
- Wilson v The Queen (1992) 174 CLR 313
- R v Basanovic (2018) 100 NSWLR 840
- Seltsam Pty Ltd v McGuiness (2002) 49 NSWLR 262
- Luxton v Vines (1952) 85 CLR 352
- Jones v Great Western Railway Co (1930) 144 LT 194
- R v Holzer [1968] VR 481
- R v Johnson (No 4) [2017] NSWSC 609