R v Evans (No 2) [2017] NSWSC 742

Supreme Court New South Wales

Medium Neutral Citation: R v Evans (No 2) [2017] NSWSC 742 Hearing dates: 11 May 2017 Decision date: 11 May 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: Evidence admissible Catchwords: CRIMINAL LAW – evidence – admissibility of evidence concerning accused's involvement with ice – s 137 Evidence Act – highly relevant evidence of motive – unfair prejudice can be averted with jury directions – evidence admissible Legislation Cited: Evidence Act 1995 (NSW) s 137 Category: Procedural and other rulings Parties: Regina Ryan David Evans Representation: Counsel: Mr C Maxwell QC (Crown) Mr R Webb (Accused)

Solicitors: Solicitor for Public Prosecutions Criminal Defence Group File Number(s): 2014/309094

Judgment 1. HIS HONOUR: This judgment deals with an issue as to whether evidence to the effect that the accused and his alleged co-offenders were involved in the use and sale of methamphetamine (" ice") is admissible. I rule that it is. 2. The accused is charged with a series of offences alleged to have been committed during two home invasions, one at Medway on 28 April 2014 and the other at Badgerys Creek on 30 May 2014. Both concerned domestic premises that were broken and entered in the middle of the night. Occupants were assaulted and tied up; and whatever money and valuable property that was readily available was taken. One of the occupants was killed and two were very seriously injured. 3. The Crown alleges that the accused was present and committed the offences at each of the two locations whilst in company with two co-offenders at Medway and one at Badgerys Creek. These offenders will be referred to by pseudonyms. "Kurt Sinclair" was present at both locations whilst "Sam Franklin" was present only at Medway. 4. Both of the homes that were targeted were known to one of the offenders as a place where there was a good prospect of stealing cash and/or property of significant value. There is no dispute that the two home invasions were carried out in an extremely violent fashion. 5. The primary issue in the trial of the accused is whether the Crown is able to prove beyond reasonable doubt that he was present. Secondary issues will be whether the Crown is able to prove the various subjective aspects of the offence elements. 6. The issue is to be determined with reference to s 137 of the Evidence Act 1995 (NSW). That provision requires evidence to be excluded if its probative value is outweighed by the danger of unfair prejudice to the accused. 7. The Crown submitted that evidence that the accused, and his two alleged co-offenders, were all involved in regular use of ice is relevant in a number of ways. It contends that it explains the relationship between the accused, Sinclair and Franklin. It says that the evidence establishes a powerful motive for the accused (and the other two men) to commit such extreme and desperate crimes. It says that without this evidence it will seem to the jury that the offences were committed "out of the blue". 8. Counsel for the accused submitted that the evidence was either not relevant or was only marginally relevant. It was said to be obvious from the nature and circumstances of each of the home invasions that they were committed by persons in desperate need for money. It was submitted that the reason why there was a need for money was not relevant. 9. Counsel for the accused also submitted that there was a danger that the jury would misuse the evidence by reasoning that ice users and suppliers were people of bad character who were more likely to commit the types of crimes alleged in this trial. It was also submitted that the danger of misuse was exacerbated by the need for the jury to be given directions about tendency evidence in accordance with a pre-trial ruling. 10. At the conclusion of argument on 11 May 2017 I ruled that the evidence was admissible. 11. Kurt Sinclair's evidence is to the effect that he was a heavy user of ice; he was using 2 grams (worth $500) per day. Sam Franklin was a regular user of the drug but did not use as heavily as Sinclair. The accused's use of the drug seems to have been similar to one or the other of those men. 12. It would be open to the jury to conclude that a regular user of a drug such as ice would inevitably be desperate for money, unless there were unusual circumstances such as the person being in a stable well-paid job or being otherwise independently wealthy. There is no suggestion that anything like that pertains to the accused. 13. I accept therefore that the evidence is capable of establishing a motive for the accused to involve himself in a joint enterprise having the ultimate goal of obtaining a significant sum of money quickly. Contrary to the submission for the accused, the reason why there was a need for money is highly relevant; absent this evidence the jury would have no idea that the accused was a person who was desperate for money. They could think it inexplicable that a person without a motive to obtain money quickly, and in such an extreme way, would conduct himself in the manner the Crown alleges. 14. I accept that there is a danger of unfair prejudice of the type counsel for the accused identified. However, I am comfortable that it is a danger than can be adequately averted by appropriate directions to the jury. In fact, contrary to the submission about the need for a tendency direction exacerbating the problem, it will in fact provide a suitable way to explain to the jury the different paths of legitimate and illegitimate reasoning available to them. 15. It is for these reasons that on 11 May 2017 I ruled that evidence concerning the accused's involvement with the drug methamphetamine, or "ice", was admissible.