R v Evans; R v Evans (No 4)

Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 81, 90, 137

Cases Cited: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12
R v Esposito (1998) 45 NSWLR 442

Texts Cited: Nil

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 Keith Evans moves on a further amended notice of motion seeking exclusion of evidence given in prior proceedings by him, Danielle Micallef and Jayke Rodgers pursuant to ss 90 and 137 of the Evidence Act 1995 (Evidence Act).

2. The amended prayers for relief are as follows:-

“1 Pursuant to s 90 and s 137 of the Evidence Act 1995, the following evidence given by Keith Evans during proceedings on 14 December concerning events in February 2017 be excluded:

a. Transcript (T) 1802:32 “in early 2017 around February of that year”

b. T 1802:36-37

c. T 1802:42-44

d. T 1802:45 “that night then”

e. T 1802:46 “like I just found”

f. T 1803:1-15

g. T 1804:5-21

2 Pursuant to s 90 and s 137 of the Evidence Act 1995, the following evidence given by Keith Evans during proceedings on 14 and 15 December concerning events of 2 July 2017, relied on by the Crown for background and credibility purposes be excluded:

a. T 1789:11 to 1790:35 (related to d. 1836 below)

b. T 1818:31-33

c. T 1820:34-1822:23

d. T 1836-1837 (related to a. 1789 above)

e. T 1838:1-6 (Crown to confirm whether pressed)

f. T 1841:20-28

g. T 1845:28 “just”

h. T 1845:29 “I didn’t hold a grudge”

3. Pursuant to s 90 and s 137 of the Evidence Act 1995, the following evidence given by Keith Evans during proceedings on 14 and 15 December relevant to proving he posed as Ms Micallef on her Facebook Messenger account be excluded:

a. T 1803:39-41

b. T 1804:23-1817:44

c. T 1819:50-1820:27

d. T 1822:36-1830:50 (NB Crown relies on T 1827-1830 for multiple purposes)

e. T 1841:13-18

f. T 1845:49-1848:30

4. Pursuant to s 90 and s 137 of the Evidence Act 1995, the following evidence given by Keith Evans during proceedings on 14 December concerning the ferocity of the assault of Mr Jayke Rodgers on 2 July 2017 be excluded:

a. T 1801:39-45 (Crown to confirm whether pressed)

b. T 1817:46-1818:17

c. T 1818:19-29 (Crown to confirm whether pressed)

d. T 1818:38-1819:15

e. T 1819:17-48 (Crown to confirm whether pressed)

f. T 1820:29-32

5 Pursuant to s 137 of the Evidence Act 1995, background evidence (concerning the lead up to and assault of Jayke Rodgers on 2 July 2017) to be given by Danielle Micallef and Jayke Rodgers be confined to:

a. The accused seriously assaulted Mr Rodgers, with the use of an object at about 2am on 2 July 2017.

b. The assault was in retaliation for Rodgers’ having had an affair with the accused’s girlfriend, Ms Micallef.

c. The assault led to two hospitalisations (and the timings of those hospitalisations).

d. The general nature of resulting injuries being lacerations (which required stitches), abrasions and bruising.”

3. The accused John Evans adopts the submissions of Keith Evans.

4. It is proposed that the evidence of Keith Evans in previous proceedings be read by a neutral person in these proceedings. That is largely a consent position, subject to the evidence the subject of dispute and set out in the prayers for relief in Keith Evans’ notice of motion noted above at [2].

The Crown’s Submissions

5. The Crown submits that virtually the entirety of Keith Evans’ evidence can be tendered in the Crown case, including both what are obvious admissions on their face and his denials of various matters which the Crown contends are lies which constitute implied admissions when compared to other evidence in the case.

The Accused’s Submissions

6. Ms Fernando, who appears for Keith Evans, submits that whilst portions of the evidence may amount to admissions, much depends on the nature of the evidence itself. She submits that differences in versions between Keith Evans’ evidence and other witnesses that were called in the previous proceedings do not on their own demonstrate that Keith Evans’ evidence was false. Evidence of other witnesses to the effect that Keith Evans is lying does not meet the definition of an admission as it is not evidence by Keith Evans giving a deliberately false version of relevant events. In the alternative, she relies on ss 90 and 137 of the Evidence Act to exclude certain passages relied upon by the Crown.

Evidence Act

7. Sections 55 and 56 of the Evidence Act provide:-

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.

8. Section 81 of the Evidence Act provides:-

81 Hearsay and opinion rules: exception for admissions and related representations

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation—

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and

(b) to which it is reasonably necessary to refer in order to understand the admission.

9. Section 90 of the Evidence Act provides:-

90 Discretion to exclude admissions

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

10. 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.

Consideration

11. I observe that the relief pursuant to s 90 of the Evidence Act was not seriously pressed, as Ms Fernando accepted, appropriately, that as Keith Evans had given evidence on the previous occasion voluntarily and when he was represented by competent counsel, there could be no relevant unfairness. I leave that section to one side.

12. It is convenient to deal first with prayer 5 of the notice of motion as it concerns representations of persons other than the accused Keith Evans and does not concern admissions made by him.

13. The relevance of this evidence sought to be adduced by the Crown is as background evidence. On the Crown case, the discovery by Keith Evans of the affair between Jayke Rodgers and his girlfriend Danielle Micaleff was the catalyst for the events on 3 July 2017 which culminated in the death of Jesse Thompson. The relevance is conceded by Ms Fernando, although she does not concede that the extent of evidence sought to be adduced ought to be allowed. In my view, the alleged offending cannot be understood without the background of Keith Evans’ discovery of the affair in or about February 2017. Events transpired such that Keith Evans seriously assaulted Mr Rodgers on 2 July 2017, and he was found guilty of an offence pursuant to s 33 of the Crimes Act 1900 in previous proceedings. That finding of guilt was not disturbed on appeal. The circumstances of the wounding, including the extent of the injuries suffered by Mr Rodgers and Keith Evans’ apparent coercive relationship with Ms Micallef, however, are in my opinion of marginal relevance to these proceedings and in any event ought to be excluded pursuant to s 137 of the Evidence Act on the basis that the danger of unfair prejudice to Keith Evans on his trial for the murder of Jesse Thompson outweighs any probative value of that evidence. The Crown does not seriously disagree and the parties largely agreed on the evidence to be excluded.

14. As to prayers 1, 2, 3 and 4, it is agreed between the parties that the only way that the previous evidence of Keith Evans can be admitted, it being hearsay to which no exception applies, is as admissions pursuant to s 81 of the Evidence Act. The admissibility of the previous evidence of an accused person is dependent upon it being categorised as an admission: Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [88]. Evidence of lies told by Keith Evans may be capable of demonstrating a consciousness of guilt and may fall within the definition of an admission: R v Esposito (1998) 45 NSWLR 442 at 458. However, a denial is not an admission: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at [107]. Thus any bare denials of propositions put to Keith Evans, even when they are contradicted by other evidence in the case (which I have yet to hear), in my view cannot constitute an admission. In his previous trial, Keith Evans was entitled to give evidence which was consistent with his plea of not guilty to the charge of murder. My reading of the transcript portions tendered as exhibit 4 is that is largely what Keith Evans did.

15. The Dictionary to the Evidence Act provides the following definition of an admission:-

admission means a previous representation that is—

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

16. In my opinion, admission means a confession or an acknowledgment of a crime or the truth of something that had been previously denied. The word adverse contemplates something that is harmful or unfavourable to the accused’s interests in the outcome of the proceedings. The Crown argued that there was some internally inconsistent evidence given by Keith Evans, which amount to admissions. Further, he submitted that admissions could be implied from lies which were told by Keith Evans in his evidence when compared to other evidence in the case; ie that lies are false admissions. That the jury might ultimately conclude on an assessment of all the evidence that Keith Evans lied, is precisely that – a question for the jury. In my view a lie, the falsity of which is yet to be proved, cannot constitute an admission. Having said that, there are also some parts of Keith Evans’ evidence that do constitute admissions in the sense contemplated by the Evidence Act.

17. Those were the principles which guided me in my determination about the admissibility of this evidence.

18. I observe that in the interests of time management, as the Court was shortly to empanel a jury, and without conceding the points that each was making, both counsel accepted that my rulings for some of the evidence would cover other parts of the proposed evidence. No part of the transcript should be read as either Mr Hannan or Ms Fernando acquiescing to any of the rulings made in favour of or against the Crown or Keith Evans respectively. As might have been expected, I allowed in some of the evidence as admissions, and excluded other parts of the evidence which in my view did not constitute admissions in the sense contemplated by the Evidence Act.

19. The full argument of the issues, and my individual rulings on each item of contested evidence is contained at T25-70. My rulings with respect to prayer 5 are at T26-43. My rulings with respect to prayer 1 are at T46-53. My rulings with respect to prayer 2 are at T53-64. My rulings with respect to prayer 3 are at T64-68. My rulings with respect to prayer 4 are at T68-70.

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