XE v R (No 2)

1. [1]

   THE COURT: The applicant was found guilty on 19 January 2021 of the murder of Jesse Thompson, who was 19 years old, following a trial before Ierace J and a jury in the Supreme Court. Jesse Thompson was shot and killed on 3 July 2017 by Keith Evans. The applicant is referred to as “XE” because she was 17 years old at that time. She was tried concurrently with Keith Evans and John Evans, who were also found guilty of murder. Keith Evans was also found guilty of an additional charge. The applicant was sentenced to a term of imprisonment of 17 years, with a non-parole period of 10 years and 6 months, which is due to expire in January 2028.

2. [2]

   There was no dispute in the trial that Keith Evans had shot and killed the deceased. There was a dispute as to whether that shot was fired accidentally or deliberately by him. In the trial that possibility was addressed both as a matter of voluntariness and mens rea. The Crown’s case was that the shot was fired deliberately. As regards the applicant, it raised two pathways to her liability for murder. It alleged that the three accused were acting pursuant to a joint criminal enterprise (JCE) to take a shotgun in a Mitsubishi Triton ute, locate a group that included two other men (Shane Weir and Jayke Rodgers), and shoot at least one or more of the group intending to inflict at least grievous bodily harm. Alternatively, the Crown alleged there was an extended joint criminal enterprise (EJCE) based on an agreement to intimidate the group with a shotgun, and the applicant contemplated that there was a possibility that there would be a discharge of the weapon with the intention of causing really serious injury.

3. [3]

   In an appeal heard in February 2023 the applicant challenged her sentence but not her conviction. Leave to appeal was granted but the appeal was dismissed by this Court in April 2023: XE v R [2023] NSWCCA 96.

4. [4]

   Keith and John Evans appealed (out of time) in 2024, when they both appealed their convictions, and the latter also sought to appeal his sentence. In December 2024 a majority of this Court (Leeming JA and Rothman J) granted an extension of time and allowed the conviction appeals with respect to the murder charges, ordering re-trials: Evans v R; Evans v R [2024] NSWCA 245. All members of the Court held that the trial judge had erred in failing to give a Liberato direction. The Crown sought to rely on the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) to save the convictions. The majority considered that the issue was “quite finely balanced” but ultimately was not persuaded “that this is a case where this Court may conclude that there has been no substantial miscarriage of justice when Keith Evans’ account was not considered by a properly instructed jury” (at [119]). Justice Cavanagh, in dissent, would have applied the proviso and dismissed the appeal.

5. [5]

   The applicant then belatedly sought to appeal in relation to her conviction. Her notice of appeal was filed on 25 February 2025, well out of time. She initially raised two grounds of appeal. The first is the same as that which was successfully relied upon in Evans, relating to the trial judge’s refusal to give a Liberato direction. The Crown acknowledged that it would be open to this Court to consider that the ground is made out but seeks to rely on the proviso to dismiss the appeal, in light of what it says are key differences between the admissibility of evidence in the case against the applicant and that against Keith and John Evans.

6. [6]

   The second ground alleged that the jury’s verdict was unreasonable and cannot be supported having regard to the evidence. The raising of such a ground was surprising in circumstances where the applicant’s two co-accused had only narrowly avoided having the convictions upheld, despite the Liberato error, on the basis of the proviso. Ultimately the applicant did not press this ground. .

7. [7]

   In the result the only significant dispute on the appeal was whether or not the proviso could be applied. We were and are satisfied that it should not be. At the conclusion of the hearing the Court made the following orders:

   1. (1)

      Extend time for filing of the notice of appeal to 25 February 2025.

   2. (2)

      Appeal upheld.

   3. (3)

      Quash the conviction of the applicant on the indictment dated 13 November 2020 and order that there be a new trial.

   4. (4)

      Quash the sentence imposed by the Supreme Court on 22 July 2021.

   5. (5)

      Pending any application for release, bail is refused.

   6. (6)

      Reserve reasons for judgment.

   7. (7)

      List the matter for directions before Davies J at 10am on 27 May 2025.

8. [8]

   What follows are our reasons for making those orders, structured as follows:

   1. (1)

      the application for an extension of time (at [9]-[15]);

   2. (2)

      what occurred at the trial (at [16]-[23]);

   3. (3)

      the trial judge’s error in declining to give a Liberato direction (at [24]-[33]); and

   4. (4)

      the proviso (at [34]-[46]).

Application for an extension of time

1. [9]

   The applicant was convicted of murder on 19 January 2021 and sentenced on 22 July 2021. There is evidence that for mental health reasons the applicant was very reluctant to be involved in further court proceedings after the trial. Nevertheless, as noted, she brought an application for leave to appeal on sentence which was dismissed in April 2023.

2. [10]

   This application to appeal with respect to her conviction was not prompted only by this Court’s decision in Evans in December last year. An affidavit from a solicitor from Legal Aid NSW who now has carriage of the matter reveals that the applicant lodged a Legal Aid application requesting consideration of a conviction appeal on 1 December 2023, following similar applications being made by Keith and John Evans. The solicitor indicates that on 9 January 2024 Legal Aid took steps to obtain the transcripts and exhibits from the trial, but says that it was not until 6 December 2024 that the last of that material had been received. The evidence does reveal that regular steps were taken throughout 2024 by Legal Aid NSW to obtain materials from the Supreme Court, from the Office of the Director of Public Prosecutions, from the solicitors who had appeared for the applicant at trial and, to some extent, from the solicitors acting for the other two accused.

3. [11]

   What the affidavit does not explain is why it is that the solicitors for the other two accused had managed to obtain the necessary material sufficient to file their appeal and have it heard on 28 October 2024, but Legal Aid NSW could not do so in this matter. It was the same material. There is no reason the solicitors for the three co-accused should not have been cooperative with each other with respect to an appeal; the interests of their clients were aligned. It is not apparent to what extent responsibility lies with Legal Aid NSW, the Office of the DPP, the previous solicitors for the applicant, or the solicitors for the co-accused.

4. [12]

   The majority in Evans said of the late application to appeal in that case that the “situation is thoroughly unsatisfactory” (at [140]). The situation in this matter is worse. The net result of the applicant’s success in this appeal is that there have been two unnecessary separate judgments of this Court: the decision rejecting the applicant’s appeal on sentence, which has now been overtaken by us quashing the conviction of the applicant; and the separate hearing by this bench of the applicant’s appeal, which could and should efficiently have been dealt with last year together with the appeals of Keith and John Evans. That represents a significant wastage of the resources of this Court, of Legal Aid NSW and of the Office of the DPP.

5. [13]

   In Evans the majority were critical of the reasons for the delay in filing that appeal, including by saying that it “was wrong for counsel to delay for more than a year to advise on prospects of appeals against conviction, and it was wrong for those instructing counsel to permit such a delay” (at [140]). Here, it was wrong for those involved not to have acted more expeditiously and cooperatively in seeking to ensure that the applicant’s belated appeal was heard at the same time as that of her co-accused.

6. [14]

   In some circumstances such delays may lead to a refusal to grant an extension of time to appeal. Delays inevitably cause prejudice, not least because on any retrial witnesses may no longer be available, memories will have faded and evidence may otherwise have been lost.

7. [15]

   In this case, however, we considered that an extension of time should be granted. That was so taking account of the facts that the Crown did not oppose an extension of time, Keith and John Evans are still to be retried, the appeal is meritorious, and in light of all the circumstances.

The trial

1. [16]

   In Evans the majority gave a summary of key evidence given at the trial, of relevant points in the summing up of the trial judge and in the submissions of the parties at the trial, and the circumstances in which a Liberato direction was sought (at [8]-[79]). There is no utility in repeating the detail set out there.

2. [17]

   By way of brief summary, on 2 and 3 July 2017 Keith Evans had been involved in escalating tensions with, in particular, Jayke Rodgers and Shane Weir. Keith Evans had learned of sexual relations occurring between his then girlfriend and Mr Rodgers. He attacked and injured Mr Rodgers on 2 July 2017 (that being the subject of the other charge against him which was determined at trial). On the morning of the next day Mr Weir and Levi Dean, who were friends of Mr Rodgers, went to the property where the three co-accused lived to confront Keith Evans. Mr Weir smashed a glass door, causing some injuries to the applicant who was standing behind the door. Mr Weir and Mr Dean then left.

3. [18]

   The applicant immediately called John Evans, who promptly returned home. On the Crown’s case, Keith and John Evans and the applicant then drove away from their house in John Evans’ Triton dual cab ute to confront Mr Rodgers and Mr Weir at the home of Billy Thompson in Woodward Avenue in Wyong. John Evans was driving, Keith Evans was in the front passenger seat, and the applicant was in the rear passenger seat behind Keith Evans. There was some evidence that the three co-accused arrived at the Woodward Avenue property, encountered the deceased and Daniel and Luke Hill, and that either John or Keith Evans threatened them with a gun (Keith and John Evans denied attending the property or making a threat with a gun).

4. [19]

   What occurred next was also the subject of some dispute at trial. Mr Rodgers, Mr Weir, and Mr Dean ended up being in a Toyota Kluger motor vehicle belonging to Mr Weir, together with Luke Hill, Billy Thompson and his brother Jesse (the deceased). There was a confrontation between the two groups near Baker Park in Wyong, and there was evidence that a shot was fired by someone in the Triton. There was then a dangerous car chase through Wyong, where the Triton was chasing the six people in the Kluger for most, if not all, of that time. Mr Weir was driving and Mr Rodgers was in the front passenger seat, with the other four men in the back seats. The Kluger came to a stop at an intersection and the Triton pulled up relatively close alongside on the right-hand side of the Kluger (on the wrong side of the road). There is no dispute that Keith Evans, sitting in the front passenger seat of the Triton, then shot a shotgun towards the back seat of the Kluger. The shot injured Mr Dean and seriously wounded Jesse Thompson. The Triton then drove off.

5. [20]

   The shot occurred at about 12:20pm. Despite receiving very prompt medical attention, Jesse Thompson was pronounced dead at 12:53pm.

6. [21]

   The next day all three co-accused were arrested. John Evans participated in an interview with police, in which he told a number of lies. Keith and John Evans each gave evidence at the trial. The applicant did not engage in an interview with police, nor did she give evidence at the trial. Keith Evans gave evidence that the two vehicles had braked suddenly at the intersection; as this occurred he raised his hands up holding the gun; and the gun then accidentally discharged, without him having intended to fire it.

7. [22]

   There was evidence from those who had been in the Kluger that when the Triton pulled up alongside the Kluger Keith Evans had pointed the shotgun out the window at the driver (Mr Weir), that Mr Dean (sitting behind the driver in the Kluger) then threw a pole towards the Triton, and that Keith Evans then pointed the shotgun towards the back seat of the Kluger and fired.

8. [23]

   The trial occurred in late 2020 and January 2021. The trial judge summed up over four days, with the jury retiring at about midday on Thursday 14 January 2021. The next morning the Crown sought that the trial judge give a Liberato direction, namely to the effect that if the jury believed the evidence of the accused, it must acquit; if it did not accept that evidence but considered it might be true, it must acquit; and if it did not believe that evidence then it should be put to one side, and the question would remain as to whether the prosecution had proved the guilt of the accused beyond reasonable doubt: note De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 at [11]-[12]. The need for the direction was said to arise from certain passages in the summing up of the trial judge. Representatives of all three co-accused supported the Crown’s application. However, the trial judge considered that no such direction should be given because from his recollection of the parties’ addresses and his summing up the jury could not reasonably understand that the jury’s determination turned on which of conflicting versions of events was to be believed (his Honour’s ex tempore reasons are quoted in Evans at [54]).

The error in failing to give a Liberato direction

1. [24]

   In Evans the majority said the following in concluding that the trial judge erred in failing to give a Liberato direction (Cavanagh J agreeing at [143]):

2. [25]

   Counsel appearing at the trial for the applicant had joined in the application for such a direction even though she had neither participated in a police interview nor given evidence. The Crown accepted on appeal in this matter that it was open to the Court to find that the failure to give a Liberato direction also affected the applicant’s conviction, given the following. The trial judge directed the jury that the elements required to be established as regards all of the accused included that “Keith Evans did a deliberate act which caused Jesse Thompson’s death” (going to voluntariness) and that he did that act with an intent to kill or cause grievous bodily harm (going to mens rea). Most of the evidence given in the case against Keith and John Evans, including their own evidence, was also admissible in the case against the applicant. In this context, a misdirection about the significance of the evidence of Keith and John Evans was relevant to two of the elements of the charge against the applicant.

3. [26]

   Both parties referred to the principle identified in Kwu v R [2024] NSWCCA 199 at [32]-[43], which was subsequently applied in Symons v R; McDonald v R [2024] NSWCCA 212. That principle is that in criminal appeals involving an issue which turns on the application of accepted legal principles to a particular set of facts, and where the court is determining an appeal which is materially indistinguishable from an earlier appeal decision from the same trial raising the same point, then the court should follow the earlier decision unless there is compelling reason to depart from it. The principle reflects the deeper principle of equality before the law which requires, so far as the law permits, that like cases be treated alike. The Crown accepted the applicability of the Kwu principle in this case both to the issue of whether the trial judge erred in failing to give a Liberato direction and as regards the application of the proviso (it disputed that the principle would apply to an unreasonable verdict ground, but it is not necessary to consider that point further). The Crown effectively accepted that there was no material distinction between this appeal and that of Keith and John Evans in relation to the failure to give the Liberato direction.

4. [27]

   In these circumstances the Court accepts the Crown’s effective concession that the conclusion in Evans that the trial judge made a wrong decision on a question of law should be applied here.

5. [28]

   Although that suffices to make out the applicant’s sole ground of appeal (subject to consideration of the proviso), there is a deeper issue which arises with the verdict against the applicant in light of the conviction of Keith Evans having been overturned. That issue is also relevant to whether or not the proviso can be applied.

6. [29]

   As noted, the Crown’s case against the applicant involved two alternative pathways, one based on an alleged JCE and one based on an alleged EJCE. We do not know whether one, the other or both of the pathways proved persuasive to the jury. The jury’s finding of guilt thus may have been based upon the EJCE pathway.

7. [30]

   In Mitchell v The King (2023) 276 CLR 299; [2023] HCA 5, Gordon, Edelman and Steward JJ explained that liability of a co-accused under the doctrine of EJCE is derivative (citations omitted):

8. [31]

   This understanding of EJCE was referred to with approval by this Court in Batak v R (2024) 114 NSWLR 313; [2024] NSWCCA 66 at [92]-[93]. The Crown accepted this as the correct understanding of the doctrine.

9. [32]

   Liability which is derivative “depends upon attribution to the accused of the liability of another”, such that [i]f the other is not liable then the accused cannot be liable”: IL v The Queen (2017) 262 CLR 268; [2017] HCA 27 at [34]; note also Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [71]. On this understanding, the applicant could not be liable for murder based upon EJCE reasoning unless, relevantly, Keith Evans was liable for murder. The Crown accepted as much. It also accepted that in light of how the trial had been conducted, if Keith Evans had not discharged the shotgun towards the Kluger intentionally, but did so accidentally, then he would not be guilty of murder either or both because of a lack of voluntariness or mens rea. The Crown suggested that the issue of voluntariness could have been addressed in another way than had been raised at trial in light of decisions such as Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2, but it is not necessary to address any such possibility for the purposes of this appeal.

10. [33]

    Thus insofar as the criminal liability of the applicant depends upon the EJCE pathway it is contingent upon the criminal liability of Keith Evans. That criminal liability has been thrown into doubt by the decision in Evans to overturn his conviction, even accepting that there is a difference between a person being criminally liable and that person being convicted (for example, a person might be liable but not convicted because they are not fit for trial). Leaving aside consideration of the possible application of the proviso to the applicant’s conviction, this fundamental difficulty also supports upholding the applicant’s ground of appeal with respect to the failure to give a Liberato direction. It would have done so even if we had not been persuaded (applying the Kwu principle) that the applicant had her own independent cause for complaint about the failure to give that direction in her own favour.

The proviso

1. [34]

   In Evans the majority said the following in relation to the proviso:

2. [35]

   In this appeal, as noted, the Crown accepted that the Kwu principle can apply in relation to application of the proviso. However, it argued that the principle did not apply on this issue on the basis that the case against the applicant was materially distinguishable from the case against each of Keith and John Evans. The focus of its submissions – appropriately – was on the issue emphasised by the majority in Evans, namely whether or not Keith Evans had pulled the trigger of the shotgun deliberately or accidentally. The Crown relied upon five pieces of evidence which it said went to that issue, four of which were only admitted in the case against the applicant and not those against the other two co-accused. The Crown argued in effect that where the majority in Evans considered the issue quite finely balanced, only a little more evidence was required to swing the balance in favour of application of the proviso.

3. [36]

   A core difficulty facing the Crown’s argument is that the issue in question goes to the voluntariness of an action, and the state of mind, of Keith Evans. In the absence of any evidence of some admission by him which for some reason was only admitted in the case against the applicant – and there was no such evidence – then the Crown necessarily faced a difficult hurdle in seeking to persuade the Court that some further evidence admissible only against her was significant in this regard. In any event, the five pieces of evidence on which it relied do not serve as a material distinction from the cases against Keith and John Evans.

4. [37]

   The first piece of evidence relied upon (addressing them in the order in which these events occurred) was testimony from Mr Rodgers that immediately after the shot was fired at the intersection, as the Triton was driving away, the applicant raised her left arm out the window at a 90 degree angle holding her middle finger up (“doing the finger” or “tuning”). This evidence was admitted only as against the applicant. The evidence can be taken to indicate triumphalism, and that the applicant was pleased with the fact that a shot had been fired towards the Kluger. But whatever view the applicant may have had about the shot having been fired, the evidence does little, if anything, to suggest that she observed Keith Evans fire the shot, nor that she had some other reason to conclude that he had done so deliberately. The applicant may have been pleased about what occurred regardless of whether the shot was planned or intended.

5. [38]

   The second piece of evidence was from Mr Dean, who gave similar if less specific evidence to Mr Rodgers on this issue, saying “I noticed [the applicant] in the back seat, she had her arm out the window as they drove off”. This evidence was admissible against all three accused. That fact means that this evidence does not serve as a material distinction to the case against Keith and John Evans considered in the earlier decision of this Court. Moreover, the fact that the majority did not regard this evidence as sufficient to sway application of the proviso itself (acknowledging that they did not specifically refer to it) serves to undermine the claimed significance of Mr Rodgers’ evidence to similar, if more specific, effect.

6. [39]

   Third, the Crown referred to evidence of a phone call involving the applicant and two other people shortly after the shooting (which occurred at about 12:20pm). A call before the shooting was also referred to, although this evidence is not significant for current purposes. The evidence of these calls were only admitted in the Crown case against the applicant. The Crown summarised the evidence as follows:

7. [40]

   The evidence about the applicant laughing might be taken to indicate that the applicant was amused that a shot had been fired. Yet, again, that may simply manifest that she was pleased with the fact that it occurred. It does little if anything to indicate that Keith Evans fired the shot deliberately.

8. [41]

   Fourth, the Crown referred to the transcript of a phone call between the applicant and her then boyfriend, Corey Siegel, made at 12:51pm, some 30 minutes after the shot had been fired. The call was recorded because Mr Siegel was detained in a correctional facility. In it the applicant was reticent to go into detail: “I’m not saying nothin”, “just in case, ‘cos I reckon they’ll go to the cops” (illustrating that it appears she did not realise that anyone had been killed or seriously injured – for if she had, she would have known the police would become involved). Even so, amongst other things she described how Mr Weir had come to the house where the co-accused lived; that she “went to walk forward with [John Evans’] samurai sword”; that Mr Weir threw a beam which smashed a door, causing her injury; that Mr Weir and Mr Rodgers and “[a]ll of them” had “legged it”; that “they don’t know what they started”; and though they were friends of Mr Siegel, they were “dead mates now” (seemingly speaking to the future in that regard); and “I had a dream that they got shot”, namely “Dick [Weir], Rodgers. All of them” (which the Crown argued was a cryptic way of saying a shot had been fired).

9. [42]

   Fifth, the Crown also relied upon another phone call between Mr Siegel and the applicant made about an hour later in which she said amongst other things that she had “got a feed” since the last call; that some girls had been watching the house where the co-accused lived whilst John Evans “was chasing old mate”; that she had been in the back of the car; that she had been laughing at them all; that John Evans “went into like Billy’s” (being the Woodward Avenue property) and “they were like, oh my God shakin’ ‘cos [John Evans] had a gun in their face”; it “was funny as”; “I watched the whole thing” which “was hectic” (it is not clear which interaction this is referring to); and that John Evans had “his address” and was “going there tonight”.

10. [43]

    These two phone calls – both admitted only against the applicant – constitute evidence tending to support there having been some joint criminal enterprise in which she was a participant. They indicate a desire for vengeance and a degree of unremorseful glee that those in the Kluger had, at the least, been given a substantial fright. There is a reference to John Evans putting a gun “in their face”, which would seem to refer to the Woodward Avenue incident. But she did not say that Keith Evans had fired a shot, although there was a possible reference to a shot having been fired. And nothing in the phone calls suggests that Keith Evans’ shot was fired deliberately.

11. [44]

    The Crown submitted that in none of the three phone calls made after the shooting did the applicant express any sense of surprise or shock or remorse in response to what had happened. At highest that might suggest again that the applicant was pleased with the outcome of what had occurred – which, again, says little if anything about the state of mind of Keith Evans when he fired the shot.

12. [45]

    The Crown said that the “context here is a great deal of escalating aggression”. Even if the aggression was escalating over the course of events, as described in the phone calls, it cannot be assumed that it necessarily points, in some kind of linear fashion, to Keith Evans deliberately shooting into the Kluger. The Crown also argued that parts of these calls reinforced that Keith and John Evans had told various lies about what had occurred, such as their denial that they had been engaged in a kind of hunt for the occupants of the Kluger. Yet accidents can happen even in the course of a hunt. The majority in Evans said that “a great deal of the positive case advanced by John and Keith Evans was demonstrably false or glaringly improbable” (at [108]). This evidence may tend to reinforce that conclusion but it does not materially affect the analysis employed by the majority.

13. [46]

    Neither individually nor collectively do these five pieces of evidence throw any significant light on the key issue of whether the shot was fired deliberately. That is so even considering the remainder of the strong case against all three of the accused. In sum, the pieces of evidence relied upon do not constitute a material distinction between the case against the applicant as compared to the cases against Keith and John Evans. That being so, this appeal and the previous appeal are materially indistinguishable as regards this issue. As we understood it the Crown accepted that if we reached that conclusion then the decision of the majority in Evans with respect to the proviso should be followed, consistently with the principle in Kwu, and the appeal should be upheld. That was the view which we reached.

Conclusion

1. [47]

   Given our conclusions it was necessary to uphold the appeal and quash the applicant’s conviction for murder and her sentence. The applicant did not oppose an order for a retrial. We also made an order that bail was refused pending any application for release, so as to avoid any doubt as to the basis of the applicant’s ongoing detention. That order was made without prejudice to any future bail application which the applicant may make.