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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.
Publication of the name of the person referred to in these proceedings as XE and any information and material that might lead to that person’s identification is prohibited.

JUDGMENT – EX TEMPORE – REVISED

1. The accused, Keith Evans, seeks a warning pursuant to s 165(1)(d) of the Evidence Act 1995 (NSW) with respect to the evidence of Jayke Rodgers, Shane Weir, Levi Dean, Billy Thompson and Luke Hill, who were the occupants of the Toyota Kluger at the time of the alleged murder of Jesse Thompson (who was the sixth occupant). Ms Fernando, who appears on behalf of Keith Evans, is supported in the application by Mr Stratton, who appears on behalf of the accused John Evans.

2. Section 165 of the Evidence Act relevantly provides:-

165 Unreliable evidence

(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence—

…

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

…

(2) If there is a jury and a party so requests, the judge is to—

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

…

3. Ms Fernando made the following submissions. She submitted that the words "events giving rise to the proceedings” include the events that make up the background to the crime alleged in these proceedings. The background to the alleged murder of Jesse Thompson, she submitted, included the affray in Baker Park shortly before the alleged murder, and, on the evidence, the occupants of the Toyota Kluger were criminally concerned in that affray. She submitted that the affray is an event giving rise to the alleged murder and that the evidence of those persons involved in the affray may be unreliable because they will be inclined to minimise their role in the affray and exaggerate the role of accused in the affray.

4. In my opinion, the scope of the "events giving rise to the proceedings" is not so broad as to include any criminal activity that makes up the background to the alleged criminal conduct. Support for this view is found in the suggested direction for a s 165(1)(d) warning contained in the New South Wales Criminal Trial Bench Book. The direction does not use the words "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the alleged proceeding". Rather, the suggested direction uses the words "a person who was or might have been involved in the alleged crime" (emphasis added).

5. In Blair v R [2022] NSWCCA 176 (“Blair”), a similar situation arose where the witness (who was also the complainant) was involved in criminal activity at the time of the offending by the accused. On the evening in question, the complainant had attended a motel room to supply the drug methamphetamine to an unrelated individual. When he arrived at the motel room, he was assaulted, kidnapped and later robbed at his home. Justice Yehia held that the complainant's involvement in drug supply did not give rise to a s 165(1)(d) direction. Her Honour said at [84] and [88]:-

“[84] The complainant’s involvement in drug supplying and/or general criminal activity is not a matter that would normally require or justify a warning under s 165(1)(d) of the Evidence Act. In this case, the events giving rise to the proceedings involved allegations of robbery, kidnapping and larceny. The complainant was not a witness criminally concerned in these events.

…

[88] Clearly, the complainant was not a witness who “might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings”. He made a complaint about those events, namely, allegations that he had been robbed, kidnapped and had his property stolen. The evidence that he was involved in drug related criminal activity was relevant to an attack upon his creditability and reliability. Such evidence properly required a direction that the complainant’s evidence be carefully scrutinised before it was accepted beyond reasonable doubt. That direction was administered.”

6. Beech-Jones CJ at CL (as his Honour then was), agreed with Yehia J. His Honour also discussed the scope of the expression "events giving rise to the proceedings", by reference to the Australian Law Reform Commission (“ALRC”) Interim Report No 26. His Honour said at [4]-[5]:-

“[4] Report No 26 was critical of what it described as the “technical and arbitrary rules” surrounding the need for corroboration of particular classes of evidence, especially that given by accomplices (Report No 26 Volume 1 at p 266). It proposed the abolition of the existing “requirements of law and practice” and instead the adoption of “[r]ules ... which take account of the existing categories.” It suggested that the categories be “broadly described” and relevantly include “evidence of persons concerned in or with the offence” (Report No 26 at [1016] to [1018]). Although this represents a relaxation of the technicalities that accompanied a determination of who was or was not an “accomplice”, it is notable that it did not extend to persons concerned in or with any offence related to the proceedings as opposed to the offence the subject of the proceedings.

[5] The text of s 165(1)(d) requires focus on the “events giving rising to the proceeding”. In one sense this can be contrasted with simply being involved in the offence the subject of the proceeding, in that s 165(1)(d) can be engaged by a witness who might not strictly be criminally concerned with the very offence charged, but who might nevertheless be supposed to be criminally concerned in the criminal endeavour that gives rise to the offences charged. However, whatever the precise scope of s 165(1)(d), it does not extend to the complainant in this case. In this case, the “events giving rise to the proceeding” was the assault, detention and robbery of the complainant. Self-evidently, the complainant was not criminally concerned in those events. Given the origins, purpose and scope of s 165(1)(d), the (proposed) sale of drugs to the applicant’s daughter by the complainant on the evening of the 28 May 2019 was not part of the events that gave rise to the proceedings. It follows that s 165(1)(d) was not engaged in relation to the complainant’s evidence.”

(emphasis added)

7. Mr Stratton submitted on behalf of John Evans that the standard direction with respect to an accomplice's evidence discloses two reasons why the Kluger occupants’ evidence may be unreliable. First, accomplices have an interest in minimising their own role and shifting blame onto others. In this case, he said the Kluger occupants not only had an interest in shifting blame onto others, they did in fact shift blame by lying to the police. Second, Mr Stratton said that the direction states that an accomplice's evidence may be unreliable because accomplices, once having made statements to police, become locked into those versions.

8. I observe that the Kluger occupants are not accomplices to the offences charged in the present proceedings. This case concerns the alleged murder of Jesse Thompson by Keith Evans and John Evans. The Kluger occupants may be accomplices to the alleged affray in Baker Park, and thus in a trial concerning the affray, they would have an interest in shifting the blame on to others. However, the Kluger occupants are not accomplices to the alleged murder of Jesse Thompson which is the event giving rise to the present proceedings. They have no interest in shifting the blame away from them and onto others because it is not alleged that they bear any responsibility for the murder of Jesse Thompson. I observe also that the Kluger occupants cannot be said to have been “locked in” to the original versions that they gave to police because they themselves admitted later that they lied to the police.

9. As Yehia J said in Blair at [85], "[f]ar from deflecting investigators, [the complainant’s] immediate complaint that he was assaulted and kidnapped could only have served to bring attention to the events, including criminal conduct on his part." Similarly, in this case, the Kluger occupants’ account of the events could only serve to bring attention to their involvement in the alleged affray in Baker Park.

10. In my view, the s165(1)(d) direction is required only when there is a real possibility that, without the warning, the jury will not identify a factor which adversely affects the weight to be given to that evidence. To paraphrase Kirby J in R v Baartman [2000] NSWCCA 298 at [62], the need for such a warning will arise either because a jury needs to be acquainted with the accumulated experience of the courts in dealing with certain kinds of evidence, or because there is a danger that a jury might overestimate the probative value of a certain kind of evidence. In my opinion, neither situation arises here.

11. Similarly, in R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321 the Court said at [184]:-

“The purpose of the section is to ensure that the jury is alive to any factor that might adversely affect the weight to be given to evidence before them. If there is a real possibility that, without an appropriate warning from the trial judge, the jury might not identify such a factor or might not appreciate its importance or might in some other way be misled about the weight to be given to the evidence, a warning should be given. The risk of unreliability might arise for various reasons: the evidence is of a certain kind (such as hearsay evidence); the witness is of a certain class (such as a person implicated in the offence); the evidence might be affected by some personal characteristic of the witness (such as age); or the witness may be honestly mistaken (such as in identification evidence).”

12. See also a comprehensive review of the authorities concerning s 165 of the Evidence Act in Soars v R [2024] NSWCCA 218 at [18]-[23] (Bell CJ, Wright and Chen JJ).

13. In my opinion, there is no real possibility in the present case that without the warning the jury will fail to appreciate the factors that may cause the evidence to be unreliable. Indeed, there are a number of reasons for not giving such a direction as to the unreliability of Jayke Rodgers’, Billy Thompson’s, Luke Hill's and Levi Dean's, and to a lesser extent, Shane Weir's evidence.

14. First, the credibility of those witnesses is a central issue in this case so that the jury cannot be in any doubt as to the “spectrum of reasons” why their evidence could be regarded as unreliable: see Mena v DPP [2024] ACTCA 34 at [182]. A number of reasons for their unreliability was suggested to each witness. These reasons include, for example, that they lied to police, that they had a vendetta against Keith Evans, and that they failed to observe the relevant events with accuracy.

15. Second, the jury is fully aware of the Kluger occupants’ history of engagement with police in this matter. They are aware, for example, that certain Kluger occupants initially gave false statements to the police or refused to provide a statement at all. I note that there has been extensive cross-examination concerning these witnesses’ apparent lies to police.

16. Third, the direction said to be necessary in my view is immaterial to the central issue in the trial, which is whether the firing of the shot from the Mitsubishi Triton by Keith Evans at the corner of Byron Street and Panonia Road was accidental or deliberate.

17. I decline to give the direction for these reasons. I observe that it is entirely open to Ms Fernando (and Mr Stratton) to address the jury on the unreliability of the evidence of the Kluger occupants.

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