R v Evans; Evans; XE (No 1) [2020] NSWSC 1698

R v Evans; Evans; XE (No 1) [2020] NSWSC 1698

Leave to rely on the late tendency notice was granted because the Crown did not oppose the application being heard, but the proposed tendency evidence was not admitted. Much of the material was already part of the Crown case or could be elicited through Crown witnesses, and the remaining material did not rationally affect a fact in issue through the alleged tendencies or have significant probative value. Rodgers' criminal history was relatively minor, involved no firearm or more serious assault, and the post-shooting threats to family members were apparently motivated by the shooting itself rather than being probative of his attitude before it. R v Cakovski was distinguishable because the...

Jurisdiction
Australia
Judgment Date
01 December 2020
Procedural Posture
Criminal Procedural Rulings in Murder Trial Concerning Tendency Evidence and Cross Examination as to Credibility / Jury Empanelled; Interlocutory Evidentiary Applications During Trial
Outcome
Leave granted in part and refused in part; tendency evidence refused; Keith Evans' s 103 cross-examination application refused; John Evans permitted limited cross-examination on certain Facebook messages.
Legal Topics
['tendency Evidence' 'credibility Evidence' 'cross Examination as to Credibility' 'relevance' 'facebook Messages' 'criminal History of Witness' 'evidence Act 1995 (nsw) S 97' 'evidence Act 1995 (nsw) S 103' 'evidence Act 1995 (nsw) S 135']
['criminal Law' 'evidence'] ['tendency Evidence' 'credibility Evidence' 'cross Examination as to Credibility' 'relevance' 'facebook Messages' 'criminal History of Witness' 'evidence Act 1995 (nsw) S 97' 'evidence Act 1995 (nsw) S 103' 'evidence Act 1995 (nsw) S 135']

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Procedural Posture

Criminal Procedural Rulings in Murder Trial Concerning Tendency Evidence and Cross Examination as to Credibility / Jury Empanelled; Interlocutory Evidentiary Applications During Trial

Legal Issues

  1. 1 ['Whether John Evans should be granted leave to rely on a tendency notice served out of time.' "Whether the proposed evidence concerning Jayke Rodgers' criminal history, threats and Facebook messages had the capacity to prove the alleged tendencies or otherwise had significant probative value." 'Whether the proposed evidence was admissible on the basis discussed in R v Cakovski because it made defence evidence less improbable.' 'Whether Keith Evans should be permitted under s 103(1) of the Evidence Act 1995 (NSW) to cross-examine Jayke Rodgers on COPS entries and Facebook messages.' 'Whether John Evans should be permitted under s 103(1) of the Evidence Act 1995 (NSW) to cross-examine Jayke Rodgers about later police facts and Facebook messages said to contradict his evidence about his temper and changed attitude.']

Ratio Decidendi

Leave to rely on the late tendency notice was granted because the Crown did not oppose the application being heard, but the proposed tendency evidence was not admitted. Much of the material was already part of the Crown case or could be elicited through Crown witnesses, and the remaining material did not rationally affect a fact in issue through the alleged tendencies or have significant probative value. Rodgers' criminal history was relatively minor, involved no firearm or more serious assault, and the post-shooting threats to family members were apparently motivated by the shooting itself rather than being probative of his attitude before it. R v Cakovski was distinguishable because the...

Court Disposition

Leave granted in part and refused in part; tendency evidence refused; Keith Evans' s 103 cross-examination application refused; John Evans permitted limited cross-examination on certain Facebook messages.

Orders

  • ['Grant leave to the accused John Evans to rely upon a tendency notice served out of time.' 'Refuse leave to the accused John Evans to rely upon tendency evidence as outlined in that notice and the further material tendered in Court.' 'Refuse leave to the accused Keith Evans to cross-examine the witness Jayke...