R v Evans; R v Evans (No 4)

1. [1]

   The accused Keith Evans moves on a further amended notice of motion seeking exclusion of evidence given in prior proceedings by him, Danielle Micallef and Jayke Rodgers pursuant to ss 90 and 137 of the Evidence Act 1995 (Evidence Act).

2. [2]

   The amended prayers for relief are as follows:-

3. [3]

   The accused John Evans adopts the submissions of Keith Evans.

4. [4]

   It is proposed that the evidence of Keith Evans in previous proceedings be read by a neutral person in these proceedings. That is largely a consent position, subject to the evidence the subject of dispute and set out in the prayers for relief in Keith Evans’ notice of motion noted above at [2].

The Crown’s Submissions

1. [5]

   The Crown submits that virtually the entirety of Keith Evans’ evidence can be tendered in the Crown case, including both what are obvious admissions on their face and his denials of various matters which the Crown contends are lies which constitute implied admissions when compared to other evidence in the case.

The Accused’s Submissions

1. [6]

   Ms Fernando, who appears for Keith Evans, submits that whilst portions of the evidence may amount to admissions, much depends on the nature of the evidence itself. She submits that differences in versions between Keith Evans’ evidence and other witnesses that were called in the previous proceedings do not on their own demonstrate that Keith Evans’ evidence was false. Evidence of other witnesses to the effect that Keith Evans is lying does not meet the definition of an admission as it is not evidence by Keith Evans giving a deliberately false version of relevant events. In the alternative, she relies on ss 90 and 137 of the Evidence Act to exclude certain passages relied upon by the Crown.

Evidence Act

1. [7]

   Sections 55 and 56 of the Evidence Act provide:-

2. [8]

   Section 81 of the Evidence Act provides:-

3. [9]

   Section 90 of the Evidence Act provides:-

4. [10]

   Section 137 of the Evidence Act provides:-

Consideration

1. [11]

   I observe that the relief pursuant to s 90 of the Evidence Act was not seriously pressed, as Ms Fernando accepted, appropriately, that as Keith Evans had given evidence on the previous occasion voluntarily and when he was represented by competent counsel, there could be no relevant unfairness. I leave that section to one side.

2. [12]

   It is convenient to deal first with prayer 5 of the notice of motion as it concerns representations of persons other than the accused Keith Evans and does not concern admissions made by him.

3. [13]

   The relevance of this evidence sought to be adduced by the Crown is as background evidence. On the Crown case, the discovery by Keith Evans of the affair between Jayke Rodgers and his girlfriend Danielle Micaleff was the catalyst for the events on 3 July 2017 which culminated in the death of Jesse Thompson. The relevance is conceded by Ms Fernando, although she does not concede that the extent of evidence sought to be adduced ought to be allowed. In my view, the alleged offending cannot be understood without the background of Keith Evans’ discovery of the affair in or about February 2017. Events transpired such that Keith Evans seriously assaulted Mr Rodgers on 2 July 2017, and he was found guilty of an offence pursuant to s 33 of the Crimes Act 1900 in previous proceedings. That finding of guilt was not disturbed on appeal. The circumstances of the wounding, including the extent of the injuries suffered by Mr Rodgers and Keith Evans’ apparent coercive relationship with Ms Micallef, however, are in my opinion of marginal relevance to these proceedings and in any event ought to be excluded pursuant to s 137 of the Evidence Act on the basis that the danger of unfair prejudice to Keith Evans on his trial for the murder of Jesse Thompson outweighs any probative value of that evidence. The Crown does not seriously disagree and the parties largely agreed on the evidence to be excluded.

4. [14]

   As to prayers 1, 2, 3 and 4, it is agreed between the parties that the only way that the previous evidence of Keith Evans can be admitted, it being hearsay to which no exception applies, is as admissions pursuant to s 81 of the Evidence Act. The admissibility of the previous evidence of an accused person is dependent upon it being categorised as an admission: Cornwall v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [88]. Evidence of lies told by Keith Evans may be capable of demonstrating a consciousness of guilt and may fall within the definition of an admission: R v Esposito (1998) 45 NSWLR 442 at 458. However, a denial is not an admission: Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 at [107]. Thus any bare denials of propositions put to Keith Evans, even when they are contradicted by other evidence in the case (which I have yet to hear), in my view cannot constitute an admission. In his previous trial, Keith Evans was entitled to give evidence which was consistent with his plea of not guilty to the charge of murder. My reading of the transcript portions tendered as exhibit 4 is that is largely what Keith Evans did.

5. [15]

   The Dictionary to the Evidence Act provides the following definition of an admission:-

6. [16]

   In my opinion, admission means a confession or an acknowledgment of a crime or the truth of something that had been previously denied. The word adverse contemplates something that is harmful or unfavourable to the accused’s interests in the outcome of the proceedings. The Crown argued that there was some internally inconsistent evidence given by Keith Evans, which amount to admissions. Further, he submitted that admissions could be implied from lies which were told by Keith Evans in his evidence when compared to other evidence in the case; ie that lies are false admissions. That the jury might ultimately conclude on an assessment of all the evidence that Keith Evans lied, is precisely that – a question for the jury. In my view a lie, the falsity of which is yet to be proved, cannot constitute an admission. Having said that, there are also some parts of Keith Evans’ evidence that do constitute admissions in the sense contemplated by the Evidence Act.

7. [17]

   Those were the principles which guided me in my determination about the admissibility of this evidence.

8. [18]

   I observe that in the interests of time management, as the Court was shortly to empanel a jury, and without conceding the points that each was making, both counsel accepted that my rulings for some of the evidence would cover other parts of the proposed evidence. No part of the transcript should be read as either Mr Hannan or Ms Fernando acquiescing to any of the rulings made in favour of or against the Crown or Keith Evans respectively. As might have been expected, I allowed in some of the evidence as admissions, and excluded other parts of the evidence which in my view did not constitute admissions in the sense contemplated by the Evidence Act.

9. [19]

   The full argument of the issues, and my individual rulings on each item of contested evidence is contained at T25-70. My rulings with respect to prayer 5 are at T26-43. My rulings with respect to prayer 1 are at T46-53. My rulings with respect to prayer 2 are at T53-64. My rulings with respect to prayer 3 are at T64-68. My rulings with respect to prayer 4 are at T68-70.