R v John Paul Evans; R v Keith Evans

[2025] NSWSC 526

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v John Paul Evans; R v Keith Evans; [2025] NSWSC 526

Hearing dates:

29 May 2025

Date of orders:

29 May 2025

Decision date:

02 June 2025

Jurisdiction:

Common Law - Criminal

Before:

Davies J

Decision:

Notices of Motion filed by the Accused John Paul Evans and Keith Evans for a judge alone trial are refused.

Catchwords:

CRIMINAL PROCEDURE – applications for trial by judge alone – whether trial by judge alone in the interests of justice – where no evidence was led to explain delay in application – where context evidence of other offence necessary – where proposed expert evidence is not particularly complex – where courts proceed on the basis that juries are presumed to follow directions not to access internet materials relating to the event and the earlier trial – not in the interests of justice to order a trial by judge alone – applications refused

Legislation Cited:

Crimes Act 1900 (NSW) s 33

Criminal Procedure Act 1986 (NSW) ss 132, 132A

Interpretation Act 1997 (NSW) s 36

Cases Cited:

Alameddine v R [2022] NSWCCA 219

Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197

Evans v R; Evans v R [2024] NSWCCA 245

R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1

R v Dawson [2022] NSWSC 552

R v Evans; R v Evans; R v Evans [2021] NSWSC 885

R v Niguidula [2023] NSWSC 290

R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Crown
John Paul Evans (Accused)
Keith Evans (Accused)

Representation:

Counsel:
A Robertson (Crown)
J Stratton SC (Accused John Paul Evans)
M Fernando (Accused Keith Evans)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Archbold Gittani Lawyers (Accused John Paul Evans)
Bannisters Lawyers (Accused Keith Evans)

File Number(s):

2017/202629 & 2017/202678

Publication restriction:

Nil

JUDGMENT

1. John Paul Evans and Keith Evans were convicted after a trial before Ierace J and a jury of the murder of Jesse Thompson on 3 July 2017.

2. Keith Evans was also convicted of wounding Jayke Rodgers with intent to cause grievous bodily harm on 2 July 2017 contrary to s 33 of the Crimes Act 1900 (NSW).

3. Justice Ierace sentenced Keith Evans to an aggregate sentence of 32 years’ imprisonment with a non-parole period of 22 years and 4 months and he sentenced John Evans to 31 years’ imprisonment with a non-parole period of 22 years and 6 months: R v Evans; R v Evans; R v Evans [2021] NSWSC 885.

4. On 19 December 2024 the Court of Criminal Appeal allowed appeals from each of John Evans and Keith Evans in respect of the convictions for murder, quashed those convictions and ordered that there be a new trial. The sentences imposed were also quashed but the conviction of Keith Evans for wounding was not disturbed: Evans v R; Evans v R [2024] NSWCCA 245.

5. A new trial has been fixed on 2 June 2026 before Weinstein J.

6. Each of John Evans and Keith Evans has filed a notice of motion on 5 May 2025 seeking an order pursuant to s 132 of the Criminal Procedure Act 1986 (NSW) (the “CPA”) that the matter be tried by judge alone. In the case of Keith Evans, but not John Evans, leave is sought under s 132A of the CPA. The Crown does not consent to a judge alone trial.

7. The affidavits in support of the motion point to the bases for the application as being publicity in newspapers and on social media about the conviction and sentencing of the applicants, and prejudice from evidence which was led at the first trial and will be led again at the re-trial in relation to the s 33 offence against Keith Evans. In the submissions, it was also argued that there was technical complex expert ballistics evidence including evidence additional to what was led at the first trial.

8. At the conclusion of the hearing of the applications on 29 May 2025 I refused the applications and said that reasons would follow. I did that because of the shortness of the time between that hearing and the date of commencement of the trial. The parties were entitled to know as soon as possible how the trial would proceed. These are my reasons for the refusals.

Legal principles

9. Section 132 of the CPA relevantly provides:

132 Orders for trial by Judge alone

(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).

(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.

(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.

(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so.

(5) Without limiting subsection (4), the court may refuse to make an order if it considers that the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

(6) The court must not make a trial by judge order unless it is satisfied that the accused person has sought and received advice in relation to the effect of such an order from an Australian legal practitioner.

…

10. Section 132A relevantly provides:

132A Applications for trial by judge alone in criminal proceedings

(1) An application for an order under section 132 that an accused person be tried by a Judge alone must be made not less than 28 days before the date fixed for the trial in the Supreme Court or District Court, except with the leave of the court.

(2) An application must not be made in a joint trial unless—

(a) all other accused person apply to be tried by a Judge alone,…

11. In R v Dawson [2022] NSWSC 552, Beech-Jones CJ at CL said:

[10]   Generally, the phrase “interests of justice” envisages a broad assessment of a variety of matters, some concerning the interests of the parties to the litigation, but also “interests wider than those of either party” (BHP Billiton Limited v Schultz (2004) 221 CLR 400; [2004] HCA 61 at [15], and at [169] and [172]). In the context of s 132, in R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 (“Belghar”), McClellan CJ at CL held that s 131 does not create a presumption that the trial should be with a jury which an accused person must discharge. Instead, as each form of trial has its own characteristics, and depending on the particular case, the court may conclude that the interests of justice are best served by a trial before a judge alone rather than a trial by a jury. Further, the subjective views of an accused, and his or her belief that a jury trial may not be fair, are relevant factors to consider however they are far from determinative. What is more significant is the reason for that preference, whether those reasons are rationally justified, and whether they bear upon the question of a fair trial. The mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice, is not sufficient to make such an order as it is contrary to the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict.

[11]   In Simmons (No 4), Hamill J identified several considerations which may inform the assessment of whether the interests of justice warrant the making of an order for trial by judge alone. These include the potential to save court time and expense from having a matter proceed without a jury although the weight to be attached to this factor will vary from case to case. One advantage of a trial by a judge alone is the enhanced community confidence in the verdict that may be derived from the provision of reasons by a judge especially if it concerns complex engineering, scientific or medical issues. On the other hand, there is a “public interest in the administration of justice [being] carried out in public and in serious cases by the representatives of the public sitting as jurors”. Many authorities point to juries as the preferred body to make assessments of the credibility of witnesses. However, in Simmons (No 4) Hamill J regarded this factor as neutral given that judges have the “training and experience of making difficult decisions on credibility, putting aside matters of emotion, on an almost daily basis”.

12. In R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1, McClellan CJ at CL said at [112]:

As the reasons of Martin CJ in Arthurs make plain, the Chief Justice considered the requirement for a judge to give reasons to be a significant factor when considering where the interests of justice lie. To my mind the opportunity which a reasoned judgment affords to the accused and to the public to understand the steps in the reasoning process of the decision-maker, compared with the inscrutability of the jury's decision, will depending upon all the circumstances, be a factor which is relevant to the decision as to whether to order a judge-alone trial. However, it is but one factor and the weight to be given to it will depend upon the nature of the issues to be determined in the trial. If the trial will involve complex engineering, scientific or medical issues it may be more readily concluded that a verdict accompanied by the reasons of the trial judge will enhance the interests of justice, both in relation to the accused and the maintenance of confidence in the criminal justice system. It would inevitably facilitate an appeal if the trial judge has erred.

13. In R v Simmons; R v Moore (No 4) [2015] NSWSC 259; (2015) 249 A Crim R 120, Hamill J said:

[71]   Cases involving complex evidence that could be difficult for a jury to understand may lend themselves to orders for a trial by judge alone: R v Belghar at [112]; R v Dean at [60-62]. In Kingswell v R [1985] HCA 72; 159 CLR 264 Deane J said at 302-303:

“There is, for example, obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial or upon the detailed technical questions which may be involved in the trial of white collar and computer crime.”

[72]   Further, it may often be in the interests of justice for the reasoning process of the tribunal of fact to be exposed in cases involving an assessment of competing and complicated expert evidence: Arthurs v Western Australia at [90].

14. In R v Niguidula [2023] NSWSC 290, Wilson J said:

[23]   Much has been written in the jurisprudence, including in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, and in R v Belghar (2012) 217 A Crim R 1; [2012] NSWCCA 86 at [23] - [38] about the historical background to the default position that criminal proceedings should be tried by jury. Although it is not necessary to add to the jurisprudence here, it is important to note that a jury trial is ordinarily seen as one that provides a greater likelihood of an accused securing an acquittal than is the case for a trial by judge alone, whilst involving the community in criminal proceedings.

[24]   Jury trials bring that great advantage to the administration of the criminal justice system, involving the community through its members bearing responsibility for the most significant decisions required to be made, in determining questions of guilt. To reserve decisions concerning guilt to a judge sitting alone heightens the likelihood of the community coming to regard the criminal justice system as the preserve of an unrepresentative minority, and thus outside the community’s scrutiny or input. The ultimate risk in that scenario is that the administration of the criminal justice system will lose the support of the community.

15. In Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Basten JA (with whom Button J agreed) said at [9]:

It may be right to say that a trial judge faced with an application under s 132 should not approach the task imposed by the provision by reference to “presumptions” or “assumptions”. That language may be inapt. However, the task cannot be assayed without bearing in mind that trial by jury is the conventional approach and, in the absence of an order under s 132, is mandated by s 131 of the Criminal Procedure Act.

16. In Alameddine v R [2022] NSWCCA 219, the Court of Criminal Appeal (Beech-Jones CJ at CL, Hamill and N Adams JJ) said this in relation to the time for an application under s 132 and the concept of judge shopping:

[17] The first matter concerns the significance of an explanation for a late application under s 132A to dispelling the appearance of judge shopping. As noted by Hamill J in Simmons (No 4) at [21], in the second reading speech for the Bill introducing s 132A the Attorney General stated:

“The new section 132A sets out procedural matters regarding trial by judge orders, including that applications are to be made no less than 28 days before the trial date, except by leave of the court. This is designed to minimise the risk of a party applying for a judge-alone trial on the basis of knowing the identity of the trial judge.” (emphasis added)

[18]   This statement reflects the observation by Gleeson CJ in R v Perry (1993) 29 NSWLR 589 at 594 about the rationale for the predecessor to s 132A:

“One of the reasons why the legislation provides that an election for trial without a jury must be made before the date fixed for trial is that if an election could be made on the date fixed for trial, it might appear that accused persons were making such elections in the light of a knowledge of the identity of the trial judge. It is, of course, impossible to eliminate altogether appearances of that kind, and there may well be circumstances in which elections will in fact be made in the light of some knowledge of the identity of a trial judge. However, it clearly goes some way towards eliminating such appearances if elections have to be made before the trial date.” (emphasis added)

[19]   In Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197 Basten JA cited this passage (at [12]). His Honour added (at [13]) that:

“Modern case management procedures will often mean, as Hamill J noted [in Simmons (No 4) at [19]-[22]] that the identity of the trial judge will be known well before the commencement of the 28 day period. Nevertheless, where the matter is left to the last moment, it may be inappropriate for the prosecutor simply to consent to a grant of leave in circumstances where, as in the present case, no explanation was proffered as to why the matter could not have been raised earlier.” (emphasis added)

[20]   The form of explanation to which Basten JA was referring is an explanation that, at the very least, addresses the “appearance” of judge shopping. Implicit in both of the above passages is that such an appearance can be dispelled by the provision (and acceptance) of an explanation for the delay being an explanation that discloses some reason(s) for making the application, other than “knowing the identity of the trial judge”; i.e., the appearance of judge shopping does not survive the acceptance of the explanation. Hence, in R v Dawson [2022] NSWSC 552 leave was granted to an accused under s 132A to apply for a judge alone trial within 28 days of the trial date. The identity of the trial judge had been known to both the Crown and the accused for a substantial period of time, however it was clear that the fact and timing of the application was dictated by the outcome of an application for a permanent stay (at [8]). The explanation that was given and accepted dispelled the suggestion of judge shopping (see also R v Quami & Ors (No 14) [2016] NSWSC 274 at [8] to [18]).

[21]   In Simmons (No 4) Hamill J heard and granted an application for a judge alone trial after his Honour commenced hearing and deciding pre-trial issues. His Honour noted that the fact that he was the trial judge had been known to the parties for months so there was no suggestion that the parties made the application as a result of discovering the identity of the trial judge (at [22]). Further, his Honour considered but rejected the possibility that the parties had nevertheless based their decision to seek a judge alone trial because of decisions that he had already made, which, if it had been, would be tantamount to judge shopping (at [23] to [31]). Again, implicit in his Honour’s approach is that an acceptance of an explanation for the fact and timing of the application which does not involve any form of judge shopping was sufficient to dispel the “appearance” of judge shopping.

Submissions

17. Counsel for Keith Evans took me to various passages in the transcript of the evidence given by Jayke Rodgers and Danielle Micallef concerning the matters leading up to the assault on Mr Rodgers and to the circumstances of that assault. Counsel submitted that the evidence risked the jury engaging in tendency reasoning about threats of violence and violence inflicted by Keith Evans, and risked evoking significant animosity towards him from that assault. Although that evidence was led at the first trial, that was at a time when the Crown was leading the evidence to prove not only the s 33 offence but also background, motive and credibility on the Crown case in relation to the charge of murder. If this evidence was again led, which the Crown intends to do, there would be significant prejudice towards Keith Evans. Counsel submitted that it gave rise to the accused's reasonable perception of prejudice on the part of a jury which favoured him being allowed a judge alone trial.

18. Counsel also drew attention to prejudicial material available on the internet from various earlier dates including at the time of the murder, the time of the first trial and following the successful appeal to the Court of Criminal Appeal. Counsel submitted that when that publicity, the complexity of the expert evidence, and the prejudice arising from the evidence related to the s 33 offence is considered together, it results in the interests of justice favouring a judge alone trial.

19. Senior counsel for John Evans submitted that the Crown's reliance on the matters in the retrial concerning objective community standards should not be accepted. Senior counsel submitted that the Crown case was one of an intentional shooting, the defence case was that the firing of the gun was accidental, and the only area where community standards might be relevant would be if manslaughter was left to the jury, something that neither party was likely to seek.

20. Senior counsel submitted that the significant matter about the publicity that is available on the internet is that what is available at the present time shows that the jury convicted the accused. That was a matter of considerable significance if a member of the new jury accessed the internet contrary to any directions given by the trial judge. Senior counsel stressed that there was a significant difference between publicity simply about the murder on the one hand and publicity showing that a jury had already convicted the accused.

21. In relation to the expert evidence, senior counsel said that he anticipated there would be additional evidence at the second trial and issues which were not ventilated in the first trial about the ballistics evidence. That evidence was of critical importance, and not a subsidiary issue at the trial. He submitted that contested expert evidence on a very technical area weighed heavily in favour of there being a judge alone trial.

Consideration

22. The affidavits in support of the applications provided no explanation for the lateness of the applications. The matter is relevant because the notices of motion were not filed on a date not less than 28 days before the date fixed for the trial. An examination of the chronology is informative.

22. Judgment was given in the Court of Criminal Appeal on 19 December 2024. The matters came before Hamill J in the arraignments list on 14 February 2025. His Honour fixed the matter for trial on 2 June 2025 before Coleman J and a jury.

23. The proceedings came before Coleman J on 15 April 2025 for pre-trial directions. Subsequently, by reason of Coleman J’s commitments, the proceedings were transferred to Weinstein J for his Honour to preside at the trial. Thereafter, the notices of motion for a judge alone trial were filed on 5 May 2025.

24. When I raised with counsel the fact that no evidence had been led by either of the applicants to explain the delay in making the application, at least outside the period specified in s 132A, counsel for Keith Evans sought leave to put on further evidence, specifically addressing that issue. I declined to give her leave to do so on the basis that the trial was fixed for hearing on 2 June 2025, less than two business days after the applications were being heard. Further, Keith Evans had sought in his notice of motion that leave be granted under s 132A. In those circumstances no reason was offered for the failure to address by way of evidence the question of leave that that section indicated would need to be given.

25. During the course of his address, senior counsel for John Evans informed me of the following matters from the bar table. At the directions hearing before Coleman J on 15 April 2025, counsel for Keith Evans informed his Honour that she would be raising an objection to evidence concerning the s 33 matter. She suggested that there would need to be significant edits to that evidence but she was hoping the parties could agree on the matter. I interpolate to mention that nothing was said to Coleman J about any intention to seek a judge alone trial either because of the issue relating to the s 33 matters or otherwise.

26. Senior counsel for John Evans said that on 22 April 2025 counsel for Keith Evans raised the possibility of a joint application for a judge alone trial. On 29 April 2025, senior counsel's instructing solicitor emailed him to say that the trial judge had been changed to Weinstein J although Coleman J was still listed in the online computer registry of the Court as the trial judge.

27. On 1 May 2025 senior counsel’s instructing solicitor sent a judge alone election to the Crown seeking the Crown's consent. Such consent could not have been given because at that stage no similar application had been forwarded by those acting for Keith Evans.

28. Senior counsel submitted in any event that the application filed on 5 May 2025 did not need leave because the notice of motion was filed not less than 28 before the date fixed for trial. The Crown took a similar view in its written submissions.

29. Section 36(1) of the Interpretation Act 1987 (NSW) provides that is to be reckoned exclusive of the day of the act or event. The result is the applications were filed less than 28 days before the date fixed for trial and leave is required.

30. It is concerning that, when leave was needed under s 132A, no evidence was given about why the application was made when it was, particularly in light of the date of the judgment of the Court of Criminal Appeal, the fixing of the trial on 14 February 2025, and the pre-trial directions before Coleman J on 15 April 2025. Even if I accept the chronology subsequent to the pre-trial directions before Coleman J outlined to me by senior counsel for John Evans, what occurred during that time is not sufficient to dispel the appearance of judge shopping when there is no evidence on behalf of either applicant that a judge alone trial was contemplated prior to the legal advisers becoming aware that the trial had been reallocated to Weinstein J. I am, however, prepared to accept what I was told from the Bar Table that counsel for Keith Evans had raised the suggestion of a judge alone trial on 22 April 2025, apparently before the parties became aware of the change of trial judge.

31. However, in the circumstances where the applicants were only one day late in filing their applications, I consider that the better course is that leave should be given to the applicants to make an application under s 132 and to decide that application on its merits.

32. The applicants have the burden of convincing the Court that it is in the interests of justice that an order be made for a trial by judge alone: Belghar at [60]. While the subjective views of an accused and his belief that a jury trial may not be fair are relevant factors to consider, they are not determinative. What is significant is whether the reasons are rationally justified and whether they bear on the question of a fair trial: Dawson at [10].

33. I do not consider that the matters raised by the applicants demonstrate that any trial by jury will not be a fair one. In relation to the evidence touching the s 33 count, I accept that such evidence has a capacity to be misused by the jury in that they might, absent a direction from the trial judge, engage in tendency reasoning, and they might use it prejudicially against Keith Evans. Some form of that evidence will necessarily be led at the retrial because, without it, the later pursuit by the accused in their motor vehicle of the victim of that assault (and his friends), and what intervened between that assault and the shooting, the jury would not make proper sense of the immediate events that led to the killing of the victim.

34. The matter is not qualitatively different from a great many trials where context evidence including evidence of non-charged offences is led against an accused. Clear directions are given to a jury about how such context evidence can be used and, if there is a risk it may be misused as tendency evidence, an anti-tendency direction will be given. Juries are ordinarily assumed to follow directions given to them by a trial judge: Dawson at [10].

35. Although the Crown has indicated at the present time it intends to lead the evidence in the form it was led at the first trial, an application can be made (and I am informed will be made) to limit that evidence whether by a statement of agreed facts or otherwise. In whatever form the evidence is led, the trial judge will doubtless give clear directions to the jury about the basis of leading the evidence and how the jury may and may not use that evidence.

36. In relation to the material which is to be found on the internet relating to the events giving rise to the charges and to the convictions of the accused at the earlier trial, I accept senior counsel’s submission that the material in the public arena differs in one sense from that which is to be found in almost every murder case and many other types of crime. The difference is that some of the material makes reference to the conviction of the accused.

37. The existence of material on the internet is an ongoing and challenging problem for the courts where jury trials are concerned. Nevertheless, apart from ordering judge alone trials in most or all cases where material about the matters charged appears on the internet, the courts have proceeded on the basis of giving clear directions to juries with a warning that there are criminal penalties for making such enquiries. Again, juries are presumed to follow directions given to them by a trial judge.

38. There is some force in the Crown’s submission also that if a member of a jury ascertained from an internet search that the accused had previously been convicted, it is likely that they would understand that there was something wrong with the conviction that the same accused were being tried again for the same crime.

39. I do not consider that the ballistics evidence involves great matters of complexity. As I informed the parties, I have read the evidence given by both ballistics experts at the first trial. The evidence was given without any difficulty and was relatively straightforward. Ballistics evidence is frequently given in murder trials and trials of some other offences. The issue about which the experts gave and will give evidence is not a particularly complex one, involving trajectories from firearms. It is not, for example, complex scientific, engineering or financial evidence which might in some cases be regarded as too complex for jurors to understand, perhaps because of the extent of it or concepts involved.

40. I do not place any weight on the suggestion of the Crown that the trial might involve the application of objective community standards. The issue would only arise if manslaughter was seriously in issue. It is not, with the Crown and defence cases turning on whether the firearm was intentionally or accidentally discharged. Even if the trial judge felt an obligation to leave manslaughter to the jury which would then to some extent involve the application of such standards, I do not consider that provides any basis for refusing to make an order if it was otherwise justified.

41. I do not consider it is in the interests of justice to make a trial by judge order when the matters raised are considered individually or collectively. For that reason, I determined that the applications should be refused.

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Amendments

24 July 2025 - Publication restriction removed

Decision last updated: 24 July 2025