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Evans v The King

Evans v The King

Case [2023] NSWCCA 11 10 February 2023

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Evans v R [2023] NSWCCA 11
Hearing dates: 19 September 2022
Date of orders: 10 February 2023
Decision date: 10 February 2023
Before: Bell CJ at [1]
Price J at [9]
Lonergan J at [161]
Decision:
(1)   Extend the time for leave to appeal
(2)   Grant leave to appeal
(3)   Dismiss the appeal.

Catchwords:
CRIMINAL LAW - murder – issue at trial was presence of the accused – no directions sought for alternative verdict of manslaughter – tactical decision of trial counsel – two home invasions – coincidence evidence – consumption of ice – intoxication – whether evidence available to support verdict of manslaughter by unlawful and dangerous act – impermissible speculation or conjecture

Legislation Cited:
Crimes Act 1900 (NSW) ss 18, 27, 86, 112, 421, 428A, 428B, 428C
Drug Misuse and Trafficking Act 1985 (NSW) Sch 1
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
Burns v The Queen (2012) 246 CLR 334; 86 ALJR 1097; 2017 A Crim R 501; [2012] HCA 35
Carbone v R [2020] NSWCCA 318
Douglass v R [2020] NSWCCA 284
James v The Queen (2014) 253 CLR 475; 88 ALJR 427; 306 ALR 1; 236 A Crim R 402; [2014] HCA 6
Jones v Great Western Railway Co (1930) 144 LT 194
Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317
Luxton v Vines (1952) 85 CLR 352; [1952] ALR 308; [1952] HCA 19
Pemble v The Queen (1971) 124 CLR 107; 45 ALJR 333; [1971] ALR 762; [1971] HCA 20
R v Basanovic (2018) 100 NSWLR 840; [2018] NSWCCA 246
R v Holzer [1968] VR 481
R v Johnson (No 4) [2017] NSWSC 609
R v Kanaan (2005) 157 A Crim R 238; 64 NSWLR 527; [2005] NSWCCA 385
Seltsam Pty Ltd v McGuiness (2002) 49 NSWLR 262; [2000] NSWCA 29
The Queen v Baden-Clay (2016) 258 CLR 308; 90 ALJR 1013; 334 ALR 234; 256 A Crim R 132; [2016] HCA 35
The Queen v Lavender (2005) 222 CLR 67; 218 ALR 521; 155 A Crim R 458; [2005] HCA 37
Wilson v The Queen (1992) 174 CLR 313; 66 ALJR 517; [1992] HCA 31
Xie v R [2022] NSWCCA 185

Category: Principal judgment
Parties: Ryan Evans (Applicant)
Rex (Respondent)
Representation:
Counsel:
T Woods (Applicant)
E Balodis (Respondent)
Solicitors:
Just Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2014/309094
Publication restriction: Non-publication order in relation to the witnesses “Kurt Sinclair” and “Sam Franklin"
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 1523

Date of Decision:

10 November 2017

Before:

R A Hulme J

File Number(s):

2014/309094

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ryan Evans (the applicant) was found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evans v The King

Details

AGLC: Evans v The King [2023] NSWCCA 11
Case: [2023] NSWCCA 11
Decision Date: 10 February 2023

CaseChat Overview and Summary

The dispute between Evans and The King involved a case of murder. The issue at hand was whether the accused, Evans, was present at the crime scene. The case was heard in the court of appeal. The trial court did not consider an alternative verdict of manslaughter, as no directions were sought for it. The court was required to decide whether the decision not to seek a direction for an alternative verdict was a tactical decision of trial counsel and whether the evidence available supported a verdict of manslaughter by an unlawful and dangerous act.

The court examined the evidence presented in the trial, which included two home invasions, coincidence evidence, and the consumption of ice by the accused. The court noted that intoxication could have played a role in the accused's actions. The court held that it was not permissible to speculate or conjecture about the accused's state of mind or level of intoxication. The court found that the evidence did not support a verdict of manslaughter by an unlawful and dangerous act, as the accused's actions were intentional and deliberate. The court concluded that the trial counsel's decision not to seek a direction for an alternative verdict was a tactical decision, and it was not open to the court to second-guess it.

The court dismissed the appeal and upheld the conviction of the accused for murder. The court emphasised that it was not open to it to speculate or conjecture about the accused's state of mind or level of intoxication. The court held that the evidence did not support a verdict of manslaughter by an unlawful and dangerous act. The court found that the trial counsel's decision not to seek a direction for an alternative verdict was a tactical decision, and it was not open to the court to second-guess it.

Orders