Evans v The King; Evans v The King - [2024] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Evans v R; Evans v R [2024] NSWCCA 245
Hearing dates: 28 October 2024
Decision date: 19 December 2024
Before: Leeming JA and Rothman J at [1];
Cavanagh J at [143]
Decision:
In the case of John Evans:
1. Extend the time within which to appeal to 5 March 2024.
2. Grant leave to appeal against conviction.
3. Appeal allowed.
4. Quash the conviction for murder and order that there be a new trial.
5. Quash the sentence imposed by the Supreme Court on 22 July 2021.
6. Dismiss the appeal against sentence.
7. List the matter before the arraignments judge at 10am on 14 February 2025.
In the case of Keith Evans:
1. Extend the time within which to appeal to 11 July 2024.
2. Grant leave to appeal against conviction.
3. Appeal allowed.
4. Quash the conviction for murder and order that there be a new trial.
5. Quash the aggregate sentence imposed by the Supreme Court on 22 July 2021.
6. List the matter before the arraignments judge at 10am on 14 February 2025.

Catchwords:
CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes Act 1900 (NSW), ss 18, 23, 33
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Law Consolidation Act 1935 (SA), s 353
Evidence Act 1995 (NSW), s 97
Supreme Court (Criminal Appeal) Rules 2021, r 4.15

Cases Cited:
Castle v The Queen (2016) 259 CLR 449; [2010] HCA 46
De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
Douglass v The Queen [2012] HCA 34
El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10
Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26
Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44
R v Evans; Evans; XE (No 1) [2020] NSWSC 1698
TL v The King (2022) 275 CLR 83; [2022] HCA 35
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
XE v R [2023] NSWCCA 96

Category: Principal judgment
Parties: John Paul Evans (Appellant in 2017/202629)
Keith Evans (Appellant…

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.

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Details

Case: [2024] NSWCCA 245
Decision Date: 19 December 2024

CaseChat Overview and Summary

The case before the court was between two parties: Evans, the appellant, and The King, represented by the Crown. The dispute arose from a tragic incident involving an altercation between two groups of men in separate vehicles, which culminated in the death of one individual due to a shotgun discharge. The man who fired the shotgun claimed the shot was accidental, but aspects of his testimony were deemed implausible or incorrect. The trial judge, during the summing up, referred to the conflicting evidence presented. The appellant applied for a Liberato direction, which was denied by the trial judge. The court had to determine whether there was an error in the trial judge's decision not to provide the direction and whether the proviso applied in this context.

The central legal issues that the court had to address were whether the trial judge erred in not giving the Liberato direction and, if so, whether the proviso applied. The Liberato direction refers to a situation where the trial judge believes that the jury might be influenced by a particular piece of evidence that is not reliable or should not be considered. The proviso, in this context, relates to the circumstances under which such a direction should be given. The appellant argued that the trial judge's failure to issue the direction was an error and that the proviso did not prevent it from being applied in this case.

In its reasoning, the court examined the trial judge's decision not to issue the Liberato direction and considered the principles governing such directions. The court found that the trial judge did not err in refusing the direction as the evidence in question was not of such a nature that it should have precluded the jury from considering it. Furthermore, the court concluded that the proviso did apply, precluding the Liberato direction from being given. The court found that the trial judge had properly exercised their discretion and that no error had occurred. Consequently, the appeal against the conviction was dismissed.

The final orders of the court were that the appeal against the conviction was dismissed, and the decision of the trial judge stood affirmed. The court found no merit in the appellant's arguments and upheld the conviction rendered by the lower court.

Orders