R v Davis and Quinn (No 6) - [2020] NSWSC 1888

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Davis and Quinn (No 6) [2020] NSWSC 1888
Hearing dates: 6 December 2020
Date of orders: 17 December 2020
Decision date: 17 December 2020
Jurisdiction: Common Law
Before: N Adams J
Decision:
Mr Davis is permitted to rely upon the ERISP of his co-offender, Hannah Quinn, in his case under s 65(8) of the Evidence Act 1995 (NSW).

Catchwords:
CRIMINAL LAW – murder – joint criminal enterprise - self-defence – excessive self-defence – use of ERISP of one accused in the case of another – consideration of relevant provisions of the Evidence Act – potential prejudice to the Crown case

Legislation Cited:
Evidence Act 1995 (NSW), 17(3), s 65, s 81, s 83, s 84(1), s 85(2), ss 87-89A, s 90, s 135(a), s 137

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

On 17 December 2020 I ruled that Mr Davis was permitted to rely upon the ERISP of his co-offender, Hannah Quinn, in his case under s 65(8) of the Evidence Act 1995 (NSW). I indicated at that time that I would provide my reasons at a subsequent time.
These are my reasons for making the ruling on evidence I did at that time.

Background

Blake Davis and Hannah Quinn are currently standing trial for the murder of Jett McKee. They were both arrested on 13 August 2018. On 14 August 2018, following her initial refusal, Ms Quinn agreed to participate in an electronically recorded interview. The interview commenced at 4:36pm and concluded at 11:35pm, including breaks.
The trial against both accused commenced on 16 November 2020. In pre-trial submissions, Ms Cunneen SC, appearing for Mr Davis, put the Crown on notice that Mr Davis consented to Ms Quinn’s ERISP being used in his case.
The last witness in the Crown case was the officer in charge, Detective Senior Constable Kelly. On 7 December 2020, the Crown Prosecutor tendered Ms Quinn’s ERISP in her case through the officer in charge. At that time, Ms Cunneen SC stated before the jury, “Mr Davis consents to this evidence in the case concerning him”. I deferred making any direction to the jury about this at that time in order to afford the Crown the opportunity to consider its position.
In the absence of the jury, Ms Cunneen later confirmed that Mr Davis relied upon s 83(2) of the Evidence Act. The Crown Prosecutor submitted that the ERISP is not tendered against Mr Davis and, as such, there is nothing to consent to. It was submitted that it would only be if the ERISP was sought to be tendered against Mr Davis, who is not strictly a party to the proceedings that Ms Quinn is a…

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 1888
Decision Date: 17 December 2020

CaseChat Overview and Summary

The appellants, Davis and Quinn, were convicted of the murder of the deceased, and their appeal against conviction was dismissed. They sought to appeal against their sentences. The primary issue was whether the trial judge erred in failing to direct the jury on the defence of excessive self-defence and whether the admission of evidence regarding the exercise of an enforceable restriction and supervision plan (ERISP) in relation to one of the accused in the case of the other was prejudicial to the Crown case. The court had to consider whether the trial judge erred in his directions to the jury regarding self-defence and whether the admission of the ERISP evidence was unfair to the Crown.

The court found that there was no error in the trial judge's direction to the jury on self-defence. The trial judge had directed the jury on both the defence of self-defence and the defence of another person, and the court held that there was no need for a direction on excessive self-defence. The court also held that the admission of evidence regarding the ERISP was not unfair to the Crown. The court found that the evidence was relevant to the issue of whether the appellants acted together in a joint criminal enterprise, and that any prejudicial effect was substantially outweighed by the probative value of the evidence. The court held that the evidence did not give rise to a substantial danger of unfair prejudice to the Crown case.

The appeal against conviction was dismissed, and the appeal against sentence was also dismissed. The court found that there was no error in the trial judge's direction to the jury on self-defence, and that the admission of evidence regarding the ERISP was not unfair to the Crown. The court held that the trial judge's directions to the jury were sufficient and that the jury was properly directed on the issue of self-defence. The court also held that the evidence regarding the ERISP was relevant to the issue of whether the appellants acted together in a joint criminal enterprise, and that any prejudicial effect was substantially outweighed by the probative value of the evidence. The court found that the evidence did not give rise to a substantial danger of unfair prejudice to the Crown case. The appeal against conviction and the appeal against sentence were both dismissed.

Orders