Citation: R v Evans; R v Evans (No 5) [2025] NSWSC 779
Court: Supreme Court of New South Wales
Date: 10 July 2025
Judge(s): Weinstein J
Background
Two accused face trial for the alleged murder of Jesse Thompson, who was one of six occupants in a Toyota Kluger at the time of the killing. The remaining five occupants became witnesses for the prosecution. Those witnesses had earlier been involved in an affray at Baker Park shortly before the alleged murder, and some had initially lied to police or refused to give statements before later admitting those lies.
Defence counsel for both accused applied for a warning under s 165(1)(d) of the Evidence Act 1995 (NSW). That provision allows the court to warn the jury about potentially unreliable evidence from a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings. The defence argued that the Kluger occupants' involvement in the Baker Park affray brought them within that description.
The prosecution opposed the application. The central factual question at trial is whether a shot fired from a Mitsubishi Triton by one of the accused was accidental or deliberate.
Legal Issues
- Whether the phrase "events giving rise to the proceedings" in s 165(1)(d) is broad enough to include criminal activity that forms the background to the alleged crime, rather than the alleged crime itself.
- Whether the Kluger occupants could be characterised as accomplices or persons criminally concerned in the murder, so as to attract the s 165(1)(d) warning.
- Whether the jury would, without a warning, fail to identify the factors that might render the witnesses' evidence unreliable.
Decision
Issue 1: Scope of "events giving rise to the proceedings"
Weinstein J held that the phrase "events giving rise to the proceedings" does not extend to criminal activity that merely forms the background to the alleged crime (at [4]). The court drew support from the NSW Criminal Trial Bench Book, which frames the relevant direction by reference to a witness "who was or might have been involved in the alleged crime," not background criminality. The court also relied on Blair v R [2022] NSWCCA 176, where Yehia J (with Beech-Jones CJ at CL agreeing) held that a complainant's involvement in drug supply at the time of the offending did not attract a s 165(1)(d) direction because that conduct was not the event giving rise to the proceedings (at [5]-[6]).
Issue 2: Whether the Kluger occupants were accomplices or criminally concerned in the murder
The court found that the Kluger occupants were not accomplices to the alleged murder of Jesse Thompson, which is the event giving rise to the present proceedings (at [8]). They may have been accomplices to the Baker Park affray, but the murder is a distinct event. Because none of them are alleged to bear any responsibility for the murder, they have no interest in deflecting blame onto the accused in connection with it (at [8]). The court also noted that the witnesses' own admissions that they had lied to police meant they could not be said to be "locked in" to earlier false versions in the way accomplice-witness concerns typically contemplate (at [8]).
Issue 3: Whether a warning was necessary to protect the jury from unreliability
A s 165(1)(d) warning is required only when there is a real possibility that, without it, the jury will not identify a factor adversely affecting the weight of the evidence (at [10]). The court found no such real possibility here for three reasons. First, the credibility of the Kluger occupants is a central issue at trial, and the jury has been exposed to a full spectrum of reasons why their evidence might be unreliable, including lies to police, alleged vendettas, and poor observation (at [14]). Second, the jury is fully aware of the witnesses' history of engagement with police, including false statements (at [15]). Third, the proposed direction is immaterial to the central issue, being whether the shot was fired accidentally or deliberately (at [16]).
Orders Made
- The court refused to provide a warning pursuant to s 165(1)(d) of the Evidence Act 1995 (NSW).
Key Takeaways
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The phrase "events giving rise to the proceedings" in s 165(1)(d) of the Evidence Act 1995 (NSW) does not encompass criminal activity that merely forms the background to the alleged crime. It refers to the alleged crime itself, consistent with the framing in the NSW Criminal Trial Bench Book and the reasoning in Blair v R [2022] NSWCCA 176 (at [4]-[6]).
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A witness involved in a separate criminal episode that preceded the alleged offence is not, by reason of that prior involvement alone, a person "criminally concerned in the events giving rise to the proceedings" for s 165(1)(d) purposes (at [4]-[5]).
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Where witnesses are not alleged to bear any responsibility for the charged offence, the usual rationale for an accomplice-style warning does not apply. Such witnesses have no incentive to deflect blame from themselves onto the accused in connection with that offence (at [8]).
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A section 165(1)(d) direction is not warranted where witness credibility is already a central trial issue and the jury has been extensively exposed to multiple reasons for potential unreliability through cross-examination (at [13]-[14]).
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Refusing the statutory warning does not foreclose counsel from addressing the jury directly on the reasons to treat those witnesses' evidence with caution (at [17]).
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW) s 165
Cases
- Blair v R [2022] NSWCCA 176
- Mena v DPP [2024] ACTCA 34
- R v Baartman [2000] NSWCCA 298
- R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321
- Soars v R [2024] NSWCCA 218