Quinn v The King

[2023] NSWCCA 229

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Quinn v R [2023] NSWCCA 229

Hearing dates:

09 June 2023

Date of orders:

08 September 2023

Decision date:

08 September 2023

Before:

Bell CJ at [1];
Wilson J at [143];
Sweeney J at [154].

Decision:

1.   Grant an extension of time and leave to appeal.

2.   Appeal allowed.

3.   Quash the Applicant’s conviction for the offence of accessory after the fact to manslaughter.

4.   In lieu thereof, order that the Applicant be acquitted.

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where Applicant convicted of being an accessory after the fact to manslaughter by excessive self-defence – whether Crown excluded the reasonable possibility that the Applicant believed that her co-accused saw her being threatened with a gun on the street such that at the time she assisted him in evading arrest after the fact, she believed her co-accused’s conduct was a reasonable response to the circumstances as she believed he perceived them – where the co-accused and eyewitnesses did not see the deceased threaten the Applicant with a gun on the street – where gun found in close proximity to site where the deceased was struck with the samurai sword

CRIME – appeals – appeal against conviction – miscarriage of justice – consciousness of guilt reasoning – where Crown relied on post-offence conduct as part of a circumstantial case as to co-accused’s state of mind at the time of the sword strike rather than as an implied admission or independent evidence of guilt – where Applicant and co-accused fled the scene, disposed of various items from the co-accused’s house and concealed the bloodied samurai sword – where no objection raised or direction sought by Applicant’s trial counsel

Legislation Cited:

Crimes Act 1900 (NSW) ss 347, 350, 418-419, 421

Criminal Appeal Act 1912 (NSW) s 6(1)

Criminal Code Act 1899 (QLD)

Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:

AC v R [2023] NSWCCA 133

Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164

Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15

Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25

Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63

Gall v R; Gall v R [2015] NSWCCA 69

Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

R v Blake Davis [2021] NSWSC 235

R v Davis and Quinn (No 4) [2020] NSWSC 1800

R v Hannah Quinn (No 1) [2021] NSWSC 493

R v Hannah Quinn (No 2) [2021] NSWSC 494

R v Manuel [2015] NSWSC 1562

R v Stone [1981] VR 737

R v Tevendale [1955] VLR 95

R v Valencia Valencia [2023] NSWSC 163

Slattery v R [2023] NSWCCA 117

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Winning v The Queen [2003] WASCA 245

Texts Cited:

New South Wales Law Reform Commission, Complicity (Report No 129, December 2010)

Category:

Principal judgment

Parties:

Hannah Quinn (Applicant)
The Crown (Respondent)

Representation:

Counsel:
B Rigg SC with E McLaughlin (Applicant)
G Wright SC with J Styles (Respondent)

Solicitors:
MacDougall & Hydes Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s):

2018/00248991

Publication restriction:

Pursuant to an order made by N Adams J on 10 November 2020 under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the names of, or any information which would tend to reveal the identity or location of, those witnesses referred to as “Trevor Hill” or “Mr Hill” and “Frank O’Connor” or “Mr O’Connor”.

 Decision under appeal 

Court or tribunal:

NSW Supreme Court

Jurisdiction:

Criminal

Date of Decision:

22 December 2020

Before:

N Adams J

File Number(s):

2018/00248991

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 22 December 2020, a jury convicted the Applicant, Ms Hannah Quinn, of being an accessory after the fact to the unlawful killing of Mr Jett McKee (the deceased) pursuant to s 347 of the Crimes Act 1900 (NSW) (the Crimes Act). Her co-accused, Mr Blake Davis (Davis), was acquitted of murder but convicted of manslaughter by excessive self-defence pursuant to s 421 of the Crimes Act.

On 7 May 2021, the Applicant was sentenced to a two year community corrections order.

At trial, it was not in issue that on 10 August 2018, Davis caused the deceased’s death by way of a single blow to the head using a samurai sword. The incident occurred in the aftermath of a violent invasion of Davis’ home by the deceased. During the home invasion, the deceased was armed with a gun and knuckledusters. He threatened the Applicant and Davis with the gun and struck Davis with knuckledusters. The deceased then left the house, having taken the Applicant’s handbag. She pursued him down Hereford Street, caught up with him from behind about 160 metres down the road, and grappled with him causing him to fall over.

In an Electronic Record of Interview with Suspected Person (ERISP) conducted on 14 August 2018, the Applicant told police that the deceased had pointed his gun at her from his position on the ground immediately before Davis, who had followed the Applicant and the deceased down Hereford Street, arrived on the scene and struck the deceased with a ceremonial samurai sword which had been on display in his house and which he had picked up before running out onto Hereford Street.

Before attending Newtown Police Station on 13 August 2018, the Applicant and Davis fled the scene and stayed in various hotels. They also made a number of phone calls to and met with family and friends, including arriving at the home of Mr Craig Anthony Blake later on 10 August 2018. Mr Blake gave evidence at the trial that the Applicant had told him at this time that she had been threatened by the deceased with a gun on the street prior to Davis striking him with the sword.

The Applicant admitted to having committed several acts in the period between Davis striking the deceased on 10 August 2018 and attending Newtown Police Station on 13 August 2018. Those acts included booking hotels and transport for herself and Davis and providing Davis with a change of clothes. However, the Applicant did not accept that those acts were done in order to assist Davis in evading arrest. Rather, her evidence was that she had stayed with Davis in hotels because she was terrified of threats made by the deceased during the home invasion that persons associated with him would come after her. The verdict was inconsistent with this part of the Applicant’s account having been accepted by the jury.

Davis pleaded not guilty to murder by reason of self-defence on the basis that the Applicant was being threatened with a gun immediately prior to him striking the deceased such that his conduct was a reasonable response in the circumstances which was necessary to defend the Applicant.

It was the Crown’s case at trial that Davis had not acted in self-defence. It relied on Davis’ post-offence conduct as part of a circumstantial case as to Davis’ state of mind at the time of the sword strike. In particular, the post-offence conduct was said to rebut Davis’ contention at trial that he believed it was necessary to strike the deceased in defence of the Applicant. That post-offence conduct included that Davis had, with the Applicant, fled the scene, stolen a car cover in which the sword was wrapped before it was discarded and hidden various items from his home in an Uber Eats bag which were alleged to be associated with drug supply.

The Crown also relied on the evidence of several witnesses to the interaction between the deceased and the Applicant on the street prior to the deceased being struck by Davis who said they had not seen a gun in the deceased’s hand. The Applicant was the only witness to give evidence that the deceased had threatened her with the gun. Davis’ evidence at trial was that, at the time he struck the deceased with the sword, he could not say one way or the other whether the deceased had a gun. Reliance was also placed by the Crown on a lawfully intercepted telephone call between Davis and the Applicant after the events in question in which it was suggested that the Applicant made no reference to the fact that the deceased had threatened her with a gun.

A gun, knuckledusters and the balaclava the deceased wore during the home invasion were located in the immediate vicinity of where the deceased was struck by Davis.

The Applicant sought leave to appeal from her conviction on two grounds:

1. that a miscarriage of justice arose as a result of the Crown’s reliance on consciousness of guilt reasoning in its closing address (Ground 1); and

2. that the jury’s verdict was unreasonable (Ground 3).

The Court held that (Bell CJ and Sweeney J agreeing, Wilson J in dissent), granting leave to appeal and upholding the appeal on Ground 3:

As to Ground 1

1. Leave to appeal in respect of Ground 1 should be refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). The trial judge raised the issue of whether a consciousness of guilt direction would be required, and no direction was sought by the Applicant’s trial counsel: [74], [76].

2. There was no cogent reason to revisit the principles of Gall v R; Gall v R [2015] NSWCCA 69 in which a distinction was drawn between, on the one hand, post-offence conduct which is relied upon as an implied admission or as evidence of a consciousness of guilt and, on the other hand, post-offence conduct which forms part of all of the circumstances establishing a fact in issue, such as the accused’s state of mind at the time they performed a particular act: [72]-[74], [77].

Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164; R v Manuel [2015] NSWSC 1562; R v Valencia Valencia [2023] NSWSC 163, considered.

AC v R [2023] NSWCCA 133, applied.

As to Ground 3

By Bell CJ (Sweeney J agreeing):

3. In determining whether it was open to the jury to be satisfied beyond a reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged, the Court must conduct its own independent assessment of the evidence, proceeding upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable but then examining the record of the trial to see whether, notwithstanding that assessment, the jury ought to have entertained a reasonable doubt: [82]-[84].

M v The Queen (1994) 181 CLR 487, Coghlan v The Queen (2020) 267 CLR 654, Pell v The Queen (2020) 268 CLR 123, applied.

4. Setting aside a jury’s verdict as unreasonable should not be done without having regard to the advantage enjoyed by a jury over a court of appeal. The jury must be taken to have enjoyed an advantage in being able to assess the credibility and reliability of the evidence of witnesses which was given in person over several days and was subject to sometimes extensive cross-examination. However, the only form in which the Applicant’s account was given was by way of a transcript of her ERISP such that the jury enjoyed no greater advantage on the basis of having seen or heard that account: [85]-[86], [110].

R v Baden-Clay (2016) 258 CLR 308, Dansie v The Queen (2022) 96 ALJR 728, Slattery v R [2023] NSWCCA 117, applied.

5. In light of Davis’ evidence that he could not say whether or not he saw the deceased pointing a gun at the Applicant before striking him, it was open to the jury to be satisfied beyond a reasonable doubt that Davis’ conduct was not a reasonable response to the circumstances as he perceived them, which he believed was necessary in defence of the Applicant: [90].

6. The Crown had to exclude the reasonable possibility that the Applicant believed that Davis saw her being threatened with a gun on the street such that, at the time she performed the acts which were alleged to have assisted Davis after the fact, she believed that Davis’ conduct was a reasonable response to the circumstances as she must have believed he perceived them, namely that it was necessary to defend her whilst she was being threatened with a gun: [103]-[109].

R v Tevendale [1955] VLR 95, R v Stone [1981] VR 737, Winning v The Queen [2003] WASCA 245, considered.

7. The Applicant’s account in her ERISP was given strong support by Mr Blake’s unchallenged evidence that the Applicant told him, within hours of the event and prior to any suggestion that the Applicant would be charged with anything, that she was threatened by the deceased with a gun on Hereford Street: [112]-[115].

8. The most persuasive inference to be drawn was that the deceased, who had only minutes earlier threatened the Applicant and Davis with a gun inside Davis’ home and struck Davis with knuckledusters and who had a high level of methamphetamine in his system, threatened the Applicant with a gun on the street as he tried to escape: [119].

9. The words, “no, don’t” uttered by the Applicant prior to Davis striking the deceased with the sword were consistent with the deceased threatening the Applicant with a gun and her imploring him not to pull the trigger in circumstances where she had her back to Davis and where eyewitnesses, including Davis, gave evidence that she was backing away from the deceased who was on the ground: [119].

10. The Crown’s case theory that the gun found in close proximity to where the deceased was struck had fallen from the deceased’s pocket or hoodie as he tried to pull himself up using a nearby vehicle following the strike was inconsistent with eyewitness evidence and, even if a possibility, was no more likely than the possibility that the deceased was holding the gun, with the balaclava and knuckledusters, as he ran down the street: [120]-[123].

11. The Crown’s heavy reliance on the eyewitness evidence did not exclude the possibility either that the deceased was carrying a gun as he ran or, if he was not, that he withdrew it from his person when he was caught and tackled by the Applicant: [125]-[131].

12. The utterances of the Applicant at the scene overheard by one of the eyewitnesses following Davis’ striking of the deceased were equally, if not more, consistent with being an expression of shock in the course of traumatic events, than with her having believed at the time of the sword strike that Davis’ conduct was unreasonable: [131]-[132].

13. The conversations between the Applicant and Davis recorded using lawful listening devices were either more consistent with the Applicant’s account of being threatened with a gun on the street or, at the very least, did not support the Crown’s case: [139].

By Wilson J:

14. Although some witnesses made concessions as to the possibility of mistake or limited observations, none of the witnesses saw a gun during the chase or when the deceased was on the ground: [145].

15. Common sense suggests that an individual familiar with carrying out robberies would not brandish a firearm on a well populated public street and that the Applicant would not have engaged in a scuffle with the deceased if she saw the deceased holding a firearm: [145], [147].

16. The utterances of the Applicant at the scene were inconsistent with the deceased having threatened the Applicant with a firearm: [148].

17. The concessions made by the eyewitnesses during cross-examination raised some doubt as to the possibility of the deceased threatening the Applicant with a gun on the street, but that doubt is resolved when the jury’s advantage in seeing the witnesses give evidence is taken into account: [146], [149]-[150].

M v The Queen (1984) 181 CLR 487, The Queen v Baden-Clay (2016) 258 CLR 308, applied.

JUDGMENT

1. BELL CJ:

Introduction

On 22 December 2020, a jury convicted the Applicant, Ms Hannah Quinn, of being an accessory after the fact to the unlawful killing of Mr Jett McKee (the deceased or Mr McKee), pursuant to s 347 of the Crimes Act 1900 (NSW) (the Crimes Act). Her co-accused, Mr Blake Davis (Davis), was acquitted of murder but convicted of manslaughter by excessive self-defence pursuant to s 421 of the Crimes Act. The trial, which ran from 16 November 2020 until 22 December 2020, was presided over by N Adams J (the trial judge).

2. A summary and abbreviated version of the facts is set out in the trial judge’s remarks on sentence (ROS) (R v Hannah Quinn (No 1) [2021] NSWSC 493):

“[1]   As at 10 August 2018, Hannah Quinn was a 25-year-old waitress who had recently commenced early childhood studies. Her boyfriend Blake Davis lived at 87A Hereford Street in Glebe. They were both daily users of cannabis. They were also sellers of cannabis. Neither of them had any criminal record nor any history of violence. Apart from their involvement in the supply of cannabis neither of them had ever been involved in any other criminal activity.

[2]   On that day, Ms Quinn awoke at about midday in the home of Mr Davis. It was a sunny day. She walked to a nearby café to get takeaway breakfast for them both before returning to Mr Davis’ home. There were a number of people in Hereford Street at about this time. It is a narrow street comprised mainly of terrace houses. There were people walking in the street. Some were inside their homes studying or watching television. Others were working on building sites as a number of the terraces were undergoing renovations at that time. Everyone was just going on with their everyday lives.

[3]   Ms Quinn could never have anticipated at that time that within minutes her life would be changed forever, that she and Mr Davis would be the victims of a violent home invasion by Jett McKee, that Mr Davis would go on to kill Mr McKee and that she herself would be charged with his murder.

[4]   Ms Quinn did not remain at the scene after Mr Davis killed Mr McKee. Instead, she fled with Mr Davis and remained with him over the next few days as she checked them both in and out of various hotels around Sydney. They both handed themselves into police on 13 August 2018. They were both charged with the murder of Mr McKee the following day.”

3. On 7 May 2021, the trial judge sentenced the Applicant to a two year community corrections order, subject to standard conditions. Her Honour also imposed an additional condition that the Applicant receive mental health treatment.

4. At trial, it was not in issue that on 10 August 2018, Davis caused the deceased’s death by way of a single blow to the head using a samurai sword. The incident occurred in the aftermath of the violent invasion of Davis’ home by the deceased, as recorded by the trial judge: see [2] above. The deceased was armed with a gun and knuckledusters. His intention was to rob the Applicant and/or Davis.

5. After threatening the Applicant and Davis with his gun and then striking Davis violently with the knuckledusters in the bedroom of the house, the deceased left the house having taken the Applicant’s handbag. She gave pursuit down Hereford Street, caught up with the deceased from behind at a site which, according to a scale map tendered in evidence, was about 160 metres down the road, and grappled with him causing him to fall over.

6. In a police interview conducted on 14 August 2018, she told police that the deceased had pointed his gun at her from his position on the ground at which point Davis (who had also given pursuit down Hereford Street a short time after the Applicant) arrived on the scene and struck the deceased with a ceremonial samurai sword which he had on display near the door of his house, and which he had picked up immediately before commencing his pursuit down Hereford Street.

7. The Applicant was indicted on three alternative charges. By Count 1, the Crown charged the Applicant with murder and alleged that she and Davis had formed a joint criminal enterprise, whilst inside Davis’ home, to inflict violence on the deceased as a form of retribution and to protect their drug business. The trial judge held that there was no evidence capable of establishing that the Applicant had entered such a joint criminal enterprise with her co-accused and ordered that the jury enter a verdict of not guilty in relation to Count 1: R v Davis and Quinn (No 4) [2020] NSWSC 1800 (the Directed Verdict Judgment). On this basis, her Honour ordered that the Crown pay 70% of the Applicant’s costs: R v Hannah Quinn (No 2) [2021] NSWSC 494 (the Costs Judgment).

3. In the alternative to Count 1, the Applicant was charged with being an accessory after the fact to Davis’ murder of the deceased (Count 2) and, in the alternative to both Counts 1 and 2, with being an accessory after the fact to the manslaughter of the deceased (Count 3).

4. While the Applicant admitted to having committed several acts in the period between Davis striking the deceased on 10 August 2018 and attending Newtown Police Station on 13 August 2018, the Applicant did not accept that those acts were done in order to assist her co-accused in evading arrest. In defence of the accessorial charges, the Applicant also argued that Davis had not committed either murder or manslaughter and that his conduct in striking the deceased was merely a reasonable response by way of defence to the threat posed by the deceased to herself.

5. Davis pleaded not guilty to a single charge of murder by reason of self-defence. It was his case at trial that the Applicant was threatened by the deceased with a firearm immediately prior to him striking the deceased with the sword and that, consequently, his conduct was a reasonable response in the circumstances which was necessary to defend the Applicant.

6. It was the Crown’s case at trial that Davis had not acted in self-defence. It relied on Davis’ post-offence conduct as being inconsistent with him believing that it was necessary for him to have acted as he did to defend the Applicant. The Crown also disputed that the Applicant was threatened with a firearm immediately prior to Davis striking the deceased. This was on the basis that a number of witnesses observed the interaction between the deceased and the Applicant on the street prior to the deceased’s being struck by Davis but said that they had not seen a gun in the deceased’s hand. Only the Applicant gave evidence that the deceased had threatened her with the gun. Davis’ evidence at the trial was that, at the time he struck the deceased with the sword, he could not say one way or the other whether the deceased had a gun: see [25] below.

7. It should be noted that a gun was located in the immediate vicinity of where the deceased was struck by Davis, as were his knuckledusters and the balaclava which he had been wearing during the home invasion.

8. The jury acquitted Davis of murder but convicted him of manslaughter. As the trial judge said in sentencing him (R v Blake Davis [2021] NSWSC 235) at [49]-[50]:

“The verdict of manslaughter was left to the jury on two alternate bases: excessive self-defence or extreme provocation. The defence did not rely upon extreme provocation, but I was obliged to leave it to the jury given the evidence that Mr McKee had committed an indictable offence on Mr Davis just prior to the fatal blow and Mr Davis had then killed him in response. For my part, I consider that the evidence at trial fits more easily with a case of extreme provocation than one of excessive self-defence but Mr Davis relied upon the complete defence of self-defence which does not sit easily with an alternate case of extreme provocation. Given the nature of the blow which caused the death, and the weapon used, manslaughter by dangerous and unlawful act was not put to the jury for their consideration.

It was common ground at the proceedings on sentence that the jury’s verdict is consistent with a case of excessive self-defence and, given the way the trial was conducted, I am unable to find otherwise.”

14. Self-defence having been raised by Davis, the onus of proof lay on the Crown to prove beyond reasonable doubt that Davis did not kill the deceased in self-defence (including in defence of the Applicant): Crimes Act, ss 418-419.

15. By her draft amended Notice of Appeal, the Applicant seeks leave to appeal from her conviction on three grounds:

“1.   A miscarriage of justice was caused by the Crown Prosecutor’s reliance on consciousness of guilt reasoning;

1A.  In the alternative to ground 1, a miscarriage of justice was cause by the failure of the trial judge to direct the jury in accordance with Edwards v R (1993) 178 CLR 193;

2.    A miscarriage of justice was caused by the Crown Prosecutor’s impugning the credit of the Crown witness Frank O’Connor; and

3.   The verdict is unreasonable and unable to be supported, having regard to the evidence.”

Ground 2 was not pressed at the hearing.

16. Davis has not sought to appeal from his conviction.

Further factual background and evidence at trial

17. At [8]-[11] of the Costs Judgment, the trial judge set out the following factual background which was common ground at trial:

“(1)  The deceased, Mr McKee, was a gambling addict, a user of crystal methamphetamine (“ice”) and a seller of prohibited drugs.

(2)   As at 10 August 2018 Mr McKee needed money urgently. His partner was pregnant, and he had lost all of his money through gambling in the preceding period. He and a friend, known in the proceedings as Frank O’Connor, formed an agreement to rob some drug dealers as they would be easy targets and less likely to go to police. The two men robbed one drug dealer and later attempted to rob a second. A decision was then made to rob Ms Quinn and Mr Davis.

(3)   Mr O’Connor knew Mr Davis and Ms Quinn through their mutual involvement in the supply of cannabis. Mr McKee had heard of the couple through Mr O’Connor but had never met them.”

18. The deceased was driven to the vicinity of Davis’ home in Hereford Street, Glebe on the morning of 10 August 2018 by his friend, Mr O’Connor, with a view to his committing a home invasion. He was carrying a balaclava, knuckledusters, pepper spray, cable ties and an imitation pistol with him. Mr O’Connor waited in the car some distance away while the deceased approached the premises.

19. In her Electronic Record of Interview with Suspected Person (ERISP) with police on 14 August 2018, the Applicant gave an account of what took place during the home invasion. At ROS [19], the trial judge accepted that account on the basis that it was consistent with all other evidence in the Crown case.

20. The Applicant’s version of events was that, shortly after she returned home from a nearby café at 12.24pm on 10 August 2018, the deceased burst into Davis’ home wearing a balaclava and pointing a gun at them. He then yelled something like, “[give] me all your fucking money or I’ll kill you”. When Davis told the deceased there was no money, the deceased then said something like, “people know where your fucking family lives, give me all your money or we will kill your family too”.

21. The deceased is then said to have pointed the gun at the Applicant’s head. After Davis took a few steps back, the deceased moved the pistol away from the Applicant, banged it with something metallic and then punched Davis in the eye with the knuckledusters. Davis was later observed by eyewitnesses bleeding from his face and was found to have an orbital fracture which was consistent with having been struck with knuckledusters. Medical evidence of Dr Allnutt and Professor Beran was also adduced at trial to support the submission that Davis may have also suffered a concussive head injury leading to loss of memory surrounding the events of 10 August 2018.

22. In her ERISP, the Applicant gave the following account of what happened after Davis was struck and fell to the ground in the house:

“Q354   OK. So Blake’s on the ground. Can you just describe for me what the next thing is that happened?

A   The guy, um, came towards me and tried to snatch the bag off my shoulder. Um, and, but he didn’t get it off me and I was sort of, like, stumbling and half being dragged down the side part here.

Q355   Uh-huh.

A   Um, then he snatched the bag off me and then ran down Hereford Street. And I chased after him and caught up to him and tried to snatch my bag back. Then he turned around to try and punch me and, um, managed to step out of the way and he’s, f, f, lost his footing and fallen over. And he’s pointed the gun up at me and that’s when Blake came and hit him.” (emphasis added)

23. This sequence of answers condenses what in fact occurred, as observed by a number of witnesses either on, or in houses adjacent to, Hereford Street, as described more fully below. In short, the Applicant gave chase of the deceased approximately 160 metres down Hereford Street before she grabbed him from behind. Davis was observed to have followed the Applicant and the deceased up Hereford Street, but some way behind. After the Applicant had scuffled with the deceased, causing the latter to fall to the ground, Davis fatefully caught up with them.

24. At trial, Davis gave evidence that, following the attack with the knuckledusters in his home, he heard the Applicant screaming in the distance and feared that the deceased would shoot the Applicant. So, he grabbed one of the ceremonial samurai swords which he had on display in his home and ran out onto the street, chasing the deceased and the Applicant.

25. Although his evidence was that his memory as to the events after being punched by the deceased was “patchy”, under cross-examination by the Crown Prosecutor as to the presence of a gun on the street prior to him striking the deceased, Davis gave the following evidence (with emphasis added):

“Q.  And you saw, did you, after Mr McKee had been brought to the ground, Hanna backing away from Mr McKee; did you see that?

A.   I saw Hanna coming towards me, backing up, as I got close up to them.

Q.  You agree that you had run yourself without assistance all the way down the street from 87A to where ultimately Mr McKee was struck; you ran of your own accord?

A.   As fast as I could.

Q.   As fast as you could?

A.   Yep. I would've done whatever I could do to get there to make sure she was okay.

Q.   There wasn't any gun that you saw down on the street at the area of the ultimate sword strike; you didn't see any gun, did you?

A.   My recollection of what happened, when I got up to them, only came back in pieces of memory after that. You could call them flashbacks. You could call them, me piecing together what had happened from images coming back. But in my head the gun was always there.

Q.   Putting aside what you say is due to flash back, at the time that you're right there?

A.   No memory.

Q.   No memory?

A.   No. There is no memory of it.

Q.   You cannot say now "I saw a gun"; is that right?

A.   Unless I tried to make up a story that wasn't true. …

Q.   Before you hit him with the sword, you cannot honestly say to the jury "I saw a gun"?

A.   I don't have a clear memory of that, so.

Q.   Just to be clear, you didn't see Jett McKee point a gun at Hanna in any way, did you?

HER HONOUR: When?

CROWN PROSECUTOR

Q.   Just before the sword strike?

A.   I don't have any memory of when I struck with the sword.”

26. As already noted, there were also several witnesses to the events on the street. Those witnesses, whose evidence will be outlined more completely in relation to Ground 3 below, included:

1. the residents of other properties in Hereford Street, principally Ms Lynne Charlesworth;

2. tradesmen working at 176 Hereford Street: Mr Aaron McCaw, Mr Bradley Miller, Mr Gary Foxall and Mr Michael Mullan;

3. Mr Rossinni Michael Palmer, who was working as a painter in the loft of unit 9/69 Hereford Street;

4. Ms Kerrie Sparks, who was walking her dog on the left-hand side of Hereford Street facing Minogue Crescent;

5. Ms Sarah Baker and Mr Thomas Scott, who were crossing the road from Cross Street to Hereford Street; and

6. Mr Frank O’Connor, who had driven the deceased to the vicinity of Davis’ house and was waiting for the deceased in his car on Hereford Street facing towards Minogue Crescent.

27. Although, as identified by the trial judge at ROS [20], the accounts of the eyewitnesses differed in various respects, they all described the Applicant as chasing the deceased down the street from Davis’ home towards Minogue Crescent, screaming very loudly. The eyewitnesses also observed Davis chasing after them with the sword and some observed he had a bleeding face. None of the eyewitnesses gave evidence that the Applicant looked behind her at Davis as she pursued the deceased or that she appeared to know what Davis was carrying as he ran behind her.

28. The evidence of the eyewitnesses also differed as to the nature of the interaction between the Applicant and the deceased once she caught up with him. However, none of the eyewitnesses gave evidence that they observed the deceased threatening the Applicant with a gun on the street, or, with the exception of Mr O’Connor who, in evidence, seemed to originally suggest that the deceased was holding a gun, that the deceased was carrying a gun on the street. It will be necessary to consider this evidence in some closer detail later in these reasons, but it is obvious that the events moved extremely quickly and followed the traumatic events at Davis’ home, including him being hit powerfully with knuckledusters, with some evidence being led at the trial that this had a concussive effect on Davis.

29. As to the Applicant’s account to police that she was threatened by the deceased with a gun after she had scuffled with him from behind and he had fallen to the ground on Hereford Street, the trial judge observed in her sentencing remarks that “that aspect was obviously not accepted by the jury”: ROS [34].

30. Implicit in her Honour’s observation is that, had the jury accepted the Applicant’s case that the deceased was threatening her with a gun shortly before his being struck by Davis, to her perception at least, the killing would have been done in reasonable defence of her, and she could not therefore have had the mens rea to sustain the charge of being an accessory after the fact to Davis’ manslaughter of the deceased by reason of excessive self-defence: see Gall v R [2015] NSWCCA 69 at [164]ff and [249]-[256] (Gall).

31. The evidence of one of the “eyewitnesses”, Mrs Charlesworth, was that, from within her home but with the French doors open, she heard an argument between a man and a woman about “four houses down” from her. She heard the woman (who must have been the Applicant) scream out the words “No, don’t”, shortly before hearing a thud (which was inferred to be the striking of the deceased by Davis). Ms Charlesworth was sure that the Applicant had screamed “no, don’t” because she wrote an email to her friends on the morning of “the Saturday” when everything “was extremely clear in [her] mind”.

32. When Ms Charlesworth ran outside, she saw the deceased lying about three to four steps down the path and on the road in front of her house. She did not see anybody else on the street at this time. According to her evidence, she then ran inside her home in order to contact emergency services. In that call, Ms Charlesworth said, “oh fuck there is a gun on the ground”. In her evidence at the trial, she clarified that she had seen a gun on the ground near the deceased’s head when she first saw him lying on the road but had not realised that it was a gun until that later point.

33. When Ms Charlesworth came back outside, she yelled out for help. It would appear that Messrs Miller, McCaw, Mullan and Foxall arrived very soon thereafter. Ms Charlesworth observed the deceased roll onto his stomach and pull himself across the road to where her husband’s white Mazda was parked opposite her house. He was then able to pull himself up to sit with his back to the car. She then watched him stumble and fall briefly again before he was able to get up and stumble up Minogue Crescent where he disappeared from her sight. At about this point, an ambulance arrived.

34. A gun, knuckledusters and a balaclava were found in the vicinity of a pool of blood located next to where the deceased was lying before he used the white Mazda to pull himself up. It was the Crown’s case at trial that the gun, along with the other items, had fallen from the deceased’s pocket as he got to his feet against the white Mazda. This, however, was inconsistent with Mrs Charlesworth’s evidence that she saw the gun on the ground (albeit that she did not appreciate that it was a gun when she first observed the object) before the deceased crawled over to and pulled himself up by the car.

35. Mr Palmer was the closest eyewitness to the dramatic events that occurred on Hereford Street. (Ms Charlesworth heard, but did not see, the attack on the deceased or the chase that preceded it). Mr Palmer was doing a painting job in the loft of unit 9 of 69 Hereford Street. The unit complex was described as a row of “maybe 10 or 12” townhouses of which unit 9 was located approximately in the middle. Mr Palmer gave evidence that the incident took place “20 metres” from the unit and that the loft, which faced directly out onto Hereford Street, was about three storeys from ground level and was located about three metres back from the road.

36. To his right, Mr Palmer saw the Applicant chasing a man, who was inferred to be the deceased, along Hereford Street. He recalled the Applicant as having shouted out, “What the fuck are you doing? Who the fuck are you?”

37. After his initial observation, Mr Palmer had to hoist himself up onto a ledge at the window at which point he lost sight of the Applicant for about five seconds. He then saw the Applicant and the deceased stopped on the street together, “slightly to his left”. Mr Palmer’s evidence as to the subsequent interaction between the Applicant and the deceased was as follows:

“A.   … when I sort of saw them both together, like, not, she wasn’t on the floor but that is when I sort of, everything had stopped, and then, yeah she was sort of backing off at this point.

Q.   Sort of backing off at this point, what was, where was the male that –

A.   He was on the floor.

Q.   And can you describe, when you say “on the floor” what do you mean, what was his position on the floor?

A.   He was on all fours.

Q.   Because of where we are, what do you mean by “all fours”?

A.   He is like, on his hands and knees or his arms and knees and he was sort of just basically on the way up, getting himself up as she was backing away.”

He went on to give a demonstration for the jury of the position of the deceased. The trial judge described Mr Palmer as having “his arms out on the ground” with “one knee on the floor and one knee behind”.

38. During cross-examination, Mr Palmer agreed that in his demonstration to the jury, he had indicated that the deceased was “getting up with his palms on the tarmac”. It was the Crown’s submission on appeal that if the deceased had been positioned on all fours with his palms on the ground, he could not have been wielding a gun as alleged by the Applicant. However, under cross-examination, Mr Palmer accepted that in his original statement to police he had said that the deceased was positioned on his “knees and elbows”.

39. Mr Palmer ultimately accepted that “with time [he] may have forgotten the precise position” of the deceased and that he was not sure whether the deceased had his palms down on the ground or whether he was on his elbows. If the deceased was positioned on his knees and elbows, rather than on his palms, this left open the reasonable possibility that he was holding a gun.

40. Mr Palmer’s evidence was that he did not see a gun at the scene. However, Mr Palmer also accepted under cross-examination that he could not recall whether the deceased was wearing gloves and that the deceased’s hands were not a particular focus of his attention. Indeed, he said he could not remember whether he could see the deceased’s hands and accepted under cross-examination that he could not see the deceased’s hands.

41. The only item Mr Palmer saw at the scene was what he assumed was a bag. He gave the following evidence as to that item:

“Q.   Can you just describe what it was that you actually saw if you take the assumption out, just because of where we are can you just help the jury?

A.   It wasn't very big. Yeah sort of just looked like to me like a sort of purse, I can't remember the colour of it, but yeah that is what I saw.

Q.   Any straps or anything like that?

A.   No.

Q.   No straps on it?

A.   No.

Q.   And did you see anyone do anything with that item, did it move from one to another or did you see it at the scene, can you help the jury with that.

A.   Well I thought that she grabbed it off him. That's when I thought, okay, she must be getting mugged and then as she was stepping back, I, don't exactly recall if she had it in her hand, or I thought, I didn't really take much notice of what that was. I think maybe, I was thinking maybe obviously she got the bag and that why she is stepping away now.”

42. Mr Palmer gave evidence that “another guy” came from the same direction the Applicant and the deceased had run from and hit the deceased on the head with what “looked like a stick”. A couple of seconds after the deceased was struck, Mr Palmer described the Applicant as having shouted out, “What the fuck have you just done?” and gave evidence that those words were definitely directed towards her co-accused. The fact that the Applicant said those words was not contested.

43. Mr Palmer’s evidence was that the Applicant and Davis then ran from the scene and he watched the deceased crawl off to his left at which point Mr Palmer lost vision and closed the windows of the loft.

44. The evidence of the tradesmen eyewitnesses as to what they observed was somewhat variable. They were working at 176 Hereford Street. According to the scale map, this was approximately 120 metres from where the deceased was struck by Davis. Mr McCaw estimated it as about 300 metres away. Mr Miller’s evidence was that it was 84 metres away. He agreed that his view was partly blocked by the other tradesmen and some parked cars, although Mr McCaw’s evidence was that he had a “clear view”.

45. Mr McCaw and his work colleagues testified to having seen the Applicant chasing the deceased down the street, with Mr Miller recalling that the Applicant was shouting at the deceased. Neither Mr Mullan nor Mr McCaw saw the deceased carrying anything. Mr McCaw gave evidence that he saw the Applicant and the deceased in a “scuffle and sort of wrestling” at which point the deceased “went down on his knees”. He also testified to having seen the deceased struck by Davis when the former was trying to get up off the ground.

46. Ms Baker and Mr Scott were crossing the road on Hereford Street, about four or five metres from the Cross Street and Hereford Street intersection. This placed them in the middle of the road about four metres from 87A Hereford Street when the deceased ran outside, followed by the Applicant and Davis who was carrying a “silver blade”. Mr Scott and Ms Baker heard the Applicant yelling similar words to those heard by Mr Palmer as she ran down Hereford Street (see [36] above).

47. Mr Scott and Ms Baker followed behind the deceased, the Applicant and Davis as they ran down the middle of Hereford Street towards Minogue Crescent. Ms Baker’s evidence was that she did not recall seeing the deceased carrying anything when he ran out onto the street, nor did she see a gun at any point. However, she gave evidence that, when he was about 20 metres in front of her, she saw him pull his hood up over his head using both hands.

48. Under cross-examination, Ms Baker accepted that she had not told police in her initial interview that the deceased had flipped his hoodie with two hands, rather than one, because she thought it was implied given that “it’s quite difficult to put a hood on with one hand”. However, she did not recall that the deceased was wearing gloves and instead gave evidence that she could “see the skin on his hands”. Shortly after making these observations, Ms Baker and Mr Scott lost sight of the Applicant and the deceased as they turned into the driveway of their apartment block at 77 Hereford Street. In other words, they did not make any further relevant observations.

49. Mr Scott also gave evidence that he did not recall the deceased was holding anything and that he had not seen anyone in possession of a gun. However, his evidence was also that he did not specifically look at the deceased’s hands during the incident. Similarly to Ms Baker, he did not recall that the deceased was wearing black gloves and rather, had gotten a “fleeting” look at what he presumed was the “white skin” of the deceased’s hands.

50. Mr O’Connor was the only witness to observe the chase down Hereford Street from front on. He gave evidence that after dropping the deceased off, he parked the car a couple of hundred metres down Hereford Street, facing Minogue Crescent, where he left the engine running and remained in the car. From this position, he was able to observe through his rear view mirror as the deceased ran down Hereford Street, followed by the Applicant and then Davis. Mr O’Connor gave the following evidence as to what the deceased was holding as he ran:

“A.  It was like a bag or something, you know, it was like a small bag or    something like that.

Q.   Can you describe that in anymore detail?

A.   Not really. He [was] holding a gun, he was holding it down. He was running and holding that with two hands.

Q.   He was holding the thing that was in his hand or his hands, is that right?

A.   Yes.

Q.   Colour, straps, no straps?

A.   I really, I really didn't get the best look at what it was, I just felt like it wasn't a gun. It didn't look like, it wasn't the colour of the gun, his gun. It looked more like a small bag or something to me?”

It was the Applicant’s submission that Mr O’Connor’s description of the item being held by the deceased as he ran was sufficiently vague to leave open the reasonable possibility that the deceased was carrying a gun, or a gun and balaclava. It was also inconsistent with the evidence of Ms Baker which was to the effect that the deceased had nothing in his hands.

51. Ms Kerri Sparks was walking her dog from Cross Street to Hereford Street on the left-hand side of Hereford Street facing Minogue Crescent when the deceased ran out of 87A Hereford Street towards her, followed by the Applicant and Davis who was carrying what she thought was a long stick. Ms Sparks recounted having seen the Applicant pull the deceased to the ground by grabbing his collar or the scruff of his neck. She agreed under cross-examination that her view was obscured by the parked cars on the street such that she could not see the deceased or anything he was doing on the ground.

52. After delivering the fatal blow, it was not contested that Davis seized a car cover from the shed of a nearby property in which he wrapped the sword before leaving it in the backyard of his home to which he and the Applicant had fled after the striking of the deceased on Hereford Street. A number of items which were said to be related to Davis and the Applicant’s involvement in drug supply were then placed in an Uber Eats bag and later discarded in an alleyway. Those items were two mobile phones which were alleged to be “burner phones”, four sets of metal nunchakus, one set of timber nunchakus, a gold coloured air soft gun in a cardboard box, Davis’ medication and $21,380 in cash. The Applicant told police that Davis had packed this bag.

53. The Applicant, together with Davis, then fled Hereford Street by jumping over a neighbour’s fence and then running until they found themselves at a dead end at which point they entered the nearest house, broke out of it, and fled the vicinity.

54. As will be outlined more completely in relation to Ground 1, the Crown sought to rely on the fact that Davis fled the scene and hid the various items in the Uber Eats bag, alongside the fact that the Applicant and Davis did not hand themselves into police until 13 August 2018, as demonstrating that Davis did not believe that his actions were necessary to defend himself or the Applicant.

55. Prior to turning themselves into police, the Applicant and Davis made a number of phone calls to, and met with, several friends and family. In particular, on 10 August 2018, the day of the incident, the Applicant and Davis arrived at the house of a friend of Davis, Mr Craig Anthony Blake, who gave evidence at the trial. That evidence included the following (with emphasis added):

“A.   Absolutely not. No, I mean on the day all I was aware of was that a man had obviously let himself in, had a gun pointed to them, that he'd been hit with knuckledusters, took a bag, Hannah went after him to grab the bag, you know, like however that happened. Again it wasn't ‑ I'm not going to put words in their mouth. It's just a recollection from what ‑ from my wording. Blake was concussed, and followed behind with a display sword. The gun was pointed at Hannah, and Blake struck. From there they were in fear, because obviously they were threatened prior, and they just, I guess, ran for their lives, because they were in fear.

Q.   Now you've mentioned the gun pointed at Hannah after the house, is that from something you've read, or from something that they said to you?

A.   No, I've been really, I guess, careful and vigilant around contaminating my own thoughts. It has been two years, so one would say that, you know, what I've read versus what my recollection is, but I've had a lot of thought before being here today, and of course under oath I, you know, this is what I remember from the day.

Q.   And is that something that Blake [Davis] said to you, that he‑‑

A.   Blake‑‑

Q.   This man had the gun pointed at Hannah?

A.   No. Hannah, as I said, on the day, Blake had, you know, he could barely recall anything to me. Hannah was clear that he had had the gun at her, and Blake had struck, in defence. And that's as far as the information that I'd had. Obviously there's more information around pepper spray, and things like that, which I was totally unaware of, given the circumstances.”

56. Before the Applicant and Davis handed themselves into Newtown Police Station on 13 August 2018, it was the Crown case that the Applicant did numerous (largely admitted) acts which assisted Davis in evading arrest. Those acts were outlined by the trial judge at ROS [31]:

“(1)  Ran from the scene with Mr Davis (admitted);

(2)   Stole the car cover to wrap the sword in company (not admitted);

(3)   Entered 125 Wigram Road and broke out of the premises (admitted);

(4)   Booked an Uber to Ms Quinn’s residence (admitted);

(5)   Cleaned up Mr Davis’ eye whilst at her premises (admitted);

(6)   Loaned clothes to Mr Davis (admitted);

(7)   Checked into the Adina Apartments in the City, paying in cash, and then left (admitted);

(8)   Booked into the Waldorf Apartment Hotel Pennant Hills (admitted);

(9)   Booked a taxi to the Waldorf Apartment Hotel Pennant Hills (admitted);

(10)   Checked into and paid for the Waldorf Apartment Hotel Pennant Hills (admitted);

(11)   Paid for the telephone calls made at the Waldorf Apartment Hotel (admitted);

(12)   Checked in alone at the Novotel Hotel (admitted);

(13)   Collected Mr Davis from outside the Novotel Hotel after she checked in (admitted);

(14)   Checked out alone at the Novotel Hotel (admitted);

(15)   Withdrew $500 cash in Wentworthville (admitted);

(16)   Purchased clothes for she and Mr Davis from Kmart with cash (admitted); and

(17)   Checked in to the Big Hostel at Kings Cross, paying in cash (admitted).”

57. In her ERISP, the Applicant explained that she had stayed with Davis over the weekend before they handed themselves into police because she was terrified of the threats made by the deceased during the home invasion and worried that persons associated with the deceased would come after her: see [20] above. The trial judge at ROS [37] held that the verdict was also inconsistent with that part of the Applicant’s account having been accepted by the jury.

58. At ROS [42], her Honour held that she was satisfied beyond reasonable doubt that the Applicant knew the deceased was very seriously injured when she fled the scene but that she did not know that he had died until sometime on 11 August 2018 when she heard about his death on the news.

59. It was also common ground at trial that Davis, after speaking to a lawyer together with the Applicant, telephoned Glebe Police Station at 11.08am on 12 August 2018 and told them that they were “going to come in and see police tomorrow”. The trial judge held at ROS [46] that she was not satisfied beyond reasonable doubt that the Applicant continued to assist Davis to evade detection after this time.

Ground 1

60. By Ground 1 of her draft amended Notice of Appeal, the Applicant contended that a miscarriage of justice was created by the Crown Prosecutor’s reliance on consciousness of guilt reasoning.

61. The following exchange between the trial judge and the Crown Prosecutor took place in relation to the possibility of a jury direction being given prior to the Crown Prosecutor delivering his closing address to the jury:

“HER HONOUR: … Mr Crown I'm going to give a, I am presuming, a flight direction as to consciousness of guilt but I will need to reflect on that. I have started draft one. It is in quite simple terms. It would be "The Crown relies upon the fact that Mr Davis" and I pause to note this could only be against Mr Davis now because the conduct you rely upon of flight is the actual evidence you rely upon to support the accessorial charge against Ms Quinn, "There is evidence that Mr Davis fled the scene and did not hand himself into police until the 13th although he telephoned police on the 12th. The Crown relies upon that as consciousness of guilt in the sense that he ran because he knew he had unlawfully killed someone, not in self‑defence. You heard all the evidence about what he did on those days. You can only use it in ways suggested by the Crown if you were satisfied that he fled for that reason because he knew he was guilty of unlawfully killing Mr McKee, not for any other reason".

Then I would highlight the reasons advanced by Ms Cunneen which is like a standard lies direction, not just bearing on other explanations given. Now I could even do that but I could only do it if you actually raise it in your closing address so I will let you reflect on whether you do rely upon it.

CROWN PROSECUTOR: I have been very cautious I hope your Honour has observed in relation to not suggesting it was consciousness of guilt as opposed to that he knew that he didn't do it out of self‑defence, that is that it was totally unnecessary, that seems to be the catch cry, such that it does not unfairly raise consciousness of guilt thank you your Honour.

HER HONOUR: I will let you reflect on that and just on the same issue if you are to reflect in your closing that Ms Quinn lied it will be a direction they use it for credibility and nothing else, is that agreed.

CROWN PROSECUTOR: Yes.” (emphasis added)

62. It will be apparent from the passage emphasised in the extract of the Crown Prosecutor’s response that a distinction was sought to be drawn between, on the one hand, consciousness of guilt reasoning and, on the other hand, reliance on post-offence conduct which goes to prove a fact in issue, namely whether Davis believed that his actions were necessary to defend the Applicant.

63. The Applicant submitted that the Crown relied very heavily on consciousness of guilt reasoning in relation to the guilt of Davis. This was said to have necessarily impacted on the Applicant’s guilt because of her derivative liability. The Applicant acknowledged that the submissions evidently complained of “were ostensibly directed towards Davis’ guilt for murder (on which he was acquitted) rather than manslaughter.” The passages of the Crown’s address which were relied on by the Applicant for the purposes of Ground 1 are set out below, noting that the Applicant also contended that consciousness of guilt reasoning was embedded in a series of questions asked of Davis during cross-examination (although what was put in the relevant questions was not taken issue with by Davis nor, it should be added, were the questions the subject of any objection by Davis’ extremely experienced counsel at trial, Ms Cunneen SC).

64. The passages from the Crown’s closing submissions which were said to entail consciousness of guilt reasoning were as follows:

“Let's just concentrate on that little aspect. Would you go and outright steal somebody's car cover? Would you just go into their yard and just steal their car cover? It was stolen for a reason, wasn't it? It was stolen to wrap the bloodied sword in, because he knew that was totally unnecessary. What the fuck have you just done? What the fuck have you just done? Quick, wrap the sword, bloodied sword and let's run down the street.

It is absolutely ridiculous, isn't it, for you to be asked to accept that, 'oh, I just came to in the driveway with no knowledge that I'd just struck someone in the head with the sword, and then I felt self-conscious about having a sword in my hand in public, so then I wrapped it in a tarpaulin or car cover and then I ran down the street without any knowledge that I'd just used it in the way that I did.'

That is alone, isn't it, an outright attempt to pull the wool over your eyes. Fortunately, you don't have to wear the 15th century wigs that we do. Apparently, that is where that expression comes from; pulling the wig down over the eyes of the Judge. You're the Judges. That is just an outright attempt, isn't it, to pull the wool over your eyes, to have you accept something that is so devoid of any logic or [common sense] that you would come to and then have to engage in stealing and wrapping, if you had no idea that you'd actually done anything wrong.”

65. The following submission was then made by the Crown:

“More likely, on the Crown case, just too hard to explain. Perhaps too close to the contextual background that we were dealing drugs and we got targeted by a drug dealer. Certainly known by the time he gave his evidence that he was targeted. Just a blank. Do you accept that? Do you really accept that, that those particular items put in the bag. Just totally blank. Or is it very convenient to just claim at crucial times "oh I can't remember that. I don't have to go into that, then, because I will just say I can't remember it." You might take this into account in your consideration as to whether Mr Davis believed that it was necessary to do what he did with the sword, whether he can say to you that there was a gun at the time that he wielded the sword.”

66. It was then submitted that:

“What's the state of the evidence though? Unsure of the nature of the head injury, minimal information surrounding the details of the events, unsure if hit, and if so with a weapon. Believes there is a possible loss of consciousness, unable to recall most of the details, vague with some symptoms. Patient states he cannot remember what happened. Says hit by someone last Friday, but doesn't recall the details. No wonder there's a note: "Reluctancy versus amnesia". Feigning, not remembering, more likely in this half‑baked attempt to come up with some false story even at this stage.

Knowing the full details of what happened, knowing that it was totally unnecessary to have struck Mr McKee in the head is the genesis of this misleading information, even at this stage.”

67. The Crown then made the following submission:

“After the sword strike, Mr Davis and Ms Quinn were observed to immediately, and no question without rendering any aid to Mr McKee, turn and run back in the direction of the premises. They do a detour quickly up to Ms Bollard's driveway, stole a car cover, Mr Davis did, and used that to wrap what we know from the DNA evidence was the bloodied sword inside the car cover. He gathered the items. Ms Quinn denies that she was responsible for gathering those items that ended up in the Uber bag.

The police were on the scene very quickly. Arguably, they left over the back fence in such a hurry that Mr Davis lost both of his shoes at different points. Mr Davis and Ms Quinn then proceeded to enter into a residential property and, at law, break out of that property. Have a think about that for a moment. Going into somebody else's property, and then breaking out of that property so that you could, on Ms Quinn's version, run through the property to get out the front. Have a think about that action. What was taking place at that time? In my submission to you, it is totally consistent with a desire to escape the police; totally consistent with that desire, to escape the police because of the knowledge that it was totally unnecessary to have struck Mr McKee.

…

In your consideration of the question as to whether Mr Davis did not believe that his conduct was necessary to defend himself or Ms Quinn, the Crown submits that you would be entitled to take into account actions such as running away after the sword strike, concealing the bloodied sword, continuing to run, going back to 87 Hereford Street, gathering the items that he did, going over the back fence, gaining entry to the house at 125 Wigram, and then going on the run for the three nights. The Crown says that you would be entitled to take those into account as indicating that he did not believe that his conduct was necessary to defend himself or Ms Quinn.” (emphasis added)

68. The Crown submitted that it did not invite the jury to rely on Davis’ post-offence conduct as illustrating a consciousness of guilt in the sense that it was an implied admission or independent evidence of his guilt of murder or manslaughter. Rather, the Crown put that the post-offence conduct formed part of the Crown’s circumstantial case as to Davis’ state of mind at the time of the sword strike. In particular, his post-offence conduct was said to rebut his contention at trial that he believed that it was necessary for him to strike the deceased with the sword in order to defend the Applicant. Relying on Gall, the Crown argued that in these circumstances, a consciousness of guilt direction was not required.

69. In Gall, the crucial issue was whether the Applicant had shot the deceased in order to protect his father, whom he saw running away from the deceased, because he believed the deceased and another man were carrying guns. The Crown led evidence as to the Applicant’s post-offence conduct, including his disposal of the deceased’s body, dismantling of the gun and destruction of the van he used to transport the body. Hoeben CJ at CL reasoned as follows:

“[90]   The issue before the jury was the intention of Kevin Gall at the relevant time. There was no issue as to whether or not he had carried out the relevant act. On his case, the apparently sinister actions of shooting at both the deceased and Mr Fox had an innocent or less culpable explanation. The issue for the jury was whether the Crown had negated that less culpable explanation to the relevant standard, i.e. beyond reasonable doubt. Part of the Crown case to achieve that result was its reliance upon the post offence conduct. The issue was not whether a less culpable explanation for the post offence conduct was available – it was and it constituted the basis of Kevin Gall’s defence. The jury had to decide whether the Crown had excluded that less culpable explanation.

[91]   The difference between the cases of the Crown and Kevin Gall was stark. On the Crown case, he shot the deceased to remove an adversary. On Kevin Gall’s case, he did so out of fear of what might happen to his father and himself. An important part of the Crown case was the post offence conduct to establish Kevin Gall’s intention. When the issue before the jury was as clear as this, to have given a consciousness of guilt direction would have needlessly complicated the question which the jury had to decide. It would have involved a circularity of reasoning, i.e. the jury could only be satisfied as to consciousness of guilt if they were also satisfied that Kevin Gall had the intent necessary for murder.

[92]   It would involve the triumph of form over substance and an empty exercise in semantics to require a trial judge in the circumstances of this case to give a direction to the jury that the post offence conduct of Kevin Gall, while capable of giving rise to an inference of guilt of murder, was also capable of giving rise to a less serious or even innocent inference and for that direction to be couched in consciousness of guilt terminology. This is because that very issue was the fundamental question for the jury to decide. They were well aware of the competing issues as to intent as a result of the addresses by counsel and her Honour’s comprehensive summary of the competing cases in relation to which there has been no complaint. The evidence of Kevin Gall’s post offence conduct was simply part of the Crown’s case to rebut his contention that he had acted out of fear and in self-defence.

[93]   Kevin Gall’s submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived. At no time was it suggested by any counsel or her Honour to the jury that the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence. It was simply part of the Crown’s overall case to establish Kevin Gall’s intention at the relevant time and to establish the negative proposition beyond reasonable doubt that Kevin Gall did not personally believe that it was necessary for him to shoot at the deceased to defend his father and himself.”

70. The Applicant in the present proceedings submitted that Gall should only be taken as determining that, on the facts of that case, there was no requirement for a protective direction of the kind discussed in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. This was on the basis that there was a “low focus” on the consciousness of guilt reasoning in Gall and stark differences between the facts in Gall and those of the case at hand.

71. To the extent that the decision in Gall was taken as determining that post-offence conduct can be relied upon as simply part of the Crown case to prove intention and disprove self-defence such that an Edwards direction was not required, the Applicant submitted that it was wrong.

72. Although it had not been decided at the time of the hearing, this Court recently decided Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164 which affirmed the decision in Gall holding that post-offence conduct can be relied upon in proof of the critical elements of an offence, rather than as evidencing a consciousness of guilt. At [372] it was held that:

“It would have been confusing and unhelpful to the defence case to have the trial judge give consciousness of guilt directions to the jury where the sole basis for which the post-offence conduct evidence was relied upon by the Crown was to prove the critical issue that was in play, self-defence.”

73. A distinction between, on the one hand, post-offence conduct which is relied upon as an implied admission or as evidence of a consciousness of guilt and, on the other hand, post-offence conduct which forms part of all of the circumstances establishing a fact in issue, such as the accused’s state of mind at the time they performed a particular act, was also drawn in two first instance decisions of this Court: R v Manuel [2015] NSWSC 1562 at [14] and R v Valencia Valencia [2023] NSWSC 163 at [221]-[222].

74. There is no cogent reason to revisit the correctness of Gall: see AC v R [2023] NSWCCA 133 at [24]-[26] and the cases there cited. In any event, the Crown submitted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) should apply to exclude consideration of Ground 1. As outlined at [61] above, the trial judge raised the issue of whether a consciousness of guilt direction would be required. No objection was taken or direction sought by the Applicant’s trial counsel at that time, or at any other time during the trial.

75. The Applicant submitted that the Crown’s conduct did not attract the operation of r 4.15 but that, if the contrary were held, leave to appeal should be granted given the heavy focus on consciousness of guilt reasoning by the Crown and the fact that there was no plausible forensic advantage in competent defence counsel not complaining about this process of reasoning at trial.

76. I would refuse leave under r 4.15 for a number of reasons.

77. The distinction drawn in Gall has recently been confirmed in this Court and the reasoning of Hoeben CJ at CL may readily be transposed to the facts of the present case.

78. Moreover, many of the passages upon which the Applicant relied and which have been set out and emboldened above did not exemplify consciousness of guilt reasoning at all so as to require a particular direction to be given to the jury.

79. Further, as was acknowledged in the Applicant’s written submissions on appeal, the context in which the submissions in respect of which complaint is now made went and were directed towards whether Davis should be convicted of murder. The failure to give the direction which it is now said should have been sought and given at the trial did not result in a miscarriage of justice.

80. It is not necessary to engage in further consideration of this ground or ground 1A in view of the conclusion reached in relation to ground 3, to which attention is now turned.

Ground 3

81. By Ground 3 of her draft amended Notice of Appeal, the Applicant argued that her conviction was unreasonable.

82. It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).

83. The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:

“weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.”

84. Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:

“notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

85. Setting aside a jury’s verdict as unreasonable is a “serious step” which should not be taken without the Court having regard to the “advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.

86. The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].

87. Counsel for the Applicant, Ms Rigg SC, submitted that the jury ought to have entertained a reasonable doubt as to the Applicant’s guilt such that the jury’s verdict was unreasonable. This was advanced on two alternate bases.

88. First, it was submitted that, notwithstanding Davis’ evidence that he could not say that he had seen a gun immediately prior to him striking the deceased with the sword (see [25] above), the evidence did not exclude the reasonable possibility that Davis did in fact see the Applicant being threatened with a gun on the street but did not recall having done so due to memory loss arising from the injuries he incurred after being struck by the deceased with knuckledusters during the home invasion. On this hypothesis, Ms Rigg submitted that the jury ought not to have been satisfied beyond a reasonable doubt that Davis’ conduct was not a reasonable response to the circumstances, as he perceived them, which he believed was necessary in defence of the Applicant.

89. If this argument were made out, then by reason of the fact that the Applicant’s liability was derivative of that of Davis, the Applicant’s conviction would also be unreasonable.

90. This first ground may be dealt with shortly. In light of Davis’ evidence extracted at [25] above, namely that he could not honestly give evidence that he saw the deceased point a gun at the Applicant before striking him, it was open to the jury to conclude that Davis could not have believed that his conduct in striking the deceased was necessary for him to defend the Applicant, and that his conduct was a reasonable response in the circumstances as he perceived them: Crimes Act, s 418. Given s 418’s focus on Davis’ perception of the circumstances, and in light both of the fact that he gave evidence before the jury and the nature of that evidence, the jury’s verdict in relation to Davis could not, in my view, be described as unreasonable.

91. Secondly, and in the alternative, it was submitted that the jury ought to have entertained a reasonable doubt that the Applicant knew or appreciated that Davis knew that his response was unreasonable in the circumstances as Davis perceived them. If the deceased had in fact pointed a gun at her immediately before he was struck by Davis, the possibility could not reasonably be excluded that the Applicant believed that Davis had seen this threat and was acting in reasonable defence of her.

92. Just because the jury may have reached the view, as part of its chain of reasoning leading to his conviction, that Davis did not see the gun being pointed by the deceased at the Applicant immediately before he, Davis, struck the deceased, it did not follow that the deceased was not in fact pointing a gun at the Applicant. If this was in fact the case, there was every possibility that the Applicant may have believed that Davis saw this (even if this was not the case, or the jury did not accept it to be so).

93. Given the speed with which events moved, the violent nature of the home invasion and the fact that Davis approached the Applicant and deceased from behind the Applicant’s back, moving up Hereford Street, it is a short step from a conclusion that the Crown could not exclude the reasonable possibility that the deceased pointed a gun at the Applicant to the reasonable possibility that the Applicant believed, in the days immediately following the deceased’s death, that Davis’ act in killing the deceased was a reasonable response to the Applicant being threatened by a gun, as she believed Davis perceived the circumstances to be.

94. It was submitted that this was an inference consistent with innocence that was reasonably open to the jury. If there was a reasonable possibility that the Applicant had that belief, she should not have been convicted because the jury, acting rationally, must have entertained a reasonable doubt as to proof of her guilt.

95. In the course of argument on appeal, Ms Wright SC for the Crown accepted that it was for the Crown to exclude as a reasonable possibility the Applicant’s account that the deceased pointed a gun at her immediately prior to him being struck by Davis, but contended that the evidence before the jury did exclude that possibility. The written and oral submissions before this Court principally focussed on whether the evidence in fact sustained that conclusion.

96. Ms Wright placed reliance on what was described as eyewitness evidence from people on, or adjacent to, the street during the Applicant’s pursuit of the deceased. The essence of that evidence was that various eyewitnesses did not see the deceased holding a gun. This was coupled with the evidence of one witness that, after Davis had struck the deceased, the Applicant said to Davis, “what the fuck have you just done?”. It was suggested that these words indicated that she immediately appreciated that Davis’ action in striking the deceased was unreasonably disproportionate to the threat posed by the deceased to her. Ms Wright also relied upon an intercepted telephone call between Davis and the Applicant well after the events in question (which is extracted at [137]-[138] below), suggesting that, in the course of this conversation, the Applicant made no reference to the fact that the deceased had pointed a gun at her after he had fallen to the ground.

97. The Applicant’s submission was that, although none of the eyewitnesses nor Davis saw the deceased threaten the Applicant with a gun immediately prior to the sword strike, it did not follow that he did not threaten the Applicant with a gun (as the Applicant said in her ERISP). It was put that the eyewitnesses’ respective vantage points were not such or so clear that their evidence pointed to the absence of a gun. This was said to be especially so in circumstances where a gun was found in the immediate vicinity of where the deceased had fallen to the ground, and in the context that he had threatened both the Applicant and Davis with the gun during the home invasion.

98. As was submitted in writing:

“The most persuasive inference to be drawn is that the deceased would have pointed the gun he was in possession of at the applicant, as he desperately tried to escape and upon falling, vulnerable, to the ground. There is no meaningful likelihood that he would not have. He was someone who was desperate, armed, with an extremely high level of methamphetamine in his system and with an unpredictably volatile woman in the way of his escape to his getaway car 20 metres away. The obvious question is: why wouldn’t he have done so? … As a matter of ordinary human experience the inference is very strong that [the deceased] would have used the readily available weapon to stop the obstacle the applicant was posing to his escape.”

99. Reliance was also placed by Ms Rigg on uncontradicted evidence that the Applicant had screamed “No, don’t” whilst she was facing the deceased who had fallen to the ground on Hereford Street and from whom she was retreating whilst still facing him, the inference being that she was screaming in response to him pointing the gun at her. Ms Rigg also relied upon the account of the events given by the Applicant to Mr Blake later in the day which was to the effect that the deceased had indeed pointed a gun at her shortly before he was struck down by Davis: see [55] above.

100. As to the Crown’s reliance on the telephone intercept, as will be explained below, that evidence was, at best, equivocal and, at least on one view, reinforced the Applicant’s account.

101. In these circumstances it was submitted that “the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt” and that its verdict was therefore unreasonable. Underpinning this submission was an attack on the rationality of the jury’s evident rejection of the Applicant’s account that the deceased, albeit whilst on the ground but perhaps because of the fact that he had been knocked to the ground, pointed his gun at the Applicant shortly before being struck by Davis.

102. For the reasons that follow, I agree with the Applicant’s submissions.

Consideration

103. As noted in New South Wales Law Reform Commission, Complicity (Report No 129, December 2010) at 59-70, New South Wales is alone among Australian jurisdictions in not statutorily defining an accessory after the fact, or in providing a specific offence, and rather, leaving it to the common law. Section 347 of the Crimes Act which provides that:

“[e]very accessory after the fact to a serious indictable offence may be indicted, convicted, and sentenced as such accessory, either before, or together with, or after the trial of the principal offender, whether the principal offender has been previously tried or not, or is amenable to justice or not”

recognises but does not create the offence. See also s 350.

104. The Law Reform Commission Report identified the position at common law as being that:

“a person (D) will be guilty as an accessory after the fact, in relation to an offence committed by another person (P) where:

○   P committed that offence;

○   D intentionally provided some positive assistance for the purpose of helping P to escape apprehension, trial or punishment; and

○   at the time of providing such assistance, D was aware of the essential facts and circumstances that made up P’s offence.” (emphasis added)

105. R v Tevendale [1955] VLR 95 (Tevendale) and R v Stone [1981] VR 737 at 739-740 are cited in support of the third, mental element in this statement of the elements of the common law offence of accessory after the fact. In Gall, Hoeben CJ at CL made reference to Tevendale and Winning v The Queen [2003] WASCA 245 (Winning) and said at [170] that, to the extent that Stone said anything to the contrary of Winning, it should not be followed. His Honour did not, however, identify whether or if anything said in Stone was contrary to Winning. At least as applied to the facts of the present case, I do not see any material difference between Winning and Stone in relation to the identification of the third element of the common law offence as set out by the Law Reform Commission Report.

106. The essential facts and circumstances that made up Davis’ offence, and of which the Applicant would have needed to be aware to be guilty of providing assistance to him after the fact, were that Davis’ striking of the deceased was an objectively unreasonable act by way of defence of the Applicant in light of the circumstances as Davis understood them to be.

107. The critical (but complex) question is whether the Crown excluded the reasonable possibility that the Applicant believed that Davis saw her being threatened with a gun on the street such that, at the time she performed the acts which were alleged to have assisted Davis after the fact in evading arrest, she believed that Davis’ conduct was a reasonable response to the circumstances as she must have believed he perceived them, namely that it was necessary to defend her whilst she was being threatened with a gun.

108. This possibility could not have been excluded if the Applicant had seen the gun being pointed at her, as she claimed. On that footing, a reasonable inference, consistent with innocence, was that she believed that Davis probably saw this too and responded to that threat by striking the deceased with the sword. As such, it would be reasonably open to conclude that the Applicant’s understanding of Davis’ actions was that they were taken as a measure of reasonable self-defence (in the extended sense, including in defence of the Applicant).

109. If, of course, the Applicant did not see the deceased pointing a gun at her, she could not have held a belief that Davis perceived the circumstances to warrant his conduct in striking the deceased with the sword. That observation leads to the need for a close independent examination and review, consistent with M v The Queen and Pell, of the whole of the evidence at trial, in particular, focussing on the Applicant’s account that the deceased drew and pointed his gun at her after he had fallen to the ground.

110. At the outset, it should be acknowledged that the jury must be taken to have enjoyed an advantage over this Court in being able to assess the credibility and reliability of evidence given by Davis, Mr Blake and the eyewitnesses to the events on the street. Their evidence was given in person over several days and was subject to cross-examination which was, in some cases, extensive. However, the only form in which the Applicant’s account was given was by way of a transcript of her ERISP interview with police on 14 August 2018. It follows that the jury enjoyed no greater advantage on the basis of having seen or heard that account than this Court does on appeal.

111. The Applicant’s account in relation to the deceased having pointed a gun at her was contained in her response to question 355 referred to at [22] above.

112. That account was given strong support in the evidence of Mr Blake, with whom the Applicant spoke on the day of the events in question. That evidence has been set out at [55] above. It was not relevantly challenged by the Crown. It is entirely consistent with the account the Applicant gave to the police in her ERISP some days after her speaking to Mr Blake. The conversation recounted occurred within hours of the events on Hereford Street, and prior to the Applicant learning that the deceased had in fact died. There was no obvious reason why the Applicant would have told Mr Blake a falsehood. Mr Blake’s evidence was that the Applicant was “clear that he had had the gun at her”.

113. Mr Blake made it plain in his evidence that he had been “careful and vigilant” in not contaminating his evidence in the period subsequent to that conversation. His account that Davis “could barely recall anything to me” was consistent with Davis’ evidence at trial as to his recollection whether he saw that the deceased had brandished a gun at the Applicant. It was also consistent with him having been struck by a powerful blow by the deceased with knuckledusters during the home invasion.

114. The Crown submitted that the reference by Davis to having been told about a gun was consistent with the deceased’s brandishing of a gun in the course of the home invasion (as to which, see [5] and [20] above). I would reject that submission. The sequence of Mr Blake’s account makes it plain that the reference to the deceased pointing a gun at the Applicant was to events on Hereford Street, after they had left the house and prior to the deceased being struck by Davis with the sword.

115. The Crown ultimately accepted that Mr Blake’s evidence supported the Applicant’s account, but also submitted that it was open to the jury not to accept it and that it was open to this Court not to find that it compelled a reasonable doubt. I would also reject that submission. The evidence was unchallenged and was given by a witness who spoke to the Applicant and Davis within hours of the events. Mr Blake was also adamant that his recollection of what had occurred had not been contaminated by what had been said to him in subsequent interactions with the Applicant and Davis. His evidence also related to an account given to him prior to any suggestion of the Applicant being charged with anything.

116. There was also evidence given by Davis’ mother following a recorded conversation between mother and son on 8 January 2020. In that conversation, Davis’ mother is recorded as saying:

“You told me at first you were going for the gun, and he moved.”

to which Davis responded (consistent with the evidence he gave at the trial) that:

“Ah, my heads all over the place, as to what was in my head.”

117. Under cross-examination, Mrs Davis gave the following evidence as to her comments about the presence of a gun on the street captured by the listening device:

“Q.  There is confusion in the discussions that you had with Blake as to whether or not the deceased held a gun at him or Hannah on the street itself, wasn't there?

A.   Sorry, what do you mean confusion?

Q.   Well hadn't Blake originally told you that he thought the deceased was pointing a gun at them on the street, isn't that what he said to you on one occasion?

A.   That was my understanding from when I was first told about it. It was my understanding that, I remember the words that Blake [Davis] was going for the gun and Jett moved, and that stuck in my head. I am [not] sure who actually said it or where it came from. I have my own belief about it, but I cannot say for sure where that came from but that's been in my head and that's what I believe.

Q.   And by the time of the 8 January 2020 there was a listening device product where you in fact said to Blake "you told me at first you were going for the gun and he moved" to which the response, "ah my head is all over the place as to what was in my head", do you recall that?

A.   Yes I do.

Q.   So towards certainly the 8 January 2020, if it had been the story involved pointing the gun on the street, that was no longer a feature in the story at the start of January 2020, do you agree?

A.   No, I don't agree at all. We had never discussed that part of the story. I was trying to help my son. He had been suicidal and I remembered that, and I believed it and that's why I threw it in there because I was trying to get him to stop being so self-loathing and to the point of suicide where he felt so bad about himself and that was the whole point of that, my speaking to him, so I threw that in there to take away some of the remorse he was feeling about the event and how bad he felt about the event and that was the reason.”

118. Little weight should be put on this evidence one way or the other.

119. Other circumstantial evidence consistent with, and indeed supportive of, the Applicant’s account of the deceased pointing a gun at her shortly before he was struck by Davis includes:

1. the presence of the deceased’s gun with his fingerprints on it in very close proximity to where he fell, following the Applicant having grabbed him from behind, and where he was shortly thereafter struck by Davis;

2. Mrs Charlesworth’s evidence recounted at [31] above, namely that she heard the Applicant scream out the words “No, don’t” shortly before she heard a thud which it may be inferred was the striking of the deceased by Davis. The screaming of such words is, at the very least, consistent with the deceased having pulled his gun on the Applicant after he had fallen to the ground, and the Applicant imploring him not to pull the trigger in circumstances where no eyewitness observed her turning to face Davis as he approached from behind her up Hereford Street;

3. that conclusion is only strengthened by the evidence of Mr Palmer, referred to at [37] above, who saw the Applicant stepping “backing off” from the deceased but, as a matter of necessary inference, continuing to face him prior to his being struck by Davis. This is consistent with the Applicant being threatened with the gun;

4. the evidence that the Applicant was in retreat whilst still facing the deceased was also consistent with her ERISP account as well as evidence given by Davis at the trial: see [25] above (“I saw Hanna coming towards me, backing up, as I got close up to them”); and

5. the fact that, according to the uncontroversial evidence concerning the home invasion derived from the Applicant’s ERISP and Davis’ evidence at the trial, the deceased had, only minutes before the events on the street, threatened to kill both Davis and the Applicant with his gun in the course of the home invasion, and had struck Davis with knuckledusters with such force as to fracture Davis’ eye socket: see [21] above. As was submitted by Ms Rigg, this showed that, consistent with the Applicant’s account, the deceased was willing to brandish his gun by way of threat and, it might be inferred, would have been desperate to escape to his nearby getaway vehicle, having been caught up from behind and wrestled to the ground by the Applicant. Mr O’Connor also gave evidence that the deceased had, at an earlier point in time, said to him that “no one’s going to try to fight me if they see a gun”, a statement consistent with the deceased’s willingness to brandish his weapon as a means of self-defence. A post-mortem examination of the deceased also disclosed that he had a toxic to lethal level of methamphetamine in his blood which may have increased his propensity for violent behaviour.

120. As to the first of these points, Ms Rigg’s submission was that the presence of the gun on the ground very close to where the deceased fell gave rise to only two possibilities: either the deceased was holding it when he fell or, alternatively, it fell from somewhere else on his person.

121. The Crown’s case theory was that the gun, knuckledusters and balaclava, which were all found on the street in close proximity to where the deceased had fallen and was struck, had fallen out of the deceased’s pockets or hoodie as he tried to pull himself up on the white Mazda parked across the street from where he fell and to which he crawled after being struck by Davis. As observed at [34] above, however, this was inconsistent with Ms Charlesworth’s evidence.

122. Even if a possibility, the Crown’s case theory was only that and was certainly no more likely than that the deceased had pulled off his balaclava and was holding it, the knuckledusters and his gun as he ran down the street after conducting the invasion of Davis’ home, before pointing the gun at the Applicant after he had fallen and she had grabbed her bag. That this may not have been noticed by the eyewitnesses is not surprising, as shall be explained in further detail below.

123. It was also pointed out on the Applicant’s behalf that a can of pepper spray was found in the deceased’s pockets after he had been killed, a fact that was said to be inconsistent, or potentially inconsistent, with the Crown’s case theory that the contents of the deceased’s pockets fell out as and when he used the white Mazda to pull himself up.

124. In written submissions, the Crown properly accepted that the onus lay on it to negate the two limbs of self-defence. The Crown submitted that the Applicant’s account of a gun being pointed at her by the deceased “was entirely implausible on the whole of the evidence” and that the “eyewitnesses’ evidence only strengthened the conclusion that her account about the gun could not reasonably be accepted”.

125. As to the submission that the Applicant’s account was “entirely implausible on the whole of the evidence”, the matters considered at [112]-[124] point to the opposite conclusion. As to the eyewitnesses’ evidence to the effect that, as they observed the deceased run down Hereford Street, they did not observe him to be carrying a gun, the following analysis shows that the Crown’s reliance on this body of evidence was misplaced and/or undue. It certainly did not negative the fact that the deceased plainly had a gun with him which was found on the ground near to where he was struck. A number of points may be made.

126. First was the fact that, as was common ground, the deceased was wearing black gloves on his hands which supplied a potential explanation why various eyewitnesses may not have noticed a gun if the deceased was carrying it.

127. The only witnesses to say, at least by implication, that the deceased was not carrying anything in his hands were Ms Baker (who said she saw the deceased use both his hands to pull up his hoodie), and Mr Scott. Their recollection was substantially undermined by the fact that they recalled that they saw the flesh of the deceased’s hands, but their recollection cannot have been correct as it was accepted that he was wearing black gloves. This is apt to suggest that they did not accurately observe the deceased’s hands at all, a matter reinforced in the cross-examination of Mr Scott to the effect that he “wasn’t specifically looking at [the deceased’s] hands”.

128. Secondly, during a dramatic foot pursuit, accompanied by screaming, it would not have been surprising that eyewitnesses, especially at a distance, would not have been directing their eyes to the hands of the deceased but, rather, to the whole scene of commotion.

129. Third, the fact that none of the eyewitnesses saw a gun during the chase down Hereford Street, or when the deceased was on the ground, is hardly surprising given that none of the eyewitnesses were in fact particularly close to the scene. All were viewing from varying distances away. The closest witness was Mr Palmer who was 20 metres away from the site of the strike, three floors up and three metres back from the street. Ms Charlesworth only saw the deceased after he had ben struck by Davis and Mr Palmer could not see anything for a short period as he moved himself to the ledge. His evidence, set out at [41] above, that the only item he saw at the scene was a small bag, was denuded of forensic significance by his acknowledgement under cross examination that in fact he could not see the deceased’s hands. The view of some of the tradesmen and Ms Sparks was, by their own admission, obstructed while the deceased was on the ground and although Ms Baker and Mr Scott were close to the deceased and the Applicant as they exited 87A Hereford Street and ran out onto the road towards Minogue Crescent, they lost sight of the Applicant and the deceased shortly thereafter.

130. Moreover, that the deceased may not have been carrying a gun in his hands whilst running down Hereford Street, even assuming the reliability of Ms Baker’s observation that the deceased used both hands to pull his hoodie up over his head, also did not negative the Applicant’s evidence that the deceased pointed the gun at her after she had caught up with him and he had fallen to the ground. On the hypothesis that he did not have the gun in his hand as he ran down the street, given the short period of time between the time at which he threatened the Applicant and Davis with it in the house and his running out onto the street, he must have had it on his person in a pocket from which it could readily be withdrawn such that he could have easily done so in order to threaten the Applicant after falling to the ground.

131. Thus, the Crown’s heavy reliance on the so-called eyewitness evidence did not exclude the possibilities either that the deceased was carrying a gun as he ran down the street or, if he was not, that he withdrew it from his person when he was caught by and scuffled with the Applicant.

132. The additional arm of the Crown’s case on appeal was that the words “What the fuck have you just done?” overheard by Mr Palmer (not Ms Charlesworth, contrary to a mistaken submission on appeal) being shouted by the Applicant following Davis striking the deceased with the sword (see [42] above) was consistent with her having believed at the time of the sword strike that the co-accused’s conduct was unreasonable. However, these words are equally, if not more, consistent with being an expression of shock in the course of an extraordinarily traumatic sequence of events. Occurring seconds after the sword strike, they cannot reasonably be construed as a considered assessment by the Applicant that Davis’ actions were a disproportionate response to the threat she was under, as perceived by him. She simply would not have had the opportunity to process what had occurred.

133. As was submitted on the Applicant’s behalf, her:

“utterances at the scene and, expression of horror in interview at the gravity of what happened to Jett McKee, is reflective of an understandable human reaction to the gravity of a fellow human being seriously and graphically injured (to her knowledge at the scene) and dead (when interviewed). They are the utterances that may be expected of any citizen of our community with a basic level of empathy, good character, lack of violence, and appreciation of the sanctity of human life.”

The submission, which I accept, continued:

“These utterances cannot be strained to support subjective knowledge by her at the time she paid for hotels and the like that Mr Davis had voluntarily caused the death of Mr Davis, with intent to kill him or cause him grievous bodily harm, having such a perception of events that he believed his actions were necessary to defend himself (or, more likely, her), but that despite him holding that belief, his actions were not a reasonable response to the circumstances as her perceived them.”

134. The Applicant’s subsequent flight, in the company of Davis, was also not, unequivocally, any admission as to an appreciation by her of the unreasonableness of Davis’ actions. The most nearly contemporaneous evidence as to her mental state and understanding is what she told Mr Blake later that very day. For reasons set out above, there was no rational basis for the jury to have rejected his evidence (which they must be taken to have done).

134. Nor should the decision of the Applicant, in conjunction with Davis, to contact police on 12 August be understood as an implied admission as to the Applicant having come to some understanding of any necessary unreasonableness in Davis’ response of striking the deceased in all of the circumstances.

135. Finally, in support of its submission that the evidence excluded any reasonable possibility that the Applicant was threatened with a gun on the street, the Crown also relied on conversations between the Applicant and Davis which were recorded using lawful listening devices. It was submitted that the credibility of the Applicant’s account was undermined by the fact that she did not mention having been threatened with a gun in any of those recorded conversations.

136. In particular, the Crown pointed to the following passage of a conversation recorded between the Applicant and Davis on 30 August 2019, about a year after the incident, in which the Applicant said the following about the events on the street:

“Yeah, like I heard him hit you, and I heard you drop, like yeah, I can’t explain the fucking rush that came up in me when I saw what happened, it was anger and protection and it was me going crazy. And he left, and I was like ‘nah fuck that you don’t get to come in here and do that’ and then me not know who you are. So that’s why I like ran down the street full on screaming ‘who the fuck are you who the fuck are you who the fuck are you?’ cause I wanted him to turn around and go ‘fuck you, I did this’, because of something I would have know who it was, you know what I mean? I just wanted a fucking answer. And because of that, because of me fucking being so angry … You know? We could have just called the cops and called in a break in, it wouldn’t matter if we had our shit there cause they wouldn’t have searched our house …”

138. Earlier in the same conversation, Davis said the following with respect to his actions on the street:

“… I remember thinking, “Oh fuck, be careful, you might hit Hannah,” so I stepped to the side, and I just swung down … side of his leg … I moved out of the way because I was worried about hitting you. And that’s why I hit his head. And I even had it in my head, I was like, “Oh, what do I do? What do I do? Just get Hannah away,” and then you were there and I was like, “Fuck, don’t hit Hannah,” and then, I tell everyone that I can’t remember it but I can remember it … I know exactly what was going on ---”

The Applicant responded by saying, “I know”.

139. The record of the conversation also contains an incomplete transcription of the following words which were attributed to Davis: “… gun … face. I didn’t know if he was …” It was the Crown’s submission during oral argument that, although it was unclear, that reference by Davis to a gun was not a reference to the presence of a gun on the street. Rather, it was argued that Davis was referring to the presence of a gun inside the house which was said to be consistent with his evidence that the deceased threatened him and the Applicant with a firearm during the home invasion.

140. However, the reference appears in the context of Davis discussing with the Applicant his thought processes at the time at which he struck the deceased on the street. It is most unfortunate that the transcript is incomplete, but the better view is that this transcribed recording is more consistent with the Applicant’s account of the deceased pointing the gun at her face when on the street. At the very least, it did not, in my view, support the Crown’s case.

141. Having carefully reviewed the record of the trial in accordance with the authorities noted at [81]-[86] above, and conscious of the advantages of the jury, I have concluded that the jury ought nonetheless to have entertained a reasonable doubt as to proof of the Applicant’s guilt, and that the jury’s verdict in respect of the Appellant was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Conclusion

142. In this most unusual of cases, the jury’s verdict in relation to the Applicant should, in my considered opinion, be set aside as unreasonable and the Applicant acquitted.

143. WILSON J: I have had the advantage of reading the judgment, in draft, of Bell CJ, and gratefully refer to the factual outline and statement of the issues set out there. His Honour has concluded that ground 1 is not established, and I agree with that conclusion for the reasons the Chief Justice has given. I have, however, come to a different conclusion as to ground 3. As mine is the minority view it can be stated relatively briefly.

144. This was a trial in which the testimony of eye witnesses as to the events in Hereford Street on 10 August 2018 was of critical importance. The evidence of those witnesses was, generally, that the deceased was not seen to be carrying a gun. The evidence given by Blake Davis did not contradict the eye witness accounts, since Mr Davis said he had no memory of the events immediately before he struck the fatal blow to the deceased’s head. The evidence was available to the jury as the context in which the applicant’s testimony fell to be assessed. Clearly, the jury did not accept the applicant’s account of the relevant events.

145. A summary of the evidence given by those in Hereford Street on this day may be found at [19]–[29] of R v Hannah Quinn [2021] NSWSC 494, the costs judgment already referred to by the Chief Justice. Sarah Baker, who was crossing Hereford Street at the time she made her observations, saw the deceased running down the street being chased by the applicant. She saw him use both hands to pull his hooded top up over his head, very shortly before the applicant caught up to the deceased and pulled him to the ground, having grabbed him as another witness, Kerrie Sparks, said, by the scruff of the neck. Ms Baker did not see anything in the deceased’s hands other than the hood.

146. Although there were concessions made by some witnesses in cross-examination as to the possibility of mistake or a limited opportunity to make observations, none of the Hereford Street witnesses saw a gun during the chase, or when the deceased was on the ground. Common sense suggests that an individual familiar with carrying out robberies would be unlikely to run along a well populated public street in hours of daylight brandishing a firearm, even in circumstances of some urgency, particularly when a pocket was available for concealment.

147. When the deceased was pulled to the ground by the applicant he was, at least initially, seen to be “on all fours” or on knees and elbows. Rossinni Palmer gave a demonstration to the jury of the deceased’s prone position, and the movement by which he raised himself to his arms and knees – something no description given for the benefit of the trial transcript can ever hope to replicate.

148. Some witnesses observed a scuffle or tussle between the deceased and the applicant. On witness accounts, the applicant did not immediately desist from that struggle with the deceased. Frank O’Connor saw the applicant appear to kick out at the deceased and described her shouting at him. That she was willing to physically engage with the deceased at that point suggests that he did not have a gun in his hand, since it is highly unlikely that the applicant would have acted as she did if she saw the deceased holding a firearm.

149. That the deceased had a gun in his possession is clear, but its later presence on the street near to where he fell is not evidence that it was formerly in his hand. Had the gun been placed by him in the front pocket of the hooded top he was wearing, that being a ready place in which to quickly conceal a weapon on flight from Mr Davis’ home, it could have easily fallen from his clothing during the events of the following moments. If the applicant had seen a gun, it is unlikely that she would have called out to Mr Davis, “No, don’t”, a cry that seems to have been directed to him and not the deceased; nor would she have remonstrated with Mr Davis after he struck the fatal blow by shouting to him, “what the fuck have you done”. If the deceased had been menacing the applicant with a gun, the applicant would have been grateful for Mr Davis’ intervention in her defence, not prohibiting or querying his conduct.

150. Whilst the concessions made in cross-examination concerning the possibility of the deceased having displayed a gun to the applicant are sufficient to raise some doubt, that doubt is resolved when the jury’s advantage in seeing the witnesses give evidence is taken into account: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494.

151. Recorded on transcript, the words of a witness are devoid of tone, expression, and nuance. The tone in which the evidence was given and the manner of the witness in giving it is entirely opaque from a written account. A witness may concede something in an earnest and thoughtful way, accepting it as a very real possibility; or with an air of scepticism, all but rejecting it. Although the manner of delivering the statement will define its meaning in such circumstances for those listening to and watching the witness, that meaning is lost to the reader of a transcript. That is one reason why juries are, in our system of criminal justice, of constitutional importance. Although the reference therein is to the Queensland Criminal Code Act 1899, the following statement from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] applies:

“It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal.

With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty" (Footnotes omitted).”

152. In my conclusion, on the whole of the evidence and giving weight to the jury’s singular advantage in having seen the witnesses give that evidence, it was open to the jury to be satisfied of the applicant’s guilt to the criminal standard. The verdict was not in my view unreasonable. I would dismiss ground 3.

153. As I am in the minority, there is no utility in considering the remaining grounds.

154. SWEENEY J: I have had the considerable benefit of reading the draft judgment of Bell CJ. I gratefully adopt his Honour’s detailed analysis of the evidence in the trial in relation to the grounds of appeal. I agree with his Honour’s disposition of the grounds of appeal, and his reasons for so deciding. Having conducted my own assessment of the evidence in the trial, I am also of the view that the jury’s verdict was unreasonable. I agree with the orders proposed by the Chief Justice.

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Decision last updated: 08 September 2023