Citation: R v John Paul Evans; R v Keith Evans [2025] NSWSC 526
Court: Supreme Court of New South Wales
Date: 2 June 2025
Judge(s): Davies J
Background
Two accused persons, referred to here as John Evans and Keith Evans, were originally convicted of murder following a jury trial before Ierace J. Keith Evans was also convicted of a separate wounding offence. Both received lengthy sentences. The Court of Criminal Appeal allowed their murder appeals in December 2024, quashed those convictions, and ordered a new trial, now fixed before Weinstein J for 2 June 2026.
In May 2025, both accused filed motions seeking orders that the re-trial proceed before a judge alone, without a jury. The Crown did not consent to that course. Because the Crown's consent was absent, the court was required to assess whether a judge-alone order was in the interests of justice under s 132(4) of the Criminal Procedure Act 1986 (NSW).
The applications raised three principal concerns: pre-trial publicity about the original convictions and sentences; the prejudicial effect of "context evidence" relating to Keith Evans's wounding offence, which would again be before the jury; and the alleged complexity of ballistics expert evidence, including some additional evidence not led at the first trial.
Legal Issues
- Whether leave was required under s 132A of the Criminal Procedure Act 1986 (NSW) for Keith Evans's application, given it was filed fewer than 28 days before an earlier scheduled date.
- Whether it was in the interests of justice, under s 132(4) of the Criminal Procedure Act 1986 (NSW), to order a judge-alone trial in the absence of the Crown's consent.
- Whether pre-trial media and internet publicity about the prior convictions and sentencing justified a judge-alone order.
- Whether the "context evidence" of Keith Evans's wounding offence created a prejudice that a jury could not be adequately directed to handle.
- Whether the ballistics evidence was of sufficient complexity to favour trial by judge alone.
Decision
Davies J refused both applications at the conclusion of the hearing on 29 May 2025, providing written reasons shortly afterwards given the proximity of the trial date.
On the question of publicity, the court noted that the applicants led no evidence explaining why the applications were not made earlier or why internet directions to jurors would be insufficient. Courts routinely proceed on the basis that juries follow clear judicial directions, including warnings about internet searches with the attendant criminal consequences. The court also observed that any juror who discovered through a search that the accused had previously been convicted would likely understand from the very fact of a re-trial that something had gone wrong with that conviction.
Regarding the context evidence of the wounding offence, the court found no reason to conclude that a properly directed jury would be unable to manage that material appropriately. Juries are presumed to follow directions, and no sufficient basis was established to depart from that presumption here.
On the ballistics evidence, Davies J found it was not of the order of complexity that has been recognised in the case law as favouring a judge-alone trial. Having read the evidence from the first trial, the court described it as relatively straightforward. Ballistics evidence is commonly led in murder trials, and the central issue, namely whether a firearm was discharged intentionally or accidentally, did not involve complex scientific, engineering, or financial concepts of the kind that might overwhelm a jury. Considered individually and collectively, the matters relied upon did not satisfy the interests of justice test.
Orders Made
• The application for a trial by judge order is refused
Key Takeaways
- Under s 132(4) of the Criminal Procedure Act 1986 (NSW), where the Crown withholds consent to a judge-alone trial, the court must be satisfied the order is in the interests of justice, and the applicant's subjective belief that a jury trial may be unfair is far from determinative.
- Pre-trial internet publicity does not, without more, justify a judge-alone order. The Supreme Court reaffirmed that courts proceed on the basis that juries follow directions and that criminal penalties for prohibited internet searches provide a meaningful deterrent.
- Where accused persons have been previously convicted of the same offence, a juror who discovers that fact through an internet search would likely appreciate, from the existence of the re-trial itself, that the prior conviction was set aside.
- A failure to explain delay in bringing a judge-alone application, and an absence of affidavit evidence supporting the asserted prejudice, will weigh against the grant of leave and against the making of an order.
- Ballistics evidence of the kind commonly given in murder trials, concerning firearm trajectories and whether a discharge was intentional or accidental, does not constitute the type of complex scientific or technical evidence that favours trial by judge alone under the principles in R v Belghar and R v Simmons; R v Moore (No 4).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 132, 132A
- Crimes Act 1900 (NSW), s 33
- Interpretation Act 1997 (NSW), s 36
Cases
- Evans v R; Evans v R [2024] NSWCCA 245
- R v Evans; R v Evans; R v Evans [2021] NSWSC 885
- R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
- R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120
- R v Dawson [2022] NSWSC 552
- R v Niguidula [2023] NSWSC 290
- Alameddine v R [2022] NSWCCA 219
- Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197