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

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Evans v R; Evans v R [2024] NSWCCA 245 Hearing dates: 28 October 2024 Decision date: 19 December 2024 Before: Leeming JA and Rothman J at [1]; Cavanagh J at [143] Decision: In the case of John Evans: 1. Extend the time within which to appeal to 5 March 2024. 2. Grant leave to appeal against conviction. 3. Appeal allowed. 4. Quash the conviction for murder and order that there be a new trial. 5. Quash the sentence imposed by the Supreme Court on 22 July 2021. 6. Dismiss the appeal against sentence. 7. List the matter before the arraignments judge at 10am on 14 February 2025. In the case of Keith Evans: 1. Extend the time within which to appeal to 11 July 2024. 2. Grant leave to appeal against conviction. 3. Appeal allowed. 4. Quash the conviction for murder and order that there be a new trial. 5. Quash the aggregate sentence imposed by the Supreme Court on 22 July 2021. 6. List the matter before the arraignments judge at 10am on 14 February 2025. Catchwords: CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), ss 18, 23, 33 Criminal Appeal Act 1912 (NSW), ss 5, 6 Criminal Law Consolidation Act 1935 (SA), s 353 Evidence Act 1995 (NSW), s 97 Supreme Court (Criminal Appeal) Rules 2021, r 4.15 Cases Cited: Castle v The Queen (2016) 259 CLR 449; [2010] HCA 46 De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48 Douglass v The Queen [2012] HCA 34 El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 Murray v The Queen (2002) 211 CLR 193; [2002] HCA 26 Orreal v The Queen (2021) 274 CLR 630; [2021] HCA 44 R v Evans; Evans; XE (No 1) [2020] NSWSC 1698 TL v The King (2022) 275 CLR 83; [2022] HCA 35 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 XE v R [2023] NSWCCA 96 Category: Principal judgment Parties: John Paul Evans (Appellant in 2017/202629) Keith Evans (Appellant in 2017/202678) Crown (Respondent in each appeal) Representation: Counsel: J Stratton SC (John Paul Evans) A Francis with J Lang (Keith Evans) G Newton SC with T Abdulhak (Crown)