Supreme Court New South Wales Medium Neutral Citation: R v Evans; Evans; XE (No 1) [2020] NSWSC 1698 Hearing dates: 16 and 18 November 2020 Date of orders: 18 November 2020 Decision date: 01 December 2020 Jurisdiction: Common Law Before: Ierace J Decision: (1) Grant leave to the accused John Evans to rely upon a tendency notice served out of time; (2) Refuse leave to the accused John Evans to rely upon tendency evidence as outlined in that notice and the further material tendered in Court; (3) Refuse leave to the accused Keith Evans to cross-examine the witness Jayke Rodgers on certain COPS entries and Facebook messages; (4) Grant leave to the accused John Evans to cross-examine the witness Jayke Rodgers on certain Facebook messages. Catchwords: CRIMINAL LAW – evidence – tendency evidence – evidence of witness' criminal history – evidence of Facebook messages – evidence relating to incident outside trial courtroom – whether evidence of alleged tendencies has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue CRIMINAL LAW – evidence – credibility – cross-examination as to credibility – s 103 of the Evidence Act 1995 (NSW) – whether evidence could substantially affect an assessment of the veracity or accuracy of the witness' evidence Legislation Cited: Evidence Act 1995 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280 R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290 Category: Procedural rulings Parties: Regina John Paul Evans (Accused) (Applicant) Keith Evans (Accused) XE (Accused) Representation: Counsel: K Ratcliffe (Crown) B Hughes SC; L Gallagher (Accused John Evans) R Cavanagh (Accused Keith Evans) S Corish (Accused XE) Solicitors: Office of the Director of Public Prosecutions (Crown) Archbold Gittani (Accused John Evans) McAneny Lawyers (Accused Keith Evans) Purcell Lawyers (Accused XE) File Number(s): 2017/202629; 2017/202678; 2017/202637 Publication restriction: It is noted that, pursuant to s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW), the name of XE must not be published or broadcast in a way that connects her with these criminal proceedings Judgment 1. HIS HONOUR: John Evans ("the applicant"), together with his son Keith Evans and his daughter XE, are indicted that on Monday 3 July 2017 at about 12:20pm at Wyong, they murdered Jesse Thompson ("the deceased"). Keith Evans is further indicted that on 2 July 2017, he wounded Jayke Rodgers with intent to cause him grievous bodily harm. 2. On Monday 16 November 2020, the jury having been empanelled the previous Friday, the applicant sought leave to file a tendency notice in court, submitting that, pursuant to s 97 of the Evidence Act 1995 (NSW) ("the Act"), he is entitled to rely upon certain material as evidence of certain tendencies of Mr Rodgers, which he alleges have significant probative value. Mr Rodgers was the first witness called by the prosecution. The Crown did not oppose the application being heard, in spite of the late notice. I invited the parties to forward written submissions and heard brief argument on the morning of Wednesday 18 November. Senior Counsel for the applicant, Mr Hughes SC, submitted that, in the alternative, the material was admissible on the basis that it was probative, relying on similarities between this case and R v Cakovski (2004) 149 A Crim R 21; [2004] NSWCCA 280. 3. At the same time, counsel for Keith Evans sought to rely on the same material as being admissible in his case, also relying on Cakovski, submitting that the material was admissible pursuant to s 103(1) of the Act. 4. I gave my decision that day, declining the two applications. 5. On 23 November 2020, whilst cross-examining Mr Rodgers, Senior Counsel for John Evans also made an application to cross-examine Mr Rodgers with reference to some of the same material, pursuant to s 103(1) of the Act. I declined that application the same day. 6. I now publish my reasons in relation to my refusal of the three applications. The Crown case 1. The Crown case that the deceased was killed in Wyong at about the alleged time is not in dispute. The Crown allegation as to the immediate circumstances of the killing is that, at that time, John Evans was driving a Mitsubishi Triton ("the Triton") in which Keith Evans occupied the front passenger seat and XE the rear seat. They had given chase to another vehicle, a Toyota Kluger ("the Kluger"), through residential streets of Wyong. The deceased was in the rear seat of the Kluger, second from the left, together with three other males, being his brother Billy Thompson and friends Levi Dean and Luke Hill. Shane Weir was the driver and Mr Rodgers was in the front passenger seat. 2. At about 12:20pm, the Kluger pulled up to the right of the Triton in an intersection. Keith Evans pointed a shotgun to the rear open window of the Kluger and fired a cartridge, which struck the deceased in the throat, causing his death. The Crown case is that the three occupants of the Triton were parties to a joint criminal enterprise to cause at least grievous bodily harm to one or more of the occupants of the Kluger. Alternatively, they were parties to a joint criminal enterprise to intimidate the Kluger's occupants and, by the time that the Triton had pulled up alongside the Kluger, John Evans and XE each appreciated that a possible incident to that agreed crime was that Keith Evans would discharge the firearm with the intention of causing at least grievous bodily harm to one or more of the Kluger's occupants; they determined to continue with the enterprise and take that risk. 3. The broader alleged background to the killing is set out in the amended Crown Case Statement which, for the purposes of the application, the applicant accepts. The relevant parts are as follows: "6 In approximately 2010 accused Keith EVANS commenced a relationship with [Christine]. During that relationship [Christine] resided with Keith, John and [XE] at premises at … Jilliby St, Wyee. 7. Approximately two years ago (2015) [Christine] cheated on EVANS and commenced a brief sexual relationship with Jayke RODGERS. RODGERS and [Christine] had sex about four or five times over a three or four month period. [Christine] at the time had lied to RODGERS that she had broken up with her then partner, Keith EVANS. Following their brief sexual relationship there was limited contact between RODGERS and [Christine]. 8. In approximately February 2017 Keith EVANS discovered messages between [Christine] and RODGERS on [her] Facebook account. Keith EVANS was so upset by the exchange that he said words to the effect 'I'm sending a photo to Jayke to see if he will come around'. Keith EVANS then staged a photograph of [Christine's] right hand fingers being held in a boltcutter with [Christine] visibly upset. RODGERS messaged back to the effect 'Fuck off. Keep sending me pictures of your missus on Face Book and I'll put them all of Face Book and embarrass ya. Fucken grow up'. At the time [Christine's] mobile phone was broken so Keith EVANS logged onto [Christine's] Facebook account on his mobile phone and sent the message through to RODGERS. 9. At the time of this offence [Christine] remained in a relationship with Keith EVANS. On Sunday 25 June 2017 RODGERS received a Facebook Message from [Christine's] account that said 'Keith's going away to Nelson Bay this weekend. Come over'. RODGERS replied 'Why would you even bother. What happened to you last time?' with [Christine's] account replying 'He just wanted you to come around'. RODGERS continued the conversation asking 'Where are you anyway?' and received a message back 'I'm at work' including a photograph of [Christine] wearing a PriceLine Uniform. Unbeknownst to RODGERS the photograph was actually taken of [Christine] at home who had put her work uniform on at Keith EVAN's request so that he could send RODGERS through a photograph so that RODGERS would believe it was [Christine] and not Keith EVANS that he was talking to. 10. On Saturday 1 July 2017 approximately 9.30pm as a result of a number of Facebook Messages, RODGERS and [Christine] organised to meet up. Approximately 1.30am on Sunday 2 July 2017 RODGERS was driven to Wyee by a friend, Jonathan EGGLETON. RODGERS was provided with the address of 'Jilliby Street, Wyee' and was then further provided with a description that 'there's a white wood chipper out the front. The side gate is locked you'll have to jump the fence'. RODGERS attended the house with a wood chipper parked out the front and saw [Christine] standing behind the gate. 11. RODGERS jumped the gate and approached [Christine] who didn't say a word but put her hand around his hip. RODGERS then heard the voice of Keith EVANS say something about [Christine] and then he saw Keith EVANS standing to his left less than a metre way from him. RODGERS then saw a pillowcase being swung towards him containing a hard solid object similar to a brick that impacted with the side of RODGER's head. RODGERS stumbled backwards and Keith EVANS approached him again and hit him in the back with the item contained in the pillowcase. 12. RODGERS managed to decamp over the fence whereupon he was assaulted by a number of persons not further described. During this struggle RODGERS lost both the shirt and jumper that he was wearing however was able to run away towards the end of the driveway where he momentarily lost consciousness. RODGERS awoke in a head lock being repeatedly hit to the head with the item contained in the pillowcase. After some time the assault ceased. 13. RODGERS staggered down to a house a number of doors down and laid down on the front porch. RODGERS knocked on the front window repeatedly until the front door was opened by the occupant, Ann THOMAS who let RODGERS in and provided him with some towels and called the NSW Ambulance. 14. At the same time as the Ambulance arrived both Jonathan EGGLETON and [XE] walked into THOMAS' residence. [XE] walked up to RODGERS and said 'Fuck. Stop thinking with your dick' whilst EGGLETON handed RODGERS back his mobile phone. NSW Police arrived soon after with RODGERS providing a version that 'I was jumped by three blokes. I was hit in the head with something. They took my wallet'. When asked 'Do you know who assaulted you?' RODGERS has replied 'Nah there was three of them. I was here to meet a girl'. In further questioning RODGERS was vague with his responses and reluctant to answer. 15. During the assault RODGERS lost possession of his jumper, shirt, wallet and a single silver house key. 16. RODGERS was conveyed to Wyong Hospital and treated [for his injuries, which were itemised]: … RODGERS was released approximately 7.00am on Sunday 2 July 2017. 17. During the day RODGERS met up with a number of friends including Levi DEAN, Billy THOMPSON and [the deceased] and disclosed to them the assault. RODGERS re-admitted himself to hospital approximately 7.00pm Sunday afternoon as he was vomiting blood and nausea. RODGERS was administered antiemetics (ondansetron), pain relief and IV fluids and was monitored in the short stay unit overnight for neurological observation with the aim to discharge him after the vomiting had settled and no further neurological symptoms were present. RODGERS was discharged at approximately 11.30am on Monday 3 July 2017. … 21. At 11.35am on Monday 3 July 2017, Levi DEAN and Shane WEIR attended the premises of John, Keith and [XE] in Jilliby Street, WYEE (captured on CCTV from the Wyee Bakery). DEAN and WEIR knocked on the front door that went unanswered so they went around the side of the house and saw Keith EVANS and subsequently confronted him yelling out 'Keithie ... That was a pretty shit go what happened with Rodgers. Why didn't you fight him one on one?'. Keith ran into the premises and WEIR and DEAN attended the front glass door and banged on it. 22. [XE] came to the front door but did not open it with DEAN yelling out 'Tell Keith to get outside, it's a shit go'. [XE] yelled back 'It was one on one, he deserves what he gets' with DEAN yelling back 'look at his head, all marks from behind, obviously been hit from behind'. [XE] refused to open the door so DEAN and WEIR went to leave. As they were leaving DEAN picked up a spirit level that was on the grass and threw it at the front glass sliding door shattering the entire pane. Three minutes after arriving at 11.38am DEAN and WEIR departed in the silver Toyota Kluger (captured on CCTV from the Wyee Bakery) and travelled to Wyong Hospital to pickup RODGERS. 23. [XE] immediately contacted John EVANS via mobile phone to report the confrontation and smashed door to him. Four minutes after DEAN and WEIR depart (at 11.42am) John EVANS returns to … Jilliby St, WYEE driving his white woodchipper truck. Two minutes later at 11.44am a white dual cab Mitsubishi Triton with a black snorkel/2 x spotlights on the crossbar drives out of the driveway of … Jilliby St, Wyee and travels south. 24. Around the same time Luke HILL, [the deceased] and Daniel HILL attended the premises of Bill THOMPSON in Woodward Avenue, Wyong. Half-an-hour later the three decided to leave and walked out the front of the premises when a white 4WD ute drove towards them and stopped next to the vehicle of Daniel HILL. At that time the white 4WD ute was being driven by John EVANS with Keith EVANS seated in the front passenger's seat and [XE] seated in the rear seats. 25 [XE] asked HILL 'Where's big fella and RODGERS?'. When HILL indicated he didn't know, she replied 'Don't fucken lie to me Hilly, I know he just come here, cause they just left my house'. HILL replied 'I don't know. Well, he's not here'. 26. John EVANS or Keith EVANS then raised their right arm and pointed a single barrel shotgun directly at HILL saying 'Look cunt, I'm not fucking around, where is he?'. HILL replied 'I don't know, it's got nothing to do with us'. The white 4WD then drove down Woodward Avenue with [XE] yelling out 'I'll kill your fucken missus Hilly'. 27. RODGERS was released from Wyong Hospital approximately 11.30am on Monday 3 July 2017. RODGERS was picked up from Wyong Hospital in a silver Toyota Kluger … by DEAN and WEIR and they drove to Bill THOMPSON's premises in Woodward Ave, WYONG where they met up with HILL, [the deceased] and Bill THOMPSON. 28. Following his release from hospital RODGERS checked his phone and found a number of missed Facebook calls from the Facebook Profile of [Christine]. RODGERS messaged [Christine's] profile saying 'You're a dead man walking' with the reply received 'I don't know what you're talking about bro'. RODGERS then sent a further message back saying 'I'll get you out numbered like you got me' however there was no reply. 29. RODGERS, DEAN, HILL, WEIR, [the deceased] and Bill THOMPSON armed themselves with weapons including baseball bats, metal poles and knives. The Toyota Kluger then left the premises occupied by RODGERS, DEAN, HILL, WEIR, [the deceased] and Bill THOMPSON. WEIR was driving, DEAN was in the front passenger seat and the remaining four were in the back. 30. RODGERS then called [XE] on his mobile phone via Facebook. Upon answering the call [XE] immediately said to RODGERS 'Fuck you, we'll meet up at Baker Park. You shouldn't have fucked [Christine]'. 31. The silver Toyota Kluger driven by WEIR then drove towards Baker Park along Ithome Street into Rose Street and then into a gravel carpark where they saw a white Mitsubishi Triton stopped with Keith EVANS hanging out the front passenger window and [XE] in the rear seats. 32. RODGERS, HILL, DEAN, [the deceased] and Bill THOMPSON alighted (or were alighting) from the Toyota Kluger when Keith EVANS who had a single barrel shotgun in his hand, pointed it towards the Toyota Kluger and discharged it. Everyone except DEAN and Bill THOMPSON jumped back into the Toyota Kluger with WEIR reversing the Toyota Kluger away from the white Mitsubishi Triton that was also reversing. DEAN and Bill THOMPSON ran and attempted to hide behind a bush and then ran into Ithome Street where they were picked up in the Toyota Kluger. During this time at least one further round was discharged from the shotgun. 33. At this time WEIR was driving, RODGERS was in the front passenger seat, and DEAN, Bill THOMPSON, [the deceased] and HILL occupied the rear seats of the Toyota Kluger. 34. The Toyota Kluger then drove from the location with the Mitsubishi Triton speeding after it to catch up. The Toyota Kluger travelled along a number of streets in Wyong with the Mitsubishi Triton in pursuit. CCTV from Wyong Railway Station as well as numerous unrelated civilians witnessed portions of the pursuit describing both vehicles as driving aggressively at times on the wrong side of the road and at high speed with their wheels spinning and screeching as they navigated around corners. 35. As the Toyota Kluger reached the intersection of Byron Street and Panonia Road, while making a turn into Panonia Road, the Mitsubishi Triton has crossed to the incorrect side of the road and overtaken the Toyota Kluger cutting it off and blocking its pathway forcing both vehicles to come to a standstill. 36. Keith EVANS produced the single barrel shot gun out the front passenger window, pointed it towards the Toyota Kluger and discharged it, rendering a fatal gunshot wound to [the deceased]. The Mitsubishi Triton then decamped along Panonia Road and under the Wyong Bridge." 1. Police took the five surviving occupants of the Toyota Kluger to Wyong Police Station in order to obtain statements. Mr Rodgers made a statement in which he characterised the killing as a "road-rage" incident involving a white Triton, the occupants of which he did not know. Later that day, after learning that the deceased had died, he returned to the police station and provided a fresh statement in which he said that his earlier account was false. He said that he did not tell the truth because he wanted to get revenge for what had happened. He said that he recognised the accused Keith Evans and XE in the back seat, but not the driver. He said that he saw Keith Evans point and discharge the shotgun. The case for John Evans 1. At the stage of the trial when the application was made, the defence case was rather opaque. Senior Counsel for John Evans did not open to the jury. In his pre-trial notice issued pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), the nature of his defence is put thus: "The case for John Evans is that he was not a participant in the killing of [the deceased]". In his written submissions on the application, the case is put thus: "The Accused was with the other co-accused in order to protect them from threats of violence, not because he was a participant to a joint criminal enterprise, or an extended joint criminal enterprise to kill [the deceased]. The tendency sought to be adduced supports the Accused's belief and the reasonable basis of that belief." The tendency notice 1. The tendency notice identifies two tendencies sought to be proved, as follows: "The tendency sought to be proved is: (a) The tendency of Jayke Rodgers to act in a particular way, namely, to make threats of violence against John Evans and members of his family; (b) the tendency of Jake Rodgers to act in a particular way, namely, to commit acts of intimidation, assault and destruction of property. The following common features of the allegations include: The threats of violence against John Evans and members of his family were made between 2 July 2017 and 3 July 2017 and from 24 December 2018. The threats of violence against members of John Evans family were made by Jayke Rodgers on Facebook messages to members of John Evans family. The threats of violence include threats to kill John Evans and members of his family." 1. The relevance of the material was explained in the applicant's written submissions as follows: "The Accused was with the other co-accused in order to protect them from threats of violence, not because he was a participant to a joint criminal enterprise, or an extended joint criminal enterprise to kill [the deceased]. The tendency sought to be adduced supports the Accused's belief and the reasonable basis of that belief. Jayke Rodgers' tendency to commit acts of intimidation, assault and destruction of property is relevant to the defence case that it was Jayke Rodgers and the others in the Kluger, who carried weapons, including a shot gun, to Baker Park." 1. Certain material was identified by the applicant in the tendency notice as the subject of the application, and was added to with leave being granted, over the following two days. The material relied upon as tendency evidence Mr Rodgers' criminal history 1. Annexed to the tendency notice was an incomplete copy of Mr Rodgers' criminal history, as printed and, I assume, as provided by Corrective Services. Mr Rodgers' criminal history for offences committed prior to 3 July 2017 is as follows. On 7 November 2013, Mr Rodgers was charged with resisting an officer in the execution of duty; intimidate police officer in the execution of duty and behaving in an offensive manner in a public passenger vehicle. The police facts and a COPS entry allege that he abused a fellow passenger on a train. Police approached him when he alighted and asked him to stop, but he kept on walking. When police took hold of him, he was abusive and struggled, prompting police to use pepper spray on him. He threatened some of the police officers. He was treated by ambulance officers and conveyed to a police station. 2. On 17 December 2013, Mr Rodgers was convicted of the first two offences in his absence and fined in relation to the third. On 21 January 2014, he was fined for the first and for the second, received a fine and bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSP Act") for a period of 12 months ("the s 9 bond"). He was also convicted for breaching his bail for having failed to appear pursuant to a bail undertaking, presumably on 17 December 2013. For that matter, he was dealt with by way of s 10A of the CSP Act, the effect of which is that he received no penalty other than the fact of the conviction. 3. On 29 April 2015, Mr Rodgers was called up on the s 9 bond, receiving 9 months supervision by the Probation Service of the NSW Department of Corrective Services. 4. On 17 November 2014, Mr Rodgers was charged with three offences: behaving in an offensive manner in or near a public place or school; using offensive language in or near a public place or school; and assault occasioning actual bodily harm. A COPS entry in relation to the charges is to the following effect. Mr Rodgers had been declined a tenancy application by a real estate employee. The employee became aware that Mr Rodgers was staying at the premises and contacted police. He was removed from the premises. Two weeks later, Mr Rodgers approached the employee on a street and said: "I know where you live", and something similar to blowing up his car. Mr Rodgers then punched the victim multiple times to the head. The victim made a complaint to police. When police arrested Mr Rodgers, he was abusive to them and threatened to find their address from the telephone book. The arrest occurred in a public place near a railway station, with heavy pedestrian traffic. 5. Mr Rodgers received fines for the first two offences and a 150 hour Community Service Order ("CSO") for the third. On 13 April 2016, the time for completing the CSO was extended. On 3 August 2016, it was converted to a sentence of imprisonment for a period of 7 months with a non-parole period of 2 months, with conditions. 6. Mr Rodgers' post-incident criminal history is as follows. 7. It appears that Mr Rodgers was convicted of certain offences in about 2018, although those convictions and any ensuing sentences do not appear in the criminal record annexed to the tendency notice. There are entries for a call-up for a "breach" that was dealt with on 29 October 2019 at Wyong Local Court for assault occasioning actual bodily harm and destroy or damage property, with which he had been charged on 16 July 2018. Tendered on the application is a police fact sheet that alleges that on 7 May 2018, Mr Rodgers was involved in a "road rage" incident, in which he pushed the victim back into his utility as he sought to get out of it, causing grazing on the victim's right forearm. He then threw a "metal transformer" that was on the back of the utility towards a witness. It missed and hit a garage door, denting it. It appears from the call-up entry that the matters were initially dealt with by a form of conditional liberty. 8. On 30 June 2019, Mr Rodgers was charged in relation to an incident described in police facts, which allege that he threatened the parents of a person who he said owed him money, telling them he would kill them if their son did not pay the debt. Later that day, he confronted them and claimed he had their son's body in the boot of his car. He drove off, followed by the parents, to his residence. He went inside, coming back out with a large knife. The couple opened Mr Rodgers' boot and found it to be empty. Mr Rodgers appeared, and allegedly lunged at the father with the knife and chased him as he retreated to his vehicle. He made further threats and, as the father drove away, kicked his vehicle. 9. I note that police facts do not necessarily reflect the facts on which a person pleads guilty or is found to be guilty. In this case, Mr Rodgers was only charged with one count of destroying property and a count of common assault. There was no charge reflecting that allegation that he threatened to kill the father or the other threats that he was alleged in the police facts to have made on that day. In that sense, the charges fall short of what was alleged in the police facts. 10. On the same date, he was charged with three offences in a domestic violence context, being two of destroying or damaging property and one of common assault. According to the police facts, in relation to the latter charge, he kicked a former partner in the back, head and torso area. 11. On 29 October 2019, Mr Rodgers was convicted of all those offences in the Local Court and re-sentenced in relation to the matters with which he had been charged on 16 July 2018. Following a successful appeal against severity of sentence to the District Court, on 5 February 2020, he received an aggregate sentence of 16 months' imprisonment with a non-parole period of 8 months, for all but the destroy or damage property offence, for which he received a Community Corrections Order for a period of 2 years. Facebook messages from Mr Rodgers to John Evans' sister on and shortly after 24 December 2018 ("the messages to Ms Timbery") 1. Mr Rodgers is alleged to have sent Facebook messages to the applicant's sister, Ms Timbery, from 24 December 2018, in which he threatened to kill her family and poison her horses if she did not pay him a sum of cash, to be conveyed to the family of the deceased, "for the trauma your family has caused" to them. He allegedly sought $10,000 as a "down payment", to be made within a week of that date. Independently of the alleged extortion, he threatened to kill Keith and John Evans as revenge for Keith Evans having killed the deceased. For the purposes of these applications, I assume that Mr Rodgers was the author of the messages. Further details of the exchange are canvassed in my consideration of the application. Mr Rodgers' second statement dated 3 July 2017 1. The applicant relied upon three paragraphs from Mr Rodgers' second statement to police on 3 July 2017, as follows: "37. As I got in the car I checked my phone. I saw that I had missed calls on my phone, from Face Book. The missed calls were from [Christine's] face book profiles. I messaged back. I wrote, 'You're a dead man walking.' I received a message back that read, 'I don't know what you're talking about bro.' I sent a message back, 'I'll get you out numbered like you got me.' There was no reply. ... 42. While I was in the car I rang [XE] on Face Book. Before I even said anything, I heard [XE's] voice on the call. [XE] said, 'Fuck you. We'll meet up at Baker Park. You shouldn't have fucked [Christine].' 43. Levi's mate drove to Baker Park at Wyong. We went under the bridge at Wyong, River Road, then up towards Warner Avenue. Turned right onto Warner Avenue and then left onto Ithome Street. As we drove around the corner that turns into Rose Street I saw a white four wheel drive, Mitsubishi Triton, stopped on Rose Street. I jumped out. I had never seen that car before. I said, 'Let's have a go.' I saw Keith EVANS hanging outside the front passenger side window. I saw a blonde haired girl, I recognised to be [XE] in the back seat. The rear passenger seat behind the passenger, Keith EVANS." Facebook messages from Mr Rodgers intended for Keith Evans sent on 2 July 2017 ("the threats to Keith Evans") 1. An exchange between Mr Rodgers' phone and the account shared by Keith Evans and Christine on 2 July 2017 between 9:35pm and 9:49pm ("the 2 July messages") were as follows: Rodgers, 9:35pm: "Dead Man Walking" and "Be prepared for revenge Bra" Evans/[Christine], 9:48pm: "Whos this don't know wat ur on about" Rodgers, 9:48pm: "You will be" Rodgers, 9:49pm: "Can't hide now big boy. Wait till I come outnumbered your dead bra move now" Facebook message from Mr Rodgers to Levi Dean sent on 3 July 2017 ("the 'gun' message") 1. On 3 July 2017, Mr Rodgers forwarded to Levi Dean photographs of his head injuries. At 8:52am, Mr Rodgers texted him: "Couga thinks he knows another name I know one deff Keith Evans need a toy bro Il just shoot them in the leg hahaha". 1. It is agreed by the Crown and defence that "deff" means "definitely" and "toy" is a firearm. Phone calls from Mr Rodgers to XE sent on 3 July 2017 1. The only material that was identified in the tendency notice in relation to this was a reference to the times of three calls on 3 July 2017, being 12:06pm, 12:09pm, 12:14pm and 12:17pm. There was nothing as to the substance of the calls, although I note par (30) of the Crown Case Statement, above. Statement of Levi Dean 1. The Tendency Notice identifies par (10) of Levi Dean's second statement to police on 3 July 2017: "When we got to Bill's someone got a call, I think it was from Keith EVANS. I could hear them yelling but couldn't understand what was being said. I'm not sure what was said on the phone but someone said we were going to fight them at Baker Park in Wyong. So we all got in the car and went to Baker Park. We went under the bridge at Wyong and I think we went along Leppington Street to Baker Park. We turned right onto Warner Avenue and left onto Ithome Street. We were going along the street and saw a car in front of us. [The deceased] had told us that the car that stopped and threatened him was a white 4ED [sic]. When [the deceased] saw the car he said he that that was the car that stopped as his place. We went along the street and turned left into Rose Street. The car had stopped on [Rose] street and we all got out of the car. The car started reversing back towards us and the car. We all moved out of the way of the car, when he got [level] with our car or maybe just before it I heard a gun shot." Incident outside the trial courtroom 1. Senior Counsel for John Evans submitted that on 17 November 2020, which was the date on which the Crown first called Mr Rodgers, there was an incident outside the courtroom while Mr Rodgers was waiting to be called, involving the applicant's nephew, Damien Timbery. At 3:58pm that day, Mr Timbery attended a nearby police station (being Surry Hills) where the following COPS entry was created: "At the above time and date the VIC, Damien TIMBERY, attending court in relation to a Queensland case from 2018. The accused in that matter is the POI, Jayke RODGERS. The [sic] does not know the POI away from their case in court. The event number is ... Throughout the day at court the POI was acting aggressively towards the VIC by 'death staring' and calling him a 'fucking gronk'. The POI continued to become aggressive and yelled at the VIC 'I'll fucking cave your head in right now'. The POI has then become worked up and the people around him were trying to calm him down. The VIC and his family has left and attended Surry Hills Police station to make a report. The VIC stated he does not want to attend court over the matter so he did not provide a statement. The just wanted it reported." The relevant law 1. The relevant sections of the Act are as follows: "55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness, or (b) the admissibility of other evidence, or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible. … 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless– (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict tendency evidence adduced by another party. … 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might– (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. … 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." The applicant's submissions 1. The applicant submitted as follows: "Jayke Rodgers' tendency to commit acts of intimidation, assault and destruction of property is relevant to the defence case that it was Jayke Rodgers and the others in the Kluger, who carried weapons, including a shot gun, to Baker Park. It is the defence case that Jayke Rodgers and the others in the car were acting together in concert to threaten the Accused and his family and were armed and therefore capable of causing cause serious harm to them. The defence disputes that there [were] any shots fired at Baker Park. The only shot fired was the fatal shot, which occurred when the Accused was the driver of the Triton." 1. The applicant submitted that the material that concerned a tendency on the part of Mr Rodgers to threaten John Evans and members of his family is the threats to Keith Evans, the "gun" message, the messages to Ms Timbery and the incident outside the trial courtroom. The evidence relied upon to establish Mr Rodgers' tendency to commit acts of intimidation, assault and destruction of property is his criminal record, in particular, the police facts and COPS entries concerning his offences prior to 3 July 2017. 2. Alternatively, the evidence was sought to be adduced on the basis that it would support anticipated evidence from John Evans: "… about the threatening and intimidating behaviour of Jayke Rodgers and others at the Evans Home, at Baker Park, and at the scene of the shooting. Evidence that Jayke Rodgers had made threats on other occasions makes John Evan's evidence about Jayke Rodgers actions on 3 July 2017 seem less improbable." 1. It was also submitted that the probative value was not substantially outweighed by the danger that it may be unfairly prejudicial to the Crown: s 135 of the Act. 2. Senior Counsel for John Evans advanced the proposition that the evidence was also admissible because of its capacity to make the claims of his client "less improbable", being a basis identified, it was submitted, in similar circumstances by the Court of Criminal Appeal in Cakovski at [36]. In that case, the appellant had been convicted of murder. He had alleged at trial that he killed the deceased in self-defence. A few hours prior to the killing, the deceased had assaulted another man, Mr Logounov. The deceased had a criminal record for three counts of murder, which were committed decades before. The deceased had told Mr Logounov, at the time of the assault of him, that "I'm going to kill you like I killed the other three people". At the time of the killing, the appellant was unaware that the deceased had previously killed three people. The trial judge had refused the appellant's application to allow the evidence of the murders or of threat to Mr Logounov pursuant to s 97 of the Act. On appeal, Hodgson JA, Hulme J agreeing, said it was admissible, although not as tendency evidence: "36 In my opinion, evidence of the 1978 murders, and the reference to them in the threat made by the deceased to Mr Logounov just a few hours before the stabbing, had significant probative value, in this way. In the absence of that evidence, the appellant's evidence that the deceased threatened to kill him in such a way as to make him fearful for his life, and continued to make such threats and to attack him notwithstanding the appellant's use of a knife, seems on the face of it highly improbable. In my opinion, it becomes less so once one knows that the deceased had committed three murders in the circumstances outlined, albeit as long ago as 1978, and also had made reference to those three murders in uttering a threat to kill Mr Logounov just a few hours before. Of course, both the murders themselves and the threat made in this way to Mr Logounov were not known to the appellant, but that does not reduce the relevance of the evidence. If the question to be determined was whether it was proved that the deceased actually did what the appellant said he did, beyond reasonable doubt or even on the balance of probabilities, one might consider the probative value of evidence that he murdered three people over twenty years before to be quite small, and also that there was a real chance that this probative value would be outweighed by its prejudicial effect. But in this case the question is rather whether there is a reasonable possibility that the deceased did these things, which otherwise might seem to be extremely improbable. On that question, in my opinion the evidence of the murders in 1978, coupled with evidence from an independent witness that, just a few hours earlier, the deceased had referred to these three previous murders apparently to add force and credibility to a threat to kill that person, is of substantial probative value. 37 On the question of notice under s 97, in my opinion the significant probative value of the evidence is not as tendency evidence, to which s 97 applies: the main relevance of the evidence is not to prove that the deceased had 'a tendency ... to act in a particular way', but rather to suggest that the deceased was a person who was not subject to very strong inhibitions against killing and contemplation of killing in the same way as are the great majority of people. This is not to say that the deceased had a tendency to kill, but rather that there is less improbability in the deceased killing or making a serious threat to kill another person, than there would be for the great majority of people." 1. Hidden J, at [71], concurred that the evidence was admissible, but on the basis that it qualified as tendency evidence, and not on the basis determined by Hodgson JA or Hulme J. 2. The applicant submitted that, although the Crown case against the applicant included threats of death against Keith Evans, the pattern of Mr Rodgers' behaviour, prior to and subsequent to the events in question demonstrated that his violent tendencies go "deeper than that and much broader than that". Submissions on behalf of the Crown 1. The Crown objected to the admission into evidence of the material the subject of the application, unless it was already part of the Crown case, and opposed its use as evidence establishing the alleged tendencies. The Crown submitted that Mr Rodgers' criminal offending prior to and subsequent to the matters which are the subject of the trial are "too general and different in nature to the circumstances here asserted". Similarly, the messages to Ms Timbery were "far removed" from the facts in issue in the trial and could not increase the likelihood that a fact in issue did, or did not, occur. 2. The Crown sought to distinguish the instant case from the facts in Cakovski, in that the Crown case includes evidence of explicit and serious threats made by Mr Rodgers. Consideration of the application by John Evans with respect to tendency and Cakovski 1. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority (French CJ, Kiefel, Bell and Keane JJ) noted that the threshold issue for all proposed evidence is relevance, pursuant to ss 55(1) and 56(1) of the Act, and stated at [37]: "Before that question may be answered, it is necessary to identify the purpose or purposes for which the evidence is tendered. The identification of its purpose may have important consequences, especially in areas such as opinion evidence and tendency evidence." 1. The purpose is identified by the tendency that is alleged. Accordingly, the first step is to assess whether each proposed item of evidence is relevant to that purpose; whether it has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated tendency. I note that, in that assessment, considerations of credibility and reliability are sidelined. 2. It is not a fact in issue that Mr Rodgers intended to fight Keith Evans and to do so with a preponderance of supporters; that he had threatened to kill Keith Evans; and that the group of which Mr Rodgers was a part had attended the confrontation with weapons, other than firearms, that had the potential to inflict life-threatening injuries. The Crown case goes further, alleging that Mr Rodgers had a motive to at least seriously assault Keith Evans. I note that the defence case is that one of those in the car accompanying Mr Rodgers had the firearm, which somehow came into the possession of those in the applicant's vehicle. 3. That being so, it is not apparent how the material identified has the capacity to rationally affect the assessment of the probability of the existence of a fact in issue by being relevant to the formulated two tendencies. Mr Rodgers' criminal record and the police facts do not provide evidence that he had committed an assault more serious than an assault occasioning actual bodily harm, which is of little assistance when the Crown case includes two messaged threats to kill Keith Evans. There is no instance in Mr Rodgers' criminal history of him being armed with, having access to or being accompanied by an accomplice with, a firearm. 4. There are two possible exceptions which may be relevant to the applicant's professed motive in being present at the time of the killing in the defence case, to protect his family. The first is the messages from Mr Rodgers to Ms Timbery in which he threatened to kill members of her and Keith Evans' family, for example: "your family won't last long" and "I will kill them 2 before I die" (with the reference to "them 2" being references to John Evans and Keith Evans). However, it is apparent from other texts in the thread that these threats were in the context of him seeking revenge for what he regarded as the killing of the deceased by Keith Evans. It is unclear how the extortion and threats could shed light on whether Mr Rodgers had a tendency to "make threats of violence against John Evans and members of his family", other than Keith Evans, at the relevant time, which is immediately prior to the shooting on 3 July 2017, since the apparent motive for sending the threatening messages to Ms Timbery was the consequence to the shooting itself. 5. The second is the alleged threat to the applicant's nephew outside the courtroom on 17 November 2020, leaving aside the paucity of evidence of the incident. However, the threat is confined in the same way as the threats conveyed to Ms Timbery; it is apparently motivated by the shooting, and therefore is not relevant to Mr Rodgers' attitude to the applicant's family leading up to that event. 6. As noted by the Crown, much of the material sought to be relied upon by the applicant is either evidence in the Crown case in any event, or capable of being elicited by the applicant in cross-examination of witnesses called by the Crown. This includes the identified paragraphs of Mr Rodgers' second statement of 3 July 2017; the threats to Keith Evans; the "gun" message; the phone calls from Mr Rodgers to XE on 3 July 2017, at least to the extent that they are minimally identified in the tendency notice; and par (10) of the statement of Levi Dean. 7. The alternative basis on which the application is put, namely, that it has probative value in the sense identified in Cakovski, rests on what is said to be a coincidence of factual circumstances; in the same way that the appellant in that case was unaware of the deceased's criminal antecedents, so were John and Keith Evans, and on the same basis they are entitled to lead evidence of Mr Rodgers' propensity for acts of serious criminal violence. However, there are significant relevant differences in the comparison. Firstly, in Cakovski, there was no evidence at trial of the deceased's potential for real violence or the explicit threat to Mr Logounov, referencing the earlier three murders. In this case, however, the jury will be aware from the Crown case that Mr Rodgers had threatened to kill Keith Evans shortly prior to the confrontation and his group had attended with weapons (although not firearms). 8. Secondly, the nature of Mr Rodgers' criminal record is of little probative value, being relatively minor in nature. Only one matter committed prior to 3 July 2017 resulted in a sentence of imprisonment, which was for the offence of assault occasioning actual bodily harm, and only when he failed to comply with the initial sentence for that offence, which was a CSO. 9. The offences that Mr Rodgers committed after 3 July 2017 include matters of violence for which, together with other offences, he received an aggregate sentence of 16 months' imprisonment with a non-parole period of 8 months. None involved access to a firearm or an assault more serious that an assault occasioning actual bodily harm. Those offences were committed approximately two years afterwards. In my view, would not assist in determining the facts in this case, as they presently have been crystallised by the defence and Crown cases. 10. Accordingly, I decline the application by the applicant to rely on tendency evidence, as outlined in the applicant's amended tendency notice dated 17 November 2020 and added to by material in the affidavit of the applicant's solicitor of the same date. The application on behalf of the accused Keith Evans concerning s 103(1) of the Act 1. Counsel for Keith Evans forwarded written submissions that relied upon the same material as did the applicant in his amended tendency evidence and the material additionally admitted. Although those written submissions seemed to advance arguments in favour of tendency evidence to be adduced in the case for Keith Evans, he had not served a tendency notice on the Crown and did not seek leave to rely on the evidence without having given reasonable notice, as he might have done pursuant to s 100(1) of the Act. The following exchange during oral submissions involving counsel for Keith Evans, Mr Cavanagh, referring to the evidence relied upon by the applicant, clarified the basis of his application: "CROWN PROSECUTOR: Could I add one more thing. Mr Cavanagh in his submissions this morning indicates that there are two tendencies, it seems, that Keith Evans seeks to adduce evidence in respect of. The first is common to Mr John Evans, but the second is a tendency towards violence. HIS HONOUR: To clarify that, I don't know that Mr Cavanagh first of all, Mr Cavanagh has not put on a notice. CROWN PROSECUTOR: No, he hasn't. HIS HONOUR: And I don't understand Mr Cavanagh to be seeking to rely on the evidence in his case but to assist the Court on the application made by John Evans. Separately, as I understand it, Mr Cavanagh is submitting that the evidence is relevant on the basis of credibility and reliability, but that's the only separate application that I think he is making, as I understand it. Is that correct, Mr Cavanagh? CAVANAGH: Yes, it is." 1. Counsel for Keith Evans submitted that, as determined by the majority in Cakovski, the evidence relied upon by the applicant was relevant to Mr Rodgers' credibility, on the following issues of fact: "1. The provenance of the shot gun. 2. The credibility of Jayke Rodgers when he alleges that Keith Evans used a shot gun at Baker Park. 3. The suggestion that at any point of time Jayke Rodgers was trying to avoid conflict and Keith Evans was the aggressor. 4. To rebut joint criminal enterprise. The joining together of family members when under threat is particularly applicable in this case when dealing with someone who has violence in his history and who continues to threaten even when the co-accused are in custody. Further, to rebut any suggestion that Jayke Rodgers was responding to the assault on him, and would not otherwise have sought revenge because [he] was not a person who would engage in violent activity. In addition, the evidence has significant probative value in that it will make the evidence to be given by Keith Evans seem less improbable. It is submitted that the proposed evidence has relevance and probative value and can therefore be admitted without the need to categorize it has tendency evidence." 1. In oral submissions, Counsel for Keith Evans clarified that he confined his application to the messages sent to Ms Timbery and the police facts sheets and COPS entries pertaining to Mr Rodgers' criminal convictions, being the matters on which he wished to cross-examine Mr Rodgers, pursuant to s 103 of the Act. Section 103 relevantly states: "103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred." 1. Two of the COPS entries are summarised above, at [15] and [18]. Counsel for Keith Evans relied on two other COPS entries, which I reject. One concerned a domestic assault and is undated. It refers to "Jayke Rodgers" being in a relationship with the victim "for approximately 20 years". According to his criminal record, Mr Rodgers was born on 25 January 1993 and thus is aged 27, which accords with his appearance in the witness box. I conclude that the COPS entry either refers to another person of the same name or is fundamentally unreliable. Accordingly, I disregard it. 2. The earliest COPS entry refers to an alleged assault and robbery in company on 25 February 2011, when Mr Rodgers would have been aged 18. It alleges that he made "full admissions", but the offence does not appear on his record. He was charged with his earliest recorded offences on 7 November 2013, which bear no resemblance to this incident. I am not satisfied that this incident refers to the witness. I disregard this COPS entry, as well. Submissions by the Crown 1. The Crown submitted that evidence of Mr Rodgers' criminal behaviour or of the messages to Ms Timbery was not of a kind that could demonstrate a propensity to give false evidence. Consideration of the application by Keith Evans pursuant to s 103(1) of the Act 1. Pursuant to s 103(1) of the Act, the question is whether the material relied upon, being the facts surrounding the criminal convictions of Mr Rodgers and the messages to Ms Timbery, if adduced in cross-examination, "could substantially affect the assessment of the credibility of the witness". 2. Counsel for Keith Evans stated he did not rely upon the criminal convictions against Mr Rodgers, but rather the police facts and COPS entries concerning Mr Rodgers which, he submitted, established a "pattern of behaviour". In view of Mr Rodgers' threats of serious violence that will already be before the jury, it is not apparent to me precisely how that material could substantially affect an assessment of the veracity or accuracy of Mr Rodgers' evidence, as opposed to simply further damaging the jury's perception of his character and morality. Accepting, hypothetically, that Mr Rodgers' limited criminal history portrayed "a pattern of behaviour" of assaults, damaging property, and threatening victims and police, it is not apparent how that would impact on his credibility as the alleged victim of a serious assault and as a witness to a killing. As I understand the case for Keith Evans, it is not suggested that he shot the deceased in self-defence or at all. 3. Although the application is not put on the basis of s 103(2)(a), for the sake of completeness, I note that the only suggestion of untruthfulness in the material is that, according to the COPS entry, when Mr Rodgers was arrested for the assault on the real estate agent, he initially denied the offence, although he later pleaded guilty to it, which in my opinion is an insufficient basis upon which to cross-examine Mr Rodgers as to his credibility. 4. The messages that Mr Rodgers sent to Ms Timbery was an exercise that bespoke criminal behaviour and the targeting of a person who had no connection to the killing. However, it does not necessarily follow that it therefore has the capacity to substantially affect the witness' credibility on the facts in issue. In the course of the thread, Mr Rodgers referred to the events of 2 and 3 July 2017 and the lead-up to them, which was reasonably consistent with his account in his statements to police. In summary, he referred to the motive for Keith Evans assaulting him being that he had been in a sexual relationship with Keith Evans' girlfriend "for years"; having been assaulted with "bricks in pillowcases"; a gun having been pulled on the deceased earlier on the day of the shooting; the gun from which the deceased was shot having been in the Evans' vehicle; the gun having been discharged when "we got there"; and Keith having "pulled the trigger". Mr Rodgers implied that there was no gun in the Kluger, as is apparent from this message: "We would been loaded guns if we knew ended up like this". 5. Consequently, cross-examining into evidence the messages would blemish the witness' character and, in that sense, affect his credibility, but without otherwise impacting on the truthfulness or reliability of his evidence as to the facts in issue. The application by John Evans re s 103(1) of the Act 1. As I have already noted, at the time of this application, Senior Counsel for John Evans was in the course of cross-examining Mr Rodgers. His application was made in light of the following exchanges (references are to the transcript pagination): 2. At T389-90 ("the first passage"): "Q. That is in response to, 'Fuck, they're going to die.' That's what she said to you? A. Yes, because she knows what my temper is like. Q. You have got a bad temper? A. Yes. Q. That bad temper has continued, hasn't it? A. No. Q. No? A. No. Q. Would you describe yourself now as calm? A. Yes, definitely. Q. Don't lose your temper? A. No, it's not worth anything." 1. At T401-402 ("the second passage"): "Q. Have you mixed with him since then, since July 2017? A. No. I don't talk to anyone from back then now, the last three years. Q. Why is that? A. I've turned a different life and kept my job and kept working and got my own rental. I'm doing my own thing. Q. You steer clear of them? A. Yep. Q. Because they're trouble? A. No, we're sort of getting too old for smoking pot. Getting too old to do that." 1. At T416-7 ("the third passage"): "Q. Then, do I have this right, that when you learnt that your friend Jesse was deceased you had a complete turn around in your opinion? A. Yep. Q. You thought no from now on I'm going to be different? A. Yep, it wasn't his problem, he shouldn't have died. It should have been my fault, my problem, I should have died. Q. But that was causative of a complete attitude change in you? A. Yes." The application and submission 1. In light of these passages of evidence by Mr Rodgers, Senior Counsel for John Evans sought leave to cross-examine him as to the police facts concerning the charges of 7 May 2018, the two incidents of 30 June 2019 and the messages to Ms Timbery. The texts particularly relied upon are as follows: "Someones gunna have to pay up some cash before it goes too far hey" "Otherwise your horses and your family wont last long" "If not I will start poisoning your horses until its paid" "I'm the one who it was for and got my mates little brother. So I will kill them 2 before I die" "I will be going after anyone involved with John or Keith hence you" "I just wanna see you all suffer" "I have a list of who I'm gunna get" "If they happen to make it out Ive told police its not ending until me or them are dead" 1. Senior Counsel for John Evans submitted that the effect of Mr Rodgers' evidence in the three passages is that "his bad temper has not continued, he is now calm, he no longer loses his temper and he has had a complete attitude change", whereas the material sought to be the subject of cross-examination is evidence that, since the events in question, he has: "… engaged in threatening behaviour, assault and destruction of property [which] is evidence that his loss of temper continued after July 2017 to the present day" and "… evidence of his continued displays of loss of temper tends to prove that he knowingly or recklessly made a false representation when he was giving evidence on oath." In this sense, the application rests on s 103(2)(a) of the Act. The Crown's response 1. The Crown submitted that the evidence sought to be the subject of cross-examination could not substantially affect the assessment of Mr Rodgers' credibility. Alternatively, the Crown relied upon s 135 of the Act (set out at [34] above). 2. The Crown submitted that each passage should be considered in the context of the questions and answers that preceded it. The first passage, in bold, was as follows: "Q. At that stage you were contemplating at least causing an injury to him sufficient to kill him? A. No, not to kill him. I never wanted to kill him. Q. 'I'll get him, don't worry about that'? A. Yeah, I'll get him back. Q. That is in response to, 'Fuck, they're going to die.' That's what she said to you? A. Yes, because she knows what my temper is like. Q. You have got a bad temper? A. Yes. Q. That bad temper has continued, hasn't it? A. No. Q. No? A. No. Q. Would you describe yourself now as calm? A. Yes, definitely. Q. Don't lose your temper? A. No, it's not worth anything." 1. The Crown submitted that this passage showed that the witness was referring to not losing his temper at the time that he was being cross-examined. 2. The second passage, in context, is as follows: "Q. And you were hanging out with him? A. Yes, at times, yes. Q. Were you using drugs with them? A. Marijuana, yes. Q. Much? A. Daily. Q. Would you call that much? A. Yes. More than usual probably than the average person. Q. How often does an average person use in your opinion? A. I'm not sure whether they're a casual smoker or a full time. Q. Anyway, this is a group, alleged group of 18 and 19 year olds that do drugs together? A. Yeah, smoked pot together. Q. And you hung around with them? A. Yes. Q. And smoked pot with them? A. Yes. Q. What about Dicky, did he hang around with them? A. No. He never hung around with us. Q. Did you know that Dicky was addicted to drugs at that time? A. I've never seen him smoke drugs in my life or heard of him smoking drugs through anyone. Q. Have you mixed with him since then, since July 2017? A. No. I don't talk to anyone from back then now, the last three years. Q. Why is that? A. I've turned a different life and kept my job and kept working and got my own rental. I'm doing my own thing. Q. You steer clear of them? A. Yep. Q. Because they're trouble? A. No, we're sort of getting too old for smoking pot. Getting too old to do that." 1. The Crown submitted that the context demonstrates that the witness was referring to smoking marijuana and "hanging out" with the same group of friends that he had in July 2017, rather than suggesting that he had led a law-abiding life. 2. The third passage in context, is as follows: "Q. You told us you don't like police? A. Yep. Q. Did you make a conscious decision not to involve the police? A. Yes. Q. That carried right on through to you making a statement to them because you misled them deliberately? A. Yes. Q. Then, do I have this right, that when you learnt that your friend Jesse was deceased you had a complete turn around in your opinion? A. Yep. Q. You thought no from now on I'm going to be different? A. Yep, it wasn't his problem, he shouldn't have died. It should have been my fault, my problem, I should have died. Q. But that was causative of a complete attitude change in you? A. Yes." 1. The Crown submitted that the third passage should also be considered in the context of earlier evidence Mr Rodgers gave about not wanting people to be charged, at T385: "Q. And you went on to say this in paragraph 7, 'We stayed at Bill's for about 10 minutes before we decided to go to a coffee at the barber shop coffee shop in Wyong'? A. Yes. Q. That was not true, was it? A. No, it's a lie. Q. So that is one lie you told? A. Yes. Q. It is certainly more than the fact that there was a road rage incident, isn't it? You lied about the lead up to it? A. Yes. Q. Is that to protect yourself? A. Both parties. Q. When you say 'both parties', you are referring to the people in your vehicle and the people in the other vehicle? A. Yes. Q. You wanted to protect them? A. I didn't want no one charged. Q. Is that in accordance with some of your social morals, that you didn't think it was right that people get charged? A. Yes. Q. Do you hold those morals to this day? A. No. Q. When did they change? A. The day he died. Q. This is the day he died and you are telling a deliberate lie? A. Yes, that's why I went in that night and told the truth. Q. So later that day it changed? A. We didn't know he had died when we done the first statement. Q. I am not suggesting you did know that, but that is when it changed, later that day after you told a number of lies to the police? A. After we found out he had died, yes." 1. The Crown submitted that it is apparent from these broader excerpts that Mr Rodgers' reference to a change in attitude was his attitude to police and people being charged with criminal offences, whether they are his supporters or those he has a grievance with; he was not suggesting that, as a result of the killing, he had embraced a law-abiding lifestyle. Consideration 1. I referred to the police facts concerning the offences committed by the witness in 2018 and 2019 earlier in this judgment. In my view, the 2018 offences, which caused a grazing to the victim's forearm and a dent to a garage door, were minor. Some of the 2019 offences were significantly more serious, although to what extent cannot be reliably gauged when the only facts as to the circumstances are the police facts and COPS entries and it is not known if they were the facts accepted by the Court for the purpose of convicting Mr Rodgers. I accept that, on their face, they are some evidence that the accused, at those times, exhibited a bad temper that would manifest in violent acts towards persons and property. However, in the first transcript passage quoted earlier in this judgment, the witness initially said he has a bad temper, and later said he did not "now" have a bad temper. In a strict sense, neither proposition is contradicted by his behaviour 2 years or 17 months ago, although I accept it can be probative of that proposition. 2. The police facts are potentially probative of the veracity of Mr Rodgers' evidence in the excerpted passages from the cross-examination by Senior Counsel for John Evans as to the current state of Mr Rodgers' temper and whether he has "turned his life around", although that is qualified by the earlier cross-examination to the effect that he was only referring to smoking marijuana, spending time with the same friends and no longer rejecting the function of police charging for criminal offending as acceptable. Having regard to s 135 of the Act, I consider that its probative value in terms of the disputed facts is minimal and is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the prosecution. In R v Ronen (2004) 211 FLR 297; [2004] NSWSC 1290, Whealy J observed at [42] that: "… before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot adequately be determined without regard to it." 1. The proposed evidence does not rise to that level of relevance to the witness' credit. Accordingly, I reject that part of the application. 2. In relation to Mr Rodgers' messages to Ms Timbery, I have earlier noted that the witness' account therein is not inconsistent with his account to police. However, I note that his evidence in cross-examination by Senior Counsel for John Evans is contradicted by two aspects of the messages. In the messages, he alleged he had also been stabbed in the assault on 2 July 2017, whereas he had not given evidence to that effect and, as I understand it, there is no medical evidence of him having been stabbed. Further, he threatened to kill Keith Evans, which is, on one view, contradictory to his evidence in cross-examination. I will allow cross-examination, pursuant to s 103(1), on those two aspects of the messages to Ms Timbery. 3. Accordingly, I make the following orders: (1) Grant leave to the accused John Evans to rely upon a tendency notice served out of time; (2) Refuse leave to the accused John Evans to rely upon tendency evidence as outlined in that notice and the further material tendered in Court; (3) Refuse leave to the accused Keith Evans to cross-examine the witness Jayke Rodgers on certain COPS entries and Facebook messages; (4) Grant leave to the accused John Evans to cross-examine the witness Jayke Rodgers on certain Facebook messages. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021