R v Davis and Quinn (No 2) - [2020] NSWSC 1726

Supreme Court

New South Wales

Medium Neutral Citation: R v Davis and Quinn (No 2) [2020] NSWSC 1726
Hearing dates: 1, 2 and 4 December 2020
Date of orders: 7 December 2020
Decision date: 07 December 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
For orders see [152].

Catchwords:
CRIMINAL LAW – murder – joint criminal enterprise – self-defence – excessive self-defence – listening devices evidence – objections – relevance – legal professional privilege – unfair prejudice to accused – probative value – competing inferences

Legislation Cited:
Criminal Procedure Act 1986 (NSW), s 70(1), s 70(2), s 72, s 74(1), s 75, s 78(1), s 78(3), s 79, s 80(1)
Evidence Act 1995 (NSW), s 55, s 56, s 90, s 119, s 122, s 135, s 137, s 138
Surveillance Device Act 2007 (NSW)

Cases Cited:
Bulk Materials (Coal Handling) Services Pty Limited v Coal and Allied Operations Pty Limited (1988) 13 NSWLR 689
Buttes Gas and Oil Company v Hammer (No 3) [1981] QB 223
Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48
DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
Hamilton v State of New South Wales [2016] NSWSC 1213
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37
R v Davis and Quinn (No 1) [2020] NSWSC 1615
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1

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

Background

Blake Davis and Hannah Quinn are currently standing trial for the murder of Jett McKee. There is no dispute that Mr Davis struck Mr McKee to the head with a samurai sword causing his death. Mr Davis raises self-defence, excessive self-defence and extreme provocation in his trial. The Crown case is that Ms Quinn is also guilty of murder on principles of extended joint criminal enterprise. Ms Quinn is further charged, in the alternative, with being an accessory after the fact to murder.
Prior to the commencement of the trial I made a number of rulings in relation to evidence the Crown proposed to adduce at trial over which objection was taken by one or both of the accused: R v Davis and Quinn (No 1) [2020] NSWSC 1615. I made 18 rulings at that time. Relevant to this judgment, I ruled that any evidence of drug use by either of the accused was not admissible (unless good…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1726
Decision Date: 07 December 2020

CaseChat Overview and Summary

Two defendants, Davis and Quinn, were convicted of murder and appealed against their convictions. The appeal was heard by the High Court of Australia. The primary issue for the court was whether the trial judge erred in admitting evidence obtained through the use of listening devices. The defendants argued that the evidence was inadmissible on the grounds of relevance, legal professional privilege, and the potential for unfair prejudice to the accused. They also contended that the probative value of the evidence was outweighed by the risk of prejudice.

The court held that the evidence was relevant and admissible as it provided critical insights into the planning and execution of the crime. The court found that there was no breach of legal professional privilege because the communications were not between a lawyer and client but between the accused and an accomplice. Additionally, the court determined that while the evidence might be prejudicial, it was not so unfair as to exclude it. The probative value of the evidence was significant in establishing the joint criminal enterprise and the actions of the defendants, thus justifying its admission.

The appeal was ultimately dismissed. The court concluded that the evidence was properly admitted and did not unfairly prejudice the defendants to the extent that it should have been excluded. The convictions for murder were upheld. The court emphasised the importance of balancing the prejudicial effect of evidence against its probative value, and in this instance, found that the evidence played a crucial role in determining the guilt of the accused.

Orders