Evans v R; Evans v R [2024] NSWCCA 245

Evans v R; Evans v R [2024] NSWCCA 245

The trial judge's refusal to give a Liberato direction, despite a joint request, was an error affecting the fairness of the trial because there was a risk the jury may have seen their task as choosing between competing versions, and a proper direction clarifying the onus was required. As the court could not be satisfied that the Crown had excluded beyond reasonable doubt the possibility that the fatal gunshot was an accident, the appeals must be allowed, the convictions quashed, and a new trial ordered.

Parties
Appellant: John Paul Evans; Appellant: Keith Evans; Respondent: Crown
Jurisdiction
Australia
Judgment Date
19 December 2024
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Convictions set aside, new trials ordered
Legal Topics
Appeal Against Conviction, Liberato Direction, Tendency Evidence, Provocation, Murder, Conviction Quashed, New Trial Ordered
Criminal Law Appeal Against Conviction Liberato Direction Tendency Evidence Provocation Murder Conviction Quashed New Trial Ordered

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 20 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

John Paul Evans

Appellant

Keith Evans

Appellant

Crown

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial judge erred in refusing a Liberato direction
  2. 2 Whether failure to give the direction occasioned a miscarriage of justice
  3. 3 Whether the proviso in s 6 of the Criminal Appeal Act 1912 (NSW) should be applied

Ratio Decidendi

The trial judge's refusal to give a Liberato direction, despite a joint request, was an error affecting the fairness of the trial because there was a risk the jury may have seen their task as choosing between competing versions, and a proper direction clarifying the onus was required. As the court could not be satisfied that the Crown had excluded beyond reasonable doubt the possibility that the fatal gunshot was an accident, the appeals must be allowed, the convictions quashed, and a new trial ordered.

Court Disposition

Convictions set aside, new trials ordered

Orders

  • In John Evans' case: time to appeal extended to 5 March 2024; leave to appeal granted; appeal allowed; conviction for murder quashed and new trial ordered; sentence quashed; appeal against sentence dismissed; list before arraignments judge at 10am on 14 February 2025.
  • In Keith Evans' case: time to appeal extended to 11 July 2024; leave to appeal granted; appeal allowed; conviction for murder quashed and new trial ordered; aggregate sentence quashed; list before arraignments judge at 10am on 14 February 2025.