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Court of Criminal Appeal 13 June 2025

XE v R (No 2)

[2025] NSWCCA 90

Assault & violenceHomicide

Citation: XE v R (No 2) [2025] NSWCCA 90
Court: Court of Criminal Appeal
Date: 13 June 2025
Judge(s): Kirk JA; Davies J; Wright J

Background

The applicant (referred to as XE, as she was 17 at the time of the relevant events) was convicted of murder in January 2021 following a jury trial in the Supreme Court. The murder arose from a car chase through the streets of Wyong in July 2017, during which Keith Evans fired a shotgun from a Mitsubishi Triton towards a Toyota Kluger carrying the deceased, Jesse Thompson, who died approximately 30 minutes later.

The applicant was tried jointly with Keith Evans and John Evans. Two pathways to her liability were advanced: first, that all three accused participated in a joint criminal enterprise (JCE) to locate and shoot at the deceased's group with intent to cause grievous bodily harm; and second, an extended joint criminal enterprise (EJCE) based on an agreement to intimidate the group, with the applicant contemplating the possibility of a deliberate discharge of the weapon. Whether Keith Evans fired the shot accidentally or deliberately was the central factual dispute at trial.

The applicant had previously challenged only her sentence, which was dismissed in April 2023. Keith and John Evans later appealed their convictions out of time, and in December 2024 a majority of the Court of Criminal Appeal upheld those appeals on the basis that the trial judge had erred by failing to give a Liberato direction, ordering retrials. The applicant then filed her own conviction appeal in February 2025, also well out of time.

  • Whether the Court should grant an extension of time for filing the notice of appeal
  • Whether the trial judge erred by failing to give a Liberato direction (an instruction to the jury about how to approach conflicting evidence where an accused's evidence, if believed or raising a reasonable doubt, would lead to acquittal)
  • Whether the proviso under s 6 of the Criminal Appeal Act 1912 (NSW) should be applied to save the conviction despite any error (the proviso allows a court to dismiss an appeal if no substantial miscarriage of justice occurred)
  • Whether evidence specific to the applicant created a material distinction from the co-accused's cases, such that the earlier decision in Evans v R; Evans v R [2024] NSWCA 245 should not be followed

Decision

Extension of time. The Court granted the extension, primarily on the merits of the appeal, but expressed pointed criticism of the delays involved. The applicant's solicitors had not adequately explained why the co-accused's appeals were filed and heard separately in October 2024 while the applicant's was not. The Court noted that the failure to have all three co-accused's appeals heard jointly resulted in two unnecessary judgments, representing a significant waste of the Court's resources, Legal Aid NSW's resources, and those of the Office of the Director of Public Prosecutions.

Liberato direction. The Crown conceded that the principle from Kwu v R [2024] NSWCCA 199 applied. That principle holds that where an appeal is materially indistinguishable from an earlier appeal from the same trial raising the same point, the court should follow the earlier decision absent compelling reason to depart. The Crown accepted there was no material distinction between this appeal and Evans on the Liberato direction issue. A further complication arose from the EJCE pathway to liability: because EJCE is a derivative form of liability, XE could not be liable on that pathway if Keith Evans was not liable. With Keith Evans' conviction having been overturned, this independently supported upholding the ground relating to the Liberato direction.

The proviso. The Crown sought to distinguish the applicant's case by pointing to five pieces of evidence said to be specific to her, including evidence about her conduct and statements during and after the events. The Court examined each piece and found that none of them, individually or collectively, threw any significant light on the central question of whether Keith Evans fired the shot deliberately or accidentally. The evidence did not, therefore, constitute a material distinction from the cases against Keith and John Evans. The Court followed the majority's refusal to apply the proviso in Evans, and upheld the appeal.

Orders Made

  • Extension of time to file the notice of appeal granted
  • Appeal allowed
  • Conviction for murder quashed
  • Sentence quashed
  • Retrial ordered
  • Bail refused pending any application for release (without prejudice to any future bail application)

Key Takeaways

  • The Court of Criminal Appeal applied the Kwu principle, confirming that where a co-accused's appeal from the same trial on the same point has already been determined, the court will follow that decision unless there is a compelling reason to depart, provided the cases are materially indistinguishable.
  • A conviction resting on an extended joint criminal enterprise pathway is vulnerable where the principal offender's conviction has been overturned, because EJCE is a derivative form of liability that cannot stand independently.
  • Evidence specific to one accused will only constitute a material distinction from a co-accused's case for proviso purposes if it bears meaningfully on the central factual issue in dispute. Evidence of post-offence conduct or statements did not meet that threshold here, where the key issue was whether the shooter fired deliberately.
  • Failing to coordinate appeals among co-accused from the same trial drew significant judicial criticism. The Court identified the separate proceedings as having generated unnecessary judgments and a substantial waste of public and court resources.
  • Where an extension of time is sought to appeal a conviction, the merits of the underlying appeal grounds remain a relevant and potentially decisive consideration.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Kwu v R [2024] NSWCCA 199
- Evans v R; Evans v R [2024] NSWCA 245
- XE v R [2023] NSWCCA 96
- Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5
- IL v The Queen (2017) 262 CLR 268; [2017] HCA 27
- Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66
- Symons v R; McDonald v R [2024] NSWCCA 212
- Soars v R [2024] NSWCCA 218
- Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2