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Court of Criminal Appeal 19 December 2024

Evans v R; Evans v R

[2024] NSWCCA 245

Assault & violenceHomicideFirearms & weapons

Citation: Evans v R; Evans v R [2024] NSWCCA 245
Court: Court of Criminal Appeal, NSW
Date: 19 December 2024
Judges: Leeming JA and Rothman J (majority); Cavanagh J (agreeing on Liberato error, dissenting on proviso)

Background

Following a confrontation between two groups of men travelling in separate vehicles, Keith Evans discharged a shotgun from the passenger seat of a car driven by his father, John Evans. The shot killed Jesse Thompson, who was seated in the rear of the adjacent vehicle. A third accused, referred to as XE, was seated in the rear of the Evans vehicle.

All three were convicted of murder by a Supreme Court jury after a trial in late 2020 and early 2021. Keith Evans was also convicted of a separate wounding offence. John Evans received a sentence of 31 years imprisonment; Keith Evans received an aggregate sentence of 32 years. Keith Evans gave evidence at trial that the shotgun discharged accidentally. John Evans also gave evidence. XE did not.

Both men appealed against their murder convictions. John Evans additionally appealed against his sentence. The central issue on appeal was whether the trial judge erred by refusing to give the jury a Liberato direction, despite a joint request from both accused to do so.

  • Whether the trial judge erred in refusing to give a Liberato direction, in circumstances where the summing-up had framed parts of the evidence as a choice between competing versions
  • Whether the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) applied to cure any error, given the strength of the Crown case
  • Whether the trial judge erred in refusing to admit tendency evidence concerning threats and violent conduct by Jayke Rodgers (who was in the other vehicle), for the purpose of explaining John Evans' presence in the vehicle
  • Whether the trial judge erred by declining to leave manslaughter on the basis of extreme provocation

Decision

The Liberato Direction

A Liberato direction (from Liberato v The Queen (1985) 159 CLR 507) instructs the jury that if they believe or are left in reasonable doubt by an accused's evidence, they must acquit, and that the Crown derives no assistance from the jury's rejection of an accused's account. The majority held that the trial judge's summing-up had presented the evidence to the jury in terms of competing versions, only one of which could be accepted. This framing made the absence of a Liberato direction an error, and the fact that both accused had requested one made the failure more acute. Cavanagh J agreed that the failure to give the direction gave rise to a miscarriage of justice, accepting there was a possibility it could have affected the outcome.

The majority further rejected the Crown's argument that the direction was unnecessary because much of the positive case advanced by the appellants was implausible or demonstrably false. On the contrary, the greater the likelihood that a jury would reject an accused's evidence, the greater the need for the direction to ensure the jury understood the proper approach to that rejection.

The Proviso

The majority declined to apply the proviso in s 6 of the Criminal Appeal Act 1912 (NSW). While acknowledging that many aspects of the appellants' account were glaringly improbable, the majority could not be satisfied the Crown had excluded a reasonable possibility that the gun discharged accidentally. The assessment of that possibility depended substantially on Keith Evans' trial evidence, which included gestures and demonstrations that were incompletely captured in the transcript. That question was one for a properly directed jury. Cavanagh J dissented, finding the Crown evidence established guilt beyond reasonable doubt and that no substantial miscarriage of justice had occurred.

Tendency Evidence and Provocation

By a unanimous result (all three judges agreeing), the Court upheld the trial judge's refusal to admit tendency evidence about Rodgers. The proposed evidence lacked sufficient probative value under s 97(1)(b) of the Evidence Act 1995 (NSW): the tendency identified was too general to be probative of whether Rodgers or another man in his vehicle brought the shotgun to the confrontation. The Court also found no error in declining to leave extreme provocation to the jury. A pole thrown by a person other than the deceased could not, on the evidence, have caused an ordinary person to lose self-control to the extent of firing a shotgun at close range into another car.

Orders Made

• The appeal is dismissed.

Key Takeaways

  • A Liberato direction remains necessary where a summing-up frames the evidence as a choice between competing versions: the implausibility of an accused's account does not diminish the obligation to give the direction and, if anything, strengthens the case for it.
  • Where an accused's evidence included physical demonstrations and gestures not fully recorded in the trial transcript, the Court of Criminal Appeal held it could not independently assess whether the Crown had excluded a reasonable possibility of accidental discharge, making the proviso unavailable.
  • Tendency evidence will lack the significant probative value required by s 97(1)(b) of the Evidence Act 1995 (NSW) where the tendency is framed too broadly to bear meaningfully on the specific issue in dispute.
  • Extreme provocation as a basis for manslaughter requires conduct by the deceased themselves causing a loss of self-control; the Court confirmed that a pole thrown by a different person in the deceased's vehicle could not ground that direction in the circumstances of this case.
  • Cavanagh J dissented on the proviso question, illustrating that the strength-of-the-Crown-case analysis under Weiss v The Queen remains a genuinely contested assessment in cases involving largely discredited but not entirely eliminable defence accounts.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), ss 18, 23, 33
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Evidence Act 1995 (NSW), s 97

Cases
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
- Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
- Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- TL v The King (2022) 275 CLR 83; [2022] HCA 35
- Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
- Douglass v The Queen [2012] HCA 34
- El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
- XE v R [2023] NSWCCA 96
- R v Evans; Evans; XE (No 1) [2020] NSWSC 1698