Evans v R; Evans v R

Attack on Jayke Rodgers

1. In June and July 2017, Keith Evans communicated with Mr Rodgers using his girlfriend's account, posing as the girlfriend. On Friday 30 June 2017, Keith Evans posed as his girlfriend to arrange a meeting with Mr Rodgers at the Evans' house, under the pretence that Keith Evans and John Evans would be away for the weekend. When Mr Rodgers arrived at the Evans' house in the early hours of Sunday 2 July 2017, he saw the girlfriend but was then attacked by Keith Evans and another (unidentified) man, by being struck by something in a pillowcase or bag, causing him to lose consciousness. This formed the basis of the charge of wounding with intent to cause grievous bodily harm, from the conviction for which no appeal is brought. It was not suggested that the unidentified assailant was John Evans.
2. Mr Rodgers sought assistance at a nearby residence and was taken to Wyong Hospital, where he was discharged at 7.57am. However, he was readmitted at 6.08pm on Sunday after vomiting blood, and remained at the hospital overnight.
3. Later on 2 July 2017, Mr Rodgers sent Keith Evans text messages (to the girlfriend's Facebook account) which read "Dead man walking" and "Be prepared for revenge". Keith Evans, on John Evans' advice, responded to the effect that he did not know who was messaging him or what the messages were about, to which Mr Rodgers responded, "Can't hide now big boy. Wait till I come outnumbered your dead bra move now".

Confrontation at Evans House

1. On Monday 3 July 2017, at 11.34am according to CCTV from a local bakery, Levi Dean and Shane Weir, acquaintances of Mr Rodgers and en route to pick him up from the hospital, arrived at the Evans house to confront Keith Evans. They saw Keith Evans and one of them yelled, "What happened to Rodgers was a shit go. Why didn't you fight him one-on-one?" Keith Evans withdrew into the house but Levi Dean and Shane Weir had an exchange with XE through the front locked sliding glass door. As they were leaving (at about 11.38am), Mr Weir threw a spirit level towards XE, shattering the door and causing cuts to XE's legs. The pair then picked up Mr Rodgers from the hospital at 12.02pm.
2. XE phoned John Evans at 11.39am. John Evans gave evidence that she was hysterical and frantic, and said she thought she was going to die. John Evans drove home, and gave evidence that he found XE crying, shaking, with blood all over her. John Evans, Keith Evans and XE all left the house in John Evans' white Mitsubishi Triton. John Evans was driving, Keith Evans was in the front passenger seat, and XE was in the back seat on the passenger side. CCTV from the bakery shows John Evans arriving at 11.42am and leaving at 11.44am.

The evidence concerning Woodward Avenue

1. There was a deal of controversy relating to the movements of the Evanses from this point. The Crown case was that John Evans, Keith Evans and XE drove in the Triton to Billy Thompson's house in Woodward Avenue, Wyong. Billy Thompson was a friend of Mr Rodgers. Outside, they encountered Billy Thompson's brother, Jesse Thompson (the deceased, who was 19 years old), and the Thompsons' cousins, Daniel and Luke Hill, who were leaving the premises. XE enquired as to Mr Weir's whereabouts.
2. Luke Hill testified that John Evans pulled a single barrel shot gun on him and said "Listen here cunt I'm not fucking around, where is he?". Daniel Hill testified that the front passenger held up a gun and said "Look, we're - listen, we're not playing around".
3. Both Keith Evans and John Evans gave evidence and were cross-examined. John Evans also gave an interview with police on 4 July 2017 (Keith Evans exercised his right to silence). Both Keith Evans and John Evans denied having attended Woodward Avenue and further denied that an incident involving production of a gun occurred.
4. On the Crown case, Daniel Hill, Luke Hill and Jesse Thompson ran back into Billy Thompson's house and told him what had happened. Billy Thompson then made a call and Levi Dean, Shane Weir and Jayke Rodgers came to Billy Thompson's residence. The six men - Jayke Rodgers, Levi Dean, Shane Weir, Jesse Thompson, Billy Thompson and Luke Hill - then armed themselves and drove off in Mr Weir's silver Toyota Kluger. Daniel Hill testified that the men picked up some bats and that Mr Rodgers retrieved a "giant shifter looking thing" from the shed, but that he did not see anyone with a gun. Billy Thompson testified that he took a knife/razor blade, and that a couple of kitchen knives and a 6-12 inch pole were also taken, but that no one carried a gun at any stage. Mr Rodgers testified that the group brought a metal pole from a trampoline and a broken single garden shear, but denied that anyone in the Kluger had a gun at any stage. Mr Dean testified that he took a pole, and said the others took some sticks, but said that no one brought a gun. Luke Hill denied that anyone in the group took any weapons. Mr Weir gave evidence suggesting that he was taking drugs at the time and had no recollection of any of the events.
5. Various accounts were given of the contents of the phone calls between the two groups at this stage as they arranged to confront each other. Phone records show an 11 second phone call between Mr Rodgers and XE at 12.06pm, a 23 second phone call between the pair at 12.09pm, a 50 second phone call at 12.14pm, and a 10 second phone call at 12.17pm. It seems clear that as a result of these phone calls, an arrangement was made to meet at Baker Park, and then a more specific place in Ithome St which is adjacent to the park.

The Incident at Baker Park

1. Jayke Rodgers said that his intention at this time was to fight Keith Evans, and that he told his friends that he would fight him alone first and that if this was unsuccessful, they would get involved. He gave evidence that the Kluger drove around the block, saw the Triton on the corner of Ithome St and Rose St and came to a stop behind the Triton. This intersection was adjacent to Baker Park and a carpark. Mr Rodgers gave evidence that a number of the passengers in the Kluger then jumped out. He said that Keith Evans was hanging out of the front passenger window of the Triton with a gun in his hand. Mr Rodgers testified that he heard a gunshot, ran and got back into the Kluger, and the Kluger drove off. The deceased then yelled out to Mr Weir (the driver) to stop and pick up Mr Dean and Billy Thompson, who had not gotten into the Kluger. Mr Weir did so, and the Kluger then left.
2. Mr Dean's evidence was that they saw the Triton on Ithome St and pulled up behind them. He and the other passengers, save for the deceased, got out of the Kluger. He and Mr Weir started running towards the Triton. The Triton then reversed towards them and he ran back towards the Kluger. He saw the person in the front passenger seat lean out holding a shot gun and fire a shot in their direction. Mr Dean testified that he ran across the carpark, followed by the Triton, and heard a further one or two shots. He then got back into the Kluger, which Mr Weir had stopped on Ithome St so that he and Billy Thompson could get back in, and they drove off.
3. Billy Thompson gave evidence that he got out of the Kluger and moved towards the Triton, but saw the front passenger point a shot gun at their group and the Triton started to reverse, at which point he turned around to run. He heard a gunshot. The Kluger took off such that he could not get into the vehicle and so he and Mr Dean ran across the carpark, followed by the Triton. The Kluger drove towards the carpark entrance and he and Mr Dean got back into the car.
4. Luke Hill testified that he got out of the Kluger, heard a gunshot and got back into the car. He did not see who had the firearm.
5. Kirby Househam, who was working in the area, gave evidence that at about 12.20pm, he saw a grey Toyota Kluger pull up about 20m from him and then reverse. He said that about 2 minutes later, a white Mitsubishi Triton "came flyin across the carpark at speed".
6. Keith and John Evans' evidence differed from those of the Crown witnesses in many respects. Keith Evans gave evidence that the Kluger came to a halt behind their car and the passengers got out, holding various objects. He testified that he obtained the gun because his father picked it up at Baker Park after one of the Kluger occupants dropped it: A. I'd seen a lot of them had things in their hands, but I couldn't say what they were. Like some, there was like long things, short things. I couldn't say exactly what they were holding, but some of them had objects in their hands. Q. What happened then? A. We reversed at the whole pack and then they started running towards their car. And I noticed one person, he had one thing in his hand and we nearly got him in the car, like reversed at him. And then he ran towards his car and he dropped something, but he just kept running towards his car and my dad stopped the car. Q. Yes and what happened? A. My father opened up his driver's door, but I was - I thought he was going to get out of the car so I was scared. So I looked back out the back window just to make sure that they weren't going to run up and get him while he was getting out of the car. Q. Then what did you observe? A. I was still looking out the back window just to make sure they weren't going to come up. My father opened his door. The door got closed. I sat back down in the car and he sat something in the middle in the console.
7. Keith Evans went on to testify that the item in the centre console was a gun.
8. John Evans' evidence was that when he left his house, he was intending to get building supplies to repair the broken door. XE was then called by the Kluger group and they were told (and threatened) to come to Baker Park. John Evans testified that at the intersection, the Kluger group got out of their car and John Evans reversed at them, at which point they scattered and drove away. John Evans' evidence was that the driver of the Kluger was holding a firearm which he then dropped: A. He has been behind the door for a tick. Then he came out from behind the door and that's when I seen he had a gun in his hand. He took one or two steps forward, and I saw him out from behind the door. Instantly I seen the front passenger door open. As soon as that one open, the guy flew out; that guy that got out of the passenger door, he ran straight away at the car. It was like instant, (Indicated). Q. He ran to your car? A. Yes, to my car. Q. How close to your car did he get? A. That's why I was ahead three or four car lengths, but when the driver walked around, the other door opened and as soon as he ran, every other door was open. It was like instantly. Q. How many persons ran at your car? A. I would say four at least, because I seen all the doors open. Q. What did you do? A. I reversed at them. … Q. what did you see, if anything, happen to the gun? A. I didn't see the gun then. … Q. After you stopped what did you do? A. I was just trying to took a breath… Q. What is the next thing that happened? A. I noticed the gun on the ground, (Indicated). Q. You are indicating a forward motion? A. Yes. Q. So you went back past the Kluger, did you? A. Yes, by that stage the Kluger was not there. I don't where it went or how it got out of the way.
9. John Evans then testified that he "drove to the gun and picked it up", in a "quick motion". He put it on the console without looking at it.
10. Both John Evans and Keith Evans denied that they had a firearm when they left their house and arrived at Baker Park. They also denied firing it at anyone at or near Baker Park. Neither John nor Keith Evans gave evidence that the shot gun of which, according to their accounts, they had recently come into possession, was fired in their presence.

The chase through Wyong and the killing

1. At this point, there was no dispute that John Evans was driving the Triton, with Keith Evans in the front passenger seat and XE in the rear seat. In the Kluger, Shane Weir was driving, with Jayke Rodgers in the front passenger seat. In the back, from passenger to driver side, were Luke Hill, Jesse Thompson, Billy Thompson and Levi Dean.
2. The two cars drove through the streets of Wyong. There was a dispute on the Crown and defence cases as to which car was in pursuit.
3. Mr Rodgers, Luke Hill, Billy Thompson and Mr Dean all testified that they were being chased the entire time (in the Kluger) by the Triton, from when the Kluger picked up Billy Thompson and Mr Dean on Ithome St.
4. The Crown called four eyewitnesses who saw the Kluger being pursued by the Triton. 1. Jack Constable was a Volunteer Rescue Association worker who was at the corner of Ithome St and Warner Ave. He gave evidence that he saw two cars driving down Ithome St and into Warner Ave. The car in front was an SUV and he described its driver as appearing panicked, and the second car was a white dual cab ute. 2. Kimberly Mason testified that she was at the corner of Howarth St and Warner Ave at 12.15pm when she saw one car (of whose make she was not 100% sure but which she thought was a silvery blue Ford Territory) drive around the corner, and shortly after that a second car (which she thought was a Triton ute) also drive around the corner in front of her. 3. Phillip Webb was living on the corner of Byron St and Panonia Rd, and testified that he was outside on Panonia Rd when he saw a silver-grey Toyota Kluger and a white Mitsubishi ute driving on the wrong side of Panonia Rd. He said that the Kluger was in front of the ute. Both cars turned into Leppington St. 4. Paula Kelly was on Leppington St when she saw a silver SUV driving really quickly on Panonia Rd and into Leppington St, with the driver looking "very frightened". After this she saw a white ute drive past "like within an arm's length, like very, very close to this car, the silver car, as if it was chasing him".
5. CCTV footage from Wyong Railway station shows the Kluger being pursued by the Triton as the cars turn from Warner Ave into Howarth St, at 12.19pm. CCTV footage from the same station shows the Kluger being followed by the Triton from Warner Ave into Byron St at 12.20pm. CCTV from a house on Leppington St also shows the Kluger being pursued by the Triton, at 12.20pm. It was not suggested that the CCTV footage in evidence captured any instance of the Kluger being in pursuit of the Triton.
6. Keith Evans gave evidence that after they left Baker Park, halfway down Ithome St, they realised the Kluger was behind them. He testified that the Kluger came up to them, and that the passengers were yelling and throwing objects at the Triton. The Kluger then got in front of the Triton. Keith Evans accepted that after Ithome St, the Kluger was in front of the Triton but said that at times, the Triton was chasing the Kluger but at other times, the Kluger was tapping their brakes.
7. John Evans testified that they passed the Kluger parked on Ithome St, with the occupants on the road. The occupants threw things at the Triton and yelled "We're going to kill you. You're dead". The men then got back into the Kluger and chased the Triton, overtaking them. John Evans accepted that at some points, he was following the Kluger, but said that they were putting their brakes on.
8. At the conclusion of the chase, the cars drove south down Byron St, heading towards an intersection with Panonia Rd. At the intersection, the Triton stopped parallel to the Kluger, on the driver's side of the Kluger. It is not in dispute that a gunshot was discharged from the front passenger side of the Triton at this intersection. At least two of the shot gun pellets hit Levi Dean in his arm. At least 27 of the pellets hit the deceased, including in his neck, causing his death. It is not in dispute that Keith Evans was holding the shot gun when it discharged.
9. Jayke Rodgers testified that the Kluger had gone to turn right onto Panonia Rd but the Triton drove up and blocked them off. He said that Keith Evans pointed the shot gun at the Kluger's driver, and then a second later moved it to the back rear window and discharged it.
10. Levi Dean, who was in the back of the car on the driver's side, gave evidence that as the Kluger approached Panonia Rd, it braked to avoid the cars on that road. The Triton pulled up beside the Kluger and he wound down the rear window. He saw Keith Evans lean out of the car with a shot gun pointed at the driver. Mr Dean threw a pole at the Triton, and Keith Evans then aimed the gun at the back of the Kluger and discharged it. The pole was a metal cylinder some 36 cm long, and was recovered from the scene.
11. Billy Thompson said the Kluger was stopped from turning into Panonia Rd by a car travelling on that road. The Triton stopped on the driver's side of the Kluger and the front passenger pointed a gun at the driver, and then moved it towards the back and discharged it. He did not see the pole being thrown but was pretty sure something was thrown at the Triton.
12. Luke Hill testified that the Kluger and Triton stopped at the intersection and that the deceased was shot, but that he did not see anyone in the Triton.
13. Phillip Webb, who had seen the cars once before (as described above), testified that he saw the two cars again drive down Byron St. He testified that the Triton cut the Kluger off and that he heard a gunshot. He later found a metal pole at the scene.
14. Keith Evans testified that the two cars braked suddenly at the intersection and that the gun went off. He then said to John Evans, "I'm sorry like it just went off". He denied ever intentionally firing a gun at the Kluger.
15. John Evans' evidence was that the Kluger stopped at the end of Byron St and he swerved to avoid hitting it, and then braked heavily to avoid hitting a car on Panonia Rd. He heard a gun go off as he was braking, and heard a male on the front passenger side of the Kluger yelling, "We're going to get you all. You're fucked. Gonna kill you" and saw him throw a pole at the car, after the discharge of the shot gun.
16. Following the firing of the shot, the Triton drove off and the Kluger sought help from a nearby first aid post. Jesse Thompson was pronounced dead at 12.53pm.

Aftermath

1. John Evans testified that he destroyed the gun that night by smashing the butt and putting the rifle in a metal recycling place.
2. Keith Evans, John Evans and XE were all arrested the following day, on 4 July 2017. John Evans was arrested after being pulled over by police while driving in the Triton. He gave a roadside interview with the Detective Senior Constable where he said that he "Wouldn't have a clue" who was driving his vehicle at 12.30pm the day prior, and that "About 12.30, what was I doing, I was working at home in the morning that's about it. I was out in me truck earlier in the morning, I would have went to Wyong with my daughter".
3. John Evans also participated in an electronically recorded interview at the Toronto Police Station, in which after being told that the police believed that his Triton vehicle might have been used in the murder of Jesse Thompson the previous day, he said he didn't know where he was, he could have been working in the truck coming back home, and when asked squarely "Are you aware of the incident with Mr Thompson yesterday" answered "Nup", and when shown CCTV photographs of what was said to be the Triton said that he could not be sure they were images of the vehicle.

Liberato Direction (John Evans' ground 1 and Keith Evans' ground 2)

1. On appeal, Keith Evans and John Evans each contend that the primary judge erred in refusing to give a Liberato direction.
2. The primary judge summed up over four days, with the jury retiring early on Thursday afternoon. No application was made for a Liberato direction until the following Friday morning, after the jury had been deliberating for some two hours, and had sent a note to the judge.
3. On the Friday morning, the Crown asked the primary judge to consider making a Liberato direction, which was joined by counsel for each of the three accused. There was a dispute in the parties' written submissions as to whether the Crown made an application or merely raised the direction as a matter for the primary judge to consider, but in oral submissions counsel for the Crown accepted that they had joined in an application for the direction, consistently with the primary judge's analysis. That concession was properly given. The consequence is that this ground of appeal lies as of right.
4. The need for the direction was said to arise from certain passages in the primary judge's summing up for the jury. In particular, the summing up was said to have conveyed to the jury the false impression that they were to determine which of two competing versions of events they should accept: that the Evanses attended Woodward Ave, or did not. It appears from the transcript of the exchange, which was brief, that neither side had the transcript of any of the summing up, and no reliance was placed on any particular passage on any particular occasion of which counsel or their instructors had made a note.
5. The primary judge declined to give the direction, despite it being sought by all parties, because of the closing addresses of the Crown and defence counsel. His Honour's reasons were short, and may be reproduced in their entirety: In this matter the jury retired to consider its verdict at approximately midday on 14 January 2021. At the time of the commencement of the jury deliberations this morning, the Crown has submitted that may be appropriate for me to provide the jury with a Liberato direction. The concern that prompts the submission is that the summing-up in relation to one of the essential facts in issue, namely, whether the three accused attended Billy Thompson's residence at Woodward Avenue shortly before the fatal shooting, may have inadvertently conveyed to the jury an understanding that the matter for their consideration was a dichotomy; in other words, they were to determine which of two alternative competing versions in relation to that incident they should adopt, being whether or not the three accused attended that address. The concern expressed by the Crown is supported by counsel for each of the three accused and effectively, it is an application that I provide such a direction to the jury, at least I am content to accept it as such. In considering the application I am assisted by a passage from the judgment in De Silva v The Queen (2019) 94 ALJR 100; [2019] HCA 48. The passage by Kiefel CJ, Bell, Gageler and Gordon JJ, at [12]-[13], addressed the circumstances in which a Liberato direction might be given. Their Honours stated, at [13]: Whether a Liberato direction is required will depend upon the issues and the conduct of the trial. At a trial where there has been no suggestion whether express or implied, that the jury's determination turns on which of conflicting prosecution and defence versions is to be believed, there may be no need to expand on conventional direction as to the onus and standard of proof. As Wheeler JA also observed in [Johnson v Western Australia (2008) 186 A Crim R 531; [2008] WASCA 164], the expression "reasonable doubt" is apt to convey that a jury who is left in a state of uncertainty as to the evidence should not convict. My recollection of the addresses of Madam Crown and defence counsel, and the terms of my summing-up, are such that a jury could not reasonably interpret what was said by counsel or by me as amounting to such a proposition. Therefore, in my view, it is unnecessary to provide a Liberato direction.
6. No differently from the submissions which had been made to him, his Honour's ex tempore reasons did not refer to any particular passage of the summing up.

Passages in the summing up relied upon

1. The course of argument on appeal was quite different from what had occurred at trial. It was lengthy, and with the benefit of the transcript, each side made extensive reference to particular passages in the summing up which were said (by the appellants) to warrant a Liberato direction or (by the Crown) to obviate the need for one. Unlike the primary judge, we have also had the advantage of being able to review the transcript of the summing up as a whole, and take time to consider our decision.
2. The applicants did not elaborate on what precisely they meant by a Liberato direction. XE did not give evidence at trial and so no conflict arose between the Crown witnesses and her evidence. However, there were many areas of conflicting testimonial evidence at a trial where both John and Keith Evans gave evidence, as well as the five survivors from the Kluger. There was a direct conflict as to whether the fatal shot was fired accidentally, or in response to the throwing of the metal pole. There was direct conflict as to whether John and Keith Evans had arrived at Baker Park with the shot gun. And there was direct conflict as to whether John and Keith Evans had threatened some of the Crown witnesses at Woodward St with a shot gun, or had never called upon them. The first conflict went directly to an element of the offence. The second was centrally relevant to the jury's verdict - it was theoretically possible that they could return guilty verdicts if John and Keith Evans only acquired the shot gun in the park, but in practical terms that seems unlikely, and was not part of the Crown case. The third was less centrally relevant, although nonetheless it was an important part of the narrative presented by the Crown.
3. We did not understand that the complaint about the absence of a Liberato direction extended to identifying each and every conflict in the testimonial evidence, at a trial where John and Keith Evans had gone into evidence, and directing the jury that if they did not believe either accused, that did not relieve the Crown of its burden to establish the elements of the offence to the criminal standard. Instead, we understood the applicants to be saying only that a generalised direction should have been given, to the effect that there were numerous conflicts in the evidence, and that the fact that the jury did not accept Keith or John Evans, or both of them, on any particular conflict did not entitle the jury to convict, nor did it relieve the Crown of its burden of establishing the elements of the offence beyond reasonable doubt. Thus in Keith Evans' supplementary submissions supplied, pursuant to leave, after judgment was reserved, reference was made to "orthodox Liberato direction".
4. It was common ground that the question turned on what emerged from a reading of the whole of the summing up.
5. On appeal, counsel for John Evans emphasised the following passages in the summing up in support of his contention that a Liberato direction ought to have been given and that a miscarriage of justice was occasioned by the failure to do so.
6. The primary judge had said, in relation to the jury's assessment of witnesses: As your role is to decide what facts are established in this case, you will have to determine what parts of the evidence you accept and what parts you do not. In order to perform that task you will need to assess the reliability of the evidence and that is something that a number of counsel have addressed you upon. In assessing the evidence of each witness, you must decide if their evidence was both honest and reliable. These are quite different considerations.
7. His Honour further said: Ultimately, as I said, it is a matter for you to determine what evidence you accept as being both honest and reliable and what evidence you reject as being dishonest or unreliable. You may accept parts of a witness' evidence and reject other parts or accept or reject it entirely. It is up to you.
8. Counsel noted that his Honour then went on to summarise the evidence on the issues in dispute, and said in relation to the conflicting evidence about whether the Evanses attended Woodward Ave: So that is important evidence for you to take into account in assessing whether it could have happened at all that the Triton went to Woodward Avenue before going on to Baker Park.
9. His Honour then said: Although it is a matter for you as to how you go about your task, you might think, particularly in relation to that episode, to discipline yourselves to consider the evidence quite separately in relation to each of the three accused as to whether you accept, in relation to each separately of the accused, they went around to Woodward Street before going on to Baker Park. I have already explained to you what the significance of that is in terms of your ultimate conclusions in relation to the second count on the indictment against each of the three accused.
10. Counsel emphasised the following passage of his Honour's summing up, particularly the reference to "competing interpretations", in relation to John Evans' evidence that he did not realise that someone had been shot at the Byron St/Panonia Rd intersection, and that when he drove away after the shooting he continued to fear the Kluger group: So he said that he decided that none of them should stay at the house that night and the competing interpretation from the Crown is that after the shooting, what he in fact feared was the attention of the authorities because of what he knew had happened at that intersection, although he says that he didn't realise that anyone had been shot. So they are the competing interpretations.
11. Finally, counsel noted that the primary judge had reiterated the language of competing cases when giving the jury directions as to the Crown's submission that John Evans had lied to the police: So they are the competing cases being put to you, should it be the case that you find it was a lie, a deliberate lie and that it did relate to some significant circumstance or event connected with the alleged offence.
12. For its part, the Crown placed reliance on a large number of passages in the summing up which referred to the Crown's onus of proof, and that the jury's task was not to choose between different witnesses' versions of events. The Crown at trial said: Accordingly, it is your function, as the tribunal of fact, to assess their evidence as you would any other witness, as you would Jayke Rodgers, as you would any of them. It is not the case, however, that if you reject their evidence, as the Crown says you would, that you then automatically say therefore they are both guilty. You have to turn to the Crown evidence and ask yourselves are you satisfied beyond reasonable doubt of the essential elements of the offence before you return a verdict of guilty.
13. The Crown at trial further said: Members of the jury, your role is to examine the evidence carefully and decide on the evidence whether you are satisfied beyond reasonable doubt of the elements of the charges. The essential elements of the charges, the charge in respect of John Evans and [XE], the charges in respect of Keith Evans.
14. The Crown further noted the following comments of Keith Evans' counsel at trial: But unfortunately, for everyone, the shot gun does go off at the corner of Byron and Panonia and somebody dies. How you deal with that, and what is required, is, as the tribunal of fact and as I started saying to you your job is much harder than mine, is to critically, unemotionally, without speculation, deal with the evidence, with firmly in mind that the burden is on the Crown to prove its case beyond reasonable doubt. Factoring in the total context and the activities on the day looking at the evidence.
15. Keith Evans' counsel further said: Let me say this very strongly to you, that, at no time did Keith Evans deliberately, intentionally want to shoot anyone. It was a tragic accident and so there can be no doubt at all, the Crown has not proved its case beyond a reasonable doubt that Keith Evans intentionally pulled the trigger of a shot gun aiming it into that car.
16. The Crown observed that counsel for John Evans also emphasised onus: So the real question is, who bears the onus and what onus does that party bear? As I have said repeatedly now, the accused doesn't bear any onus, the Crown does from start to finish - and it is beyond reasonable doubt.
17. John Evans' counsel also said: In conclusion, I say the following: The Crown has not proven beyond reasonable doubt that the accused John Evans' conduct was the result of an agreement or understanding that Keith Evans would fire a shot gun into the Kluger intending to cause really serious harm to one of its occupants.
18. Finally, in relation to the closing addresses, the Crown noted that XE's counsel said: If you approach your task, having heard all of evidence, by wondering which sequence of events do I believe. Do I believe the prosecution's version. Do I believe the defence version? Which one do I choose? If you approach your task in that way that is completely, with great respect, wrong. It is not about comparing versions, one theory versus another theory, one version versus another version. There is only one relevant question and the relevant question is, has the prosecution proved its case beyond reasonable doubt, taking into account all of the evidence.
19. In relation to the summing up itself, the Crown drew attention to the primary judge's directions to the jury in relation to onus of proof: Every person who is accused of a criminal offence has a presumption of innocence. He or she is presumed innocent unless his or her guilt of that offence is proved. It follows that each accused in this trial is presumed to be innocent. The onus, or burden, of proving the guilt of each accused is on the Crown. What that means is that the Crown has the responsibility of proving each and every one of the elements of the charges against the accused. There is no burden of proof whatsoever on any of the three accused to prove anything at all. In particular, they are not required to prove their innocence of the counts in the indictment. The question for you is not whether an accused is innocent of having committed a count in the indictment before finding him not guilty. The standard to which the Crown must prove the guilt of an accused is beyond reasonable doubt. Those words have their ordinary everyday meaning. Accordingly, you must acquit an accused of a count if, having considered the evidence that is relevant to that count, you are left with a reasonable doubt as to the accused's guilt. Of course if you concluded that the accused was innocent, then it would follow necessarily that you were not satisfied that the Crown had discharged its burden and you would find the accused not guilty. So if you have a reasonable doubt as to any element of a charge that the Crown must prove, then the appropriate verdict is not guilty of that particular charge. The Crown does not have to satisfy you beyond reasonable doubt of every matter of fact which has been asserted by every Crown witness. What the Crown must do, in order for you to find an accused guilty, is to prove each of the elements of the offence beyond reasonable doubt. If there is any reasonable explanation of the circumstances or if there is any reasonable interference which can be drawn from the evidence which is consistent with the accused not being guilty, then in relation to that particular element of the offence, you could not find that such element has been established beyond reasonable doubt.
20. The primary judge also told the jury that they must be satisfied beyond reasonable doubt that the act causing the deceased's death was deliberate, and gave the following direction: The Crown must prove beyond reasonable doubt that any act of the accused upon which it relies as causing the harm inflicted to the victim was a voluntary act. That is a willed act on the part of the accused. This is distinct from the issue of whether the accused intended certain consequences from his or her act. It is a more fundamental concept that is concerned with the nature of the act itself. The Crown must prove beyond reasonable doubt that the act alleged as causing the death of Mr Thompson was the voluntary act of the accused. If you consider that the Crown has failed to eliminate the reasonable possibility that the act of the accused relied upon by the Crown was not a voluntary one, you must find the accused not guilty.
21. The primary judge said in relation to intent: So in determining intent you have regard to all of the relevant circumstances, all of the relevant evidence on that subject, and you determine whether the Crown has eliminated any reasonable inference which is inconsistent with guilt, any reasonable inference which is inconsistent with that particular element that you are to make out.
22. Further, in relation to XE not giving evidence, the primary judge said: In a criminal trial the accused has no burden or obligation to prove anything. The onus and burden of proof is entirely on the Crown; it is for the Crown to prove its case beyond reasonable doubt if a jury is to find the accused guilty of an offence.
23. The primary judge also noted Keith Evans' counsel's submission: The essence of the defence case concerning the count of murder against Keith Evans was put by Mr Cavanagh this way in his closing address to you: "The prosecution has to exclude the reasonable possibility in order to prove beyond reasonable doubt that he, Keith Evans, committed the offence of murder. The Crown has not excluded the reasonable possibility that the shot gun in Keith Evans' hand at the time it went off was not deliberately discharged. They haven't got rid of that. They haven't excluded the reasonable possibility there was an accident."
24. Finally, the primary judge noted the submissions of XE's counsel: Mr Corish also cautioned against false dichotomies. He referred to a submission made by the Crown, "No doubt her barrister will argue, in due course, that she had no choice but to go in the car and stay in the car". Mr Corish said that is a false dichotomy. It is not a question of whether you believe she had no choice or did have a choice. The question is, "Are you satisfied beyond a reasonable doubt of her guilt, taking into account all of the evidence?"

The applicants' submissions

1. In written submissions, counsel for John Evans noted that this was a case where not only did each accused seek the direction, but the very experienced Crown at trial also sought the direction. Counsel submitted that the summing up referred to the jury having to decide what evidence to accept, whether the incident at Woodward Ave occurred, and whether John Evans told police a deliberate lie.
2. In oral argument, counsel placed particular emphasis on the primary judge's use of the word "accept" in relation to the jury's treatment of the evidence, and submitted that this triggered the need for a Liberato direction, relying on Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26, Douglass v The Queen [2012] HCA 34 and De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48.
3. Counsel submitted that it was not sufficient for comments to the effect of the Liberato direction to emanate from trial counsel in their closing addresses: the statement had to come in the form of a direction from the judge themselves.
4. Counsel also noted the primary judge's conclusion that a Liberato direction would "muddy the waters", and submitted that it was unclear why this would be the case. Clearly, the direction would not apply to XE, who did not give evidence, but this was not a factor that complicated the direction in respect of John Evans and Keith Evans.
5. Counsel rejected the Crown's suggestion that the direction should only be given in cases that involve "one word against another".
6. Finally, counsel submitted that this was not a case where the proviso would apply, as this was very much a case of contested credibility.
7. Counsel concluded, summarising his submissions on this ground: So it's submitted that unlike in the facts of Liberato itself, this was a case where two of the accused actually did give evidence. And it's a case where not only did the accused seek a Liberato direction, but the application for such a direction was made by a very experienced Crown. It was a case where the summing-up referred to the jury having to decide what evidence to accept. That was at p 10 and 11 of the summing-up. Having to decide whether or not they accepted that the three accused went to Woodward Street before going to Baker Park. … And to decide between the competing cases about whether or not the appellant told the police a deliberate lie. That was at p 168. It's submitted that this is clearly a case where a Liberato direction should have been, but was not given. Your Honours, that's all I wanted to say about ground 1.
8. Keith Evans' counsel largely relied upon the submissions of John Evans' counsel in respect of the Liberato ground.

The Crown's Submissions

1. The Crown submitted that a Liberato direction was not required, given the summing up included repeated references to the onus and standard of proof and did not involve any suggestion that the jury was required to choose between witness' evidence or that a rejection of the evidence of the three accused was tantamount to a finding of guilt.
2. The Crown also questioned whether the passages in the summing up, relied upon by counsel for John Evans, amounted to a suggestion by the primary judge that the jury was required to choose between two versions of events rather than to apply the criminal standard of proof.
3. The Crown also submitted that if the direction were required, the proviso would apply, emphasising the "overwhelming" evidence against the three accused.
4. In oral submissions, the Crown also submitted that it was relevant that some of the closing addresses, particularly those of counsel for the Crown and XE, made the Liberato point themselves.

Consideration

1. The Liberato direction, named for the case Liberato v The Queen, was described in De Silva v The Queen, Kiefel CJ, Bell, Gageler and Gordon JJ as follows at [9]-[10]: Whatever may have been the practice when Liberato was decided, in Murray v The Queen this Court made clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In light of Murray, the occasions on which a jury will be invited to approach their task as involving a choice between prosecution and defence evidence should be few. This is not to say that the occasions calling for a Liberato direction should be few. The Liberato direction serves to clarify and reinforce directions on the onus and standard of proof in a case in which there is a risk that the jury may be left with the impression that the evidence on which the accused relies will only give rise to a reasonable doubt if they believe it to be truthful, or that a preference for the evidence of the complainant suffices to establish guilt. Subject to statute, a Liberato direction should be given in a case in which the trial judge perceives that there is a real risk that the jury might view their role in this way.
2. In Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71, Bell CJ (with whom Bellew and Ierace JJ agreed), said (at [72]-[74]): First, it is never appropriate for a trial judge to frame the issue for a jury's determination as one which involves the making of a choice between conflicting Crown and defence evidence. In a criminal trial, the issue is always whether the Crown has proved its case beyond reasonable doubt. Secondly, a direction of the kind postulated by Brennan J in Liberato will be appropriate for the purposes of reinforcing directions as to the onus and standard of proof in any case where, absent such a direction, there is a risk that the jury may be left with an impression that: "(a) the evidence upon which the accused relies will only give rise to a reasonable doubt if that evidence is believed as truthful; or (b) a preference for the evidence led by the prosecution is sufficient to establish guilt." Thirdly, if such a direction is considered appropriate, it should be given in terms which make it clear that: "(i) a preference for the evidence led by the Crown is not a sufficient basis for a finding of guilt; (ii) the jury must not convict the accused unless satisfied, beyond reasonable doubt, of the truth of the evidence relied upon by the Crown; (iii) if the accused's account is accepted, a verdict of not guilty must follow; (iv) if the accused's account is not accepted, but the jury consider that it might be true, a verdict of not guilty must follow; (v) if the accused's account is not accepted, it should be put to one side, and the question will remain whether the Crown, on the basis of the evidence that is accepted, has proved the guilt of the accused beyond reasonable doubt; and (vi) even if evidence given by an accused is not positively believed, the jury must nevertheless acquit the accused if that evidence gives rise to a reasonable doubt about his or her guilt."
3. There was no real dispute in this case as to the principles to be applied in relation to the Liberato direction; rather, the dispute lay in their application to the present case.
4. It is necessary to consider the effect of the summing up as a whole. On the one hand, it might be thought that little might turn on a single direction in a lengthy summing up in which there was repeated emphasis on the Crown's onus of proof. Tending against that conclusion is the fact that counsel for the Crown and all accused persons, who were well placed to gauge the overall effect of the summing up, positively applied for a direction, counsel for the Crown doing so after reviewing her notes.
5. Contrary to the applicants' submissions, we do not accept that the standard directions given at the outset by the primary judge about the need to accept or reject the testimony of various witnesses gave rise to the occasion for any Liberato direction. However, contrary to the reasons of the primary judge, there were occasions during the summing up where it was put that the jury was confronted with competing versions of events, only one of which could be accepted. Those passages were apt to invite the jury to reason along the lines that rejection of one competing version would lead to acceptance of the other version.
6. We are conscious that this was not pointed out to his Honour in terms, and we do not think that his Honour is fairly to be criticised for failing to recall, on an application made without notice, the precise terms of aspects of his summing up days earlier. Indeed, we doubt that his Honour would have remembered that he had used the language of "competing versions" or "competing cases", and no submission in those precise terms was advanced to him. As we have said, we have the benefit of the transcript and focussed submissions with neither of which was his Honour favoured.
7. A Liberato direction is closely related to the obligation of the Crown to prove beyond reasonable doubt the elements of the offence charged. But there was nonetheless an important distinction between instructing the jury that the Crown must prove each element of the offence beyond reasonable doubt, and instructing the jury that if they did not accept the evidence of John or Keith Evans, that did not entitle them to convict. That distinction is, at least in large measure, why the Liberato direction is distinct from the direction as to the onus of proof. The Liberato direction speaks directly to a key aspect of the task for the tribunal of fact. It may have an important practical effect upon the jury, bringing home to them the nature of the task they must perform.
8. By forcing the jury to confront the fact that even if they do not accept the evidence of the accused, if they consider it might be true then they must acquit, the jury is directed squarely as to the level of satisfaction they must attain in order to convict, and the reasoning process to be undertaken.
9. To be very clear about one aspect, it is not to the point that many aspects of the positive case propounded by John and Keith Evans was implausible. Nor is it to the point that some of the accounts given by them, particularly by John Evans, involved lies to the police. Indeed, the probability that the jury would be disinclined to accept at least parts of their evidence, and form the view that at least one of them had told lies, made the need for a Liberato direction all the greater.
10. There was also brief debate when the application was made of the difference that XE had not given evidence, while John and Keith Evans had. When that point was made by counsel for XE (who joined in the application), his Honour said that that would "muddy the waters". This was not reflected in his reasons, and we agree that the fact that one co-accused had not herself given evidence and had not been the subject of the summing up which referred to competing versions was no answer to the appropriateness of a direction in relation to each of John and Keith Evans.
11. We conclude that this ground is made out.

Proviso

1. Section 6 of the Criminal Appeal Act provides that this Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The Crown contended that even if the trial judge erred in failing to give a Liberato direction, the proviso should apply.
2. The Crown noted that the test for whether there has been a substantial miscarriage of justice, following Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, required the Court to make its own independent assessment of the evidence and determine whether the applicant was proved guilty to the criminal standard.
3. The Crown argued that the case against the applicants - specifically, that a joint criminal enterprise existed and that the shot gun was deliberately discharged - was very strong. The Crown pointed to aspects of the evidence including the following: 1. the affair between Mr Rodgers and Keith Evans' girlfriend, and the resulting animosity between Mr Rodgers and Keith Evans; 2. the communications between Keith Evans and John Evans in relation to the assault on Mr Rodgers and Mr Rodgers' threats; 3. the evidence of motive, following Mr Dean and Mr Weir's attendance at the Evans house, where they confronted Keith Evans and smashed the front door, injuring XE; 4. John Evans, Keith Evans and XE attending Billy Thompson's house on 3 July 2017; 5. XE's communications with Mr Rodgers directing the Kluger group to come to Baker Park; 6. Keith Evans firing a shot gun at Baker Park and the Triton chasing Billy Thompson and Mr Dean; 7. the Triton chasing the Kluger after the Baker Park incident; 8. the driver of the Kluger appearing panicked or frightened during the car chase; 9. John Evans positioning the Triton at the intersection of Byron St and Panonia Rd so as to block the Kluger, enabling Keith Evans to fire the fatal shot; 10. the absence of any words or actions on the part of John Evans to stop the fatal shot; 11. John Evans driving away immediately after the fatal shot was fired; 12. the damage to the Triton being caused by a separate discharge of the gun to the gunshot that killed Jesse Thompson, and 13. the inherent implausibility of John and Keith Evans' evidence that Mr Weir dropped the shot gun at Baker Park and John Evans picked it up.
4. The Crown also observed that Liberato v The Queen was itself an example of the proviso being applied. In that case, Mason ACJ and Wilson and Dawson JJ considered that the case was an inappropriate vehicle for special leave, thus leaving in place the orders of the South Australian Court of Criminal Appeal which had found that there had been no substantial miscarriage of justice within the meaning of the proviso in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The joint judgment refrained from expressing a view as to the correctness of the South Australian court. Brennan J and Deane J, in separate dissents, found error in the failure of the trial judge to give the necessary direction, and would have granted special leave and allowed the appeal. The joint judgment of the majority of the Court fell far short of an endorsement of the correctness of the decision of the intermediate appellate court.
5. In Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, Kiefel CJ, Gageler, Keane and Gleeson JJ found error in the prosecution's questioning of the accused but found that the conviction did not involve a substantial miscarriage of justice, because on the evidence there could be no reasonable doubt as to his guilt. However, Kiefel CJ, Keane and Gleeson JJ said at [63] that "[t]his is not a case where this Court was required to seek to resolve a conflict between oath and oath, where the resolution of the contest must depend on the reliability of the jury's verdict".
6. We have had the benefit of reading the reasons for judgment of Cavanagh J, and those reasons have assisted us to refine our views on the applicability of the proviso. As his Honour observes, a great deal of the positive case advanced by John and Keith Evans was demonstrably false or glaringly improbable. These included the manner by which they claimed to have come to have possession of the firearm, the pursuit by the Triton of the Kluger after the altercation at Baker Park, the way in which, after the firearm discharged, they drove away, and the lies told by John Evans when he was apprehended by police.
7. But ultimately a critical issue in the case was whether the Crown had excluded the reasonable possibility that when Keith Evans pulled the trigger of the gun which killed the deceased, he did so accidentally. Keith Evans could not be convicted of murder unless the Crown discharged its onus on that issue. Keith Evans said that that was what he did, although his evidence was embedded in an account which not only contained other untruths and implausibilities but also tended to skirt over the demonstrable truth that his shot had killed the deceased. It is desirable to reproduce the salient aspects of his testimony.
8. Keith Evans said he had the gun in his hands on his lap when the Triton stopped near the Kluger. He said the Triton stopped suddenly: Q. What happens then? A. My father slammed the brakes on because we were going towards that red car. We were about to crash into it. And then at the same time, like I've had the gun in my hands, but it was still on my lap and he slammed the brakes on. I didn't have the seatbelt on. Just my natural reaction, I put the gun up like that (witness indicated). Q. You have lifted your hands up to chest level, both hands? A. Yeah. HIS HONOUR. Q. Again, Mr Evans, can you please stand up and demonstrate that movement so that the jury can see? A. Yeah, my father slammed the brakes on. I've had the gun on my lap like this (witness indicated). I've put the gun up, a natural reaction as I didn't have the seatbelt on. I leant forward and I hit the dash of the car. CAVANAGH: Q. You have got your hands again about hand level and you have moved your body? A. Yeah, I was still holding it like that (witness indicated) Q. The top part of your body forward, is that correct? A. Yep. HIS HONOUR Q. The witness indicates hands just above waist level, I think? A. Yep.
9. The account continued as follows: Q. Then what is your next recollection? A. My next recollection was the gun went off. And then my first - it went off in the car and the first thing I thought I was looked down at my own legs. And I looked down and I said to my dad, I said, "I'm sorry like it just went off". HIS HONOUR: Just one moment. In view of what the witness has just said I think the demonstration by the witness had his hands equally distant from his body. In other words, parallel to his body. Does anyone disagree with that? CAVANAGH: No. Q. The gun went off, did you say that? A. Yes. Q. What did you do then? A. My first reaction was to look down at my legs Q. After that? A. After that I said like, "I'm sorry, it just went off" and I made sure no-one was hurt in my car. And then we drive like around the red car, through their car and started-- Q. Did you go to the right or did you go to the left? A. We went to the right. … Q. Did you point the gun outside the window of the Triton? A. No, I never put the gun outside the car at all. Q. Whether it was outside or inside, did you deliberately point the gun at anyone? A. No, I never aimed the gun at anyone. I never put the gun outside the car at all at any point of the drive. Q. Did you intentionally pull the trigger of the shot gun? A,. No I didn't intentionally pull the trigger.
10. He was cross-examined about his account, including as follows: Q. And you pulled up and you produced the gun and you held it out the window, initially at the driver of the silver Kluger, and then you shifted it back and fired it into the open rear window on the driver's side of the silver Kluger? A. I never put the gun out the window at all during the drive, nor at this spot, and we didn't just pull up next to the car; they broke in front of us, we were going fast. Q. Did you think the man in the rear seat of the silver Kluger was Jayke Rodgers, did you? A. I did not see anyone in the silver Kluger when we slammed the brakes on. I don't know where the Kluger was; I wasn't looking at the Kluger at all. Q. Did you think it was Jayke Rodgers, the man who had been having an ongoing sexual relationship with your partner of some eight years? A. Not at all. Q. A man that you were angry with? A. I didn't know who was in the car. Q. And you fired that gun intending to cause, at the very least, really serious injury to that person in the rear? A. Not at all. Q. Didn't you? A. No, I didn't want to hurt him at all. I'd already bashed him nights prior like. Q. Because you knew, didn't you, that firing a gun at someone, particularly as close as you were at that point, would certainly cause them really serious injury, if not kill them? A. I never fired the gun at them at all. Q Do you accept that you know that firing a gun at that close position would, at the very least, seriously injure someone? A. I didn't fire the gun but. Q. If you can answer my question? A. But I can't cause I never fired the gun at them. Q. I am asking you if you know that to fire a gun at someone at a range of 1 or 2 metres, directly at them, is going to cause them, at the very least, really serious injury? A. It would, yes, but I never pointed the gun at them. I never aimed it at them, I never shot the gun at them at all.
11. Parts of this evidence cannot be accepted. It is a known fact that the weapon held by Keith Evans discharged when he was holding it, causing the death of the deceased. The shot gun must have been pointing at the rear seat of the Kluger, yet how that came about is unexplained on Keith Evans' account, unless perhaps it was clear from the gestures and the demonstration which accompanied this evidence and which are far from fully recorded in the transcript.
12. It is also very difficult to see how the Triton could have sped off without knowing that the shot gun had discharged into the Kluger. Indeed, the evidence that Keith Evans never put the shot gun outside the window seems unlikely, in light of the evidence in the Crown case, and the known fact that the shot gun discharged with most pellets landing in the Kluger.
13. But the defence case included the proposition that the trigger was pulled accidentally, and we are unable to be satisfied, merely by reading the transcript, even in light of the numerous other demonstrable lies or glaringly improbable aspects of Keith Evans' account, that that evidence can be put to one side. In part this is because this is a case where it is obvious that the transcript is an imperfect and incomplete record of Keith Evans' evidence. But mostly it is because whether the Crown had excluded as a reasonable possibility whether the shot gun was fired accidentally is very difficult for this Court to assess based merely on the record.
14. To some extent the assessment of whether the trigger was pulled accidentally involved an evaluation of the testimony of the survivors in the Kluger, but while they could give evidence of their perception about where the gun was pointing, it is far less clear that they could give cogent evidence of whether it was fired deliberately or accidentally. For example, the tenor of the evidence of the survivors in the Kluger was that Keith Evans was pointing the gun outside the window of the Triton, and that after the pole was thrown, he altered the shot gun's position so that it pointed at the rear passenger seat (which was from where the pole had been thrown), and shortly thereafter the shot gun discharged. That is inconsistent with a deal of Keith's evidence, but it does not greatly bear on whether the shot gun was discharged accidentally. Ultimately this comes down to what the jury made of Keith Evans' account.
15. This is a little different from the "oath on oath" example mentioned in Hofer, but nonetheless we consider that the assessment of Keith's evidence was a matter for a properly directed jury, and we are unable to be satisfied that a reasonable jury must have concluded that the Crown had disproved accidental discharge.
16. Some other circumstantial matters may be added to the above. Although many aspects of what occurred are obscure, it seems fairly clear that Keith Evans had altered the position of the shot gun shortly before it discharged. He was in a vehicle which itself had been moving (and on some accounts was moving at the time), and which may well (although the evidence was unclear) have been hit by the pole. Some or all of those factors were capable of contributing to an accidental discharge. Separately, while it is clear that Keith Evans had a motive to harm Mr Rodgers, the fatal shot was fired into the rear seat of the Kluger, rather than the front seat where Mr Rodgers was sitting. Assuming that Keith Evans knew that Mr Rodgers was in the front seat, his firing the shot gun into the rear seat is consistent with the discharge being accidental.
17. Whether or not the strong Crown case entitles this Court to apply the proviso is quite finely balanced, but ultimately we are not persuaded that this is a case where this Court may conclude that there has been no substantial miscarriage of justice when Keith Evans' account was not considered by a properly instructed jury. This ground is made out, both appeals must be allowed, the convictions for murder set aside, and a new trial ordered.

Tendency Evidence

1. Proposed ground 2 of John Evans' appeal challenged the refusal by the trial judge to admit what was said to be "tendency evidence". On the view we take, this ground does not affect the outcome of either appeal, and may not necessarily have any application to a retrial. All the same, we shall address it, but we shall do so much more concisely than the (extensive) submissions (39 and 50 paragraphs respectively) advanced by the parties.
2. We first note that the trial judge was called upon to rule on this evidence very promptly. The tendency notice was served on 15 November 2020, the day before the jury was empanelled. There was argument on 18 November 2020, and a ruling given that day, with reasons following on 1 December 2020: R v Evans; Evans; XE (No 1) [2020] NSWSC 1698. Mr Rodgers had already started giving evidence on 18 November, and thus the urgency. It is, with respect, difficult to see why the application was made so late, or indeed how the reasonable notice required by s 97(1)(a) of the Evidence Act 1995 (NSW) was satisfied.
3. However, his Honour addressed the matter by reasons of s 97(1)(b), and we shall follow the same course.
4. The tendency notice identified two tendencies, as follows: The tendency sought to be proved is: (a) The tendency of Jayke Rodgers to act in a particular way, namely, to make threats of violence against John Evans and members of his family; (b) the tendency of Jake Rodgers to act in a particular way, namely, to commit acts of intimidation, assault and destruction of property.
5. The material relied upon was a criminal history and a number of COPS entries relating to Mr Rodgers; Facebook messages sent by Mr Rodgers to John Evans' sister in December 2018; extracts from a statement of Mr Rodgers about the events of 2 and 3 July 2017; Facebook messages sent by Mr Rodgers intended to be received by Keith Evans on 2 July 2017 and Mr Dean on 3 July 2017; telephone calls from Mr Rodgers to XE on 3 July 2017; and extracts from the statement of Mr Dean about the events on 3 July 2017.
6. Much of the material was part of the Crown case. Only the criminal record, the Facebook messages to John Evans' sister, and the COPS entries were not.
7. The applicant subsequently sought to add a further item, namely, evidence relating to an incident in the court complex on 17 November 2020, when it was alleged that Mr Rodgers threatened John Evans' nephew, saying "I'll fucking cave your head in right now".
8. In order to be admissible as tendency evidence, it was necessary for the Court to form the view that "the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value": s 97(1)(b). Universal rules are to be avoided in this area, which is highly fact dependent, but it is true that other things being equal, tendencies stated at a high level of generality are unlikely to have significant probative value: TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [29], endorsing amongst other things the following passage in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [72]: the specificity of the tendency directly informs the strength of the inferential mode of reasoning. It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much, as to whether he stole a particular car the subject of a charge. It is quite another to say that a man has a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.
9. The issues which, so it was said, the tendency evidence bore upon were twofold. First, it was said that John Evans was in the vehicle with the other members of his family not because he was a participant in a joint criminal enterprise, but so as to protect them from threats of violence, and that the tendency supported John Evans' belief and the reasonable basis for that belief. Secondly, it was said that Mr Rodgers' tendency to commit acts of intimidation, assault and destruction of property was "relevant to the defence case that it was Jayke Rodgers and the others in the Kluger, who carried weapons, including a shot gun, to Baker Park".
10. The primary judge addressed each. In relation to the first, his Honour said: It is not a fact in issue that Mr Rodgers intended to fight Keith Evans and to do so with a preponderance of supporters; that he had threatened to kill Keith Evans; and that the group of which Mr Rodgers was a part had attended the confrontation with weapons, other than firearms, that had the potential to inflict life-threatening injuries. The Crown case goes further, alleging that Mr Rodgers had a motive to at least seriously assault Keith Evans. I note that the defence case is that one of those in the car accompanying Mr Rodgers had the firearm, which somehow came into the possession of those in the applicant's vehicle. That being so, it is not apparent how the material identified has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated two tendencies. Mr Rodgers' criminal record and the police facts do not provide evidence that he had committed an assault more serious than an assault occasioning actual bodily harm, which is of little assistance when the Crown case includes two messaged threats to kill Keith Evans. There is no instance in Mr Rodgers' criminal history of him being armed with, having access to or being accompanied by an accomplice with, a firearm. There are two possible exceptions which may be relevant to the applicant's professed motive in being present at the time of the killing in the defence case, to protect his family. The first is the messages from Mr Rodgers to [John Evans' sister] in which he threatened to kill members of her and Keith Evans' family, for example: "your family won't last long" and "I will kill them 2 before I die" (with the reference to "them 2" being references to John Evans and Keith Evans). However, it is apparent from other texts in the thread that these threats were in the context of him seeking revenge for what he regarded as the killing of the deceased by Keith Evans. It is unclear how the extortion and threats could shed light on whether Mr Rodgers had a tendency to "make threats of violence against John Evans and members of his family", other than Keith Evans, at the relevant time, which is immediately prior to the shooting on 3 July 2017, since the apparent motive for sending the threatening messages to Ms Timbery was the consequence to the shooting itself. The second is the alleged threat to the applicant's nephew outside the courtroom on 17 November 2020, leaving aside the paucity of evidence of the incident. However, the threat is confined in the same way as the threats conveyed to Ms Timbery; it is apparently motivated by the shooting, and therefore is not relevant to Mr Rodgers' attitude to the applicant's family leading up to that event.
11. The primary judge addressed this at the level of relevance, which is to say, whether the tendency had "the capacity to rationally affect the assessment of the probability of the existence of a fact in issue". It is sufficient to proceed directly to s 97(1)(b) and consider whether there is the requisite probative value. We do not accept the Crown submission that the fact that most of the evidence was before the jury is dispositive, for, as Mr Stratton emphasised in his oral submissions, it is one thing for the evidence to be adduced and another for the jury to be permitted to deploy tendency reasoning.
12. However, we conclude that the ruling of the primary judge was correct. The first way in which the evidence was said to have significant probative value was that the evidence bore on the reason John Evans was in the Triton with two members of his family. But there was no issue that Mr Rodgers had threatened to fight Keith Evans, and indeed threatened to kill him, and the tendency evidence did not support a tendency to threaten other members of the Evans family except, as the primary judge observed, insofar as threats were made after and in consequence of the fatal shooting.
13. The second way in which the evidence was said to have significant probative value was that Mr Rodgers or one of his associates had taken the shot gun to Baker Park. But the fact that Mr Rodgers had committed, and threatened to commit, acts of violence in the past, none of which involved a firearm, was not significantly probative of whether he took a shot gun to Baker Park. Still less was it significantly probative that one of the other men in the Kluger took a shot gun to Baker Park. This is largely a consequence of the generality of the tendency identified in the notice, which simply lacks significant probative value in relation to the issue of whether Mr Rodgers or one of his associates took the firearm to Baker Park.
14. Although we would grant leave to appeal on this ground, we would dismiss the ground.

Provocation

1. Proposed ground 1 of Keith Evans' appeal is that a miscarriage was occasioned by the trial judge not leaving manslaughter to the jury on the basis of extreme provocation. Once again, on the view we take concerning the Liberato direction, this does not arise, and we shall be brief.
2. Of course, this partial defence involved the jury rejecting the evidence that the shot gun was discharged accidentally, but nonetheless finding, contrary to Keith Evans' evidence, that he discharged the shot gun having lost self-control following the vehicles coming to a stop and the pole being thrown towards the Triton. The defence requires, amongst other elements, that "the conduct of the deceased could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased". The deceased in the present case did nothing, save for being seated in the rear seat with his associates. It was said that nonetheless, as a matter of construction, the section might be available by reference to the act of throwing the pole. Making the favourable assumption that that is so, we are completely unpersuaded that the throwing of a pole could have caused an ordinary person to lose self-control to the extent of discharging the shot gun at close range into the Kluger. This is a very clear case. Ground 1 must be dismissed.

Sentence appeal

1. In light of the success of the appeal against conviction, which will result in the quashing of the conviction and the sentence imposed, no useful purpose would be served by addressing John Evans' appeal against sentence. It follows that this appeal should be dismissed.

Conclusion and orders

1. For those reasons, the convictions for murder must be quashed, and new trials ordered.
2. Keith Evans' conviction for wounding with intent to cause grievous bodily harm was not challenged, and still stands. However, the aggregate sentence imposed must be set aside. It may very well be that the appropriate sentence for the conviction is the indicative sentence stated by the primary judge, but we are also conscious that Keith Evans may wish to be heard in support of the proposition that he be resentenced after the conclusion of the retrial. That is a matter that can and should be raised when the proceedings are called over.
3. It was noted at the outset of these reasons that both Keith and John Evans would require a substantial extension of time to appeal. The evidence suggested that in large measure, the delay in filing their appeals lay in waiting for counsel, who were not the counsel at trial, to give advice as to prospects on appeal. In each case, the solicitors waited more than a year for counsel to advise whether an appeal had merit.
4. This situation is thoroughly unsatisfactory. First, on the sole ground that has succeeded, the lawyers for both applicants at trial must have known of the unusual failure by the primary judge to accede to a joint request for a Liberato direction. It is unclear why such a delay should have eventuated, even allowing for delays in obtaining the transcript of the summing up and the (very short) reasons for rejecting the application. Secondly, when advice is sought about an appeal against conviction with the consequence of a retrial if the appeal succeeds, there are other considerations which apply. Memories fade, evidence may be lost, in addition to the unavoidable uncertainty and traumatising effect of a retrial on all those involved. It was wrong for counsel to delay for more than a year to advise on prospects of appeals against conviction, and it was wrong for those instructing counsel to permit such a delay (to be clear, the duties of an instructing solicitor do not come to an end when counsel is briefed to advise on prospects). We are conscious that, so far as appears from the evidence, these appeals have been the subject of grants of legal aid. This paragraph is written with the intention that it be read by officers of the Legal Aid Commission of New South Wales, with a view to their taking steps to prevent such delays recurring. There is nothing to suggest that there were no other members of the Bar who were willing and able to advise on the prospects of an appeal against conviction in a timely fashion.
5. However, the extensive delay is not the fault of Keith Evans or John Evans. Each is entitled to a trial by a court constituting a judge and a properly directed jury, and the Crown pointed to no evidence of actual prejudice (such as the unavailability of a witness) occasioned by the delay. Accordingly, they should be granted an extension of time to file their respective appeals.
6. The Court's orders are: In the case of John Evans:
7. Extend the time within which to appeal to 5 March 2024.
8. Grant leave to appeal against conviction.
9. Appeal allowed.
10. Quash the conviction for murder and order that there be a new trial.
11. Quash the sentence imposed by the Supreme Court on 22 July 2021.
12. Dismiss the appeal against sentence.
13. List the matter before the arraignments judge at 10am on 14 February 2025. In the case of Keith Evans:
14. Extend the time within which to appeal to 11 July 2024.
15. Grant leave to appeal against conviction.
16. Appeal allowed.
17. Quash the conviction for murder and order that there be a new trial.
18. Quash the aggregate sentence imposed by the Supreme Court on 22 July 2021.
19. List the matter before the arraignments judge at 10am on 14 February 2025.
20. CAVANAGH J: I have had the benefit of considering the draft judgment of Leeming JA and Rothman J. I agree with their Honours that a Liberato direction should have been given. I also agree that the other grounds of appeal (tendency and provocation) have not been made out.
21. 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 satisfising its onus of proof the Crown gains no assistance from a rejection of any version of events given by the accused. That is, the jury is directed that if it does not accept the accused's version of events, they are to put that aside and go on to consider whether the Crown has satisfied the elements of the offence beyond a reasonable doubt. A Liberato direction may be particularly important in a case such as this, that is when the accused has provided a version of events which might be viewed as improbable.
22. It follows that I am satisfied that 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 (see Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 ("Weiss")). The appeal must be allowed subject to the application of the proviso.
23. However, I have come to a different view as to the application of the proviso. As the proviso (s 6 Criminal Appeal Act 1912 (NSW)) specifies, notwithstanding that the point raised by the appellants might be decided in favour of the appellants, this Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
24. The difference between a miscarriage of justice and a substantial miscarriage of justice as referred to in the proviso may in some circumstances be illusory. However, as set out in Weiss and as discussed subsequently by Gageler J (as the Chief Justice then was) in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 at [82]-[123] ("Hofer"), the approach of an appellate court to determining whether there has been a substantial miscarriage of justice is not to predict what a jury would or might have done should the error not have occurred (Weiss at [35]) but to make an independent assessment of the record so as to determine whether, having regard to the evidence, the appellants were guilty beyond a reasonable doubt. Only if so satisfied, could the proviso be applied.
25. True it is that in some cases the nature of the error will prevent the court from undertaking that task (see Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 at [15]) but I do not consider that this is such a case. Nor do I consider this to be a case entirely dependent on assessing the evidence of one witness against the other with the differing versions both being plausible.
26. This is a case where there were differing versions, but the discharge of the firearm was the culmination of a series of events in which the appellants were directly involved and about which there was substantial evidence.
27. In my view, this is a case in which the accused persons provided a glaringly improbable version of events (see Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [66] per Kiefel, Bell, Keane and Nettle JJ ("Castle")). That is an important matter when considering whether the proviso may apply. As the Court observed in Castle at [66] (see also Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 at [22] per Kiefel CJ and Keane J) there may be some cases in which the version provided by the accused is so improbable that the appeal court is not precluded from coming to its own view based on the record.
28. In Hofer at [71] the Court observed: "In the extraordinary circumstances of this case, just as no reasonable tribunal of fact could possibly have been beguiled by the appellant's fabrications, so an appellate court invited to apply the proviso is not obliged to entertain these fantastical suggestions as giving rise to a reasonable doubt as to the appellant's guilt."
29. I have considered all of the record including the evidence of the appellants setting out their version of events. I regard their version as highly improbable, fanciful, and absurd.
30. From the idea that they just went to Baker Park to ask the other men not to threaten their family to the end point of them just driving home after the gun is said to have accidentally discharged, not realising anyone had been hurt and John Evans seemingly destroying the gun because he thought he shouldn't drive to Newcastle with a gun in his car, it is all quite improbable.
31. John Evans said he picked up the gun at the park dropped by the driver of the Kluger as he ran away, without getting out of the car. He threw it across the console, seemingly not caring or checking whether it was loaded. Keith Evans said it was flying around the car as they drove at speed around the streets. He then took a hold of the gun placing the barrel pointing towards his crutch, where it remained as they continued to drive at speed very close to the car in front.
32. Despite saying that they were not chasing the Kluger and they were frightened of the occupants, they continued to follow it at speed through the streets, not availing themselves of a number of occasions to turn in the opposite direction to the Kluger. This is all shown on CCTV footage and was observed by independent witnesses.
33. They said they only came to a stop when a red car appeared in front of them (that is the presence of the Kluger had nothing to do with where they came to a stop). They thought there might be a head on.
34. Keith Evans impulsive response to this situation was not to put his hands out to protect himself but to lift the gun so that it was in front of and roughly parallel to his chest. He said that he did not deliberately pull the trigger. He must be taken to mean that the trigger somehow moved accidentally. His response to the gun discharging was to immediately say to his father "I'm sorry the gun went off accidentally" and to check that no one was hurt in his vehicle. They did not stop. They just kept driving, seemingly unaware that, when the gun had discharged, they happened to be next to the Kluger. That is quite absurd bearing in mind the position of the cars as observed by independent witnesses.
35. They say they went home and only became aware that someone had been killed when watching the news that night.
36. Of course, rejection of the version proffered by the appellants does not assist the Crown in discharging its onus. I must assess the evidence, putting aside my rejection of the evidence of the appellants.
37. However, in my view the evidence adduced by the Crown established the guilt of the appellants beyond a reasonable doubt.
38. A number of persons who were passengers in the car in which the deceased was travelling gave evidence. They saw the gun pointing out of the window of the Triton. Of course, there is no dispute that the deceased was killed by a shot fired from a gun held by Keith Evans.
39. Levi Dean was sitting in the rear side passenger seat. He said that he threw a pole at the Triton, and, after that, the gun was moved from pointing towards the front seat to the back seat (thereby providing an explanation as to why Keith Evans fired into the back seat). Mr Dean suffered injury and the deceased was sitting next to him. Mr Rodgers observed this.
40. Further, there were independent witnesses such as Paula Kelly, Kimberly Mason and Philip Webb who gave evidence of their observations as to events just before and at the place where the firearm was discharged.
41. Mr Webb observed that both vehicles had come to a stop before he heard the "bang" (shot). Further, he heard a verbal altercation after the cars had stopped but before the bang. He originally estimated that the vehicles had been stationary for no more than 30 seconds although he moved back from that later in his evidence.
42. Of course, the gun was destroyed by John Evans and could not be examined. There was, however, ballistics evidence. The Crown's ballistics expert, Matthew Bolton, opined that two shots had been fired within the Triton which would be consistent with the evidence of the persons from the other vehicle as to what happened at Baker Park. A ballistics expert called in the case of John Evans merely said that he could not determine whether there was only one shot or two.
43. Leeming JA and Rothman J have identified the matters relied upon by the Crown to support the proposition that this was a strong Crown case. It is not necessary that I repeat all of those matters. In my view, it was a strong Crown case. Those matters have been considered in my assessment of whether the Crown established the guilt of the appellants beyond a reasonable doubt.
44. I take a different view as to whether the matters mentioned by their Honours detract from the strength of the Crown case.
45. Firstly, Mr Rodgers said that he did not expect they (meaning either or both Evans) would be armed. He in fact said that no one did. Even if that be wrong, at least in my view, it is not inherently unlikely that such persons would arm themselves with that which they had.
46. Secondly, I do not consider the fact the gun was fired into the rear of the Kluger as being consistent with the gun being discharged accidentally because the person who Keith Evans had a motive to kill was in the front seat. As I have said, an explanation was offered by Mr Dean, one of the occupants of the Kluger in that, after the vehicles stopped, he threw a pole at the Triton and Keith Evans responded by pointing the gun at him.
47. For all these reasons, I am satisfied that there has been no substantial miscarriage of justice because I am satisfied of the guilt of the appellants beyond a reasonable doubt.
48. Although error has been established, I would dismiss the appeal. However, that being a minority view, there is no occasion to address the appeal against sentence.

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