R v Evans; R v Evans (No 5)

The accused, Keith Evans, seeks a warning pursuant to s 165(1)(d) of the Evidence Act 1995 (NSW) with respect to the evidence of Jayke Rodgers, Shane Weir, Levi Dean, Billy Thompson and Luke Hill, who were the occupants of the Toyota Kluger at the time of the alleged murder of Jesse Thompson (who was the sixth occupant). Ms Fernando, who appears on behalf of Keith Evans, is supported in the application by Mr Stratton, who appears on behalf of the accused John Evans.

Section 165 of the Evidence Act relevantly provides:-

Ms Fernando made the following submissions. She submitted that the words "events giving rise to the proceedings” include the events that make up the background to the crime alleged in these proceedings. The background to the alleged murder of Jesse Thompson, she submitted, included the affray in Baker Park shortly before the alleged murder, and, on the evidence, the occupants of the Toyota Kluger were criminally concerned in that affray. She submitted that the affray is an event giving rise to the alleged murder and that the evidence of those persons involved in the affray may be unreliable because they will be inclined to minimise their role in the affray and exaggerate the role of accused in the affray.

In my opinion, the scope of the "events giving rise to the proceedings" is not so broad as to include any criminal activity that makes up the background to the alleged criminal conduct. Support for this view is found in the suggested direction for a s 165(1)(d) warning contained in the New South Wales Criminal Trial Bench Book. The direction does not use the words "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the alleged proceeding". Rather, the suggested direction uses the words "a person who was or might have been involved in the alleged crime" (emphasis added).

In Blair v R [2022] NSWCCA 176 (“Blair”), a similar situation arose where the witness (who was also the complainant) was involved in criminal activity at the time of the offending by the accused. On the evening in question, the complainant had attended a motel room to supply the drug methamphetamine to an unrelated individual. When he arrived at the motel room, he was assaulted, kidnapped and later robbed at his home. Justice Yehia held that the complainant's involvement in drug supply did not give rise to a s 165(1)(d) direction. Her Honour said at [84] and [88]:-

Beech-Jones CJ at CL (as his Honour then was), agreed with Yehia J. His Honour also discussed the scope of the expression "events giving rise to the proceedings", by reference to the Australian Law Reform Commission (“ALRC”) Interim Report No 26. His Honour said at [4]-[5]:-

Mr Stratton submitted on behalf of John Evans that the standard direction with respect to an accomplice's evidence discloses two reasons why the Kluger occupants’ evidence may be unreliable. First, accomplices have an interest in minimising their own role and shifting blame onto others. In this case, he said the Kluger occupants not only had an interest in shifting blame onto others, they did in fact shift blame by lying to the police. Second, Mr Stratton said that the direction states that an accomplice's evidence may be unreliable because accomplices, once having made statements to police, become locked into those versions.

I observe that the Kluger occupants are not accomplices to the offences charged in the present proceedings. This case concerns the alleged murder of Jesse Thompson by Keith Evans and John Evans. The Kluger occupants may be accomplices to the alleged affray in Baker Park, and thus in a trial concerning the affray, they would have an interest in shifting the blame on to others. However, the Kluger occupants are not accomplices to the alleged murder of Jesse Thompson which is the event giving rise to the present proceedings. They have no interest in shifting the blame away from them and onto others because it is not alleged that they bear any responsibility for the murder of Jesse Thompson. I observe also that the Kluger occupants cannot be said to have been “locked in” to the original versions that they gave to police because they themselves admitted later that they lied to the police.

As Yehia J said in Blair at [85], "[f]ar from deflecting investigators, [the complainant’s] immediate complaint that he was assaulted and kidnapped could only have served to bring attention to the events, including criminal conduct on his part." Similarly, in this case, the Kluger occupants’ account of the events could only serve to bring attention to their involvement in the alleged affray in Baker Park.

In my view, the s165(1)(d) direction is required only when there is a real possibility that, without the warning, the jury will not identify a factor which adversely affects the weight to be given to that evidence. To paraphrase Kirby J in R v Baartman [2000] NSWCCA 298 at [62], the need for such a warning will arise either because a jury needs to be acquainted with the accumulated experience of the courts in dealing with certain kinds of evidence, or because there is a danger that a jury might overestimate the probative value of a certain kind of evidence. In my opinion, neither situation arises here.

Similarly, in R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321 the Court said at [184]:-

See also a comprehensive review of the authorities concerning s 165 of the Evidence Act in Soars v R [2024] NSWCCA 218 at [18]-[23] (Bell CJ, Wright and Chen JJ).

In my opinion, there is no real possibility in the present case that without the warning the jury will fail to appreciate the factors that may cause the evidence to be unreliable. Indeed, there are a number of reasons for not giving such a direction as to the unreliability of Jayke Rodgers’, Billy Thompson’s, Luke Hill's and Levi Dean's, and to a lesser extent, Shane Weir's evidence.

First, the credibility of those witnesses is a central issue in this case so that the jury cannot be in any doubt as to the “spectrum of reasons” why their evidence could be regarded as unreliable: see Mena v DPP [2024] ACTCA 34 at [182]. A number of reasons for their unreliability was suggested to each witness. These reasons include, for example, that they lied to police, that they had a vendetta against Keith Evans, and that they failed to observe the relevant events with accuracy.

Second, the jury is fully aware of the Kluger occupants’ history of engagement with police in this matter. They are aware, for example, that certain Kluger occupants initially gave false statements to the police or refused to provide a statement at all. I note that there has been extensive cross-examination concerning these witnesses’ apparent lies to police.

Third, the direction said to be necessary in my view is immaterial to the central issue in the trial, which is whether the firing of the shot from the Mitsubishi Triton by Keith Evans at the corner of Byron Street and Panonia Road was accidental or deliberate.

I decline to give the direction for these reasons. I observe that it is entirely open to Ms Fernando (and Mr Stratton) to address the jury on the unreliability of the evidence of the Kluger occupants.