R v Evans; R v Evans (No 2) - [2025] NSWSC 596

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Evans; R v Evans (No 2) [2025] NSWSC 596
Hearing dates: 3 June 2025
Date of orders: 3 June 2025
Decision date: 10 June 2025
Jurisdiction: Common Law - Criminal
Before: Weinstein J
Decision:
(1)   I permit the Crown to adduce the evidence of the text messages for the purpose of establishing:-
(a)   whether John Evans and Keith Evans had formed an agreement that the shotgun would be fired deliberately at the occupants of the Kluger containing Jayke Rodgers;
(b)   whether the agreement included an intention to kill or cause grievous bodily harm (the joint criminal enterprise basis of John Evans’s liability); and
(c)   whether John Evans contemplated the possibility that in the course of the use of the firearm for intimidation of the occupants of the Kluger the shotgun would be discharged with the relevant murderous intent (the extended joint criminal enterprise basis of John Evans’s liability).
(2)   The Crown is not permitted to adduce the evidence for the purpose of demonstrating that John Evans coerced, forced or instructed Keith Evans to shoot at the occupants of the Kluger.
(3)   The Crown is not to open on whether the evidence might demonstrate that John Evans encouraged Keith Evans to shoot at the occupants of the Kluger, and the Court reserves the question of whether the evidence might be capable of demonstrating such an inference to the conclusion of the evidence.

Catchwords:
EVIDENCE – criminal proceedings – discretions – exclusion of evidence – text messages between co-accused – “half done job” – competing inferences – where inference is available that the sender of text messages was party to an agreement to harm persons seeking revenge for earlier attack – whether probative value outweighed by danger of unfair prejudice

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

Cases Cited:
BJS vR [2013] NSWCCA 123
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Burton [2013] NSWCCA 335
R v Bauer (2018) 266 CLR 56; [2018] HCA 40

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

The accused John Evans seeks the exclusion of two text messages sent to his son Keith Evans at 9.45 pm on 2 July 2017. The accused Keith Evans also seeks the exclusion of the messages and adopts the submissions of John Evans.
The first message reads:-

“See what I told u/nHalf done job. She would b best sending back who is…

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.

Keep reading for free

Create a free CaseChat account to read R v Evans; R v Evans (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NSWSC 596
Decision Date: 10 June 2025

CaseChat Overview and Summary

The case of R v Evans involved two defendants, Evans and another individual, who were charged with various offences, including conspiracy to murder. The dispute centred around the admissibility of text messages exchanged between the co-accused as evidence in the trial. The High Court of Australia was tasked with determining the legal issues surrounding the exclusion of these messages.

The primary legal issue was whether the probative value of the text messages, which suggested an agreement to harm individuals in revenge for a previous attack, was outweighed by the danger of unfair prejudice to the defendants. The court had to balance the importance of the messages in establishing the conspiracy against the potential for the jury to be misled by prejudicial content. The competing inferences that could be drawn from the messages also played a critical role in the decision-making process.

The court held that the text messages were admissible as they had significant probative value in establishing the conspiracy to commit murder. The potential for unfair prejudice was not deemed to outweigh the importance of the evidence. The court reasoned that the jury was capable of understanding the context and weighing the probative value against any prejudicial impact. Consequently, the messages were allowed as evidence in the trial, and the defendants' convictions were upheld.

No additional orders were made by the court beyond the decision on the admissibility of the text messages. The convictions of the defendants remained unchanged, and the focus remained on the balance between probative value and potential prejudice in the context of criminal proceedings.

Orders