R v Evans (No 1) - [2017] NSWSC 741

Supreme Court

New South Wales

Medium Neutral Citation: R v Evans (No 1) [2017] NSWSC 741
Hearing dates: 10 April 2017
Decision date: 04 May 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
Tendency and coincidence evidence admissible

Catchwords: CRIMINAL LAW – evidence – tendency evidence pursuant to Evidence Act 1995, s 97 – coincidence evidence pursuant to Evidence Act 1995, s 98 – allegation of two home invasions committed a month apart – charges of murder, specially aggravated break, enter and steal – aggravated detain for advantage – substantial similarities between two incidents – principal fact in issue whether accused present at both – no concession that joint criminal enterprises proved nor mental elements of offences established – evidence capable of having significant probative value on both bases – risk of unfair prejudice outweighed – evidence admissible on both bases
Legislation Cited: Criminal Procedure Act 1986 (NSW) s 143
Evidence Act 1995 (NSW) ss 55, 97, 101(2)
Cases Cited: Aravena v R [2015] NSWCCA 288
Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303
Hughes v R [2015] NSWCCA 330
R v Matonwal & Amood [2016] NSWCCA 174
Saoud v R [2014] NSWCCA 136; 87 NSWLR 481
Category: Procedural and other rulings
Parties: Regina
Ryan David Evans
Representation:
Counsel:
Mr C Maxwell QC (Crown)
Mr R Webb (Accused)
Solicitors:
Solicitor for Public Prosecutions
Criminal Defence Group

File Number(s): 2014/309094

Judgment

HIS HONOUR: The accused, Ryan Evans, has pleaded not guilty to all seven counts in the indictment.
Counts 1 to 3 (“the Badgerys Creek charges”) allege the murder of Mr Keith Cini; the wounding of Ms Luciana Boldi with intent to murder her; and breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally wounding Ms Boldi. Each of these offences is alleged to have occurred at Badgerys Creek on 30 May 2014.
Counts 4 to 7 (“the Medway charges”) allege breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm to Mr Brett Delamont; detaining Ms Alana Bush and Ms Kirby Delamont without their consent with intent to obtain a financial advantage while in company; and detaining Mr Jack Lisle without his consent with intent to obtain a financial advantage while in company and occasioning actual bodily harm to him. Each of these offences is alleged to have occurred at Medway on 28 April 2014.
Mr Evans was initially indicted jointly with [redacted]. Mr [redacted] had previously pleaded not guilty to the Badgerys Creek charges but guilty to the Medway charges. On Monday 18 April 2017 when the trial was due to commence, he pleaded guilty to murder and to specially aggravated break, enter and steal in relation to Badgerys Creek.
Both groups of charges concern what the Crown characterises as "home invasions". The Crown case, very broadly, is that Messrs Evans and [redacted] were involved in breaking into homes in the early hours of…

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 R v Evans (No 1)

Details

AGLC: R v Evans (No 1) [2017] NSWSC 741
Case: [2017] NSWSC 741
Decision Date: 04 May 2017

CaseChat Overview and Summary

The defendant was charged with multiple offences, including murder, specially aggravated break, enter and steal, and aggravated detain for advantage, following two home invasions that occurred a month apart. The prosecution sought to adduce evidence of both incidents under the Evidence Act 1995. The court had to determine whether the evidence of the earlier home invasion was admissible as tendency evidence under section 97 of the Evidence Act 1995, and whether it could be used as coincidence evidence under section 98 of the Act. The defence argued that the probative value of the earlier incident was outweighed by the risk of unfair prejudice.

The court found that the earlier home invasion bore substantial similarities to the charged offences, and that the principal fact in issue was whether the defendant was present at both incidents. The court held that there was no concession that joint criminal enterprises were proven, nor that the mental elements of the offences were established. The evidence of the earlier home invasion was capable of having significant probative value on both bases, and the risk of unfair prejudice was outweighed. The court held that the evidence was admissible as both tendency and coincidence evidence.

The court found that the evidence of the earlier home invasion was relevant to the principal fact in issue, and that its probative value outweighed any risk of unfair prejudice. The evidence was therefore admissible under both sections 97 and 98 of the Evidence Act 1995. The court did not make any final orders in this case, as it was an interlocutory decision.

Orders