HEADNOTE
[This headnote is not to be read as part of the judgment]
John Evans, his son Keith Evans, and a young woman XE, were all found guilty of the murder of Jesse Thompson by the Supreme Court constituted by judge and jury. The Crown case was that Keith Evans, from the passenger seat of a car driven by John Evans and in which XE was sitting in the rear, deliberately fired a shotgun into the rear of an adjacent car that they had been pursuing, killing Jesse Thompson. John Evans and XE were charged as participants in a joint criminal enterprise. Both Keith Evans and John Evans gave evidence at trial, and Keith Evans testified that the gun discharged accidentally. Both men were sentenced to lengthy periods of imprisonment.
Both men appealed against their convictions for murder.
The Court held, allowing the appeals against conviction brought by John and Keith Evans:
Per Leeming JA and Rothman J:
The primary judge erred in failing to accede to a joint request for a Liberato direction in circumstances where parts of the summing up had put to the jury that they were confronted with competing versions of events, only one of which could be accepted. It was not to the point that many aspects of the positive case propounded by John and Keith Evans were implausible, and indeed the probability that the jury would be disinclined to accept at least part of their evidence made the need for a Liberato direction all the greater. It was also not an answer to the appropriateness of giving the direction in respect of John and Keith Evans, to say that XE had not given evidence: at [92]-[93], [96], [100]-[101].
De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48; Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71, considered and applied.
Per Cavanagh J:
Whilst the trial judge stated throughout his summing up that the prosecution bore the onus of proof and that the appellants bore no onus, the purpose of a Liberato direction is to emphasise to the jury that in satisfying the onus of proof the Crown gains no assistance from a rejection of any version of events given by the accused. The failure to give the Liberato direction gave rise to a miscarriage of justice in that there is a possibility that it could have affected the outcome of the trial: at [144]-[145].
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, applied.
Per Leeming JA and Rothman J:
The proviso in s 6 of the Criminal Appeal Act 1912 (NSW) was not available. Although a great deal of the positive case advanced by John and Keith Evans was demonstrably false or glaringly improbable, the Court could not be satisfied that the Crown had excluded the reasonable possibility that Keith Evans pulled the trigger of the gun accidentally. In part this was because the transcript was an imperfect and incomplete record of Keith Evans' evidence, which included gestures and demonstrations which were not fully recorded in the transcript. Mostly, though, it was because assessment of the reasonable possibility of accidental discharge depended on an assessment of Keith Evans' evidence. This was a matter for a properly directed jury, although it was not a case of oath on oath. There were also other circumstantial matters consistent with an accidental discharge: at [107]-[119].
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, distinguished.
Per Cavanagh J (dissenting on this issue):
The proviso in s 6 of the Criminal Appeal Act 1912 (NSW) should be applied. This was not a case where the nature of the error prevented the court from making an independent assessment of the record so as to determine whether, having regard to the evidence, the appellants were guilty beyond a reasonable doubt, nor was it a case entirely dependent on assessing the evidence of one witness against the other with the differing versions both being plausible. This was a case in which the accused persons provided a glaringly improbable version of events. The evidence adduced by the Crown established the guilt of the appellants beyond a reasonable doubt. There was no substantial miscarriage of justice: at [146]-[171].
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, considered and applied. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, distinguished.
Per Leeming JA and Rothman J, Cavanagh J agreeing:
Although the issue would not affect the outcome of either appeal given the Liberato conclusion, there was no error in the trial judge's refusal to admit, in John Evans' case, tendency evidence that Mr Rodgers, who was in the car being pursued by John and Keith Evans and XE, had a tendency to make threats of violence against John Evans and his family, and to commit acts of intimidation, assault and destruction of property. The proposed evidence did not have significant probative value pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW). First, although the evidence was said to show that John Evans was in the vehicle not as a participant in a joint criminal enterprise but to protect his family from threats of violence, there was no issue that Mr Rodgers had threatened to fight and kill Keith Evans and the evidence did not show a tendency to threaten other members of the family (except evidence relating to conduct after the shooting). Second, the evidence was not probative of whether Mr Rodgers, or another man in his car, brought the shotgun to a confrontation with John and Keith Evans and XE, largely because of the generality of the tendency identified: at [131]-[133], [143].
Although on the view taken of the Liberato direction, the issue did not arise, no miscarriage of justice was occasioned by the trial judge not leaving manslaughter to the jury on the basis of extreme provocation. The deceased had not done anything to cause Keith Evans to lose self-control, and even assuming that provocation could be available in respect of a pole thrown at Keith Evans' car by a different person in the deceased's car, the throwing of a pole could not have caused an ordinary person to lose self-control to the extent of discharging a gun at close range into another car: at [135], [143].