R v Evans (No 1)

1. [1]

   HIS HONOUR: The accused, Ryan Evans, has pleaded not guilty to all seven counts in the indictment.

2. [2]

   Counts 1 to 3 (“the Badgerys Creek charges”) allege the murder of Mr Keith Cini; the wounding of Ms Luciana Boldi with intent to murder her; and breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally wounding Ms Boldi. Each of these offences is alleged to have occurred at Badgerys Creek on 30 May 2014.

3. [3]

   Counts 4 to 7 (“the Medway charges”) allege breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm to Mr Brett Delamont; detaining Ms Alana Bush and Ms Kirby Delamont without their consent with intent to obtain a financial advantage while in company; and detaining Mr Jack Lisle without his consent with intent to obtain a financial advantage while in company and occasioning actual bodily harm to him. Each of these offences is alleged to have occurred at Medway on 28 April 2014.

4. [4]

   Mr Evans was initially indicted jointly with [redacted]. Mr [redacted] had previously pleaded not guilty to the Badgerys Creek charges but guilty to the Medway charges. On Monday 18 April 2017 when the trial was due to commence, he pleaded guilty to murder and to specially aggravated break, enter and steal in relation to Badgerys Creek.

5. [5]

   Both groups of charges concern what the Crown characterises as "home invasions". The Crown case, very broadly, is that Messrs Evans and [redacted] were involved in breaking into homes in the early hours of the morning, the theft of property, and the restraint and infliction of serious violence upon occupants.

6. [6]

   The Crown has given notice that it intends to rely upon the evidence relating to the Medway charges as tendency evidence pursuant to the Evidence Act 1995 (NSW), s 97, in proof of the Badgerys Creek charges and vice versa. It has also given notice that it intends to rely upon the evidence in relation to both sets of charges as coincidence evidence pursuant to s 98.

7. [7]

   Prior to the entry of pleas of guilty by Mr [redacted] on 18 April, both accused objected to the admissibility and use of the evidence for these purposes. If successful with such objections, the accused Evans sought severance of the Medway charges from the trial for the Badgerys Creek charges.

8. [8]

   I heard argument on these objections on Monday 10 April. The empanelment of the jury had previously been stood over to Tuesday 18 April. On Wednesday 12 April my associate, at my request, communicated to the parties my proposed rulings that the evidence was admissible, both as to tendency and coincidence.

9. [9]

   Following Mr [redacted] pleas on 18 April the trial of Mr Evans was deferred until Monday 1 May.

10. [10]

    The following are my reasons for concluding that the evidence as to both tendency and coincidence is admissible in the trial of Mr Evans.

Crown case - Medway home invasion on Monday 28 April 2014

1. [11]

   A significant witness in the Crown case is the subject of a non-publication order because he is an admitted offender in relation to the Medway charges who has agreed to give evidence for the prosecution. I will refer to him in this judgment by the pseudonym "Sam Franklin".

2. [12]

   A home invasion style robbery occurred at a rural property on Medway Road, Medway (near Berrima) at about 1.00 am on Monday 28 April 2014. The property comprises some 30 acres and is surrounded by similar acreage homesteads. Bedrooms at each end of the substantial home were occupied respectively by Mr Brett Delamont and his partner Ms Alana Bush, and their daughter Ms Kirby Delamont and her boyfriend Mr Jack Lisle.

3. [13]

   Mr [redacted] was in a relationship with Ms Kirby Delamont from 2009 to 2011. As a result he was aware of the layout of the residence and the family's financial position.

4. [14]

   Evans, [redacted] and Sam Franklin were on the mid-north coast over the weekend of 26-27 April 2014. They left late in the afternoon of the Sunday and travelled to Mr Evans' home at Elderslie (near Camden). From there they drove to the home of the victims at Medway, arriving at about 1.00am on Monday 28 April. They were equipped with torches, duct tape, and rope. They had gloves, sunglasses, hooded jumpers and material to cover their faces. [1]

5. [15]

   The men entered via an unlocked laundry door. Evans and Franklin went to the bedroom of Mr Delamont and Ms Bush. Mr Evans was armed with what Mr Franklin described as a wooden pick handle. [2] He immediately went to Mr Delamont and struck him to the head, wounding him and rendering him unconscious. Ms Bush screamed as loudly as she could in an effort to warn the others at the far end of the house. [3] Evans and Franklin proceeded to bind the victims' hands with duct tape from a roll they each had. [4]

6. [16]

   Ms Bush screamed again but was told by Evans to be quiet or else he would strike Mr Delamont again. As he said this he struck Mr Delamont to the upper torso with the pick handle. He then demanded cash. Suggestive of some prior knowledge, he also asked, "Where is your gun?" Cash and other items, including a .22 magnum rifle, were stolen from the premises. [5]

7. [17]

   Mr Evans demanded to be told who else was in the house. Ms Bush told him and he left the bedroom but Mr Franklin stayed with her. [6] Mr Delamont remained unconscious and was bleeding from a wound to his head. [7]

8. [18]

   Meanwhile, Mr Lisle had woken to the sound of Ms Bush's screams from the other end of the house. He woke Ms Delamont. As Mr Lisle was about to make a phone call, two men entered the bedroom, one of whom was described as being armed with a "pole". On the Crown case, the men were Evans and [redacted]. Mr Lisle lay over Ms Delamont, under the bed clothes but the armed male struck the bed a number of times with the weapon and hit Mr Lisle to the upper torso. Demands were made for "your fucking phones and wallets". [8]

9. [19]

   Mr Lisle and Ms Delamont were commanded to sit up in the bed. Their hands and feet were bound with duct tape from a roll that each offender had. Pillowcases were placed over their heads. The victims' mobile phones were taken. One of the men left and, about a minute later, the other left. [9]

10. [20]

    [Redacted] joined Franklin in the bedroom occupied by Ms Bush and Mr Delamont. Mr Franklin bound Ms Bush's ankles with duct tape. Mr [redacted] taped Mr Delamont's ankles using a different roll of duct tape. He also used a piece of rope to tie his hands. Mr Delamont was shaking and convulsing at this point. [Redacted] placed a pillow case over Mr Delamont's head and Franklin did likewise to Ms Bush. [10]

11. [21]

    The three men then left. [11]

12. [22]

    Mr Delamont was found to have sustained a wound to the back of his head that required suturing, bruising to the left temporal region and a fractured skull and bruising to the brain. Expert medical opinion is that he sustained a moderate to severe traumatic brain injury with long term, if not permanent, psychological and cognitive/memory impairment. In relation to Count 4 in the indictment, the Crown contends that these injuries amounted to grievous bodily harm. [12]

13. [23]

    Mr Lisle sustained a red welt mark on his torso. [13]

14. [24]

    The evidence that tends to inculpate the accused Evans in the Medway offences includes the following:

Crown case – Badgerys Creek home invasion on Sunday 30 May 2014

1. [25]

   Mr Keith Cini ("the deceased") lived with his partner, Ms Luciana Boldi, in a house on a relatively small farm in Elizabeth Drive, Badgerys Creek. The deceased and Ms Boldi occupied separate bedrooms.

2. [26]

   The deceased owned and operated from this property a business purchasing and selling pigs to restaurants in the Sydney metropolitan area. Deliveries were made every Wednesday and Thursday and payments were received predominantly by way of cash. The deceased had a practice of keeping the cash in a safe in a locked room in his home until it was deposited at the bank every Friday. The amounts varied from $5,000 to $60,000. [19]

3. [27]

   Sometime after 3.00am on Friday 30 May 2014, Messrs Evans and [redacted] attended the home of the deceased. They were wearing gloves and face coverings and one of them was armed with a wooden weapon. They gained entry by smashing a front window. Mr [redacted] cut his finger causing it to bleed. [20]

4. [28]

   One or both of the intruders came into contact with the deceased in his bedroom. The deceased’s blood was later found in the bedroom, the lounge room, the kitchen and the hallway. The Crown says this is indicative of him being required to assist the intruders to locate money within the premises. He was bound by the ankles and wrists with duct tape at some stage. The Crown case is that he was violently assaulted in the hallway where his body was ultimately found with no signs of life. The cause of death was blunt force head injury. Abrasions, contusions and lacerations were observed on his head and neck with underlying skull fractures. Similar types of injury were observed elsewhere on his body. [21]

5. [29]

   Ms Boldi was alerted to the incident when she heard from her bedroom the deceased calling out to her. She opened the door and saw him with at least two people near him. A man wearing all black clothing and with his face covered approached her and struck her to the head with an object she thought was a baseball bat. (She later told a triple 0 operator and attending police officers that it was a cricket bat.) She fell to the ground and was struck to the head a further two or three times. She pleaded with the male to stop but he kept hitting her. She pretended to be dead by remaining still and the man left the room. [22]

6. [30]

   Ms Boldi heard crashing noises, glass breaking and drawers being opened and closed. She heard one of them call out, "It's here, it's here" and/or "Here it is", suggestive of the intruders looking for something they anticipated would be there. A number of items were stolen from the home, although the offenders were unable to access the safe. [23]

7. [31]

   Ms Boldi sustained multiple lacerations, fractures, abrasions and bruising consistent with “multiple episodes of blunt trauma to face/head, neck, shoulders, trunk, and upper and lower limbs”. Surgery was required for fractures to her left hand. Expert medical opinion is to the effect that she will experience permanent loss of function, strength and range of motion in her left hand. [24]

8. [32]

   The evidence that tends to inculpate the accused Evans in the Badgerys Creek offences, including evidence inculpating Mr [redacted] which indirectly inculpates Mr Evans (for example, because there is evidence of them being in company in the hours preceding the event) includes the following:

Facts in issue

1. [33]

   In pre-trial disclosure pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), and consistently with what was put in submissions on 10 April 2017, [46] the defence case in respect of both the Medway and Badgerys Creek charges is that Evans was not present at either scene. It is said that much of the evidence in the Crown case will not be contested. The identities of the offenders at both crime scenes will be contested, as will the reliability of the various admissions said to have been made by Evans according to the Crown Case Statement.

2. [34]

   It has been said by counsel on behalf of the accused that "the issue of presence will be pressed as determinative of the question of liability within the joint criminal enterprises alleged comprising the Medway and Badgerys Creek events". [47] I take this to mean simply that raising a reasonable doubt as to Mr Evans' presence will necessarily determine in his favour the question of his liability. I do not understand it to mean that it will be positively conceded before the jury that the Crown case establishes the participation of the offenders (whoever they may have been) at each location in the joint criminal enterprise (straightforward or extended) alleged by the Crown, or that the evidence establishes the necessary mental element for the various offences. In these circumstances, it must be assumed that the Crown will be put to proof of those aspects.

Tendency evidence

1. [35]

   The Crown has given notice of its intention to adduce evidence of a tendency that Mr Evans "acted in a particular way and had a particular state of mind in the commission of the offences at Medway, which will be used to establish that he acted in a particular way with that particular state of mind at Badgerys Creek". [48] It also intends to rely upon the evidence in the same way to establish the reverse; that is, that Mr Evans "acted in a particular way and had a particular state of mind in the commission of the offences at Badgerys Creek to establish that he acted in that particular way and with that particular state of mind at Medway". [49]

2. [36]

   The Crown characterises the "acting in a particular way" in this way:

3. [37]

   The Crown characterises the "particular state of mind" in this way:

4. [38]

   The notice particularises the features of the asserted joint criminal enterprise as follows:

5. [39]

   The notice includes that the "Tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: that he was part of a joint criminal enterprise with [redacted] to invade two homes at Badgerys Creek and Medway and commit the acts as detailed in counts 1 to 7 of the indictment". [52]

Submissions for the Crown in relation to tendency

1. [40]

   In written submissions it was said that the Crown relies upon the tendencies listed in the tendency notice to establish an inference that the accused acted in those particular ways at Medway and Badgerys Creek and so the evidence is cross admissible in relation to both sets of offences. [53]

2. [41]

   It was submitted that the evidence was relevant to a fact in issue (that the accused acted in those particular ways when present at both the Medway and Badgerys Creek premises) and was significant or important in establishing this.

3. [42]

   The Crown submitted that the acts relied upon as tendency are particularly distinctive and the probative value in proof of the counts in issue is highly significant. It was acknowledged that the offences at Badgerys Creek include a murder which is different to the offences at Medway. It was submitted, however, that the important fact is that the killing occurred during and as a result of the acts which are distinctively similar in all of the ways listed in the tendency notices. [54]

4. [43]

   It was submitted that the evidence established a "pattern of behaviour, modus operandi, system or pattern" in the conduct of both accused: Hughes v R [2015] NSWCCA 330 at [175]-[176]. [55]

5. [44]

   In relation to any "unfair prejudice" (s 101), it was submitted that to the extent that there is it can be adequately dealt with by way of directions: Hughes v R at [192]-[193]. [56]

Submissions for the accused in relation to tendency

1. [45]

   Counsel for the accused Evans relied upon written submissions prepared by another counsel (Mr D Roff) in his absence last November. They contain a helpful reminder of the various principles and authorities relating to the admissibility of tendency evidence pursuant to s 97 of the Evidence Act. However, the only submission made is that the differences between the two groups of offences were such that the evidence did not establish an identifiable tendency such as would support a finding that there was significant probative value for the purposes of s 97(1)(b). It was submitted in the alternative that unfair prejudice substantially outweighed any probative value for the purposes of s 101(2). (I note that the reverse is the statutory requirement; s 101(2) requires that the probative value substantially outweighs any prejudicial effect before the evidence may be admitted.) The “unfair prejudice” identified was “the likelihood the jury would misuse the evidence, which could not be cured by any directions”. [57] The submission was not further developed or explained.

2. [46]

   Differences between the two groups of offences were summarised as follows: [58]

3. [47]

   Counsel for Mr Evans did not make any oral submissions other than to say that he also relied upon the written submissions on behalf of his client’s former co-accused, Mr [redacted]. [59] No attempt was made to translate those submissions in a fashion that would apply them to Mr Evans. I have tried to do so but they are too specific to the case that concerned Mr [redacted] in relation to which the issues were quite different; he had pleaded guilty to the Medway charges and admitted his presence at Badgerys Creek.

Determination – tendency evidence

1. [48]

   The Court of Criminal Appeal in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [359] described tendency evidence as follows:

2. [49]

   The Court identified (at [360]) the process of reasoning involved as follows:

3. [50]

   It was also said by the Court in that case (at [348]) that in considering the question whether such evidence is properly to be regarded as tendency evidence, it is necessary to identify with some precision what the tendering party is seeking to establish.

4. [51]

   I do not take the first of the bullet points in the extract from Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R above to mean that the tendency must be derived from an occasion that is not in question in the proceedings. In this case, the tendency evidence is concerned with the occasions in question. This case has similarities with Saoud v R [2014] NSWCCA 136; 87 NSWLR 481 which was concerned with the admissibility of tendency (and coincidence) evidence arising (only) from alleged sexual assaults against two complainants which were both in question in the proceedings. (The trial judge's ruling that the evidence was admissible was held not to have been erroneous.)

5. [52]

   In this case, to summarise what it is that I understand the Crown to contend, it is to establish that if the jury is satisfied of the involvement of the accused in one of the two events, it may then reason that he had a tendency to be a party to, and participant in, a joint criminal enterprise that had certain features. Those features, put briefly, were to break into a home in order to steal property while disguised and armed with an offensive implement and, in the course of doing so, to restrain and visit significant physical violence upon occupant(s).

6. [53]

   The Crown did not explicitly say so but the reliance upon the asserted tendency to act in a particular way and/or with a particular state of mind must only arise if the jury are satisfied other than by means of tendency reasoning that the accused was present and participated in the manner alleged at one of the locations. Otherwise the jury could not be satisfied that any tendency had been established.

7. [54]

   There was no submission for the accused, at least not in direct terms, that the tendency asserted by the Crown, if proved, would not be relevant: Evidence Act, s 55. I accept that it would be. It is capable of rationally affecting the probability of the existence of facts in issue, namely, the presence and participation of the accused with the relevant state of mind at Badgerys Creek if the jury are satisfied of his presence and participation in relation to Medway, or vice versa.

8. [55]

   In assessing whether the evidence has significant probative value for the purposes of s 97(1)(b) (that is, it is of importance or consequence in proof of a matter in issue) it is appropriate to have regard to (a) particular features of the events at the two locations, and (b) the other evidence to be adduced by the Crown.

9. [56]

   I have reviewed the other evidence to be adduced by the Crown earlier. The extent to which it will be disputed cannot be completely forecast; nor can it be predicted with any degree of confidence the extent to which the jury might accept it.

10. [57]

    Mr Evans, disputes that he was present at both locations and says that much of the Crown evidence as to what occurred will not be disputed. However, it remains necessary for the Crown to persuade the jury to accept such evidence and that they should accept that the mental element of the crimes alleged have been established.

11. [58]

    In these circumstances, I have concluded that the evidence does have significant probative value. In part, I have concluded that this is so based upon a consideration of the fairly unique combination of circumstances attending both the Medway and Badgerys Creek events. Those circumstances include the following:

12. [59]

    The fact that a tendency is sought to be established by a single event, even if remote in time, does not necessarily deprive it from having significant probative value: for example, Aravena v R [2015] NSWCCA 288; 91 NSWLR258 at [89]. In this case there is a single event but it is not at all remote in time. The combination of features concerning the conduct of the intruders, and what may be inferred as to their state of mind, does, however support a finding of significant probative value. When examined individually the features might be thought to lack the quality of significance but it is quite the contrary when they are viewed collectively. The differences between the two events identified in the written submissions for the accused [60] are not sufficient to detract from this finding.

13. [60]

    The usual directions as to the permissible and impermissible uses of tendency evidence should provide a sufficient safeguard against impermissible use of the evidence. But to the extent that there might be unfair prejudice, I am satisfied that it is substantially outweighed by the probative value: Evidence Act, s 101(2).

14. [61]

    In short, the tendency evidence is admissible.

Crown submissions in relation to coincidence

1. [62]

   The Crown submitted that the evidence concerning events at Medway and Badgerys Creek is mutually admissible to establish the identity of the persons who committed the offences. It would be open to the jury to reason that due to the substantial similarities of both sets of events they could conclude that both did not occur coincidentally (i.e. committed by different people), but were committed by the accused Evans and Mr [redacted] (albeit the latter is no longer essential for the Crown to prove). [61]

2. [63]

   It was submitted that the acts listed in the notices ((a) to (i) – see above) were distinctive, unusual and very similar, and thereby satisfied the requirements of s 98. [62]

3. [64]

   In further written submissions the Crown contended that the similarities of behaviour by both accused rendered it improbable that, for example, they acted differently at Badgerys Creek to the manner of their behaviour at Medway or that they were parties to some different agreement. [63]

4. [65]

   The Crown acknowledged that there were some dissimilarities between the two events. However, they were few and did not undercut the improbability of coincidence. [64]

Submissions for the accused in relation to coincidence

1. [66]

   In the written submissions I have referred to earlier counsel for the accused Evans made essentially the same submission in relation to coincidence evidence as was made in respect of tendency evidence. It was submitted that there was no similarity between the two events to a sufficient degree to support a finding of significant probative value. It was also submitted that the unfair prejudice (by the likelihood of the jury misusing the evidence) which could not be cured by directions, outweighed any probative value. [65] Again, these submissions were not further explained or developed aside from the brief summary of some differences between the two groups of offences. [66]

2. [67]

   Counsel’s reliance upon the written submissions that were made by counsel for Mr [redacted] does not advance the case for his client any further.

Determination – coincidence evidence

1. [68]

   As to the submissions concerned with asserted dissimilarities between the events at Medway and those at Badgerys Creek, it is useful to note that in Selby v R [2017] NSWCCA 40, Leeming JA, Schmidt and Wilson JJ stated:

2. [69]

   Further, it is important to look at the combined effect of the evidence rather than to give separate consideration to each particular circumstance relied upon: R v Matonwal & Amood [2016] NSWCCA 174 at [73] (Bathurst CJ, Rothman and McCallum JJ agreeing).

3. [70]

   Notwithstanding the fact that some of the individual circumstances (e.g. the wearing of items to conceal appearance) might not be distinctive or unusual when considered in isolation, or that there might be some circumstances which are dissimilar (e.g. the manner of entry in the premises), this does not detract from the strength of the inferential mode of reasoning that is available from the combined effect of all of the circumstances of events.

4. [71]

   If the jury were to accept that the similarities in the events and the circumstances in which they occurred cannot be accounted for by way of coincidence, the evidence is capable of being regarded as having significant probative value in establishing the participation of the accused in both events with the requisite mental state.

5. [72]

   If the jury were satisfied from the evidence directly relevant to one of the two events that the accused was present and physically involved, at least in a broad sense, it would be open to the jury to infer that the accused was present at the other. In this way, the evidence would be of importance, or of consequence, because he disputes being present at both events. (I note also that there is no concession that the same persons committed both groups of offences.)

6. [73]

   The Crown contends through the evidence of Sam Franklin that it was Mr Evans who was directly responsible for the infliction of the most serious harm at Medway. It must be anticipated that Mr Franklin’s credibility will be challenged. Further, the Crown relies upon admissions made by Mr Evans to contend that he was also directly responsible for the killing of the deceased at Badgerys Creek but that evidence will also be contested. The Crown case is that whoever was responsible, each of the intruders is liable under joint criminal enterprise principles.

7. [74]

   If the jury were satisfied from the evidence directly relevant to one of the two events that the accused was a participant in a joint criminal enterprise that included the object of inflicting serious violence upon an occupant, or there was foresight by the accused that, in the course of participating in an enterprise of a lesser dimension, serious violence might be intentionally inflicted, this would also be of importance, or of consequence. The accused Evans claims he was not present, but if the jury conclude otherwise this remains a matter for the Crown to prove.

8. [75]

   For the same reasons I have given in relation to tendency, I am of the view that any risk of unfair prejudice is substantially outweighed by the probative value of the evidence.

Admissibility of the Medway evidence on a non-tendency/coincidence reasoning

1. [76]

   The Crown also submitted that the evidence concerning Medway could be adduced otherwise than for a purpose referred to in s 97(1) or s 98(1). Thereby it would not be within the definition in the Dictionary to the Evidence Act as either tendency evidence or coincidence evidence. [67]

2. [77]

   This mode of admissibility was alluded to in the tendency notices when reference was made to the assertion of "acting with a particular state of mind": "he involved himself in a joint criminal enterprise home invasion at Medway, which armed him with knowledge of …". This is not tendency reasoning but an inference available to be drawn as to the accused's state of knowledge derived from a prior experience.

3. [78]

   The evidence of Medway could be adduced to establish that the accused had knowledge as to what had transpired there which would be the state of his knowledge at the time of Badgerys Creek. It was submitted, by way of example, that a jury could use the fact of his involvement at Medway to establish that he actually knew what would occur, or at least foresaw the possibility of what might occur, at Badgerys Creek in terms of the restraint of occupants and the infliction of serious harm. In other words, this is not about conformity with how the accused acted in the past. Rather, it is circumstantial proof of the state of mind of the accused when the Badgerys Creek home invasion was planned and carried out.

Summary of conclusions

1. [79]

   The evidence of the events at Medway and at Badgerys Creek is admissible as tendency evidence and as coincidence evidence in the manner outlined in these reasons.

2. [80]

   Such evidence is also admissible as being relevant, but not as either tendency or coincidence evidence.

3. [81]

   The application for severance of the Medway counts (4 to 7) from the Badgerys Creek counts (1 to 3) is refused.