R v Davis and Quinn (No 1) - [2020] NSWSC 1615

Supreme Court

New South Wales

Medium Neutral Citation: R v Davis and Quinn (No 1) [2020] NSWSC 1615
Hearing dates: 9 and 10 November 2020
Date of orders: 13 November 2020
Decision date: 13 November 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
For orders see [225] and [233]

Catchwords:
CRIMINAL LAW – murder – evidence – 18 objections to evidence proposed to be led by the Crown – relevance – probative value – unfair prejudice – expert evidence of police officer – evidence of drug supply – other orders – whether view warranted

Legislation Cited:
Evidence Act 1995 (NSW), s 18, s 53, s 55, s 56, s 135(a), s 137
Criminal Appeal Act 1912 (NSW), s 5F(3A)

Cases Cited:
Colby v The Queen [1999] NSWCCA 261
D’Agostino v Regina [2019] NSWCCA 259
Decision Restricted [2020] NSWSC 1297
Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
Griffiths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164
McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
Odisho v R [2018] NSWCCA 19
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Adams (No 2) [2016] NSWSC 1359
R v FDP (2009) 74 NSWLR 645; [2008] NSWCCA 317
R v Katarzynski [2002] NSWSC 613
R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Standen v Regina [2015] NSWCCA 211
Wilson v R (1970) 123 CLR 334; [1970] HCA 17

Category: Procedural and other rulings
Parties: Regina (Crown)
Blake Davis (Accused)
Hannah Quinn (Accused)
Representation:
Counsel:
Mr C Taylor (Crown)
Ms M Cunneen SC (Accused Davis)
Mr T Hughes (Accused Quinn)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused Davis)
Korn MacDougall Legal (Accused Quinn)

File Number(s): 2018/249752; 2018/248991

Judgment

Blake Davis and Hannah Quinn are to stand trial for the murder of Jet McKee. Ms Quinn is further charged, in the alternative, with being an accessory after the fact to murder. Mr McKee was killed on 10 August 2018. The accused were both arrested and charged on 13 August 2018. The accused Ms Quinn was released on bail on 16 August 2018 and the accused Mr Davis was released on bail on 27 November 2018.
On 6 December 2019, both accused were arraigned before Fullerton J in this court. Both pleaded not guilty and the trial was listed on 9 November 2020 with a six week estimate. The matter was subsequently allocated to me on 21 May 2020.
I listed the matter for case management directions on 17 August, 11 September and 12 October 2020. The main issue of concern at those mentions was the service of remaining material to be relied upon by the Crown at the trial. At the last of these directions hearings on 12 October 2020, I enquired of counsel as to whether there would be any pre-trial arguments. Counsel for both Mr Davis and Ms Quinn indicated that, although there were objections to some of the material the Crown sought to rely upon, the parties hoped that they could be resolved without the need for me to have to rule on many of them. Despite this, and for abundant caution, I listed the matter for pre-trial rulings on Wednesday 4 November 2020.
On Tuesday 3 November 2020 at 8.08 pm, my Associate received an email from the solicitor for Mr Davis indicating, for the first time, that he proposed to rely upon the defence of substantial impairment at trial under s 23A of the Crimes Act1900 (NSW).
At the pre-trial hearing the following day Ms Cunneen SC, for the accused Mr Davis, submitted that Mr Davis would also be relying upon the defence of sane automatism.
I raised with Mr Taylor of counsel, who appears for the Crown in this matter, whether this late notice caused the Crown any embarrassment. He replied that it did given the necessity to obtain a report in reply. I afforded Mr Crown until Monday 9 November 2020 to make all necessary enquiries to endeavour to meet the new case to be presented on behalf of Mr Davis and for Ms Cunneen to serve the material she would be relying on with regard to this issue.
I also noted for the record that I had received a lever arch folder of material from the Crown and a list of objections on behalf of the accused Mr Davis which required pre-trial rulings by me. I inquired as to whether those objections could be dealt with in the interim. Mr Crown informed the court that those rulings could not be made until the defence had served the material it would be relying upon. I then adjourned the proceedings until Monday 9 November 2020.
On the day the trial was due to commence, 9 November 2020, I was informed in court that Mr Davis no longer relied upon the defence of sane automatism and the partial defence of substantial impairment. Ms Cunneen had a two page report from Dr Stephen Allnutt she would be relying upon in addition to a report already served on the Crown of Dr Beran, neurologist. She indicated that that was the totality of the evidence she would be relying upon on this issue.
Mr Crown responded that the trial still could not commence until he was in a position to know when the expert engaged by the Crown, Dr Jeremy O’Dea, would be able to provide a report in reply. I stood the matter down until 2 pm for the Crown to make those inquiries.
At 2 pm, Mr Crown was still not able to indicate to the court when such a report might be available but was content for submissions on the pre-trial rulings to commence.
Submissions proceeded that day and all of Tuesday 10 November. In total, rulings were required in relation to 18 different objections. I suggested that in order for the trial to commence as soon as possible I would only consider the evidence that the Crown needed to know my ruling on prior to his opening address to the jury. Mr Crown submitted that the preferable position was that I rule on all objections before the trial commenced, that I provide full reasons for doing so and that I do so before the weekend so Mr Crown could consider my reasons over the weekend. This course was opposed by counsel for both the accused who were anxious for the trial to commence.
Given the complexity and number of rulings to be made, I indicated to the parties that I would provide judgment with written reasons on Friday 13 November 2020 at 3 pm with the jury to be empanelled at 10 am on Monday 16 November 2020.

Background

A Crown Case Statement was filed on 26 October 2020. I have taken the following outline of the Crown case from that document.
The Crown case is that the deceased needed money urgently due to a gambling problem and persuaded his friend, a witness to be known as Frank O’Connor at the trial, to join him in robbing an easy target. Mr O’Connor had had previous dealings with the two accused and knew them to be drug dealers. On 10 August 2018, Mr O’Connor drove the deceased to the vicinity of Mr Davis’ home at 87A Herefod Street, Forest Lodge. The deceased had a balaclava, knuckledusters and an imitation pistol. Mr O’Connor waited in the car whilst the deceased approached the premises about a block away.
At about 1 pm, the deceased entered the premises. The only direct evidence of what happened until the deceased left the premises some short time later is contained in the ERISP with Ms Quinn made on 14 August 2018 at 4.36 pm. A neighbour, Ms Hanlon-Schafer, also heard and saw something inside the property that I will describe further below. Ms Quinn told police that the deceased was wearing a balaclava and holding a pistol. The deceased said "give me any valuables”. She told police:

“He's really intimidating. He said that there were, um, more people who would be coming if we didn't, um, give him, like some money and give him things. He said there were people who knew who our family were and that they would hurt our families".

She told police that she yelled at him to "get out get out". He took her handbag from her and ran off through the gate.
Ms Hanlon-Schafer resides on the fourth floor of the building immediately next to the accused’s residence. Her balcony looks directly into the accused’s residence. She heard a scuffle/fight/verbal argument at the accused’s residence. She then went to see what was happening from her balcony. She saw the glass sliding door open quickly, and three people came out of the door. The first person was the deceased. He looked like he was being “shoved” out the door. He fell backwards out of the door and hit into the wooden fence which caused the fence to shake.
She then saw the two accused standing side by side, almost shoulder to shoulder. She saw Mr Davis “appeared to be holding what looked like a long grey pole”. He began to swing the pole up over one of his shoulders in a “clubbing like” downwards motion. It looked like he was hitting the area of the fence the deceased was pushed out onto. Ms Quinn ran back into the house yelling. Ms Hanlon-Schafter then saw the deceased run out of the residence towards Hereford Street, followed by Ms Quinn a few steps behind her.
Sarah Baker and Thomas Scott were walking past the accused’s residence. When they were 4–5 metres from the entrance they saw the deceased running out of the side access. They did not see the deceased to be holding anything in his hands. Ms Baker saw him put the hood of his jacket up with both hands. They saw Ms Quinn just behind him and Mr Davis was just behind her. He was wearing boxer shorts and carrying a samurai sword. He was holding the sword in his right hand in front of him.
Ms Quinn was yelling “who are you? who the fuck are you?” and Mr Davis followed her. They then lost sight of them but saw another witness, Ms Sparks, observing what was happening.
Ms Sparks was walking her dog when she heard footsteps coming from behind her and saw the deceased run out into the middle of Hereford Street. He was not holding anything. A few second later, she heard Ms Quinn and saw the two accused following the deceased, Ms Quinn was out front. She saw what was in Mr Davis’ hand and thought it was a long stick or a huge long pole. He had it in his right hand. The tip of it went over his head. As she was walking in the same direction, she saw Ms Quinn catch up with the deceased, place her hand on him and pull him to the ground. Mr Davis then caught up to the deceased, who was on the ground. Ms Sparks saw him raise the sword (described as a “stick”), up in the air and then come back down again. She did not see it connect but she heard some builders who were across the road groan.
The builders were the witnesses Aaron McCaw, Michael Mullan, Bradley Miller and Gary Foxall who were working on a jobsite at 176 Hereford Street, Forest Lodge.
Mr McCaw, Mr Mullen and Mr Miller were in the front garden of the property eating lunch when they saw the deceased in the middle of the road running towards them. He was being chased by Ms Quinn who was screaming and shouting at the deceased. Mr Davis was just behind Ms Quinn and was carrying a samurai sword in his right hand. Mr McCaw saw Ms Quinn catch up to the deceased and they looked to be having a scuffle in the middle of Hereford Street. Mr Davis ran with the sword towards the two in the middle of the street.
The three of them walked out onto the street so that they could see better. Mr McCaw describes his view as “a perfect view” and Mr Miller’s view was partially blocked by a vehicle and Mr McCaw and Mr Mullan’s heads. The deceased and Ms Quinn were having a physical fight. The deceased was in the middle of the road, hunched over trying to stand back up, Ms Quinn had hold of the back of his shirt trying to fling him away, Mr Davis approached the deceased, raised the sword with both hands above his right shoulder and the blade of the sword hit the deceased on the top of his head. It made a loud clapping sound.
In the lead up to and during the altercation Mr McCaw and Mr Foxall state that they did not see the accused holding anything.
The witness Rossinni Palmer was working in 9/79 Hereford Street. He was painting the loft level of the residence when he heard a female voice shouting “[w]hat are you doing, who the fuck are you?” He looked out the window facing Hereford Street and saw the deceased being chased by Ms Quinn. They were 15m away. When they were 20m away Ms Quinn caught up with the deceased. He was stumbling to get up, he was on his knees and elbows and Ms Quinn was backing away whilst still looking at the deceased. Mr Davis then appeared in view coming from the same direction, holding the samurai sword (described as a “stick” like object). Mr Davis ran quickly up to the deceased, who was beginning to push himself up with his hands, he raised the sword above his head, holding it near the base with both hands, and brought it down in a quick chopping motion onto the top of the deceased’s head. It made a solid sound when it made contact.
Mr Palmer heard Ms Quinn say “what the fuck have you done” before running away with the accused.
About two seconds prior to hearing a crack and a thud sound, Ms Lynne Charlesworth, a witness who was inside her residence at the time, heard a woman scream the word “[d]on’t”.

Flight

The two accused ran from the scene. Mr Davis had a bloody eye and was still holding the sword. They ran down a nearby driveway and were seen 10-15 seconds later carrying a large piece of tarpaulin. They ran back towards the accused’s residence, they passed Ms Sparks who saw them running with Mr Davis holding the tarpaulin bunched up in front of him.
Mr Davis and Ms Quinn ran back into 87A Hereford Street. Some muffled argument was heard. Ms Hanlon-Schafer saw legs walk out into the rear garden area. It appeared to her like they were arguing and pushing each other back and forth. Mr Davis jumped the rear wall of his garden and into the unit complex of the witness. Ms Quinn handed what looked like a cardboard box to Mr Davis and also jumped over the fence. Mr Davis turned around and looked directly at Ms Hanlon-Schafer and she heard him say “[s]hit, I’m going to go to gaol” or “fuck, I’m going to gaol”.
They later were seen to jump into the backyard of their neighbours, Ms Baker and Mr Scott. Mr Davis was holding a cardboard box, which was larger than a shoe box and Ms Quinn was holding a bag, which looked to be a cream coloured cloth bag on one shoulder. The side of the deceased’s head was covered in blood.
Whilst the witnesses were watching and calling emergency services, the deceased got up off the road and leaned against a parked car. He slowly got to his feet, staggered a short distance along Hereford Street and fell into a garden on the side of the road. Witnesses told the deceased not to move and to sit back down. They observed that he had an injury to the right side of his head running from the front of his head to the base of his skull. He was covered in his own blood and brain matter.
The deceased slowly climbed to his feet again and staggered east along Hereford Street about 80 metres. The deceased collapsed on the roadway at the intersection of Minogue Street and died because of his injuries. An autopsy of the deceased later confirmed that the cause of death was due to a “Sharp Force Head Injury” which included a “Slicing/chop wound to the right side of the head extending through the skull, dura mater and brain with extensive associated contusions on the brain”.
A later examination of the roadway identified a black balaclava, a set of knuckledusters and a replica pistol on the roadway near the vehicle where the deceased was leaning or and a large pool of the deceased’s blood. The deceased’s DNA was located on these items. None of the witnesses Ms Baker, Mr Scott, Mr Foxall, Mr McCaw, Ms Sparks and Mr Palmer saw any of these items in the lead up to the deceased being struck by the accused. These witnesses also state that they did not at any point see a gun/pistol in anyone’s possession or on the ground.
Prior to the police arriving Mr O’Connor was seen to stop in his vehicle next to the deceased on the roadway. He got out of the vehicle and called the deceased by name and appeared to be panicked. He left the scene when sirens sounded.
The police canvassed the area. At about 6:08 pm, they located a paper bag which contained $21,380.00 cash, two mobile phones, six pairs of nunchucks and a “pellet gun” between 133 and 135 Wigram Road. The handles of the paper bag were tested for DNA. It was confirmed that the DNA of both Mr Davis and Ms Quinn were on the handles of the paper bag. One of these mobile phones was a black “Oppo” brand phone, a swab of a blood stain was taken from the exhibit and confirmed to contain the DNA of Mr Davis. The other mobile phone was a white “Huawei” brand phone. The phone was accessed by police and an extract of the contents of the phone was conducted.
At 12:12 am on 11 August 2018, the police located a samurai sword which was wrapped in a silver car cover at the rear of the property.
A friend of the accused states that the accused owned up to five samurai swords and that he had been collecting them since he was 13 years old. He stated that the accused has been “into martial arts” since he was 14 and that the swords are displayed on a stand inside his house.
A Facebook video uploaded by Mr Davis on 12 November 2016 was downloaded by police. It is 15 minutes long and depicts the accused wielding swords, knives and other weapons and performing “moves” or “manoeuvres” with the weapons.

Flight

The two accused went to Ms Quinn’s residence in St Peters in order to change their clothes and clean themselves. Police later conducted a search of the residence and located blood stained clothing which fits the description provided by witnesses.
The two accused then moved from hotel to hotel over the next few days until about 3:20 pm on 13 August 2018. A solicitor contacted the police on behalf of both Mr Davis and Ms Quinn at that time and arrangements were made for them to attend Newtown Police Station.
At about 5:20 pm, Mr Davis and Ms Quinn walked into the front foyer of Newtown Police Station. They were arrested and entered into custody. Mr Davis was conveyed to Royal Prince Alfred Hospital shortly after. He suffered medial and inferior orbital wall fractures (fracture to his eye socket) as a result of the blow from the deceased.

Search warrant at 87A Hereford Street, Forrest Lodge

Police executed a search warrant on the premises and found $3,270 cash, various small jars and containers of cannabis weighing 181 grams, a plastic bag of white powder and a number of “weapons”.
The police exhibit photographs demonstrate that the following weapons were taken from 87A Hereford Street, namely:

Two Asian knives;

A slingshot;

Two sickles; and

An ornamental sword.

Search warrant at 46A Sutherland Street, St Peters

Police executed a search warrant on the premises and found items including the following:

Bloodied clothing;

1 x “Brass Knuckles” container – empty;

Packaging describes: “Premium C02 extracted”;

cannabis oil product “For Medicinal Use Only – Not for Redistribution”;

1 x Machete with wooden handle;

1 x large glass jar containing green vegetable matter;

1 x small glass jar containing green vegetable matter;

1 x glass jar containing green vegetable matter;

contained in an envelope and lose notes XD700029694;

1 x clear resealable bag containing green vegetable matter and 1 x white plastic;

bag containing green vegetable matter;

Plastic tub under bed.

ERISP QUINN

Ms Quinn was interviewed on 14 August 2018 at 4.36 pm. Her solicitor and barrister were present during the interview.
She described the deceased entering the premises as outlined above. She also stated the following.
When in the premises, the deceased grabbed her handbag on her shoulder and left. She followed him as her bag was still attached to her. He then snatched the bag and ran off through the gate. She described wrestling with the deceased in the laneway but the deceased successfully took the bag from her and ran out of the front gate and onto Hereford Street. She chased him to recover her bag and when she caught up to him she grabbed it and had a further wrestle with the deceased over the bag. The deceased threw a punch at her which missed and he lost balance from the force of the missed punch. He fell to his knees. He then pointed a gun at her, which is the moment when Mr Davis arrived and “hit” the deceased. She thought the deceased was going to shoot her when he held the gun to her.

When they fled, Mr Davis packed a paper bag containing his personal items and money that they had been saving to purchase a van. She stated that the bag “got left behind because we were in such a state of panic and distress”. When shown a photo of those items she agreed that one of the phones was used by the accused for the purchase of drugs. She described the weapons as “Blake’s toys”. She stated that the accused “grabbed weapons” in case “people came after us”.
When she was asked about the sword used in the incident, she told police that she “just knows that he has swords on display in his house, but that’s all”. She stated that he has had swords on display for as long as she has known him and they are just “collector things”. She stated that “I don’t think he’s used them before. It’s just like a part of the collection of stuff”.
When asked about how much money was in the bag, she described how she and Mr Davis were saving up to buy a campervan and travel around Australia. She was paid for her job as barista partly in cash and the cash was stored at his house with him as it was their holiday fund.

The evidence of Mr Hill and Mr O’Connor

Two witnesses who were friends with the deceased have provided induced statements to police and will be giving evidence at trial under pseudonyms. “Mr Hill’s” statement included evidence about the childhood and family of the deceased, as well details about his own personal friendship with him. Mr Hill additionally provided details of the deceased’s relationship and the fact that the deceased’s domestic partner was expecting a child as of March 2019.
Mr Hill was present when the deceased said that he wanted to rob a drug dealer and that a robbery had been carried out before on another marijuana dealer. He also remembered a discussion about robbing a dealer in Forest Lodge.
In “Mr O’Connor’s” statement, he describes the deceased’s gambling problem and the troubles that this caused given his partner’s pregnancy. He described how the deceased wanted to rob a dealer who would be “an easy target”. He states that the deceased was involved in a prior robbery in Hurstville. He knew the two accused and had been dealing to them, referring to them by name.

The Crown Case - motive

It is the Crown case that the accused were both so angry that they had been robbed that they engaged in a form of self-administered justice as retribution. The Crown case is that there is insufficient evidence to suggest that a gun was pointed at Ms Quinn at the time the deceased was struck by Mr Davis. It was submitted that the accused sought retribution because they were drug dealers. It was submitted that evidence of the extent of the drug dealing by both accused was relevant to “overcome the defence”.

Legal Issues – elements and defences

The Crown case against Mr Davis and Mr Quinn is that they are both guilty of murder in reliance upon principles of complicity: McAuliffe v The Queen (1995) 183 CLR 108 at 114–118; [1995] HCA 37; Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30. The Crown case is that they both formed a joint criminal enterprise some time in their home or as they ran from the house to inflict grievous bodily harm on the deceased as retribution for what he had done to them in their capacity as drug dealers. The Crown also relies upon principles of extended joint criminal enterprise and puts, in the alternative, that the two accused formed an agreement to inflict injury less than grievous bodily harm on the deceased but each contemplated the possibility that the other would inflict grievous bodily harm on the deceased: Miller v The Queen at [135].
The defence case is that there was no agreement as between the two accused. Ms Quinn chased the deceased down the road because he had taken her handbag and its contents, not as any act of retribution. It was submitted that Ms Quinn was making substantial noise and was “not acting like is expected from a seasoned drug dealer who is going to be very quiet and do nothing”. Ms Quinn explained it this way in her ERISP: “I don't know. I should have just let that go. I just wasn't thinking. I was just scared. I don't know". She states that she fled the scene with Mr Davis because she was scared the assailant might come back.
If the jury was not satisfied beyond reasonable doubt that there was any agreement between the two accused then the case against Mr Davis is that he intended to inflict grievous bodily harm on the deceased and is guilty of murder as a principal. Ms Quinn is charged in the alternative with being an accessory after the fact to the murder, in that she did harbour and assist him knowing what he had just done.
Mr Davis relies upon the defence of self-defence of another. He was hit in the head by the deceased resulting in, according to the defence, a loss of consciousness. After regaining consciousness, Mr Davis then became aware that Ms Quinn was pursuing the deceased, could hear her screaming and gave chase to both of them. The deceased had a gun pointed at Ms Quinn at the time Mr Davis struck him. He adopts the explanation given by Ms Quinn in her ERISP. As such, his actions were to “save her”. Mr Davis also relies upon the partial defences of excessive self-defence and extreme provocation.
In order for the Crown to eliminate self-defence as an issue, it must prove beyond reasonable doubt that the accused’s actions were not done by him in self-defence. This involves the jury considering two questions:

Has the Crown proved beyond reasonable doubt that the accused did not believe at the time of each assault by him that it was necessary to do what he did in order to defend himself or others? and

Has the Crown proved beyond reasonable doubt that that conduct by the accused was not a reasonable response in the circumstances as he perceived them?

As for the partial defence of extreme provocation, the Crown has to disprove that the Mr Davis’ actions were in response to the conduct of the deceased, that such conduct was a serious indictable offence and that this caused Mr Davis to lose self-control. Further, it has to be established that the deceased’s conduct would have not caused an ordinary person to lose self-control in this way.
In the event that a partial defence is not negated, the result for Mr Davis would be manslaughter. Although it was suggested that manslaughter by dangerous and unlawful act might also be available, it remains to be seen as to whether the evidence at trial supports manslaughter being put on that basis to the jury.

Crown case for murder against Quinn

I raised with the Crown Prosecutor during the voir dire how it proposed to put its case that Ms Quinn was guilty of murder. He responded that the Crown's case at its highest was that Ms Quinn was a participant in a joint criminal enterprise because she was aware that Mr Davis had a sword before she left the 87A Hereford Street property. This is based on the witness Ms Hanlon-Schafer who described seeing Mr Davis with a "lampshade stand" or something similar within that property, hitting the fence. After leaving 87A Hereford Street, Ms Quinn was seen running in a "furious" manner, followed by Mr Davis. It was submitted that the participation in the joint enterprise is evidenced by Ms Quinn speaking angrily, saying "who the fuck are you", catching up with the deceased and pulling him to the ground. As counsel for the Crown submitted, "Mr Davis comes in with the sword, and at the very least intends to cause grievous bodily harm". It was also acknowledged that a neighbour, Mr Palmer, heard Mr Quinn say “what the fuck have you done” before running away with the accused and that Lynne Charlesworth, a witness who was inside her residence at the time, heard a woman scream the word “[d]on’t” about two seconds prior to hearing a crack and a thud sound.

The Objections

Senior counsel for Mr Davis made 17 objections to material in the Crown brief. Mr Hughes for Ms Quinn adopted most of those objections and made an additional objection. There were, thus, 18 rulings to be made. Additional documents were tendered during the voir dire hearing and added to Exhibit VD-1, the folder I had received prior to the argument commencing.
The 18 objections to evidence in the Crown brief are as follows:

All evidence of domestic disputes between Hannah Quinn and Blake Davis prior to the date of the killing.

All evidence as to the finding of cash in the search at 87A Hereford Street premise.

Specific portions of Ms Quinn’s ERISP pertaining to the items found in the laneway and drug supply generally (1522-1581, 1592-1602, 1653-1654 and 1656).

All evidence of the finding of cannabis/drugs at 87A Hereford Street premise.

Finding of the empty container for smoking implement “Brass knuckles” at Ms Quinn’s address at Sutherland Street, St Peters.

All evidence of drug dealing/drug usage in the evidence of Mr Hill and Mr O’Connor, “etc”.

All evidence of the finding of the brown paper bag with $21,380 cash, 2 mobile phones, 6 pairs of nunchucks and a pellet gun , found by police between 133-135 Wigram Road at 6:08 pm at 6:08 pm.

Mr Hill’s statement: any evidence as to the background of the deceased and the drug dealing of the accused (paragraph 4; parag 5 except first sentence; 6-17; para 21 – “I have a baby on the way”; para 22; para 23 from “we were sitting around” to end, para 24-31, 33-35, 36 – 2nd sentence onwards, 37-47).

Mr O’Connor’s statement – Any evidence of the background of the deceased and the drug dealing of the accused– (para 5 – first 4 sentences; para 11 “to buy a new car getting ready to have the baby”, para 15, para 20 “a dealer” to end of para; para 21, para 22 the words “a dealer”; para 24 “drugs”, “coke three pounds of weed”; para 32 “dealer”; para 33 “dealer” and “dealer”; 38-44; 45-52, 54 first sentence only; 56,57, 58 “and told me” to end para, 59 first sentence, 60; 61 “over there” , then “he seemed” toe end para; 62 first sentence, and last sentence, 64 “Hannah”, and last sentence; 65 “Hannah” x 2, “Blake” x 2, 67 “Hannah” x 2, “Blake”; 68 “their”; 69 “Blake” and “Hannah”.

Evidence of Megan Quinn, the accused Ms Quinn’s mother.

Evidence of Lynn McKee, the deceased’s mother.

Evidence of Joseph McKee, the deceased’s father.

Evidence of DSC Mark Wakeham, (expert evidence that the accused were drug dealers).

Mobile phone downloads from the phones found in the paper bag in the laneway.

Listening device material obtained whilst the accused were on bail as to continued drug dealing (admissions made as to conduct prior to arrest).

Telephone intercept material while the accused were on bail as to continued drug use.

CCTV footage of the deceased at Star City casino.

All evidence of anything seized during the search warrant executed on Ms Quinn’s premises in St Peter’s.

Neither senior counsel for Mr Davis nor counsel for Ms Quinn relied upon any written submissions. The Crown provided a brief outline of written submissions on Monday 9 November and a document containing extracts from some authorities on Tuesday 10 November 2020.
The evidence objected to fell into a number of different categories but at its core, the accused objected to any evidence that the two accused had money and drugs at the premises at the time of the robbery that their house had been targeted because they were drug dealers, that they were drug dealers, that they were drug users, the motivation of the deceased and any evidence going to the character of the deceased.
Counsel addressed most of the discrete arguments globally. The Crown addressed the evidence that the accused were drug dealers together as comprising what was found at the scene, what they discarded in the lane, the evidence of what was found at Ms Quinn’s home in St Peters, the evidence of Mr Hill and Mr O’Connor, the listening device material, the telephone intercept material, the download material from Ms Quinn’s mobile telephone and the expert opinion evidence of Detective Wakeham. Although a great deal of this evidence does address the same issue, it is not all relevant for the same purpose.
I will address the objections as to what was found at and around the scene of the robbery by the deceased first and then address other evidence of drug supply the Crown relies upon more generally.

The evidence of police finding cash and cannabis at 87A Hereford Street

This objection refers to the evidence summarised above at [36] and [44]-[45].
Both accused submitted that this evidence was not relevant and, if it was held to be relevant, it ought to be excluded under s 137 of the Evidence Act1995 (NSW) because of its prejudicial nature.
Although there was objection to the cash and cannabis, there was no objection to the weapons found at the premises.
The Crown submitted that its case was that the motive for the murder was retribution for robbing drug suppliers and the accused were “protecting their turf.” It was submitted that all evidence of drug supply was relevant to the way the Crown puts its case. It was also submitted that the evidence was relevant to rebut some of the claims in the ERISP as to why there was so much money at the premises.
Counsel for Ms Quinn submitted that police did not charge the accused with either of the possession of marijuana or dealing with the proceeds of crime.
As for the evidence of drugs dealing, counsel for Mr Davis submitted that it should be excluded under s 137 of the Evidence Act. The relevant prejudice was identified in this way:

“…if the jury hears that these people had $30,000 and/or drugs, it becomes a case where the jury my unfairly think; well, they are not just innocent householders going about their business, they might deserve it. It might be engendered in the jury, given what your Honour has said about that amount of money, a jealousy or an envy or that young people do not deserve so much money and did not work for it.

As for the drugs, we all know that the danger of prejudice in relation to law abiding jurors and what they think of the evils that drugs do in the community, which could be used to suggest that if they were criminal in this way, they would be criminal in every way.”

Determination

The basis for the objection to the cannabis and cash located at the scene of the robbery was relevance (ss 55/56) and, in the alternative, that there was a real risk that the jury would misuse the evidence in its deliberations (s 137).
Sections 55 and 56 of the Evidence Act provide that:

55 Relevant evidence

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2) In particular, evidence is not taken to be irrelevant only because it relates only to:

(a) the credibility of a witness, or

(b) the admissibility of other evidence, or

56 Relevant evidence to be admissible

(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.

(2) Evidence that is not relevant in the proceeding is not admissible.

If the evidence is not relevant, that is the end of the matter. As Gleeson CJ, Gaudron, Gummow and Hayne JJ stated in Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at 653 [6]:

“Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise.”

In determining whether the evidence is relevant I am required to assess the capability of the evidence rationally to affect the assessment of the probability of the existence of a fact in issue and to ignore other questions of potential inadmissibility.
I am satisfied that the evidence is relevant on a number of bases. It is relevant because it is the crime scene of the robbery. The money is relevant as to what assets the accused may have been protecting and what assets were available to be taken at gunpoint by the deceased.
The evidence is also relevant to the jury’s consideration of the second limb of self-defence. The jury will be required to consider whether the response was reasonable in the circumstances as the accused perceived them. The evidence of the circumstances as the accused perceived them would include what he had at the premises. As Howie J observed in R v Katarzynski [2002] NSWSC 613, at [25]:

“It will be a matter for the jury to decide what matters it should take into account when determining whether the response of the accused was reasonable in the circumstances in which he or she found himself or herself. The jury is not assessing the response of the ordinary or reasonable person but the response of the accused. In making that assessment it is obvious than some of the personal attributes of the accused will be relevant just as will be some of the surrounding physical circumstances in which the accused acted. So matters such as the age of the accused, his or her gender, or the state of his or her health may be regarded by the jury. Whether or not some particular personal characteristic of the accused is to be considered will depend largely upon the particular facts of the case.”

Although there is a factual dispute as to what was in the deceased’s hands at the time of his death, the nub of the case and the focus of the jury’s deliberation will be as to what was the mens rea of each accused. The jury will be invited to infer a joint criminal enterprise, the mental element for murder and the limbs of self-defence. The jury is entitled to have regard to the immediate circumstances at the crime scene for these purposes.
The next question is whether the evidence ought to be excluded under s 137 of the Evidence Act, which provides:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

The application of s 137 of the Evidence Act requires me to balance the extent of the capacity of the evidence to support particular factual findings against the danger of unfair prejudice to the accused. “Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
Although “probative value” is defined in the Evidence Act, the term “unfair prejudice” is not. It been held that the danger of “unfair prejudice” within the meaning of s 137 of the Evidence Act means a risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]: “[t]he focus is upon the danger that the tribunal of fact will use the evidence upon a basislogically unconnected with the issues in the case...”.
In Festa v The Queen [2001] HCA 72; 208 CLR Gleeson CJ observed at [22] that “unfair prejudice” “lies in the risk of improper use of the evidence, not in the inculpatory consequences of its proper use”. In doing so his Honour referenced the decision of McHugh J in Papakosmas v The Queen at [91]- [97].
I am satisfied that the probative value of the evidence is high for the reasons I have already provided. I have considered the risk that the evidence would be misused by the jury in some way. That risk was described as the jury reasoning that if the accused were drug dealers then they deserved this, or that their bad character would be unfairly raised or that they would be punished for being drug dealers.
I have considered these submissions carefully. It seems to me that any risk that this would occur could be cured by directions as to the limited relevance of the material. As to whether the jury would comply with directions, as McHugh J in Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31]:

“The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

Despite this oft cited observation by McHugh J, as Button J observed in R v Adams (No 2) [2016] NSWSC 1359 at [55]-[56]:

“It is undoubtedly true that the criminal justice system proceeds on the assumption that juries obey direction about all manner of things, including pre-trial publicity, information on the internet, the exercise of the right to silence, and the criminal standard of proof. But as Gleeson CJ and Gummow J said in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], there must also be recognition that that rule is not an absolute one. There, their Honours said:

‘[13] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.’

Furthermore, for over a century both the common law and Parliament have accepted the proposition that juries will not always analyse probative evidence without emotion: the common law by way of the discretion first identified in R v Christie [1914] AC 545; (1914) 10 Cr App R 141, and Parliament by way of the analogous evaluative judgment contained in s 137 of the Evidence Act.”

More recently in Decision Restricted [2020] NSWSC 1297, Hamill J observed the following at [24]:

"I accept that it would be relatively easy to fashion a direction as to the limited use to which the evidence may be put and that would be understood by the jury. However, I am not convinced that the jury would be able to apply that direction once its attention was focused on the credibility of Mr Bayliss’s denial. It is accepted that juries generally follow and obey directions, but the very existence of s 137 establishes that this is not an axiom that can be applied as if it were holy writ: see, for example, Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [13], R v Adams (No 2) [2016] NSWSC 1359 at [55]-[56], R v Simmons; R v Moore (No 4) [2015] NSWSC 259 at [88]."

I have considered the question of whether the risk that the jury would misuse the evidence could be cured by direction. I am satisfied that it can. I will revisit this question further below.
Having so found, I have viewed the search warrant footage and it is not clear to me that it needs to be played. It may be that the photos and an agreed fact as to what was found there would suffice. I will leave that to discussion as between counsel.

The finding of the brown paper bag by police nearby and its contents

This objection refers to the evidence I have summarised above at [36]. I was also provided with photographs of this evidence on the voir dire. When the two accused fled the premises they took with them a brown “Uber Eats” bag with the word “Hannah” on it containing $21,380 cash, two mobile phones, six pairs of nunchucks and a pellet gun in its store box.
The basis for the objection to these items was relevance (ss 55/56) and, in the alternative, that there was a real risk that the jury would misuse the evidence (s 137).
The Crown submitted that this evidence was relevant on a number of bases:

It was said to be relevant to the motive of the accused persons to chase the deceased and attack him in the first place;

It was to be relied upon by the Crown as consciousness of guilt; and

It was relevant to the accessory after the fact charge for the accused Quinn.

It was submitted by the Crown that the hiding of these items is relevant to the assessment of whether the Crown can prove consciousness of guilt with respect to having taken out retribution on account of the drug dealing activities.
The Crown, in both written and oral submissions, submitted that this, and other evidence to show that the accused were both drug dealers, was relevant and admissible. The Crown case is that they collected these items and removed them from 87A Hereford Street because they were relevant to the commission of the offence of murder or manslaughter.
In terms of the toy gun removed from the premises after the murder, the Crown submitted that this was relevant in that it was further evidence that the motive for the killing was retribution. That is, once the murder had been committed as act of “protecting the [accused]’s turf”, then all evidence of drug-related activity and weapons was removed from Mr Davis’ house.
The Crown submitted that the obvious question arises as to whether Ms Quinn and/or Mr Davis believed the firearm held by the deceased was in fact an imitation. Their familiarity with an imitation firearm is apparent for their possession of a similar item that was retrieved from 87A Hereford Street after the sword strike and “stashed” in the nearby alley. It was submitted that their knowledge of the appearance of an imitation firearm will assist the jury in their determination as to whether the accused thought the deceased’s gun was actually perceived by them to be of any threat. This was said to be crucial to the determination of the self-defence issue. It was further submitted that the imitation firearm is relevant as indicia of supply and relevant to the determination of the motive of the accused to administer some form of self-justice. It was submitted that all of the indicia of supply evidence is relevant (in the s 55 sense) to the determination of the factual issues.
It was submitted that the phone found in the alley is a “burner” phone associated with Ms Quinn. It established that there was drug supply activity engaged in by Ms Quinn and by Mr Davis. It goes to that question of they both being engaged in drug supply.
This material was objected to by both accused.
The amount of money found in the bag was said to be prejudicial because it might engender some kind of suspicion in the jury that these people are criminals and have obtained the money by nefarious means. It was accepted that Ms Quinn gave an account in the ERISP as to the accumulation of moneys put into his safe keeping over a period of time.
Ms Cunneen submitted that the defence case will be that in their haste to get away, it was simply forgotten or neglected or abandoned. It was noted that whereas the money and some weapons were taken, the drugs were left behind. She further submitted that the nunchucks and pellet gun could be a reaction to fleeing from danger, something with which one could repel or frighten someone from a house. It was said to be consistent with the fact that they were so befuddled and terrified and not in their right minds, that they just lost it and just did not do anything about it.
Ms Cunneen submitted that Mr Davis was an actor who sometimes portrayed some martial arts but that there could be no suggestion that he was a martial art expert; last time he had martial arts training was when he was 13 years old. It is noted that this is consistent with what Ms Quinn told police in her ERISP and that "records his own stuff", he raps and is an actor”. Ms Cunneen emphasised the risk of prejudice of this evidence.
Mr Hughes emphasised the danger of unfair prejudice, and the potential for the jury to be satisfied with a lower degree of probability in relation to the larger issue than ordinarily they might because of the combination of “drugs, guns and money”. It was also noted that in Ms Quinn’s ERISP she stated that the bag was packed by Davis and then abandoned.

Determination re contents of paper bag

I am satisfied that this evidence passes the threshold of relevance under s 55. On the Crown case it is relevant to flight and to the actions of Ms Quinn on the alternate count.
It would also be consistent with Ms Quinn’s account to police that they thought someone was after them and needed weapons to protect themselves. The taking of the money from the scene could have been because they intended to go on the run for some time. The fact that the drugs were not taken is inconsistent with the Crown assertion that they were removing evidence of drug dealing.
Although I am satisfied that the evidence is relevant on a number of bases, it seems to me that the relevance advanced by the Crown is somewhat remote. As I understand the Crown submission, this evidence was said to be relevant because it goes to establish that the two accused were drug dealers. In this way it is said to be relevant to consciousness of guilt of murder because the motive for the murder was as retribution for robbing their drug business. On the Crown’s case theory, the items were removed from the scene because the association between the drug dealing and the murder was uppermost in the minds of both accused. As such, in the Crown’s submission, the flight was consciousness of guilt in terms of being guilty of a retributive murder. In circumstances where I am satisfied the that the evidence is relevant, the question of whether the Crown can rely on it in the manner submitted on the voir dire can be addressed at the conclusion of evidence.
As for the application of s 137, it is to be considered in the context that the offence occurred after a stranger had just broken into the home of Mr Davis wearing a balaclava, knuckledusters and a realistic looking imitation pistol. It will be a matter for the jury as to whether they are satisfied beyond reasonable doubt that the two accused planned to inflict grievous bodily harm on him as retribution.
I am not satisfied that there is a risk that the jury might use the evidence in a way logically unconnected with the case. Mr Davis collected these weapons and was an actor. The money is relevant as being in the home at the time of robbery. There is no risk that the two mobile telephones could be used in a way logically unconnected to the case. The question of whether the Crown can adduce the contents of the telephone as further evidence of drug supply will be considered as a separate question below. I shall, in any event, direct the jury as to the use that can be made of this evidence. Overall, I will direct the jury as to how this evidence can be used. I am satisfied the evidence is admissible.

Evidence of Mr Hill and Mr O’Connor

A number of discrete objections were made to Mr Hill’s statement. In general terms, the objected material was as to the background of the deceased and the fact that he was present with the deceased and Mr O’Connor when the idea of robbing the accused was first discussed.
The Crown submitted that this evidence was relevant because its case was that the involvement of both accused in drug dealing was central to its case. The question of how much of the background of the deceased would be adduced depended on how much of an attack was made on the character of the deceased in cross-examination of this witness and Mr O’Connor.
The admissibility of the disputed evidence was not specifically addressed by defence counsel in their oral submissions, although the specific paragraphs objected to were identified in writing by the Crown. Mr Hill’s evidence corroborates some of the evidence of Mr O’Connor. It seems to me that the admissibility of the impugned evidence of Mr Hill is closely tied to the rulings I make in relation to the evidence of Mr O’Connor.

Statement of Mr O’Connor - discrete objections

The nub of the objections to this evidence is relevance (s 55) and unfair prejudice (s 137).
The Crown submitted that the motivation for the robbery is relevant. In particular in his statement Mr O’Connor states at [20]:

“Early August that year, late July we needed money bad. We thought we would need to rob a dealer. We wanted an easy one to rob. An easy target who we knew wouldn’t report it to Police. This was both of our ideas.”

Mr O’Connor also provides detail as to how he knew that the accused had a successful drug supply business: [38]-[45].
The Crown submitted that its case was that the house was specifically targeted on account of the previous dealings Mr O'Connor had with both accused at both premises. It was submitted that this makes all of the disputed evidence as to the extent of their drug supply business relevant.
Other parts of the statement of Mr O’Connor opine about what a decent person the deceased was, that it was his gambling problem which led him to do the robbery, that he was a drug user and dealer and that his partner was seven months pregnant at the time of his death.
It was submitted by the Crown that a fact in issue is whether the deceased set about to rob the accused by way of home invasion. The fact that they were targets is relevant and the fact that they were specifically targeted on account of their drug supply activities is also relevant. It was submitted that without evidence of the motivation for the targeting of them, the jury would be faced with a “seemingly inexplicable or fanciful isolated incident”.
The accused relied upon the evidence of Mr O’Connor that when he saw the deceased running towards him up Hereford Street he had something in his hands. Nobody else saw this but he was the only one facing him at the point in time. He describes looking in the rear vision mirror, seeing the deceased running towards him before the Samurai sword strike, and he describes the deceased as holding in his hands a package.
It was submitted that there was nothing in the evidence of Mr Hill or Mr O’Connor to suggest that there was ever any discussion between either of them and the deceased that the accused, by reason of being dealers, were less likely to report to the police. It was submitted that Mr O’Connor’s evidence was, in fact, that the reason the deceased chose this house was because he was emboldened by the fact of having a gun which anybody would think was real and the people would be asleep.
It was submitted that the evidence as to the justification for choosing the premises has nothing to do with the fact that they were less likely to report the matter.
Senior counsel for Mr Davis submitted that the disputed evidence of Mr O’Connor should be excluded under s 137 because the evidence from Ms Quinn was that Mr Davis was assaulted and that she chased after the deceased because he had her handbag with her wallet and identification. She submitted that to allow in Mr O’Connor’s evidence would be to “sully a sensible appreciation” of whether or not Ms Quinn and Mr Davis were acting in self-defence.
In terms of evidence of other drug supply, counsel for Ms Quinn submitted that the offending was of minor seriousness. In his submission, it did not have a connection with the question of self-defence as administered by Mr Davis when he had “taken off after a bloke that's taken away [her] bag”.

All additional evidence of drug dealing/drug usage – LD, ERISP, evidence of DSC Mark Wakeham; mobile phone downloads; listening device material; telephone intercept material

The objections to all of this evidence were on the basis of relevance and possible misuse of it by the jury (s 137).
Detective Sergeant Mark Wakeham has provided an expert’s report as to drug supply generally. He outlined his lengthy experience. No challenge was made to his expertise, only to the relevance of his evidence. His detailed statement covered the following topics: The nature of cannabis as a drug, how it is administered, that it is the most commonly used illegal drug in Australia, street level quantities, drug terminology and prices.
At [13] of his statement he states:

“It is my experience the majority of drug dealers have a belief (to varying degrees) that law enforcement agencies actively monitor and record telephone conversations in an attempt to detect criminal behaviour. As a result many people involved in the supply of prohibited drugs when discussing drug transactions over the telephone, use a number of different strategies such as slang, predetermined codes or veiled speech in an endeavor to disguise the true purpose of their conversations. Many criminals believe that communicating in this way will prevent their conversations being used in evidence against them or at least inhibit an investigation into their criminal activities. The same holds true for SMS messages sent via mobile phones and messaging via social media applications.”

He then goes on to explain slang, jargon, veiled speech and codes.
With respect to the case against both accused for murder, he states that he has examined certain transcripts and formed opinions about whether they disclose drug dealing.

Telephone intercepts

After reviewing transcripts of conversations on 22 September 2019 between Mr Davis and an unknown male he concludes that Mr Davis is being supplied an ounce of cannabis for $100. A further conversation between Mr Davis and an unknown male on 11 October 2019 is about drug purchase as well. A conversation on 1 March 2020 between Mr Davis and Mr Jaret is consistent with Mr Davis purchasing a small quantity of an unknown prohibited drug. A call on 3 March 2020 between Mr Davis and Mr Jaret is consistent with him buying GHB. There were conversations of the similar vain on 8 March, 12 March, 14 March and 4 April between Mr Davis and an unknown male in relation to purchase of drugs.
Detective Wakeham also analysed some transcripts concerning the accused Ms Quinn. In a call on 7 March 2020 there is a veiled discussion between the two accused as to using prohibited drugs later that night.
Detective Wakeham also analysed downloads from Ms Quinn’s telephone found in the brown paper bag.
He located photos of marijuana flower, use of social media application used for drug dealing Wickr and Signal. In one of the texts there is a reference to “Mary" which is said to be a common name for cannabis. He states it is consistent with someone purchasing $150 cannabis from Quinn. Reference to persons such as “Mirajane” and “lamgohan” was in the downloads on her phone.
He also gives evidence about what is seized at 87A Hereford Street At [57] he states:

“I note, item 8 being a set of Sai's, item 9 being a slingshot, 1 ornamental sword were found on the bottom shelf of a white open cabinet. Premises that are used for the purpose of supplying or storing quantities of prohibited drugs are often found to have prohibited weapons and / or firearms in them which enable the persons involved in operating the drug premises to protect their prohibited drugs and proceeds.”

As to the value of what was seized, he states at [61]:

“In relation to the estimated street value of the cannabis seized, based on my knowledge and experience in my opinion 122 1 grams of cannabis in 2018 would have a street value of $2442. I base this on the following, 122 1 grams multiplied by $20 (sale price per gram) = $2442”

In relation to the items seized at Ms Quinn’s premises in St Peters, he states at [66]-[67]:

“I note, Item 10 on Field Property Seizure Form B48579 being 19 x $50 notes were located on the top of a chest of draws The location of quantities of cash, would be expected to be located in premises being used for the supply of street level quantities of prohibited drugs or for storing the proceeds of the sale of street level quantities of prohibited drugs.

I note, item 1 being a set of brass knuckles and item 16 being a machete with a wooden handle that was found behind the entry door were located Premises that are used for the purpose of supplying or storing quantities of prohibited drugs are often found to have prohibited weapons and / or firearms in them which enable the persons involved in operating the drug premises to protect their prohibited drugs and proceeds.”

All evidence of anything seized during the search warrant executed on Ms Quinn’s premises in St Peter’s

The Crown relied upon the items seized at Ms Quinn’s residence as being relevant. I have summarised this material above at [45].
The Crown submitted that the evidence of cash at her home has relevance with respect to the suggestion that she chased the deceased for a small amount of money. The Crown relied upon the evidence of what was found at Ms Quinn’s home as being relevant to her motivation to self-administer retribution. It was also submitted that indicia of supply is consistent with Mr O’Connor being directed to that address for the purposes of supply.
Mr Hughes submitted that only 31.2 grams was found at Ms Quinn’s premises which only makes the “small” quantity in the DMTA by 1.2 grams and is less than the trafficable amount. It was submitted that the probative value that she had an amount consistent with possession for personal use was low. This was not the house that was subject of the home invasion and Mr O’Connor only went there once.
The Crown relied upon the search warrant footage (which I viewed in chambers) to show that in the plastic containers under her bed vacuum sealed plastic bags consistent with at least “a pound” of marijuana having been stored in that at some stage and in addition to a plastic bag with a quantity of cannabis that is recorded in the FASS certificate.

Crown submissions as to evidence of drug supply by the accused generally

The Crown submitted that it was the “common-sense” conclusion that a person associated with drug dealing would be inclined to a “self-style of retribution”. It was submitted that, this evidence of drug dealing was at the heart of the Crown case and that if the Crown was not permitted to lead all of this other evidence of drug dealing its case would be “significantly weakened”.
It was submitted that this evidence was relevant to rebut that part of Ms Quinn’s ERISP where she describes chasing the deceased to retrieve her handbag. It was submitted that if the evidence of Detective Wakeham and other evidence of drug dealing was excluded it would pose a “somewhat artificial picture that they were simply engaged in some form of self-administered justice”. It was submitted that this evidence was relevant to the motive of the accused persons to chase the deceased and attack him.
The surveillance device material is relied upon as evidence that the accused Mr Davis was using drugs after the killing and admissions of drug dealing. This was said to be relevant to the primary issue of whether there was drug dealing taking place.
The telephone intercepts relate to calls, post-death whilst both on bail, that indicate personal drug use. It was conceded that these have only marginal probative value, and would only be led in circumstances where it becomes necessary for the jury to determine whether or not there was drug supply.
It was submitted that if there were agreed facts that the two accused were drug dealers this issue would fall away.
It was submitted that “it would not be in the interests of justice” for the trial to proceed without the jury being aware of a complete and balanced factual background. This background evidence, it was submitted, places the alleged conduct of the accused and/or their respective state of mind within the surrounding events.
The Crown observed that an important aspect of the background is the relationship between the accused and Mr O’Connor given his association with the deceased.
The Crown submitted that the accused seeks to convey (by the exclusion of the category of evidence) the deceased as a financially desperate drug and gambling addled criminal who just happened to randomly select the somewhat concealed property at 87A Hereford Street to be the subject of a robbery.
Further, the Crown relies upon evidence that the two accused are drug suppliers to rebut aspects of the defence case such as:

That the deceased pointed a gun at Ms Quinn;

That Ms Quinn chased the deceased because he grabbed her handbag;

To rebut self-defence;

To explain why they gathered items later dropped in lane;

Fleeing; and

The post killing evidence of drug dealing to rebut general good character.

It was submitted that the jury needed to have evidence of the extent of their drug supply business in order for the Crown to be able to make good its case that the joint motivation for the murder was retribution for robbing their drug supply business rather than retribution for the nature of the robbery itself.
The Crown relied upon extracts from the decisions in Standen v R and Qualtieri v R and also a number of other decisions I will consider below. The defence made the same submissions as extracted above at [120]-[124].

Determination regarding all additional evidence of drug supply activities beyond what was found at the scene

The Crown submitted on a number of occasions that all of the evidence of the extent of the drug supply business of the two accused is at the “the heart” of the Crown case and it would not be in “the interests of justice” for that additional evidence to be excluded. It was also submitted that the Crown case would be significantly weakened if this additional evidence was not admitted and that it was relevant and admissible as a matter of common sense. I note that the weakness of the Crown case is not a test of admissibility, although it is the test for s 5F(3A) of the Criminal Appeal Act1912 (NSW) provides that the DPP may appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or “substantially weakens” the prosecution's case."
In addition to these general submissions, the Crown relied upon a number of decisions in support of its contention that the Crown should be permitted to adduce evidence to prove that the two accused on trial for murder were in fact drug dealers. The cases were relied upon as other instances where the criminality of an accused (other than that charged on the indictment) is admissible as part of the factual matrix.
I have read and considered all of the decisions listed in the Crown’s outline of submissions and I am not satisfied that any of them assist in the resolution of the matter to be determined. They are all factually very different. The cases relied upon can be summarised as follows.
The Crown submitted that I would find Standen v Regina [2015] NSWCCA 211 at [327]-[344] of assistance. Mr Standen was a police officer convicted on two counts of conspiracy and one count of knowingly take part in supply whilst employed by the NSW Crime Commission in a senior position. Paragraphs [327]-[344] of the Court of Criminal Appeal judgment relied on by the Crown concern the first ground of appeal against conviction. Mr Standen submitted that documentary records of the NSW Crime Commission and oral testimony relating to drug possession, importation and the relationship between the appellant and his co-conspirators should have been excluded under s 137. In rejecting that ground the Court noted at [328]:

“The issue in the proceedings was whether the activities carried out by the appellant, Kinch and Jalalaty were in furtherance of the conspiracy alleged against them or were conducted, at least so far as the appellant was concerned, as part of a genuine commercial arrangement to import legal products into this country. The nature of the relationship between the appellant and Kinch during the period leading up to the time of the alleged conspiracy was relevant to the consideration of this issue. The trial judge, in those circumstances, was correct in concluding that the evidence rendered it more probable that a fully corrupt relationship was in existence during the period alleged in the indictment.”

As such, the evidence had significant probative value because of its relevance to the relationship between Mr Standen and his co-conspirators. It demonstrated the improper relationship between them and the motive to embark on the conspiracy (the very charges that had to be proved). It was held that any potential misuse could have been cured by potential directions to the jury.
The admissibility of the evidence in Standen v R was for a basis entirely different than the present case. It was relevant to the relationship between the accused and his co-conspirators.
The Crown also relied upon the decisions in R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999, R v FDP (2009) 74 NSWLR 645; [2008] NSWCCA 317 and Wilson v R (1970) 123 CLR 334; [1970] HCA 17.
In R v Toki, the accused delivered a severe blow to his de facto partner, causing her death. The Crown sought to adduce evidence of threats and violence by the accused and of statements by the deceased that she feared him as context evidence and tendency evidence. The trial judge held that the relationship evidence was generally admissible because it was relevant to a consideration of what happened preceding the death and the jury's assessment of the accused's version. Howie J also found that the evidence lacked sufficient probative value to be admitted under s 97 or s 101 of the Evidence Act and limited the evidence the Crown could rely upon to avoid prejudice to the accused.
R v FDP involved an appeal to the CCA against convictions on one count of malicious wounding and taking a child from lawful control without consent. The grounds of appeal concerning the admission of evidence of the appellant’s conduct towards the victim on an occasion about a year beforehand and evidence of an Apprehended Domestic Violence Order. After considering the scope of s 137 the Court (McClellan CJ, Grove J and Howie JJ) rejected the grounds because no objection had been made at trial to the admission of the evidence and the directions of the trial judge were adequate in terms of curing any potential prejudice.
In Wilson v R, the accused claimed that the discharge of a gun that killed his wife was accidental. There were no eye witnesses to the incident. Determination of the accused's guilt required an evaluation of his uncorroborated evidence that the gun had accidentally discharged while resting on top of a load of hay, shooting the victim in the back of the head as she was driving a tractor. The trial judge was held to have properly admitted evidence of the nature of the relationship between the accused and his wife. In a passage cited with approval in Roach v R (at [44]), Menzies J said:

"To shut the jury off from any event throwing light upon the relationship between this husband and wife would be to require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly ... the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide" (at 344).

Reliance was also placed on the decisions in Qualtieri v R [2006] NSWCCA 9 and DJV v R (2008) 200 A Crim R 206; [2008] NSWCCA 272 at [29]. I considered these and other decisions concerning context evidence in CA v R [2017] NSWCCA 324, where I observed at [65] that:

“Consistent with the principles derived from these decisions, evidence of uncharged acts is potentially admissible to place the specific allegations in the indictment into context. But the particular evidence must go to an issue that has either arisen or will arise in the trial. It is not sufficient for the Crown simply to rely on all allegations made by a complainant that are not included in the indictment; the evidence must be capable of rationally affecting the probability of the existence of a fact in issue in the proceedings.”

In CA v R I went on to observe at [73]-[74]:

“The most common situation in which context evidence arises is to explain a failure by the complainant to complain about the offending conduct. That common scenario arose in R v Wickham (unreported, Court of Criminal Appeal (NSW), 17 December 1991). Gleeson CJ (with whom Crennan and Kiefel JJ agreed) cited R v Wickham in HML v The Queen; SB v The Queen; OAE v The Queen (2008) 235 CLR 334; [2008] HCA 16 (at 352 [6]) as a classic example of relevant context evidence. In that matter, the allegation was that a child’s father got into bed with her one night, had sexual intercourse with her and they then both went to sleep. There was evidence of similar activity beforehand and the child said that it was a “common occurrence”. Clearly, if the child had not been able to give evidence of what had happened beforehand and that it was a common occurrence, the jury would have gained the false impression that the sexual intercourse was an isolated incident and wondered why she did not react differently to what occurred.

The fact that most of the decisions concerning context evidence involve cases where the evidence explains matters such as a lack of complaint and/or general “grooming” of a child complainant does not mean that context evidence is necessarily confined to such cases. The statements of principle derived from the decisions upon which the trial judge relied do not limit the admission of context evidence to the facts in those cases. Rather, those statements of principle confirm that the evidence, if relevant, is admissible, subject to any consideration of s 137.”

I further considered the scope of uncharged acts more recently in D’Agostino v Regina [2019] NSWCCA 259 where I observed at [82], after noting the decision in Qualtieri v R:

“Although such evidence of uncharged acts is most commonly adduced in child sexual assault trials, it is also adduced in drug cases. The High Court held in Harriman v The Queen (1989) 167 CLR 590; [1989] HCA 50 that evidence of prior drug dealings between the accused and a witness could be used to show that the association between the two was for a guilty rather than an innocent purpose. In Quach v Regina (2002) 137 A Crim R 345 Spigelman CJ, with whom Sully and James JJ agreed, observed at [24]: “The reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning”. His Honour went on to cite the relevant paragraphs from the decision of Brennan J in Harriman v The Queen at [25]-[26] of Quach v R. Significantly, as Spigelman CJ pointed out a [47], the trial judge in Quach v R gave an express direction to the jury that the evidence should not be used for a tendency purpose.”

In addition to the reliance upon these cases concerning context and relationship evidence, the Crown also relied upon cases concerning motive, such as the decision of Regina v Ngo. The motive in that case was a political one.
The Crown also relied upon the principles derived from the decision of the CCA in Odisho v R at [23]-[24] in support of its submission that all evidence of drug dealing by the deceased was relevant to motive in this matter. Those paragraphs of the decision set out the Crown case explain that the Crown case was that “Witness X” and Mr Odisho were parties to a joint criminal enterprise to punish the victim by shooting him. The motive for the shooting was said to be the use, by the victim and Ahmed Hoblos, of an amount of cocaine which “Witness X” had left with the victim without the victim making payment for it. It is to be accepted that evidence was led that the murder was motivated by the fact that the deceased had taken the appellant’s cocaine without paying for it but none of the grounds of appeal considered the admissibility of that evidence. In fact, I can find no part of the decision of the CCA which is directed at this issue. On the contrary, it would appear that there was no objection to such evidence being adduced by the Crown at first instance.
These decisions all establish that evidence of “context” or “relationship evidence” or “uncharged acts” can be relevant and admissible in trials and that motive is also relevant (although a lack of motive is not fatal). These principles are all well established. It is not uncommon that other criminal conduct of an accused is so closely connected to the murder that it is admissible. In each case it a question of relevance and consideration of s 137. The Crown seeks to lead:

Opinion evidence of Detective Wakeham as to the extent of the accused’s drug business and personal use;

Telephone intercepts that they were using prohibited drugs in the period leading up to the trial;

Surveillance device recordings in which there are some admissions as to having been involved in supplying and using cannabis prior to the date of the alleged murder;

Evidence from Mr O’Connor as to the detail of the drug supply operation of the two accused;

Evidence of material seized from Ms Quinn’s residence suggesting cannabis supply and use.

The fact that I have ruled that the evidence of what was at the premises is relevant and admissible does not mean that the Crown can then proceed to adduce significant evidence as to the extent of their supply activity.
The two accused are not standing trial on drug charges. Despite this, I have already ruled that it is part of the factual context in which the jury is to assess the actions of the accused that day that they both knew that they had money at the premises and that they were small scale cannabis dealers. The attack had all the appearance of being targeted. If the ERISP of Ms Quinn is to be accepted, the deceased suggested that he knew things about them and knew where their families lived (some support for this version is to be found in the evidence of Mr O’Connor who, unlike the deceased, did know them and also know where Ms Quinn lived).
The robbery by the deceased was sudden and frightening. Although counsel for the accused suggested it was consistent with being just a random attack, I am not satisfied that is the case, plus it is inconsistent with what Ms Quinn describes the deceased saying to them during the robbery. If there is no evidence adduced to explain that is was a targeted attack, there is the real risk that the jury might impermissibly reason that they were more heavily involved in the criminal milieu than they were.
Turning to the evidence of Mr Hill. Mr Hill did not know the accused. I will address his evidence as to the dire financial circumstances of the deceased at [186] below. The only other relevance of his evidence is that he corroborates the evidence of Mr O’Connor as to why the two accused were targeted. I am satisfied that this evidence is relevant on that limited basis.
As for the evidence of Mr O’Connor, there was a considerable dispute on the voir dire as to whether the stated reason for targeting a drug dealer prior in the first place (that they would not report the matter to police) carried over to being the reason the deceased targeted the home of Mr Davis. In circumstances where there is no objection to all of the evidence of Mr O’Connor it seems to me that a “Basha” inquiry ought to be held prior to his evidence being given to clarify his evidence on this discrete issue. Subject to the result of that inquiry, I am not satisfied that the specific reasons they were targeted is relevant. They were targeted because they would have money. Neither accused knew the reason they were targeted. It is what is in the minds of the accused that is relevant, not the deceased.
As I have already stated, I am satisfied that the fact that the two accused were being targeted is relevant and the fact that Mr O’Connor believed the two accused to be selling drugs from the premises. Beyond that, the extent of their drug dealing as described by Mr O’Connor is only of marginal relevance and I am satisfied that that low probative value is outweighed by the real risk that the evidence of the accused both being drug users will overwhelm the issues a trial, being whether the accused formed a joint criminal enterprise to inflict grievous bodily harm on the deceased.

As for the evidence of drugs and money found at Ms Quinn’s premises, I am not satisfied that that evidence is relevant to the facts in issue. It was not the property that was targeted. It is relevant solely to prove that she was involved in drug supply at her own home in addition to at the home of Mr Davis. It might be relevant to rebut character evidence but I am otherwise satisfied that it is too remote from the real issues at trial to be admissible.
Even if I was satisfied that what was found at Ms Quinn’s home was relevant, I would exclude it under s 137 of the Evidence Act in any event on the basis that its low probative value is outweighed by the real risk that disproportionate weight is place on the evidence of drugs as opposed to the evidence of murder.
As for the telephone intercept material that the two accused were using prohibited drugs in the lead up the trial, that is irrelevant to any of the issues in trial, although it would potentially be admissible to rebut any evidence of good character at trial.
Similarly, the listening device material suggesting partial admissions are made by both accused to being involved with cannabis dealing prior to 10 August 2018 is not relevant to the issues at trial given the rulings I have made. There are no admissions in any of the listening device or telephone intercept material to anything to do with the charges on the indictment. Again, this material would be potentially admissible to rebut any evidence of good character.
Finally, there is the evidence of Detective Wakeham. A great deal of this evidence is not relevant. The evidence as to the nature of cannabis use and supplies in Australia might be relevant if the accused were on trial for drug charges but they are not. Similarly, the evidence that drug users use code might be relevant if I was satisfied that the telephone intercept and surveillance device material was relevant. I am not. The fact that on one of the two telephones left in the laneway near the scene there is evidence of cannabis use and a reference to the supply of $150 of “Mary” is too remote from the real issues to be tried in this matter.
The evidence of Detective Wakeham that the fact that Mr Davis had some ornamental weapons at his home is consistent with him being a drug dealer is impermissible tendency evidence (to be violent) and I would exclude that evidence as well.
Given the rulings I have already made, I am not satisfied that any of the evidence of Detective Wakeham is relevant. Even if I was so satisfied, I would exclude it under s 137 of the EvidenceAct for the same reasons as I have excluded the other additional evidence of drug supply relied upon by the Crown.
In ruling that the Crown is not permitted to adduce any additional evidence of drug supply beyond what was found at the scene and nearby and the reasons for why they were targeted (the evidence of Mr O’Connor and Mr Hill), I have sought to balance the interests of the accused to a fair trial run on the issues and the interests of the Crown to put its case in a particular way. I am not satisfied, as was contended by the Crown, that the Crown case is significantly weakened by not permitting the Crown to adduce all of this additional evidence of the accused being drug dealers. It is to be accepted that there will be less potentially prejudicial evidence before the jury but ultimately this case will be determined on the facts and circumstances of what occurred on 10 August 2018. The real issues will be whether there was a joint criminal enterprise, what was the intention of each accused, did the deceased pose the threat he did to the accused given the evidence of the eye witnesses that he was not carrying anything in their hands and whether they fled because of consciousness of guilt.
As to whether all of this additional evidence of drug supply was relevant to self-retribution in “protecting their turf” in relation to the circumstances that took place, I am not satisfied that the probative value of the evidence being adduced for that somewhat specific purpose outweighs the risk that it will be misused by the jury in a way not logically connected with the case.

Evidence concerning the reason why the deceased needed the money: CCTV footage of the deceased at Star city casino; evidence of Lynn McKee; evidence of Joseph McKee and some of the evidence of KP 1 and KP 2

This evidence was objected to on the basis of relevance.
It was submitted that evidence of the motivation of the deceased is irrelevant and highly prejudicial as it identifies them as drug dealers.
The defence submitted that the evidence of the deceased’s motive was largely irrelevant, as all that was relevant was that he entered Mr Davis’ premises with the intention to rob the occupants. Counsel for Mr Davis further pointed out that there was “no talk” of drugs at the time, at least according to the ERISP given by Ms Quinn.
In addition to the evidence of the motivation of the deceased, the Crown indicated that he wished to adduce from the deceased’s father that the deceased had recently come to him about his gambling addiction and he and his wife were paying it off for him. Also that the deceased was concerned about financing the impending birth of his child. It was submitted that this evidence was relevant such that a “more balanced” set of circumstances than that described by Mr O’Connor could be put before the court. It was submitted that the similar evidence of the deceased’s mother Lynne McKee would be led through Joseph McKee or the Officer in Charge in the trial.
The Crown submitted that it was only proposed that limited evidence of Joseph and Lynne McKee would be led to provide balance to the evidence of the pre-incident history of drug activity and gambling of the deceased contained in the statement of Mr O’Connor. If the only background was provided by Mr O’Connor the jury would not receive sufficient evidence to be able to fairly assess the nature and extent of the drug dealing and gambling issues the deceased encountered.
The Crown objected to any evidence of the deceased’s background being adduced on the basis of s 135(a).
The Crown accepted provisionally there is relevance to the deceased’s gambling debt to the likelihood of the entry into the house.
The Crown submitted that if the gambling addiction was considered relevant as a fundamental starting point, then I should:

“Consider some balance to the nature and extent of that gambling addiction, such that the jury has a reasonable perspective as to the nature and extent of that gambling addiction. So as to ward against the position, quite simply, where it would just be one‑sided. For example, this bloke was a drug and gambling individual, and look what's he's done, he's raided these citizens.”

Consideration

I have referred to the relevant authorities concerning motive of an accused above at [165]-[167]. The question of the “motive” of the deceased is slightly different.
As for the objection by the Crown under s 135(a) of the Evidence Act of the general bad character of the deceased, I am not persuaded that that is the relevant provision. Section 135(a) provides that:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.”

Although it is to be accepted that evidence as to the desperate state of the deceased may well engender some sympathy to the accused and the position they found themselves in, I am not satisfied that it gives rise to any “unfair prejudice” within the meaning of s 135(a). Although it is understandable that his parents may wish to paint a different picture of him, they were not present at the scene. As with many of the matters I have been asked to rule on, it is a question of relevance and the proper use to which the evidence is to be put.
I have already ruled that I would permit the Crown to lead evidence from Mr O’Connor that the deceased lost all his money gambling and needed money desperately and Mr O’Connor suggested a number of targets of which the accused were only one.
What is relevant is the circumstances confronted by the two accused. During the voir dire the Crown at one stage submitted that the Crown case did not positively put as part of its case that the deceased ever entered the premises of the accused. This took counsel for both accused by surprise. I referred the Crown to the Crown Case Statement and asked why it described the Crown case as including that the deceased entered the premises and he responded “[t]hat's a question for the drafter of that ultimately”. The following day the Crown conceded that the Crown case was in fact that the deceased had entered the premises.
In circumstances where there seems to be a potential issue on this point, I am satisfied that any evidence showing how desperate the deceased was for money is highly relevant to whether he did in fact enter the premises and also as to the credibility of the version of what occurred in the premises as described by Ms Quinn in her ERISP. In these circumstances I am unable to accept the Crown submission that “the interests of balance” require the Crown to adduced evidence from the deceased’s parents that he was not the desperate criminal as described by his co-offender Mr O’Connor. ERISP – Hannah Quinn
The four areas in the ERISP over which objection were made were 1522 to 1581, 1592 to 1602, 1653 to 1654 and 1656. These four areas can be summarised as follows.
Question and answers 1522 to 1581 concern the two mobile phones left near the scene in the brown paper bag in the laneway. Ms Quinn told police that these mobile phones were given to her and Mr Davis a couple of months or weeks before for the “sole purpose” of buying marijuana. The black one was used by Mr Davis. She did not know the male person who gave them the phones. They would use the phones to contact different people to buy marijuana “sometimes every day, sometimes every couple of days” whenever they needed to. No one else used those phones. She did not know the number, PIN, provider, or any details of the phones.
Question and answers Q 1592 to 1602 pertain to the air gun found in the same brown paper bag. She described it as “just one of Blake’s toys” that she had seen lying in the drawer. She did not use it and did not know if it fired anything. She knew that it was not a gun and said that he did not have any firearms.
Questions and answers Q 1653 to 1654 were to the effect that neither the deceased nor Mr O’Connor was the person who handed her the mobile phones.
Finally question and answer 1656 pertain to the police finding cannabis at the premises at 87A Hereford Street. She responded that she and Mr Davis were smokers and “smoke lots of weed”.

Determination of objections to portions of the ERISP of Ms Quinn

The determination of the admissibility of these questions turned in part on the other findings I have already made.
Turning to the questions about the telephones being used to buy cannabis. It was not suggested by the Crown that these answers were lies. I have had regard to the evidence of Detective Wakeham. There was no evidence of downloads from Mr Davis’ phone. His evidence was that there was discussion and images about cannabis on the phone Ms Quinn identified as hers and suggestion of one transaction of “Mary”. In circumstance where I have excluded the evidence of generalised drug supply I am not satisfied that these answers are relevant to any fact in issue.
As for the questions regarding the air gun I have permitted the tender of that item as part of what was found in the brown paper bag. The answer given by Ms Quinn is that it was “just one of Blake’s toys” In the context of her explanation that they bundled things together (including the nun chucks) for protection. I consider the answer to be relevant and there is no risk that it would be misused by the jury. On the contrary it provides part of the explanation as to why they were taken. I will direct the jury as to the use that could be made of it.
I do not consider the questions and answers to the effect that neither the deceased nor Mr O’Connor was the person who handed her the mobile phones to be relevant. I have not been provided with any material to suggest anything to the contrary and questions are not evidence.
Finally as to her assertion that they are both cannabis users, their personal drug use is not relevant. I have already admitted the evidence that drugs were found at the premises. The evidence suggests they were cannabis users. It is to be accepted that there is also evidence they were drug suppliers but I do not consider the answer to the question is capable of being a lie without hearing submissions on this issue. None were made on the voir dire.
It is to be noted that although the ERISP is only admissible in the Crown case against Ms Quinn, Ms Cunneen indicated during the voir dire that the contents will be adopted by Mr Davis.

Evidence of Megan Quinn

The Crown proposes to call evidence from the accused’s mother Mrs Megan Quinn. Mrs Quinn made two statements to police. The proposed evidence to be adduced from them is that the accused Ms Quinn was running out of money, that she was studying full time, that she was concerned as to how her daughter was able to afford to pay her rent, evidence of drug use by Mr Davis, the question of whether Ms Quinn was on Centrelink payments and also that Ms Quinn had broken her arm and had not worked for a while.
This evidence was objected to on the basis of relevance.
The Crown submitted that it did not propose to call this evidence if the evidence of general drug supply was admitted.
The Crown addressed alleged lies in Ms Quinn’s ERISP which related to her finances. The Crown submitted this was relevant as to Ms Quinn’s narrative that the deceased entered Mr Davis’ property and took a bag containing certain money (under $100 in cash) and her mobile. The Crown submitted that he would have to rebut any evidence that this cash was “legitimate savings” because to exclude it “wouldn’t give the jury the full picture”.
During argument on this point Mrs Quinn objected from the gallery on both 9 and 10 November 2020 that she did not wish to give evidence for the Crown against her daughter.
I raised with the Crown whether he pressed calling Mrs Quinn over objection. He submitted that I should have regard to her evidence (putting aside the s 18 of the Evidence Act issue) and his ultimate reliance upon it depends on other findings I made as to the admissibility of drug supply by Ms Quinn generally.
In circumstances where Mrs Quinn makes objection under s 18(1) of the Evidence Act to being compelled to give evidence against her daughter, I could order that she not be compelled to do so if I was satisfied, pursuant to s 18(6) of the Evidence Act that:

(a) there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence,

and

(b) the nature and extent of that harm outweighs the desirability of having the evidence given.

Section 18(6) provides that:

Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:

(a) the nature and gravity of the offence for which the defendant is being prosecuted,

(b) the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it,

(c) whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor,

(d) the nature of the relationship between the defendant and the person,

(e) whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.

In circumstances where that application has been foreshadowed, it seems to me that the probative value of the evidence is very low. The effect of it is that Ms Quinn kept her drug dealing activities from her mother.
I have had regard to the Crown’s position that Mrs Quinn would only be called if I excluded other evidence of Ms Quinn’s drug dealing. I have excluded some but not all of that evidence. I would still need to consider the s 18 objection before I would permit the Crown to call the mother of the accused to give the proposed evidence.

Prior domestic disputes between the accused

The evidence upon which this objection was made was not tendered on the voir dire. Rather, it was described in oral submissions as comprising some neighbours as well as builders who describe hearing an argument the day before. When the two accused ran out after the deceased the witnesses recognised them as the same two that were arguing the previous day. One of the neighbours apparently describes “disharmony” and raised voices in relation to that relationship on earlier occasions.
The relevance was said to be identification and to rebut any suggestion by Ms Quinn in relation to the accessorial count that she did what she did solely out of “loyalty” to Mr Davis.
In response, Mr Hughes confirmed that identification was not an issue. As for the question of Ms Quinn’s defence, it is as contained in her ERISP where she stated, after describing the threats made by the deceased:

“And we thought that there might be more people coming. I thought that there would be people coming and, um, we just got out of there and we jumped over the back fence and just ran.

And also, and but we got too scared and freaked out staying at my house in case people were going to come there and try and do the same thing. I was just so scared, so traumatised, and I didn't know what to do.”

I indicated to counsel during the hearing that the relevance of the couple fighting the day beforehand was not apparent. Mr Crown indicated that he would not press this evidence but reserved the right to adduce it if Ms Quinn’s defence changed in this respect.
I will reconsider this issue in the unlikely event that the Crown seeks to rely on it at trial. At this stage I do not consider it passes the threshold test of relevance in s 55 of the Evidence Act even if Ms Quinn resiled from what she said in her ERISP and gives evidence that her motivation was solely loyalty to Mr Davis.

Conclusion

I have made the 18 rulings for the reasons stated herein. It is always difficult to assess what issues might arise in a trial prior to the trial commencing. The Crown and both the accused would be permitted to re-visit any of these rulings should the nature of the evidence and issues upon which it they were based changes. To summarise, the rulings I have made are as follows:

The evidence of domestic disputes between the accused is inadmissible.

The evidence of the finding of cash in the search at 87A Hereford Street premises is admissible.

Ms Quinn’s ERISP:

1522 - 1581      inadmissible

1592 - 1602      admissible

1653 - 1654      inadmissible

1656            inadmissible

All evidence of the finding of cannabis/drugs at 87A Hereford Street premises is admissible.

Finding of the empty container for smoking implement “Brass knuckles” at Ms Quinn’s address at Sutherland Street, St Peters is inadmissible.

All evidence of drug dealing/drug usage in the evidence of Mr Hill, Mr O’Connor, “etc”:

The evidence of Mr Hill that he was present when the deceased and Mr O’Connor discussed robbing a dealer in Forest Lodge is admissible. Given the lack of any oral submissions on the specific paragraphs objected to I will give counsel leave to make further submissions on the specific objections prior to Mr Hill giving evidence; and

The evidence of Mr O’Connor that the deceased wanted to rob someone and suggested drug dealers as a target, that Mr O’Connor suggested the premises of Mr Davis and that Mr O’Connor understood them to be drug dealers is all admissible. Given the lack of clarity in his statement, a Basha Inquiry will need to be conducted before he gives his evidence. Given the lack of any oral submissions on the specific paragraphs objected to I will give counsel leave to make further submissions on specific objections prior to Mr O’Connor giving evidence.

All evidence of the finding of the brown paper bag with $21,380 cash, 2 mobile phones, 6 pairs of nunchucks and a pellet gun, by police between 133-135 Wigram Rd at 6.08 pm at 6.08 pm is admissible.

Mr Hill’s statement – my rulings as to drug dealing are set out at 6(a) above. The evidence that the deceased needed money because of his gambling is admissible. Other general “character” evidence of the deceased is inadmissible.

Mr O’Connor’s statement – my rulings as to drug dealing are set out at 6(a) above. The evidence that the deceased needed money because of his gambling is admissible. Other general “character” evidence of the deceased is inadmissible.

The evidence of Megan Quinn cannot be considered until her objection under s 18 of the Evidence Act has been heard.

The evidence of Lynn McKee is irrelevant and inadmissible.

The evidence of Joseph McKee is irrelevant and inadmissible.

The evidence of DSC Mark Wakeham is inadmissible.

The mobile phone downloads from the phones found in the paper bag in the laneway is inadmissible.

The listening device material obtained whilst the accused were on bail as to continued drug dealing – admissions made as to conduct prior to arrest is inadmissible.

The telephone intercept material while the accused were on bail as to continued drug use is inadmissible.

The CCTV footage of the deceased at Star City casino is inadmissible.

All evidence of anything seized during the search warrant executed on Ms Quinn’s premises in St Peter’s is inadmissible.

Rulings 2, 4, 6 and 7 above mean that limited evidence will be before the jury suggesting that the accused were low level cannabis sellers. The Crown suggested that this could be put before the jury by way of an agreed fact. This was opposed by the accused Ms Quinn who denies being involved in any drug dealing, despite the evidence in the Crown brief suggesting that she was. That is her legal right but it seems to me that the potential prejudice arising from this evidence will be increased if, in the face of the rulings I have made, her position that she had nothing to do with drugs is maintained. That a forensic matter entirely for her.
Finally, I have set out the evidence the Crown relies upon to establish that Ms Quinn was part of a joint criminal enterprise with Mr Davis to murder the deceased above at [63]. It seems to me, especially in the context of witnesses hearing Ms Quinn cry out “what have you done" and “no”, that the Crown faces significant hurdles in establishing the case against Ms Quinn for murder. I will consider the question as to whether there is a case to go to the jury against her for murder if and when that question arises.

A VIEW

During pre-trial argument the question arose as to whether there would be a view in this matter.
Senior Counsel for Mr Davis and counsel for Ms Quinn both strongly supported a view.
Mr Hughes submitted that there was a body of evidence coming from a property on the opposite side of the road where the builders were working. Their statements suggest that their vantage point was closely proximate to where the samurai sword strike took place. Mr Hughes stated that he has attended the area and submitted that it is further away when you are there. He suggested there was a potential for misrepresentation of spatial features of the various positions of eyewitnesses in relation to what was seen. It was also submitted that there is a dearth of evidence in the brief as to measurements of positions of witnesses.
The Crown neither supported nor opposed a view but submitted that there was an ISRAP recording and a map that should suffice. He went to play the ISRAP to establish this point but was unable to do so due to technology issues.
Section 53 of the Evidence Act provides that a judge may, on application; order that an inspection be held. By virtue of s 53(2) of the Evidence Act, a judge is not to make such an order unless satisfied that the parties will be given a reasonable opportunity to be present and that the judge and, if there is a jury, the jury will be present. There was no suggestion that counsel would not be present for the view. Both accused are on bail. It is not the usual case that they would be present if their legal representatives were. I am satisfied that s 53(2) has been met.
Section 53(3) of the Evidence Act provides that, without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account a number of matters. Subsection (a) is whether the parties will be present. I have indicated that, although the accused might not be there, they will be represented at the view and clearly the Crown representatives will be present. I am satisfied, consistent with s 53(3)(b) that the inspection would assist the Court in resolving issues of fact or understanding the evidence.
It has not been suggested that, consistent with s 53(3)(c), there is any danger that the inspection might be unfairly prejudicial, misleading or confusing. The view would focus on outdoor area on Hereford Street. There would be no need to ether any dwellings. That factor also is relevant to s 53(3)(e), which is the extent to which the property has been materially altered.
Having been satisfied of all of those matters, I am prepared to order a view in the circumstances of this case. The inspection will be confined to areas of interest in and around the stretch of Hereford Street between Minogue Crescent and Upper Road as agreed upon between counsel.
Details, time and date will be determined by 4.00 pm on Friday, 13 November 2020.

ORDERS

See [225] and [233].

Decision last updated: 23 December 2020

Medium Neutral Citation:	R v Davis and Quinn (No 1) [2020] NSWSC 1615
Hearing dates:	9 and 10 November 2020
Date of orders:	13 November 2020
Decision date:	13 November 2020
Jurisdiction:	Common Law
Before:	N Adams J
Decision:	For orders see [225] and [233]
Catchwords:	CRIMINAL LAW – murder – evidence – 18 objections to evidence proposed to be led by the Crown – relevance – probative value – unfair prejudice – expert evidence of police officer – evidence of drug supply – other orders – whether view warranted
Legislation Cited:	Evidence Act 1995 (NSW), s 18, s 53, s 55, s 56, s 135(a), s 137 Criminal Appeal Act 1912 (NSW), s 5F(3A)
Cases Cited:	Colby v The Queen [1999] NSWCCA 261 D’Agostino v Regina [2019] NSWCCA 259 Decision Restricted [2020] NSWSC 1297 Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72 Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 Griffiths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164 McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37 Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30 Odisho v R [2018] NSWCCA 19 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Adams (No 2) [2016] NSWSC 1359 R v FDP (2009) 74 NSWLR 645; [2008] NSWCCA 317 R v Katarzynski [2002] NSWSC 613 R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Standen v Regina [2015] NSWCCA 211 Wilson v R (1970) 123 CLR 334; [1970] HCA 17
Category:	Procedural and other rulings
Parties:	Regina (Crown) Blake Davis (Accused) Hannah Quinn (Accused)
Representation:	Counsel: Mr C Taylor (Crown) Ms M Cunneen SC (Accused Davis) Mr T Hughes (Accused Quinn) Solicitors: Solicitor for Public Prosecutions (Crown) Bannisters Lawyers (Accused Davis) Korn MacDougall Legal (Accused Quinn)
File Number(s):	2018/249752; 2018/248991