R v Evans; Evans; XE (No 1)

1. [1]

   HIS HONOUR: John Evans (“the applicant”), together with his son Keith Evans and his daughter XE, are indicted that on Monday 3 July 2017 at about 12:20pm at Wyong, they murdered Jesse Thompson (“the deceased”). Keith Evans is further indicted that on 2 July 2017, he wounded Jayke Rodgers with intent to cause him grievous bodily harm.

2. [2]

   On Monday 16 November 2020, the jury having been empanelled the previous Friday, the applicant sought leave to file a tendency notice in court, submitting that, pursuant to s 97 of the Evidence Act 1995 (NSW) (“the Act”), he is entitled to rely upon certain material as evidence of certain tendencies of Mr Rodgers, which he alleges have significant probative value. Mr Rodgers was the first witness called by the prosecution. The Crown did not oppose the application being heard, in spite of the late notice. I invited the parties to forward written submissions and heard brief argument on the morning of Wednesday 18 November. Senior Counsel for the applicant, Mr Hughes SC, submitted that, in the alternative, the material was admissible on the basis that it was probative, relying on similarities between this case and R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280.

3. [3]

   At the same time, counsel for Keith Evans sought to rely on the same material as being admissible in his case, also relying on Cakovski, submitting that the material was admissible pursuant to s 103(1) of the Act.

4. [4]

   I gave my decision that day, declining the two applications.

5. [5]

   On 23 November 2020, whilst cross-examining Mr Rodgers, Senior Counsel for John Evans also made an application to cross-examine Mr Rodgers with reference to some of the same material, pursuant to s 103(1) of the Act. I declined that application the same day.

6. [6]

   I now publish my reasons in relation to my refusal of the three applications.

The Crown case

1. [7]

   The Crown case that the deceased was killed in Wyong at about the alleged time is not in dispute. The Crown allegation as to the immediate circumstances of the killing is that, at that time, John Evans was driving a Mitsubishi Triton (“the Triton”) in which Keith Evans occupied the front passenger seat and XE the rear seat. They had given chase to another vehicle, a Toyota Kluger (“the Kluger”), through residential streets of Wyong. The deceased was in the rear seat of the Kluger, second from the left, together with three other males, being his brother Billy Thompson and friends Levi Dean and Luke Hill. Shane Weir was the driver and Mr Rodgers was in the front passenger seat.

2. [8]

   At about 12:20pm, the Kluger pulled up to the right of the Triton in an intersection. Keith Evans pointed a shotgun to the rear open window of the Kluger and fired a cartridge, which struck the deceased in the throat, causing his death. The Crown case is that the three occupants of the Triton were parties to a joint criminal enterprise to cause at least grievous bodily harm to one or more of the occupants of the Kluger. Alternatively, they were parties to a joint criminal enterprise to intimidate the Kluger’s occupants and, by the time that the Triton had pulled up alongside the Kluger, John Evans and XE each appreciated that a possible incident to that agreed crime was that Keith Evans would discharge the firearm with the intention of causing at least grievous bodily harm to one or more of the Kluger’s occupants; they determined to continue with the enterprise and take that risk.

3. [9]

   The broader alleged background to the killing is set out in the amended Crown Case Statement which, for the purposes of the application, the applicant accepts. The relevant parts are as follows:

4. [10]

   Police took the five surviving occupants of the Toyota Kluger to Wyong Police Station in order to obtain statements. Mr Rodgers made a statement in which he characterised the killing as a “road-rage” incident involving a white Triton, the occupants of which he did not know. Later that day, after learning that the deceased had died, he returned to the police station and provided a fresh statement in which he said that his earlier account was false. He said that he did not tell the truth because he wanted to get revenge for what had happened. He said that he recognised the accused Keith Evans and XE in the back seat, but not the driver. He said that he saw Keith Evans point and discharge the shotgun.

The case for John Evans

1. [11]

   At the stage of the trial when the application was made, the defence case was rather opaque. Senior Counsel for John Evans did not open to the jury. In his pre-trial notice issued pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), the nature of his defence is put thus: “The case for John Evans is that he was not a participant in the killing of [the deceased]”. In his written submissions on the application, the case is put thus:

The tendency notice

1. [12]

   The tendency notice identifies two tendencies sought to be proved, as follows:

2. [13]

   The relevance of the material was explained in the applicant’s written submissions as follows:

3. [14]

   Certain material was identified by the applicant in the tendency notice as the subject of the application, and was added to with leave being granted, over the following two days.

The material relied upon as tendency evidence

1. [15]

   Annexed to the tendency notice was an incomplete copy of Mr Rodgers’ criminal history, as printed and, I assume, as provided by Corrective Services. Mr Rodgers’ criminal history for offences committed prior to 3 July 2017 is as follows. On 7 November 2013, Mr Rodgers was charged with resisting an officer in the execution of duty; intimidate police officer in the execution of duty and behaving in an offensive manner in a public passenger vehicle. The police facts and a COPS entry allege that he abused a fellow passenger on a train. Police approached him when he alighted and asked him to stop, but he kept on walking. When police took hold of him, he was abusive and struggled, prompting police to use pepper spray on him. He threatened some of the police officers. He was treated by ambulance officers and conveyed to a police station.

2. [16]

   On 17 December 2013, Mr Rodgers was convicted of the first two offences in his absence and fined in relation to the third. On 21 January 2014, he was fined for the first and for the second, received a fine and bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”) for a period of 12 months (“the s 9 bond”). He was also convicted for breaching his bail for having failed to appear pursuant to a bail undertaking, presumably on 17 December 2013. For that matter, he was dealt with by way of s 10A of the CSP Act, the effect of which is that he received no penalty other than the fact of the conviction.

3. [17]

   On 29 April 2015, Mr Rodgers was called up on the s 9 bond, receiving 9 months supervision by the Probation Service of the NSW Department of Corrective Services.

4. [18]

   On 17 November 2014, Mr Rodgers was charged with three offences: behaving in an offensive manner in or near a public place or school; using offensive language in or near a public place or school; and assault occasioning actual bodily harm. A COPS entry in relation to the charges is to the following effect. Mr Rodgers had been declined a tenancy application by a real estate employee. The employee became aware that Mr Rodgers was staying at the premises and contacted police. He was removed from the premises. Two weeks later, Mr Rodgers approached the employee on a street and said: “I know where you live”, and something similar to blowing up his car. Mr Rodgers then punched the victim multiple times to the head. The victim made a complaint to police. When police arrested Mr Rodgers, he was abusive to them and threatened to find their address from the telephone book. The arrest occurred in a public place near a railway station, with heavy pedestrian traffic.

5. [19]

   Mr Rodgers received fines for the first two offences and a 150 hour Community Service Order (“CSO”) for the third. On 13 April 2016, the time for completing the CSO was extended. On 3 August 2016, it was converted to a sentence of imprisonment for a period of 7 months with a non-parole period of 2 months, with conditions.

6. [20]

   Mr Rodgers’ post-incident criminal history is as follows.

7. [21]

   It appears that Mr Rodgers was convicted of certain offences in about 2018, although those convictions and any ensuing sentences do not appear in the criminal record annexed to the tendency notice. There are entries for a call-up for a “breach” that was dealt with on 29 October 2019 at Wyong Local Court for assault occasioning actual bodily harm and destroy or damage property, with which he had been charged on 16 July 2018. Tendered on the application is a police fact sheet that alleges that on 7 May 2018, Mr Rodgers was involved in a “road rage” incident, in which he pushed the victim back into his utility as he sought to get out of it, causing grazing on the victim’s right forearm. He then threw a “metal transformer” that was on the back of the utility towards a witness. It missed and hit a garage door, denting it. It appears from the call-up entry that the matters were initially dealt with by a form of conditional liberty.

8. [22]

   On 30 June 2019, Mr Rodgers was charged in relation to an incident described in police facts, which allege that he threatened the parents of a person who he said owed him money, telling them he would kill them if their son did not pay the debt. Later that day, he confronted them and claimed he had their son’s body in the boot of his car. He drove off, followed by the parents, to his residence. He went inside, coming back out with a large knife. The couple opened Mr Rodgers’ boot and found it to be empty. Mr Rodgers appeared, and allegedly lunged at the father with the knife and chased him as he retreated to his vehicle. He made further threats and, as the father drove away, kicked his vehicle.

9. [23]

   I note that police facts do not necessarily reflect the facts on which a person pleads guilty or is found to be guilty. In this case, Mr Rodgers was only charged with one count of destroying property and a count of common assault. There was no charge reflecting that allegation that he threatened to kill the father or the other threats that he was alleged in the police facts to have made on that day. In that sense, the charges fall short of what was alleged in the police facts.

10. [24]

    On the same date, he was charged with three offences in a domestic violence context, being two of destroying or damaging property and one of common assault. According to the police facts, in relation to the latter charge, he kicked a former partner in the back, head and torso area.

11. [25]

    On 29 October 2019, Mr Rodgers was convicted of all those offences in the Local Court and re-sentenced in relation to the matters with which he had been charged on 16 July 2018. Following a successful appeal against severity of sentence to the District Court, on 5 February 2020, he received an aggregate sentence of 16 months’ imprisonment with a non-parole period of 8 months, for all but the destroy or damage property offence, for which he received a Community Corrections Order for a period of 2 years.

12. [26]

    Mr Rodgers is alleged to have sent Facebook messages to the applicant’s sister, Ms Timbery, from 24 December 2018, in which he threatened to kill her family and poison her horses if she did not pay him a sum of cash, to be conveyed to the family of the deceased, “for the trauma your family has caused” to them. He allegedly sought $10,000 as a “down payment”, to be made within a week of that date. Independently of the alleged extortion, he threatened to kill Keith and John Evans as revenge for Keith Evans having killed the deceased. For the purposes of these applications, I assume that Mr Rodgers was the author of the messages. Further details of the exchange are canvassed in my consideration of the application.

13. [27]

    The applicant relied upon three paragraphs from Mr Rodgers’ second statement to police on 3 July 2017, as follows:

14. [28]

    An exchange between Mr Rodgers’ phone and the account shared by Keith Evans and Christine on 2 July 2017 between 9:35pm and 9:49pm (“the 2 July messages”) were as follows:

15. [29]

    On 3 July 2017, Mr Rodgers forwarded to Levi Dean photographs of his head injuries. At 8:52am, Mr Rodgers texted him:

16. [30]

    It is agreed by the Crown and defence that “deff” means “definitely” and “toy” is a firearm.

17. [31]

    The only material that was identified in the tendency notice in relation to this was a reference to the times of three calls on 3 July 2017, being 12:06pm, 12:09pm, 12:14pm and 12:17pm. There was nothing as to the substance of the calls, although I note par (30) of the Crown Case Statement, above.

18. [32]

    The Tendency Notice identifies par (10) of Levi Dean’s second statement to police on 3 July 2017:

19. [33]

    Senior Counsel for John Evans submitted that on 17 November 2020, which was the date on which the Crown first called Mr Rodgers, there was an incident outside the courtroom while Mr Rodgers was waiting to be called, involving the applicant’s nephew, Damien Timbery. At 3:58pm that day, Mr Timbery attended a nearby police station (being Surry Hills) where the following COPS entry was created:

The relevant law

1. [34]

   The relevant sections of the Act are as follows:

The applicant’s submissions

1. [35]

   The applicant submitted as follows:

2. [36]

   The applicant submitted that the material that concerned a tendency on the part of Mr Rodgers to threaten John Evans and members of his family is the threats to Keith Evans, the “gun” message, the messages to Ms Timbery and the incident outside the trial courtroom. The evidence relied upon to establish Mr Rodgers’ tendency to commit acts of intimidation, assault and destruction of property is his criminal record, in particular, the police facts and COPS entries concerning his offences prior to 3 July 2017.

3. [37]

   Alternatively, the evidence was sought to be adduced on the basis that it would support anticipated evidence from John Evans:

4. [38]

   It was also submitted that the probative value was not substantially outweighed by the danger that it may be unfairly prejudicial to the Crown: s 135 of the Act.

5. [39]

   Senior Counsel for John Evans advanced the proposition that the evidence was also admissible because of its capacity to make the claims of his client “less improbable”, being a basis identified, it was submitted, in similar circumstances by the Court of Criminal Appeal in Cakovski at [36]. In that case, the appellant had been convicted of murder. He had alleged at trial that he killed the deceased in self-defence. A few hours prior to the killing, the deceased had assaulted another man, Mr Logounov. The deceased had a criminal record for three counts of murder, which were committed decades before. The deceased had told Mr Logounov, at the time of the assault of him, that “I’m going to kill you like I killed the other three people”. At the time of the killing, the appellant was unaware that the deceased had previously killed three people. The trial judge had refused the appellant’s application to allow the evidence of the murders or of threat to Mr Logounov pursuant to s 97 of the Act. On appeal, Hodgson JA, Hulme J agreeing, said it was admissible, although not as tendency evidence:

6. [40]

   Hidden J, at [71], concurred that the evidence was admissible, but on the basis that it qualified as tendency evidence, and not on the basis determined by Hodgson JA or Hulme J.

7. [41]

   The applicant submitted that, although the Crown case against the applicant included threats of death against Keith Evans, the pattern of Mr Rodgers’ behaviour, prior to and subsequent to the events in question demonstrated that his violent tendencies go “deeper than that and much broader than that”.

Submissions on behalf of the Crown

1. [42]

   The Crown objected to the admission into evidence of the material the subject of the application, unless it was already part of the Crown case, and opposed its use as evidence establishing the alleged tendencies. The Crown submitted that Mr Rodgers’ criminal offending prior to and subsequent to the matters which are the subject of the trial are “too general and different in nature to the circumstances here asserted”. Similarly, the messages to Ms Timbery were “far removed” from the facts in issue in the trial and could not increase the likelihood that a fact in issue did, or did not, occur.

2. [43]

   The Crown sought to distinguish the instant case from the facts in Cakovski, in that the Crown case includes evidence of explicit and serious threats made by Mr Rodgers.

Consideration of the application by John Evans with respect to tendency and Cakovski

1. [44]

   In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) noted that the threshold issue for all proposed evidence is relevance, pursuant to ss 55(1) and 56(1) of the Act, and stated at [37]:

2. [45]

   The purpose is identified by the tendency that is alleged. Accordingly, the first step is to assess whether each proposed item of evidence is relevant to that purpose; whether it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated tendency. I note that, in that assessment, considerations of credibility and reliability are sidelined.

3. [46]

   It is not a fact in issue that Mr Rodgers intended to fight Keith Evans and to do so with a preponderance of supporters; that he had threatened to kill Keith Evans; and that the group of which Mr Rodgers was a part had attended the confrontation with weapons, other than firearms, that had the potential to inflict life-threatening injuries. The Crown case goes further, alleging that Mr Rodgers had a motive to at least seriously assault Keith Evans. I note that the defence case is that one of those in the car accompanying Mr Rodgers had the firearm, which somehow came into the possession of those in the applicant’s vehicle.

4. [47]

   That being so, it is not apparent how the material identified has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated two tendencies. Mr Rodgers’ criminal record and the police facts do not provide evidence that he had committed an assault more serious than an assault occasioning actual bodily harm, which is of little assistance when the Crown case includes two messaged threats to kill Keith Evans. There is no instance in Mr Rodgers’ criminal history of him being armed with, having access to or being accompanied by an accomplice with, a firearm.

5. [48]

   There are two possible exceptions which may be relevant to the applicant’s professed motive in being present at the time of the killing in the defence case, to protect his family. The first is the messages from Mr Rodgers to Ms Timbery in which he threatened to kill members of her and Keith Evans’ family, for example: “your family won’t last long” and “I will kill them 2 before I die” (with the reference to “them 2” being references to John Evans and Keith Evans). However, it is apparent from other texts in the thread that these threats were in the context of him seeking revenge for what he regarded as the killing of the deceased by Keith Evans. It is unclear how the extortion and threats could shed light on whether Mr Rodgers had a tendency to “make threats of violence against John Evans and members of his family”, other than Keith Evans, at the relevant time, which is immediately prior to the shooting on 3 July 2017, since the apparent motive for sending the threatening messages to Ms Timbery was the consequence to the shooting itself.

6. [49]

   The second is the alleged threat to the applicant’s nephew outside the courtroom on 17 November 2020, leaving aside the paucity of evidence of the incident. However, the threat is confined in the same way as the threats conveyed to Ms Timbery; it is apparently motivated by the shooting, and therefore is not relevant to Mr Rodgers’ attitude to the applicant’s family leading up to that event.

7. [50]

   As noted by the Crown, much of the material sought to be relied upon by the applicant is either evidence in the Crown case in any event, or capable of being elicited by the applicant in cross-examination of witnesses called by the Crown. This includes the identified paragraphs of Mr Rodgers’ second statement of 3 July 2017; the threats to Keith Evans; the “gun” message; the phone calls from Mr Rodgers to XE on 3 July 2017, at least to the extent that they are minimally identified in the tendency notice; and par (10) of the statement of Levi Dean.

8. [51]

   The alternative basis on which the application is put, namely, that it has probative value in the sense identified in Cakovski, rests on what is said to be a coincidence of factual circumstances; in the same way that the appellant in that case was unaware of the deceased’s criminal antecedents, so were John and Keith Evans, and on the same basis they are entitled to lead evidence of Mr Rodgers’ propensity for acts of serious criminal violence. However, there are significant relevant differences in the comparison. Firstly, in Cakovski, there was no evidence at trial of the deceased’s potential for real violence or the explicit threat to Mr Logounov, referencing the earlier three murders. In this case, however, the jury will be aware from the Crown case that Mr Rodgers had threatened to kill Keith Evans shortly prior to the confrontation and his group had attended with weapons (although not firearms).

9. [52]

   Secondly, the nature of Mr Rodgers’ criminal record is of little probative value, being relatively minor in nature. Only one matter committed prior to 3 July 2017 resulted in a sentence of imprisonment, which was for the offence of assault occasioning actual bodily harm, and only when he failed to comply with the initial sentence for that offence, which was a CSO.

10. [53]

    The offences that Mr Rodgers committed after 3 July 2017 include matters of violence for which, together with other offences, he received an aggregate sentence of 16 months’ imprisonment with a non-parole period of 8 months. None involved access to a firearm or an assault more serious that an assault occasioning actual bodily harm. Those offences were committed approximately two years afterwards. In my view, would not assist in determining the facts in this case, as they presently have been crystallised by the defence and Crown cases.

11. [54]

    Accordingly, I decline the application by the applicant to rely on tendency evidence, as outlined in the applicant’s amended tendency notice dated 17 November 2020 and added to by material in the affidavit of the applicant’s solicitor of the same date.

The application on behalf of the accused Keith Evans concerning s 103(1) of the Act

1. [55]

   Counsel for Keith Evans forwarded written submissions that relied upon the same material as did the applicant in his amended tendency evidence and the material additionally admitted. Although those written submissions seemed to advance arguments in favour of tendency evidence to be adduced in the case for Keith Evans, he had not served a tendency notice on the Crown and did not seek leave to rely on the evidence without having given reasonable notice, as he might have done pursuant to s 100(1) of the Act. The following exchange during oral submissions involving counsel for Keith Evans, Mr Cavanagh, referring to the evidence relied upon by the applicant, clarified the basis of his application:

2. [56]

   Counsel for Keith Evans submitted that, as determined by the majority in Cakovski, the evidence relied upon by the applicant was relevant to Mr Rodgers’ credibility, on the following issues of fact:

3. [57]

   In oral submissions, Counsel for Keith Evans clarified that he confined his application to the messages sent to Ms Timbery and the police facts sheets and COPS entries pertaining to Mr Rodgers’ criminal convictions, being the matters on which he wished to cross-examine Mr Rodgers, pursuant to s 103 of the Act. Section 103 relevantly states:

4. [58]

   Two of the COPS entries are summarised above, at [15] and [18]. Counsel for Keith Evans relied on two other COPS entries, which I reject. One concerned a domestic assault and is undated. It refers to “Jayke Rodgers” being in a relationship with the victim “for approximately 20 years”. According to his criminal record, Mr Rodgers was born on 25 January 1993 and thus is aged 27, which accords with his appearance in the witness box. I conclude that the COPS entry either refers to another person of the same name or is fundamentally unreliable. Accordingly, I disregard it.

5. [59]

   The earliest COPS entry refers to an alleged assault and robbery in company on 25 February 2011, when Mr Rodgers would have been aged 18. It alleges that he made “full admissions”, but the offence does not appear on his record. He was charged with his earliest recorded offences on 7 November 2013, which bear no resemblance to this incident. I am not satisfied that this incident refers to the witness. I disregard this COPS entry, as well.

Submissions by the Crown

1. [60]

   The Crown submitted that evidence of Mr Rodgers’ criminal behaviour or of the messages to Ms Timbery was not of a kind that could demonstrate a propensity to give false evidence.

Consideration of the application by Keith Evans pursuant to s 103(1) of the Act

1. [61]

   Pursuant to s 103(1) of the Act, the question is whether the material relied upon, being the facts surrounding the criminal convictions of Mr Rodgers and the messages to Ms Timbery, if adduced in cross-examination, “could substantially affect the assessment of the credibility of the witness”.

2. [62]

   Counsel for Keith Evans stated he did not rely upon the criminal convictions against Mr Rodgers, but rather the police facts and COPS entries concerning Mr Rodgers which, he submitted, established a “pattern of behaviour”. In view of Mr Rodgers’ threats of serious violence that will already be before the jury, it is not apparent to me precisely how that material could substantially affect an assessment of the veracity or accuracy of Mr Rodgers’ evidence, as opposed to simply further damaging the jury’s perception of his character and morality. Accepting, hypothetically, that Mr Rodgers’ limited criminal history portrayed “a pattern of behaviour” of assaults, damaging property, and threatening victims and police, it is not apparent how that would impact on his credibility as the alleged victim of a serious assault and as a witness to a killing. As I understand the case for Keith Evans, it is not suggested that he shot the deceased in self-defence or at all.

3. [63]

   Although the application is not put on the basis of s 103(2)(a), for the sake of completeness, I note that the only suggestion of untruthfulness in the material is that, according to the COPS entry, when Mr Rodgers was arrested for the assault on the real estate agent, he initially denied the offence, although he later pleaded guilty to it, which in my opinion is an insufficient basis upon which to cross-examine Mr Rodgers as to his credibility.

4. [64]

   The messages that Mr Rodgers sent to Ms Timbery was an exercise that bespoke criminal behaviour and the targeting of a person who had no connection to the killing. However, it does not necessarily follow that it therefore has the capacity to substantially affect the witness’ credibility on the facts in issue. In the course of the thread, Mr Rodgers referred to the events of 2 and 3 July 2017 and the lead-up to them, which was reasonably consistent with his account in his statements to police. In summary, he referred to the motive for Keith Evans assaulting him being that he had been in a sexual relationship with Keith Evans’ girlfriend “for years”; having been assaulted with “bricks in pillowcases”; a gun having been pulled on the deceased earlier on the day of the shooting; the gun from which the deceased was shot having been in the Evans’ vehicle; the gun having been discharged when “we got there”; and Keith having “pulled the trigger”. Mr Rodgers implied that there was no gun in the Kluger, as is apparent from this message: “We would been loaded guns if we knew ended up like this”.

5. [65]

   Consequently, cross-examining into evidence the messages would blemish the witness’ character and, in that sense, affect his credibility, but without otherwise impacting on the truthfulness or reliability of his evidence as to the facts in issue.

The application by John Evans re s 103(1) of the Act

1. [66]

   As I have already noted, at the time of this application, Senior Counsel for John Evans was in the course of cross-examining Mr Rodgers. His application was made in light of the following exchanges (references are to the transcript pagination):

2. [67]

   At T389-90 (“the first passage”):

3. [68]

   At T401-402 (“the second passage”):

4. [69]

   At T416-7 (“the third passage”):

The application and submission

1. [70]

   In light of these passages of evidence by Mr Rodgers, Senior Counsel for John Evans sought leave to cross-examine him as to the police facts concerning the charges of 7 May 2018, the two incidents of 30 June 2019 and the messages to Ms Timbery. The texts particularly relied upon are as follows:

2. [71]

   Senior Counsel for John Evans submitted that the effect of Mr Rodgers’ evidence in the three passages is that “his bad temper has not continued, he is now calm, he no longer loses his temper and he has had a complete attitude change”, whereas the material sought to be the subject of cross-examination is evidence that, since the events in question, he has:

The Crown’s response

1. [72]

   The Crown submitted that the evidence sought to be the subject of cross-examination could not substantially affect the assessment of Mr Rodgers’ credibility. Alternatively, the Crown relied upon s 135 of the Act (set out at [34] above).

2. [73]

   The Crown submitted that each passage should be considered in the context of the questions and answers that preceded it. The first passage, in bold, was as follows:

3. [74]

   The Crown submitted that this passage showed that the witness was referring to not losing his temper at the time that he was being cross-examined.

4. [75]

   The second passage, in context, is as follows:

5. [76]

   The Crown submitted that the context demonstrates that the witness was referring to smoking marijuana and “hanging out” with the same group of friends that he had in July 2017, rather than suggesting that he had led a law-abiding life.

6. [77]

   The third passage in context, is as follows:

7. [78]

   The Crown submitted that the third passage should also be considered in the context of earlier evidence Mr Rodgers gave about not wanting people to be charged, at T385:

8. [79]

   The Crown submitted that it is apparent from these broader excerpts that Mr Rodgers’ reference to a change in attitude was his attitude to police and people being charged with criminal offences, whether they are his supporters or those he has a grievance with; he was not suggesting that, as a result of the killing, he had embraced a law-abiding lifestyle.

Consideration

1. [80]

   I referred to the police facts concerning the offences committed by the witness in 2018 and 2019 earlier in this judgment. In my view, the 2018 offences, which caused a grazing to the victim’s forearm and a dent to a garage door, were minor. Some of the 2019 offences were significantly more serious, although to what extent cannot be reliably gauged when the only facts as to the circumstances are the police facts and COPS entries and it is not known if they were the facts accepted by the Court for the purpose of convicting Mr Rodgers. I accept that, on their face, they are some evidence that the accused, at those times, exhibited a bad temper that would manifest in violent acts towards persons and property. However, in the first transcript passage quoted earlier in this judgment, the witness initially said he has a bad temper, and later said he did not “now” have a bad temper. In a strict sense, neither proposition is contradicted by his behaviour 2 years or 17 months ago, although I accept it can be probative of that proposition.

2. [81]

   The police facts are potentially probative of the veracity of Mr Rodgers’ evidence in the excerpted passages from the cross-examination by Senior Counsel for John Evans as to the current state of Mr Rodgers’ temper and whether he has “turned his life around”, although that is qualified by the earlier cross-examination to the effect that he was only referring to smoking marijuana, spending time with the same friends and no longer rejecting the function of police charging for criminal offending as acceptable. Having regard to s 135 of the Act, I consider that its probative value in terms of the disputed facts is minimal and is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the prosecution. In R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290, Whealy J observed at [42] that:

3. [82]

   The proposed evidence does not rise to that level of relevance to the witness’ credit. Accordingly, I reject that part of the application.

4. [83]

   In relation to Mr Rodgers’ messages to Ms Timbery, I have earlier noted that the witness’ account therein is not inconsistent with his account to police. However, I note that his evidence in cross-examination by Senior Counsel for John Evans is contradicted by two aspects of the messages. In the messages, he alleged he had also been stabbed in the assault on 2 July 2017, whereas he had not given evidence to that effect and, as I understand it, there is no medical evidence of him having been stabbed. Further, he threatened to kill Keith Evans, which is, on one view, contradictory to his evidence in cross-examination. I will allow cross-examination, pursuant to s 103(1), on those two aspects of the messages to Ms Timbery.

5. [84]

   Accordingly, I make the following orders: