R v Evans; R v Evans (No 2)

Catchwords: EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice

Legislation Cited: Evidence Act 1995 (NSW) ss 55, 56, 137

Cases Cited: BJS v R [2013] NSWCCA 123
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Burton [2013] NSWCCA 335
R v Bauer (2018) 266 CLR 56; [2018] HCA 40

Category: Procedural rulings

Parties: Proceedings 2017/00202678
Rex (Crown)
Keith Evans (Accused)
Proceedings 2017/00202629
Rex (Crown)
John Evans (Accused)

Representation: Counsel:
Proceedings 2017/00202678
D Hannan (Crown)
M Fernando (Accused)
Proceedings 2017/00202629
D Hannan (Crown)
J Stratton SC / J Kumar (Accused)
Solicitors:
Proceedings 2017/00202678
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused)
Proceedings 2017/00202629
Solicitor for Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused)

File Number(s): 2017/00202678; 2017/00202629

Publication restriction: Publication restricted to the parties until the conclusion of the trial.

JUDGMENT

1. The accused John Evans seeks the exclusion of two text messages sent to his son Keith Evans at 9.45 pm on 2 July 2017. The accused Keith Evans also seeks the exclusion of the messages and adopts the submissions of John Evans.

2. The first message reads:-

“See what I told u/nHalf done job. She would b best sending back who is this don’t know what your on about could be cops with his computer. This is going t”

3. The second message, sent immediately after the first, and which is really part of the first message reads:-

“o all turn bad you left a big trail.”

The Crown case

4. In short, the Crown case is that on 2 July 2017 at about 1.30 am, the accused Keith Evans attacked Jayke Rodgers at the Evans family home at Jilliby Street, Wyee. Following his release from hospital at about 11.30 am on 2 July 2017, Jayke Rodgers sent messages to the phone of Keith Evans’s de facto partner Ms Danielle Micallef, presumably expecting them to be read by Keith Evans, and which said “You’re a dead man walking” and “I’ll get you outnumbered like you got me”.

5. At 9.40 pm, Keith Evans sent John Evans a text message which read “Keep the back door locked sum fella sent me a msg saying they coming for revenge”. At 9.45 pm, John Evans sent Keith Evans the two messages set out at [2] and [3] above.

6. On Sunday 3 July 2017, at about 11.38 am, Levi Dean and Shane Weir went to the home of the Evans family apparently wanting to fight Keith Evans. They smashed a glass door which showered the daughter of John Evans and the sister of Keith Evans, XE, with broken glass. She telephoned her father, who rushed home.

7. Shortly after, it is alleged that John Evans, Keith Evans and XE drove to Billy Thompson’s premises at Woodward Avenue, Wyong and demanded to know where Shane Weir and Jayke Rodgers were.

8. At about 12.30 pm, Keith Evans allegedly shot and killed Jesse Thompson who was in a Kluger motor vehicle, at a time when Keith Evans was in a Triton motor vehicle driven by John Evans, with his sister XE in the back seat.

The Accused’s submissions

9. Both accused say that the text messages should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW).

10. Mr Stratton SC, who argued the matter on behalf of John Evans (and whose submissions were adopted by Ms Fernando who appeared for Keith Evans), submitted that there is a real risk that a jury might misuse the evidence as an instruction by John Evans to his son Keith Evans to shoot the deceased and that the danger of unfair prejudice outweighs any probative value of the messages, and thus should be excluded pursuant to s 137 of the Evidence Act.

The Crown’s submissions

11. The Crown submitted that the messages are relevant as they could rationally affect the assessment of whether John Evans and Keith Evans had formed an agreement that the firearm would be fired deliberately at the occupants of the Kluger, whether that agreement included an intention to kill or cause grievous bodily harm (the joint criminal enterprise liability of John Evans) and whether John Evans contemplated the possibility that in the course of the use of the firearm for intimidation of the occupants of the Kluger, the firearm would be discharged with the relevant murderous intent (the extended joint criminal enterprise liability of John Evans).

12. It was submitted that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the accused.

Relevance

13. Sections 55 and 56 of the Evidence Act state:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to—

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

(c) a failure to adduce evidence.

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

14. Consideration of relevance requires identification of the fact or facts in issue in the trial. The principal issues in dispute in this case are whether or not the shot fired by Keith Evans was shot with the requisite intent and the extent of any involvement in a criminal enterprise by his father John Evans. There are many subsidiary facts and issues.

15. The test of relevance is undemanding. The enquiry for the purpose of s 55 concerns how the evidence might affect findings of fact. The possible use to which the evidence might be put is to be taken at its highest: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [43]-[44] (“IMM”). No assessment of the credibility or reliability of the evidence is to be considered: IMM at [39].

16. Evidence which is relevant pursuant to s 55 and admissible under s 56 is, by definition, probative. However, neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some (even slight) probative value will be prima facie admissible: IMM at [40].

17. There is no real issue on this application that the proposed evidence is relevant.

Unfair Prejudice

18. Section 137 of the Evidence Act provides:-

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

19. Section 137 is expressed in terms of an evaluative judgment mandating exclusion: IMM at [16]. Section 137 requires the “probative valu**e” of the evidence to be weighed against the danger of unfair prejudice to an accused. This requires that the evidence be taken at its highest when assessing the probability of the existence of the facts in issue: IMM at [47]. In considering the probative value of evidence, an assumption of the jury’s acceptance of the evidence must be made, and no question of the credibility or reliability of the evidence can arise: IMM at [52]; R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (“Bauer”) at [69].

20. The danger of *“*unfair prejudice” in s 137 directs attention to the risk that the evidence may be misused in some unfair way by a jury, so that the jury will not comply with judicial directions as to its use: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; Bauer at [73]. There must be a risk that the evidence will damage the defence case in some unacceptable way, such as provoking some irrational, emotional or illogical response or by giving the evidence more weight than it truly deserves: BJS v R [2013] NSWCCA 123 at [51].

21. The existence of competing inferences (or alternative interpretations), which may be drawn from the proposed prosecution evidence, plays no part in the assessment of probative value for the purpose of s 137: R v Burton [2013] NSWCCA 335 at [196].

Consideration

22. The two texts are devoid of tone. Taken at their highest, the texts imply that there had been a conversation between John and Keith Evans prior to the message being sent, to the effect that there was a job half done. There are competing inferences, some innocent, some not. At its highest, combined with other evidence, there may be an available inference that John Evans was party to an agreement to attack persons said to be coming for revenge.

23. In my view, the probative value of the messages (in the context of the exchange of messages which was marked as exhibit 5) is significant, as it goes to the state of mind of both John and Keith Evans less than a day before the alleged murder, and in particular as to whether there was an agreement or a plan to harm some person involved in the incident which had taken place at Jilliby Street on 2 July 2017. There is no doubt that this evidence is prejudicial to the case of both accused if certain inferences are in fact made by the jury. That however, is not the question. The question posed by s 137 is whether or not the probative value of the evidence is outweighed by the danger of unfair prejudice. In my opinion, the prejudicial effect of the evidence sought to be led is not over and above that which usually attends the admission of any similar evidence which may be damaging to an accused’s case.

24. The jury will be warned in usual terms that they must not speculate about matters not in evidence, and that they may only draw rational inferences from the evidence and the facts they find. The Crown agrees that it would not be rational to draw an inference from the text messages that John Evans coerced, forced or instructed Keith Evans to shoot at the occupants of the Kluger with the relevant intent or at all. Indeed the Crown disavows a case on that basis. As to whether all of the evidence, in combination with the text messages, will permit the jury to draw a rational inference that John Evans encouraged Keith Evans to shoot at the occupants of the Kluger with the relevant intent, in my opinion that issue must await the adducing of all of the evidence in the Crown case.

25. Taking into account my findings that the evidence has probative value, and that directions to the jury will have an ameliorating effect, I find that the probative value of the evidence outweighs the danger of unfair prejudice to the accused.

26. I make the following orders:-

27. I permit the Crown to adduce the evidence of the text messages for the purpose of establishing:-

(a) whether John Evans and Keith Evans had formed an agreement that the shotgun would be fired deliberately at the occupants of the Kluger containing Jayke Rodgers; (b) whether the agreement included an intention to kill or cause grievous bodily harm (the joint criminal enterprise basis of John Evans’s liability); and (c) whether John Evans contemplated the possibility that in the course of the use of the firearm for intimidation of the occupants of the Kluger the shotgun would be discharged with the relevant murderous intent (the extended joint criminal enterprise basis of John Evans’s liability).

2. The Crown is not permitted to adduce the evidence for the purpose of demonstrating that John Evans coerced, forced or instructed Keith Evans to shoot at the occupants of the Kluger.
3. The Crown is not to open on whether the evidence might demonstrate that John Evans encouraged Keith Evans to shoot at the occupants of the Kluger, and the Court reserves the question of whether the evidence might be capable of demonstrating such an inference to the conclusion of the evidence.

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Amendments

11 June 2025

Typo corrected in catchwords.