R v John Paul Evans; R v Keith Evans;

1. [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. [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. [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. [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. [5]

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

6. [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. [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. [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

1. [9]

   Section 132 of the CPA relevantly provides:

2. [10]

   Section 132A relevantly provides:

3. [11]

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

4. [12]

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

5. [13]

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

6. [14]

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

7. [15]

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

8. [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:

Submissions

1. [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.

2. [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.

3. [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.

4. [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.

5. [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

1. [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.

2. [23]

   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.

3. [24]

   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.

4. [25]

   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.

5. [26]

   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.

6. [27]

   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.

7. [28]

   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.

8. [29]

   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.

9. [30]

   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.

10. [31]

    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.

11. [32]

    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.

12. [33]

    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].

13. [34]

    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.

14. [35]

    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].

15. [36]

    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.

16. [37]

    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.

17. [38]

    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.

18. [39]

    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.

19. [40]

    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.

20. [41]

    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.

21. [42]

    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.