R v Evans (No 1) [2017] NSWSC 741 (4 May 2017)

Last Updated: 8 June 2017

Supreme Court New South Wales

Case Name:	R v Evans (No 1)
Medium Neutral Citation:	[2017] NSWSC 741
Hearing Date(s):	10 April 2017
Decision Date:	4 May 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Tendency and coincidence evidence admissible
Catchwords:	CRIMINAL LAW – evidence – tendency evidence pursuant to Evidence Act 1995, s 97 – coincidence evidence pursuant to Evidence Act 1995, s 98 – allegation of two home invasions committed a month apart – charges of murder, specially aggravated break, enter and steal – aggravated detain for advantage – substantial similarities between two incidents – principal fact in issue whether accused present at both – no concession that joint criminal enterprises proved nor mental elements of offences established – evidence capable of having significant probative value on both bases – risk of unfair prejudice outweighed – evidence admissible on both bases
Legislation Cited:	Criminal Procedure Act 1986 (NSW) s 143 Evidence Act 1995 (NSW) ss 55, 97, 101(2)
Cases Cited:	Aravena v R [2015] NSWCCA 288 Elomar v R; Hasan v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 Hughes v R [2015] NSWCCA 330 R v Matonwal & Amood [2016] NSWCCA 174 Saoud v R [2014] NSWCCA 136; 87 NSWLR 481
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: The accused, Ryan Evans, has pleaded not guilty to all seven counts in the indictment.
2. Counts 1 to 3 (“the Badgerys Creek charges”) allege the murder of Mr Keith Cini; the wounding of Ms Luciana Boldi with intent to murder her; and breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally wounding Ms Boldi. Each of these offences is alleged to have occurred at Badgerys Creek on 30 May 2014.
3. Counts 4 to 7 (“the Medway charges”) allege breaking, entering and stealing in circumstances of special aggravation, namely being in company and intentionally inflicting grievous bodily harm to Mr Brett Delamont; detaining Ms Alana Bush and Ms Kirby Delamont without their consent with intent to obtain a financial advantage while in company; and detaining Mr Jack Lisle without his consent with intent to obtain a financial advantage while in company and occasioning actual bodily harm to him. Each of these offences is alleged to have occurred at Medway on 28 April 2014.
4. Mr Evans was initially indicted jointly with [redacted]. Mr [redacted] had previously pleaded not guilty to the Badgerys Creek charges but guilty to the Medway charges. On Monday 18 April 2017 when the trial was due to commence, he pleaded guilty to murder and to specially aggravated break, enter and steal in relation to Badgerys Creek.
5. Both groups of charges concern what the Crown characterises as "home invasions". The Crown case, very broadly, is that Messrs Evans and [redacted] were involved in breaking into homes in the early hours of the morning, the theft of property, and the restraint and infliction of serious violence upon occupants.
6. The Crown has given notice that it intends to rely upon the evidence relating to the Medway charges as tendency evidence pursuant to the Evidence Act 1995 (NSW), s 97, in proof of the Badgerys Creek charges and vice versa. It has also given notice that it intends to rely upon the evidence in relation to both sets of charges as coincidence evidence pursuant to s 98.
7. Prior to the entry of pleas of guilty by Mr [redacted] on 18 April, both accused objected to the admissibility and use of the evidence for these purposes. If successful with such objections, the accused Evans sought severance of the Medway charges from the trial for the Badgerys Creek charges.
8. I heard argument on these objections on Monday 10 April. The empanelment of the jury had previously been stood over to Tuesday 18 April. On Wednesday 12 April my associate, at my request, communicated to the parties my proposed rulings that the evidence was admissible, both as to tendency and coincidence.
9. Following Mr [redacted] pleas on 18 April the trial of Mr Evans was deferred until Monday 1 May.
10. The following are my reasons for concluding that the evidence as to both tendency and coincidence is admissible in the trial of Mr Evans.

Crown case - Medway home invasion on Monday 28 April 2014

11. A significant witness in the Crown case is the subject of a non-publication order because he is an admitted offender in relation to the Medway charges who has agreed to give evidence for the prosecution. I will refer to him in this judgment by the pseudonym "Sam Franklin".
12. A home invasion style robbery occurred at a rural property on Medway Road, Medway (near Berrima) at about 1.00 am on Monday 28 April 2014. The property comprises some 30 acres and is surrounded by similar acreage homesteads. Bedrooms at each end of the substantial home were occupied respectively by Mr Brett Delamont and his partner Ms Alana Bush, and their daughter Ms Kirby Delamont and her boyfriend Mr Jack Lisle.
13. Mr [redacted] was in a relationship with Ms Kirby Delamont from 2009 to 2011. As a result he was aware of the layout of the residence and the family's financial position.
14. Evans, [redacted] and Sam Franklin were on the mid-north coast over the weekend of 26-27 April 2014. They left late in the afternoon of the Sunday and travelled to Mr Evans' home at Elderslie (near Camden). From there they drove to the home of the victims at Medway, arriving at about 1.00am on Monday 28 April. They were equipped with torches, duct tape, and rope. They had gloves, sunglasses, hooded jumpers and material to cover their faces.^[1]
15. The men entered via an unlocked laundry door. Evans and Franklin went to the bedroom of Mr Delamont and Ms Bush. Mr Evans was armed with what Mr Franklin described as a wooden pick handle.^[2] He immediately went to Mr Delamont and struck him to the head, wounding him and rendering him unconscious. Ms Bush screamed as loudly as she could in an effort to warn the others at the far end of the house.^[3] Evans and Franklin proceeded to bind the victims' hands with duct tape from a roll they each had.^[4]
16. Ms Bush screamed again but was told by Evans to be quiet or else he would strike Mr Delamont again. As he said this he struck Mr Delamont to the upper torso with the pick handle. He then demanded cash. Suggestive of some prior knowledge, he also asked, "Where is your gun?" Cash and other items, including a .22 magnum rifle, were stolen from the premises.^[5]
17. Mr Evans demanded to be told who else was in the house. Ms Bush told him and he left the bedroom but Mr Franklin stayed with her.^[6] Mr Delamont remained unconscious and was bleeding from a wound to his head.^[7]
18. Meanwhile, Mr Lisle had woken to the sound of Ms Bush's screams from the other end of the house. He woke Ms Delamont. As Mr Lisle was about to make a phone call, two men entered the bedroom, one of whom was described as being armed with a "pole". On the Crown case, the men were Evans and [redacted]. Mr Lisle lay over Ms Delamont, under the bed clothes but the armed male struck the bed a number of times with the weapon and hit Mr Lisle to the upper torso. Demands were made for "your fucking phones and wallets".^[8]
19. Mr Lisle and Ms Delamont were commanded to sit up in the bed. Their hands and feet were bound with duct tape from a roll that each offender had. Pillowcases were placed over their heads. The victims' mobile phones were taken. One of the men left and, about a minute later, the other left. ^[9]
20. [Redacted] joined Franklin in the bedroom occupied by Ms Bush and Mr Delamont. Mr Franklin bound Ms Bush's ankles with duct tape. Mr [redacted] taped Mr Delamont's ankles using a different roll of duct tape. He also used a piece of rope to tie his hands. Mr Delamont was shaking and convulsing at this point. [Redacted] placed a pillow case over Mr Delamont's head and Franklin did likewise to Ms Bush.^[10]
21. The three men then left.^[11]
22. Mr Delamont was found to have sustained a wound to the back of his head that required suturing, bruising to the left temporal region and a fractured skull and bruising to the brain. Expert medical opinion is that he sustained a moderate to severe traumatic brain injury with long term, if not permanent, psychological and cognitive/memory impairment. In relation to Count 4 in the indictment, the Crown contends that these injuries amounted to grievous bodily harm.^[12]
23. Mr Lisle sustained a red welt mark on his torso.^[13]

Evidence inculpating the accused Evans in the Medway offences

24. The evidence that tends to inculpate the accused Evans in the Medway offences includes the following:

a) Sam Franklin has undertaken to give evidence directly inculpating Evans.^[14]

b) A DNA profile consistent with Evans' was recovered from the handle of a shopping bag, and a piece of rope within that shopping bag. The bag was stolen from the kitchen of the Medway property and discarded about 500m away in Medway Road.^[15] The piece of rope appeared to be the same as rope found in the master bedroom.^[16]

c) Telephone records show that the accused Evans, along with the Messrs [redacted] and Franklin travelled from the mid-north coast to Elderslie where Mr Evans lived. Subsequently, telephone records indicate that Mr Evans (and Mr [redacted]) proceeded north, away from Medway, shortly after the home invasion.^[17]

d) According to Ms Jacinta Delander, Mr Evans was later in possession of a rifle similar to the one stolen at Medway. In intercepted telephone communications he discussed needing to dispose of a .22 firearm.^[18]

Crown case – Badgerys Creek home invasion on Sunday 30 May 2014

25. Mr Keith Cini ("the deceased") lived with his partner, Ms Luciana Boldi, in a house on a relatively small farm in Elizabeth Drive, Badgerys Creek. The deceased and Ms Boldi occupied separate bedrooms.
26. The deceased owned and operated from this property a business purchasing and selling pigs to restaurants in the Sydney metropolitan area. Deliveries were made every Wednesday and Thursday and payments were received predominantly by way of cash. The deceased had a practice of keeping the cash in a safe in a locked room in his home until it was deposited at the bank every Friday. The amounts varied from $5,000 to $60,000.^[19]
27. Sometime after 3.00am on Friday 30 May 2014, Messrs Evans and [redacted] attended the home of the deceased. They were wearing gloves and face coverings and one of them was armed with a wooden weapon. They gained entry by smashing a front window. Mr [redacted] cut his finger causing it to bleed. ^[20]
28. One or both of the intruders came into contact with the deceased in his bedroom. The deceased’s blood was later found in the bedroom, the lounge room, the kitchen and the hallway. The Crown says this is indicative of him being required to assist the intruders to locate money within the premises. He was bound by the ankles and wrists with duct tape at some stage. The Crown case is that he was violently assaulted in the hallway where his body was ultimately found with no signs of life. The cause of death was blunt force head injury. Abrasions, contusions and lacerations were observed on his head and neck with underlying skull fractures. Similar types of injury were observed elsewhere on his body.^[21]
29. Ms Boldi was alerted to the incident when she heard from her bedroom the deceased calling out to her. She opened the door and saw him with at least two people near him. A man wearing all black clothing and with his face covered approached her and struck her to the head with an object she thought was a baseball bat. (She later told a triple 0 operator and attending police officers that it was a cricket bat.) She fell to the ground and was struck to the head a further two or three times. She pleaded with the male to stop but he kept hitting her. She pretended to be dead by remaining still and the man left the room.^[22]
30. Ms Boldi heard crashing noises, glass breaking and drawers being opened and closed. She heard one of them call out, "It's here, it's here" and/or "Here it is", suggestive of the intruders looking for something they anticipated would be there. A number of items were stolen from the home, although the offenders were unable to access the safe.^[23]
31. Ms Boldi sustained multiple lacerations, fractures, abrasions and bruising consistent with “multiple episodes of blunt trauma to face/head, neck, shoulders, trunk, and upper and lower limbs”. Surgery was required for fractures to her left hand. Expert medical opinion is to the effect that she will experience permanent loss of function, strength and range of motion in her left hand.^[24]

Evidence inculpating the accused Evans in Badgerys Creek offences

32. The evidence that tends to inculpate the accused Evans in the Badgerys Creek offences, including evidence inculpating Mr [redacted] which indirectly inculpates Mr Evans (for example, because there is evidence of them being in company in the hours preceding the event) includes the following:

a) Evans was aware of the mode of operation of the deceased’s business through his previous employment as well as his association with others who worked for him. I take this to mean that his knowledge included that the deceased would have large sums of cash in the house on a Thursday night- Friday morning.^[25]

b) About 14 hours before the event there was an exchange of text messages between the accused. They included [redacted] saying, "should have a car for tomorrow". Evans replied, "Lets do it tonight?"^[26]

c) Evans and [redacted] were together on the night on 29 May 2014. They travelled in a taxi from Evans' home in Elderslie to [redacted’s] home in Rossmore and were captured on the taxi's CCTV system. [Redacted] was carrying a large bag that appeared to be full and made a noise when it was placed in the taxi, consistent with solid objects being within it.^[27]

d) There was an exchange of text messages between Evans and Brittany Bradshaw from 11.47pm on 29 May to 12.29am on 30 May 2014 which were consistent with him borrowing a car from her.^[28]

e) At one stage while she was lying on the bedroom floor, Ms Boldi thought she heard a man say, “That’s enough, Brian”. The Crown contends that she misheard “Ryan” (i.e. Evans) as “Brian”.^[29]

f) There was no activity on Evans' mobile phone from 12.59am and 6.06am on 30 May 2014.^[30] Similarly, there was no activity on [redacted’s] mobile phone from 12.49am until 7.45am that day.^[31]

g) DNA consistent with the profile of [redacted], in whose company Evans had been in the hours preceding the home invasion, was found in blood recovered from various locations at the crime scene.^[32]

h) Adidas shoe prints in blood were found in the hallway at the crime scene. When [redacted] was in Evans' company earlier that night (at 10.23pm) he was captured on CCTV wearing Adidas brand shoes.^[33]

i) Between 5.30am and 5.57am on 30 May 2014 Mr Evans used the mobile phone stolen from Ms Boldi.^[34]

j) At 6.06am on 30 May 2014, Evans sent a text message to Brittany Bradshaw, "You still up at all need a faver". At his request in a subsequent telephone conversation, she picked him up at [redacted’s] home at Rossmore and drove him to his home at Elderslie. Mr Evans made admissions to Ms Bradshaw as to his involvement in the Badgerys Creek offences (e.g. there was mention of the use of a bat and someone being "bashed really bad"). Evans also said something about hoping that "the blood comes off" or "he tried his hardest to get all the blood off".^[35]

k) Mr Evans gave Ms Bradshaw a pink camera and some change in return for driving him home. She also saw that he had a video camera and an iPhone in his possession. Such items were stolen from Badgerys Creek.^[36]

l) At 11.54am on 30 May 2014, Evans sent a text message to [redacted], "Hey bro your clothes are in the".^[37]

m) About a week later, Sam Franklin saw that Mr [redacted] had an injury to his finger and was told that it was sustained at Badgerys Creek. There was conversation about Evans having hit someone; [redacted] said it was with "a bat or something". Evans and [redacted] spoke with Franklin about the events at Badgerys Creek at this time; some of the conversation occurred when they were together and some when they were alone.^[38]

n) Evans made admissions to Jacinta Delander, including "I killed someone", that were specific to Badgerys Creek (e.g. "the guy gets ten grand every week from selling pigs"). Further incriminating statements were made by Evans on three other occasions according to Ms Delander.^[39]

o) Ms Delander saw [redacted] and Evans in possession of a pick handle. She said "they would take it with them everywhere most times" and "they kind of treated it like a trophy and were protective of it".^[40]

p) Evans made admissions to Sam Franklin (e.g. "looks like I am going down for murder" in relation to "Badgerys Creek, the one that was all over the news"). He also gave two cameras stolen from Badgerys Creek to Franklin.^[41]

q) Evans made admissions to Mr Shaun Kenney with explicit reference to the events at Badgerys Creek (e.g. they gained entry to the house by smashing a front window and [redacted] cut his hand; "he went after Keith"; "he hit him a few times with [a bat] and he went down"; and “[[redacted]] went to look after Lucy"). On another occasion he told Mr Kenney as they drove past the Badgerys Creek address, "Yeah stuck into the old cunt".^[42]

r) In an intercepted telephone conversation between Evans and [redacted] on 8 August 2014, Evans spoke of having a rifle and, with reference to Jacinta Delander, he said "she better not (go to the cops) she knows too much". ^[43]

s) In an intercepted telephone conversation between Evans and an unknown male on 12 August 2014, Evans mentioned having a rifle. With reference to [redacted], Evans said "we've done jobs together and that's what I said to him the other day. I go, 'mate, I know shit about you and you know shit about me that can put people away for a long long time'".^[44]

t) In an intercepted telephone conversation between Evans and another male on 16 August 2014, with reference to Jacinta Delander, Evans said "She knows things that could put me away for a lot longer than that". ^[45]

Facts in issue

33. In pre-trial disclosure pursuant to s 143 of the Criminal Procedure Act 1986 (NSW), and consistently with what was put in submissions on 10 April 2017,^[46] the defence case in respect of both the Medway and Badgerys Creek charges is that Evans was not present at either scene. It is said that much of the evidence in the Crown case will not be contested. The identities of the offenders at both crime scenes will be contested, as will the reliability of the various admissions said to have been made by Evans according to the Crown Case Statement.
34. It has been said by counsel on behalf of the accused that "the issue of presence will be pressed as determinative of the question of liability within the joint criminal enterprises alleged comprising the Medway and Badgerys Creek events".^[47] I take this to mean simply that raising a reasonable doubt as to Mr Evans' presence will necessarily determine in his favour the question of his liability. I do not understand it to mean that it will be positively conceded before the jury that the Crown case establishes the participation of the offenders (whoever they may have been) at each location in the joint criminal enterprise (straightforward or extended) alleged by the Crown, or that the evidence establishes the necessary mental element for the various offences. In these circumstances, it must be assumed that the Crown will be put to proof of those aspects.

Tendency evidence

35. The Crown has given notice of its intention to adduce evidence of a tendency that Mr Evans "acted in a particular way and had a particular state of mind in the commission of the offences at Medway, which will be used to establish that he acted in a particular way with that particular state of mind at Badgerys Creek".^[48] It also intends to rely upon the evidence in the same way to establish the reverse; that is, that Mr Evans "acted in a particular way and had a particular state of mind in the commission of the offences at Badgerys Creek to establish that he acted in that particular way and with that particular state of mind at Medway".^[49]
36. The Crown characterises the "acting in a particular way" in this way:

"He took part in a home invasion carried out in a particular way with the particular features listed from 'a' to 'i'." ^[50]

37. The Crown characterises the "particular state of mind" in this way:

"He involved himself in a joint criminal enterprise home invasion at Medway, which armed him with knowledge of how he and the other participant would, and did behave in the offences committed at Badgerys Creek." ^[51]

38. The notice particularises the features of the asserted joint criminal enterprise as follows:

a) The offenders broke and entered rural properties in the early hours of the morning.

b) One of the co-offenders had background knowledge of the occupants.

c) One of the co-offenders was familiar with the internal layout of the property.

d) The offenders were dressed to conceal their identities and avoid detection by the use of face coverings and gloves.

e) One of the offenders used a pole like weapon on both occasions to inflict extreme and sudden violence on the victims. (Counts 1, 2 and 4)

f) The offenders entered the premises on both occasions knowing that the people were inside. (Counts 3 and 4)

g) Money and electrical items were stolen from both houses after the occupants had been injured and detained.

h) The victims were detained by binding their wrists with grey duct tape. (Counts 1, 5, 6, 7)

i) The offenders went through various rooms in the houses.

39. The notice includes that the "Tendency evidence sought to be adduced bears upon the facts in issue in this prosecution, including the following facts in issue: that he was part of a joint criminal enterprise with [redacted] to invade two homes at Badgerys Creek and Medway and commit the acts as detailed in counts 1 to 7 of the indictment".^[52]

Submissions for the Crown in relation to tendency

40. In written submissions it was said that the Crown relies upon the tendencies listed in the tendency notice to establish an inference that the accused acted in those particular ways at Medway and Badgerys Creek and so the evidence is cross admissible in relation to both sets of offences.^[53]
41. It was submitted that the evidence was relevant to a fact in issue (that the accused acted in those particular ways when present at both the Medway and Badgerys Creek premises) and was significant or important in establishing this.
42. The Crown submitted that the acts relied upon as tendency are particularly distinctive and the probative value in proof of the counts in issue is highly significant. It was acknowledged that the offences at Badgerys Creek include a murder which is different to the offences at Medway. It was submitted, however, that the important fact is that the killing occurred during and as a result of the acts which are distinctively similar in all of the ways listed in the tendency notices.^[54]
43. It was submitted that the evidence established a "pattern of behaviour, modus operandi, system or pattern" in the conduct of both accused: Hughes v R [2015] NSWCCA 330 at [175]- [176].^[55]
44. In relation to any "unfair prejudice" (s 101), it was submitted that to the extent that there is it can be adequately dealt with by way of directions: Hughes v R at [192]-[193].^[56]

Submissions for the accused in relation to tendency

45. Counsel for the accused Evans relied upon written submissions prepared by another counsel (Mr D Roff) in his absence last November. They contain a helpful reminder of the various principles and authorities relating to the admissibility of tendency evidence pursuant to s 97 of the Evidence Act. However, the only submission made is that the differences between the two groups of offences were such that the evidence did not establish an identifiable tendency such as would support a finding that there was significant probative value for the purposes of s 97(1)(b). It was submitted in the alternative that unfair prejudice substantially outweighed any probative value for the purposes of s 101(2). (I note that the reverse is the statutory requirement; s 101(2) requires that the probative value substantially outweighs any prejudicial effect before the evidence may be admitted.) The “unfair prejudice” identified was “the likelihood the jury would misuse the evidence, which could not be cured by any directions”. ^[57] The submission was not further developed or explained.
46. Differences between the two groups of offences were summarised as follows:^[58]

“The two [groups of] offences occur approximately one month apart; the means of getting to and from each scene is inconsistent; the manner of entry to each scene is different; the weapon and other items involved in the two matters are not the same and generic; the description of clothing worn is common; and there are at most two (civilian) witnesses common to both offences (being [Sam Franklin] and Jacinta Delander).”

47. Counsel for Mr Evans did not make any oral submissions other than to say that he also relied upon the written submissions on behalf of his client’s former co-accused, Mr [redacted].^[59] No attempt was made to translate those submissions in a fashion that would apply them to Mr Evans. I have tried to do so but they are too specific to the case that concerned Mr [redacted] in relation to which the issues were quite different; he had pleaded guilty to the Medway charges and admitted his presence at Badgerys Creek.

Determination – tendency evidence

48. The Court of Criminal Appeal in Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R [2014] NSWCCA 303 at [359] described tendency evidence as follows:

"Tendency evidence is evidence that provides the foundation for an inference. The inference is that, because the person had the relevant tendency, it is more likely that he or she acted in the way asserted by the tendering party, or had the state of mind asserted by the tendering party on an occasion the subject of the proceedings. Tendency evidence is a stepping stone. It is indirect evidence. It allows for a form of syllogistic reasoning."

49. The Court identified (at [360]) the process of reasoning involved as follows:

"The process of reasoning is:

● on an occasion or occasions other than an occasion in question in the proceedings, a person acted in a particular way;
● it can therefore be concluded or inferred that the person had a tendency to act in that way;
● by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person acted in conformity with that tendency.

Alternatively:

● on an occasion or occasions other than on an occasion in question in the proceedings, a person had a particular state of mind;
● it can therefore be concluded or inferred that the person had a tendency to have that state of mind;
● by reason of that tendency, it can therefore be concluded or inferred that, on an occasion in question in the proceedings, the person's state of mind conformed with that tendency.

Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion."

50. It was also said by the Court in that case (at [348]) that in considering the question whether such evidence is properly to be regarded as tendency evidence, it is necessary to identify with some precision what the tendering party is seeking to establish.
51. I do not take the first of the bullet points in the extract from Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R above to mean that the tendency must be derived from an occasion that is not in question in the proceedings. In this case, the tendency evidence is concerned with the occasions in question. This case has similarities with Saoud v R [2014] NSWCCA 136; 87 NSWLR 481 which was concerned with the admissibility of tendency (and coincidence) evidence arising (only) from alleged sexual assaults against two complainants which were both in question in the proceedings. (The trial judge's ruling that the evidence was admissible was held not to have been erroneous.)
52. In this case, to summarise what it is that I understand the Crown to contend, it is to establish that if the jury is satisfied of the involvement of the accused in one of the two events, it may then reason that he had a tendency to be a party to, and participant in, a joint criminal enterprise that had certain features. Those features, put briefly, were to break into a home in order to steal property while disguised and armed with an offensive implement and, in the course of doing so, to restrain and visit significant physical violence upon occupant(s).
53. The Crown did not explicitly say so but the reliance upon the asserted tendency to act in a particular way and/or with a particular state of mind must only arise if the jury are satisfied other than by means of tendency reasoning that the accused was present and participated in the manner alleged at one of the locations. Otherwise the jury could not be satisfied that any tendency had been established.
54. There was no submission for the accused, at least not in direct terms, that the tendency asserted by the Crown, if proved, would not be relevant: Evidence Act, s 55. I accept that it would be. It is capable of rationally affecting the probability of the existence of facts in issue, namely, the presence and participation of the accused with the relevant state of mind at Badgerys Creek if the jury are satisfied of his presence and participation in relation to Medway, or vice versa.
55. In assessing whether the evidence has significant probative value for the purposes of s 97(1)(b) (that is, it is of importance or consequence in proof of a matter in issue) it is appropriate to have regard to (a) particular features of the events at the two locations, and (b) the other evidence to be adduced by the Crown.
56. I have reviewed the other evidence to be adduced by the Crown earlier. The extent to which it will be disputed cannot be completely forecast; nor can it be predicted with any degree of confidence the extent to which the jury might accept it.
57. Mr Evans, disputes that he was present at both locations and says that much of the Crown evidence as to what occurred will not be disputed. However, it remains necessary for the Crown to persuade the jury to accept such evidence and that they should accept that the mental element of the crimes alleged have been established.
58. In these circumstances, I have concluded that the evidence does have significant probative value. In part, I have concluded that this is so based upon a consideration of the fairly unique combination of circumstances attending both the Medway and Badgerys Creek events. Those circumstances include the following:

● The targeted properties were both rural in nature as opposed to being homes in a closely settled urban environment with neighbours close by.

● One or the other of the accused had prior knowledge of the occupants of the properties. Inferentially (mostly) in the case of Medway and more directly in the case of Badgerys Creek, there was knowledge of the prospect of significant sums of money or other valuable property to steal.

● Entry was made to both properties in the early hours of the morning.

● Clothing was worn to conceal appearances; faces were covered and gloves were worn.

● A pick handle or like object was brought for use as an offensive weapon. In both cases it was used to deliver blows with substantial force, primarily directed to the heads of victims.

● The delivery of physical violence in both cases was almost immediate upon entry being gained.

● Duct tape was brought for use in restraining occupants and was in fact used, in both cases to restrain both hands and feet.

59. The fact that a tendency is sought to be established by a single event, even if remote in time, does not necessarily deprive it from having significant probative value: for example, Aravena v R [2015] NSWCCA 288; 91 NSWLR258 at [89]. In this case there is a single event but it is not at all remote in time. The combination of features concerning the conduct of the intruders, and what may be inferred as to their state of mind, does, however support a finding of significant probative value. When examined individually the features might be thought to lack the quality of significance but it is quite the contrary when they are viewed collectively. The differences between the two events identified in the written submissions for the accused^[60] are not sufficient to detract from this finding.
60. The usual directions as to the permissible and impermissible uses of tendency evidence should provide a sufficient safeguard against impermissible use of the evidence. But to the extent that there might be unfair prejudice, I am satisfied that it is substantially outweighed by the probative value: Evidence Act, s 101(2).
61. In short, the tendency evidence is admissible.

Crown submissions in relation to coincidence

62. The Crown submitted that the evidence concerning events at Medway and Badgerys Creek is mutually admissible to establish the identity of the persons who committed the offences. It would be open to the jury to reason that due to the substantial similarities of both sets of events they could conclude that both did not occur coincidentally (i.e. committed by different people), but were committed by the accused Evans and Mr [redacted] (albeit the latter is no longer essential for the Crown to prove).^[61]
63. It was submitted that the acts listed in the notices ((a) to (i) – see above) were distinctive, unusual and very similar, and thereby satisfied the requirements of s 98.^[62]
64. In further written submissions the Crown contended that the similarities of behaviour by both accused rendered it improbable that, for example, they acted differently at Badgerys Creek to the manner of their behaviour at Medway or that they were parties to some different agreement.^[63]
65. The Crown acknowledged that there were some dissimilarities between the two events. However, they were few and did not undercut the improbability of coincidence.^[64]

Submissions for the accused in relation to coincidence

66. In the written submissions I have referred to earlier counsel for the accused Evans made essentially the same submission in relation to coincidence evidence as was made in respect of tendency evidence. It was submitted that there was no similarity between the two events to a sufficient degree to support a finding of significant probative value. It was also submitted that the unfair prejudice (by the likelihood of the jury misusing the evidence) which could not be cured by directions, outweighed any probative value.^[65] Again, these submissions were not further explained or developed aside from the brief summary of some differences between the two groups of offences.^[66]
67. Counsel’s reliance upon the written submissions that were made by counsel for Mr [redacted] does not advance the case for his client any further.

Determination – coincidence evidence

68. As to the submissions concerned with asserted dissimilarities between the events at Medway and those at Badgerys Creek, it is useful to note that in Selby v R [2017] NSWCCA 40, Leeming JA, Schmidt and Wilson JJ stated:

"[24] The questions posed by ss 98 and 101 ultimately turn on a mode of reasoning based on the improbability that something was a coincidence. That mode of reasoning is not displaced by the fact that the two (or more) events bear some dissimilarities. Two (or more) events will always be dissimilar in some respects. The question is whether the dissimilarities undercut the improbability of something being a coincidence.
[25] This point was made in El-Haddad v The Queen (2015) 88 NSWLR 93; [2015] NSWCCA 10 at [74], in a passage which concluded “[t]he question is whether the similarity is explicable by coincidence, not whether there are other points of difference.” The same point was made in Page v The Queen [2015] VSCA 357 at [59]:

'[O]nce the identified similarities can be said to raise the improbability of coincidence — and hence give the evidence its probative value — the existence of dissimilarities will not diminish that probative value. For it is the similarities on which coincidence reasoning rests. If the nature and/or extent of the similarities is such that coincidence is improbable as an explanation, the existence of dissimilarities cannot alter that position.'

[26] The question instead is whether the dissimilarities are relevant in that they detract from the strength of the inferential mode of reasoning permitted by s 98. In El-Haddad the reasons continued:

'True it is that relevant dissimilarities may dilute the probative value of the evidence: see for example the quite different tendency evidence considered in Sokolowskyj v R [2014] NSWCCA 55 at [41], where the ‘marked dissimilarity’ was summarised as follows:

‘On the Crown case, key elements of the offence were a prepubescent victim and no public exhibition. The appellant is said to have latched the door to the change room (inferentially to achieve privacy) and then to have assaulted the complainant. The actions on which the tendency evidence was based had as their hallmark a public display with no prepubescent element in the victim. There was no active assault, rather the appellant’s actions were “passive”. Far from seeking to conceal his actions, the gist or thrill of the offences was the fact that they could be seen and were intended to be seen.’’'

69. Further, it is important to look at the combined effect of the evidence rather than to give separate consideration to each particular circumstance relied upon: R v Matonwal & Amood [2016] NSWCCA 174 at [73] (Bathurst CJ, Rothman and McCallum JJ agreeing).
70. Notwithstanding the fact that some of the individual circumstances (e.g. the wearing of items to conceal appearance) might not be distinctive or unusual when considered in isolation, or that there might be some circumstances which are dissimilar (e.g. the manner of entry in the premises), this does not detract from the strength of the inferential mode of reasoning that is available from the combined effect of all of the circumstances of events.
71. If the jury were to accept that the similarities in the events and the circumstances in which they occurred cannot be accounted for by way of coincidence, the evidence is capable of being regarded as having significant probative value in establishing the participation of the accused in both events with the requisite mental state.
72. If the jury were satisfied from the evidence directly relevant to one of the two events that the accused was present and physically involved, at least in a broad sense, it would be open to the jury to infer that the accused was present at the other. In this way, the evidence would be of importance, or of consequence, because he disputes being present at both events. (I note also that there is no concession that the same persons committed both groups of offences.)
73. The Crown contends through the evidence of Sam Franklin that it was Mr Evans who was directly responsible for the infliction of the most serious harm at Medway. It must be anticipated that Mr Franklin’s credibility will be challenged. Further, the Crown relies upon admissions made by Mr Evans to contend that he was also directly responsible for the killing of the deceased at Badgerys Creek but that evidence will also be contested. The Crown case is that whoever was responsible, each of the intruders is liable under joint criminal enterprise principles.
74. If the jury were satisfied from the evidence directly relevant to one of the two events that the accused was a participant in a joint criminal enterprise that included the object of inflicting serious violence upon an occupant, or there was foresight by the accused that, in the course of participating in an enterprise of a lesser dimension, serious violence might be intentionally inflicted, this would also be of importance, or of consequence. The accused Evans claims he was not present, but if the jury conclude otherwise this remains a matter for the Crown to prove.
75. For the same reasons I have given in relation to tendency, I am of the view that any risk of unfair prejudice is substantially outweighed by the probative value of the evidence.

Admissibility of the Medway evidence on a non-tendency/coincidence reasoning

76. The Crown also submitted that the evidence concerning Medway could be adduced otherwise than for a purpose referred to in s 97(1) or s 98(1). Thereby it would not be within the definition in the Dictionary to the Evidence Act as either tendency evidence or coincidence evidence. ^[67]
77. This mode of admissibility was alluded to in the tendency notices when reference was made to the assertion of "acting with a particular state of mind": "he involved himself in a joint criminal enterprise home invasion at Medway, which armed him with knowledge of ...". This is not tendency reasoning but an inference available to be drawn as to the accused's state of knowledge derived from a prior experience.
78. The evidence of Medway could be adduced to establish that the accused had knowledge as to what had transpired there which would be the state of his knowledge at the time of Badgerys Creek. It was submitted, by way of example, that a jury could use the fact of his involvement at Medway to establish that he actually knew what would occur, or at least foresaw the possibility of what might occur, at Badgerys Creek in terms of the restraint of occupants and the infliction of serious harm. In other words, this is not about conformity with how the accused acted in the past. Rather, it is circumstantial proof of the state of mind of the accused when the Badgerys Creek home invasion was planned and carried out.

Summary of conclusions

79. The evidence of the events at Medway and at Badgerys Creek is admissible as tendency evidence and as coincidence evidence in the manner outlined in these reasons.
80. Such evidence is also admissible as being relevant, but not as either tendency or coincidence evidence.
81. The application for severance of the Medway counts (4 to 7) from the Badgerys Creek counts (1 to 3) is refused.

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^[1] Crown Case Statement ("CCS") at [7]
^[2] ERISP 20.10.14 at Q 202
^[3] CCS [11]
^[4] CCS [15]
^[5] CCS [17]-[24]
^[6] CCS [25]-[26]
^[7] CCS [14], [28]
^[8] CCS [30]
^[9] CCS [31]-[34]
^[10] CCS [36]-[38]
^[11] CCS [39]
^[12] CCS [44]—[50]
^[13] CCS [51]
^[14] Exhibit D tabs 13-16
^[15] CCS [55]
^[16] Exhibit B p 15.1
^[17] CCS [58]
^[18] CCS [22], [61]-[62]
^[19] CCS [65]-[66]
^[20] CCS [69]
^[21] CCS [69], [71], [81]-[82], [85]-[92]
^[22] CCS [70], [76], [84]. Exh D tab 29A (statement Luciana Boldi 24.3.17)
^[23] CCS [72], [74]
^[24] CCS [94]-[97]
^[25] CCS [66]
^[26] CCS [124]-[125]
^[27] CCS [136], [140]
^[28] CCS [126]-[128]
^[29] CCS [72]. Exh D tab 29A (statement of Ms Boldi 24.3.17 at [6])
^[30] CCS [131]
^[31] CCS [132]
^[32] CCS [99]-[100], [104], [106], [108]-[109], [113]-[114]
^[33] CCS [112]
^[34] CCS [120]-[121]
^[35] CCS [155]-[157]
^[36] CCS [158]
^[37] CCS [134]
^[38] Exh D tab 13 (police interview of Sam Franklin 20.10.14 at Q611-612; Q632-703; 726-731) but see tab 16 (statement of Sam Franklin 23.12.15 at [15])
^[39] CCS [139]-[146]
^[40] Exh D tab 34 (statement of Jacinta Delander 20.10.14 at [32])
^[41] CCS [151]-[153]
^[42] CCS [163]-[166]
^[43] CCS [169]
^[44] CCS [170]
^[45] Exh D tab 33 (extract/summary of telephone intercept 16.8.14 at 6.36am)
^[46] 10.4.17 at T8.9-8.14
^[47] Email from Mr Webb to my Associate (cc to all other parties) 10 April 2017
^[48] First para of [2] in the Evans tendency notice (“the tendency notice”)
^[49] Last para of [2] in the tendency notice
^[50] The features listed "a" to "i" in [2](2) of the tendency notice are quoted below.
^[51] Tendency notice [2](2)
^[52] Tendency notice [6]
^[53] Crown written submissions (“CWS”) 16.11.16 at [5]
^[54] CWS 16.11.16 at [15]
^[55] CWS 7.4.17 at [20]
^[56] CWS 16.11.16 at [17]
^[57] Written submissions for Evans (“EWS”) [24]-[25]
^[58] EWS [13]
^[59] 10.4.17 at T17.7
^[60] EWS [13]
^[61] CWS 16.11.16 at [20]
^[62] CWS 16.11.16 at [26]
^[63] CWS 7.4.17 at [23]
^[64] CWS 7.4.17 at [24]
^[65] EWS [24]-[25]
^[66] EWS [13]
^[67] Evidence Act Dictionary Part 1 Definitions