R v Davis and Quinn (No 7)
[2020] NSWSC 1907
•23 November 2020
Supreme Court
New South Wales
Medium Neutral Citation: R v Davis and Quinn (No 7) [2020] NSWSC 1907 Hearing dates: 23 November 2020 Date of orders: 23 November 2020 Decision date: 23 November 2020 Jurisdiction: Common Law Before: N Adams J Decision: Leave is refused for the Crown to cross-examine the witness Lynne Charlesworth under s 38(1) Evidence Act 1995 (NSW).
Catchwords: CRIMINAL LAW – murder – joint criminal enterprise - self-defence – excessive self-defence – leave to cross-examine witness under s 38 Evidence Act – question of whether witness heard a man or woman scream – whether evidence unreliable – leave refused
Legislation Cited: Evidence Act 1995 (NSW)
Cases Cited: R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487
Category: Procedural and other rulings Parties: Regina (Crown)
Blake Davis (Accused)
Hannah Quinn (Accused)Representation: Counsel:
Solicitors:
Mr C Taylor (Crown)
Ms M Cunneen SC (Accused Davis)
Mr T Hughes (Accused Quinn)
Solicitor for Public Prosecutions (Crown)
Bannisters Lawyers (Accused Davis)
Korn MacDougall Legal (Accused Quinn)
File Number(s): 2018/249752; 2018/248991
REVISED FROM EX TEMPORE
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It is day six of the criminal trial against Blake Davis and Hannah Quinn for murder. A number of eyewitnesses have been called to give evidence about what they saw in Hereford Street before, during and after the fatal assault upon the deceased, Jett McKee, who died as a result of a head wound said, on the Crown case, to be caused by being struck with a Samurai sword wielded by the accused Blake Davis.
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It is common ground that, at the time of that blow to the head, the only other person proximate in the area was the co-accused, Hannah Quinn. A number of eyewitnesses have given evidence of seeing the deceased being chased by Ms Quinn prior to that fatal blow. Without exception, all of those witnesses have heard Ms Quinn to be yelling words to or in the direction of the deceased. Not a single witness has given evidence that they ever heard the deceased say anything; or, for that matter, Mr Blake Davis.
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The only eyewitnesses to the assault were, depending on which version you accept, one or more builders some 80 metres away.
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Lynne Charlesworth has given evidence today. She lived in the house directly opposite where the fatal blow was struck. She made a statement to police on 16 August 2018, annexing notes she had made in an email to friends shortly after the event.
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Lynne Charlesworth's evidence is that she heard a woman scream loudly, "[n]o, don't" and, two seconds later, heard a sound like a crack and then heard what she thought was the sound of a body falling to the ground. She did not see the incident. She was in the upstairs front room of her terrace house with the doors open when she heard the woman cry out the words to which I have already referred.
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Ms Charlesworth's evidence is that she grabbed her phone and went downstairs and out of her house and into the street. On her evidence, the only person there at that time was Mr McKee who, at that stage, was still alive. Her evidence is that she called triple-0. She gave evidence in court today that, at some stage after she called triple-0, some builders came up to the scene where she was standing. The triple-0 call she made was then played in court. It was consistent with the builders having approached her either before or during the time that she made that triple-0 call.
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Given the inconsistency between what the jury had been played in the triple-0 call and her evidence in court, I granted the Crown Prosecutor leave to put leading questions to Ms Charlesworth to perhaps explain that inconsistency. Neither Ms Cunneen or Mr Hughes opposed that leave being given to Mr Crown.
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When it was put to Ms Charlesworth whether she allowed for the possibility that they were there earlier, the effect of her evidence was that they were not there when she made the call, but that they might have been there before the deceased was seen to fall into some bushes nearby as he staggered away from the scene.
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Ms Charlesworth was then cross-examined. Her evidence was not challenged in any significant way in cross-examination. When answering questions asked of her by Ms Cunneen, she confirmed that the voice she heard was definitely a female. She was then cross-examined by Mr Hughes.
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In re-examination, the Crown asked some further questions of Ms Charlesworth as to when it was the builders had arrived. Some of her email notes annexed to her statement were then put to her. On the face of those notes, it suggested that she had seen the builders go back into their home, being 176 Hereford Street where they were working but, when those notes were put to her in re-examination, she explained that that was in fact something that the builders had told her.
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Further leading questions ensued until Mr Crown made an application under s 38 of the Evidence Act 1995 (NSW) to put some further matters to Ms Charlesworth about where it was the builders were. Prior to that application there had been objection by Mr Hughes to the nature and extent of the re-examination on the basis that it did not arise out of any distortion or ambiguity from any of the questions in cross-examination. At that stage I sent the jury back to the jury room.
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It should be noted that the evidence of the builders is that they arrived at the scene and one of them asked Ms Charlesworth to make a triple-0 call.
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When the jury had left the room, I raised with Mr Crown the question of whether he proposed to put to the jury ultimately that Ms Charlesworth was unreliable as to when the builders came. Mr Crown responded that he proposed to put to the jury that she was an unreliable witness.
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After further questions, it emerged that Mr Crown proposed to put to the jury that the witness was unreliable in her evidence that she heard a woman call out the words, "[n]o, don't" and that it could have been a man speaking in a high-pitched voice. Both Ms Cunneen and Mr Hughes were somewhat taken by surprise at that submission and both opposed any leave being given to put this new Crown case to the witness.
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As I have already indicated, Ms Charlesworth made her statement on 16 August 2018 in which she stated that the voice was a woman and annexed notes of an email she sent in which she described the voice as being a woman.
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The Crown Case Statement, as served, described her hearing a woman scream and the pre-trial judgment I made, reliant upon that Crown Case Statement, describes Ms Charlesworth as hearing a woman say those words.
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In his opening address at the commencement of the trial, the Crown referred to Ms Charlesworth hearing a woman call out those words. Ms Charlesworth gave evidence-in-chief that she heard a woman say those words and that evidence did not change in cross-examination.
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Every version Ms Charlesworth has ever given is that she heard a woman’s voice and it has certainly never been suggested otherwise on the Crown case; nor is there anything in the Crown brief to suggest that a male in a high-pitched voice called anything out, or that there was anyone else closer to the scene than Ms Charlesworth who heard anything different.
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I do not propose to grant leave to the Crown under s 38(1) of the Evidence Act to put to Ms Charlesworth that she might have heard a man, not a woman, for three reasons: First, if it was proposed that that was going to occur, it should have happened prior to the witness giving her evidence; secondly, there has been no notice at all to the defence of this proposed significant change to the Crown case, contrary to what was in the Crown Case Statement and all the other documents to which I have already referred; but, thirdly, and most significantly, it seems to me that there is no basis in fact to put to the witness that what she heard was a male perhaps with a high-pitched voice rather than a female.
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The fact that Ms Charlesworth was in the house does not suggest she is unreliable. Voice identification is made all the time and witnesses are often asked to describe male and female voices. Mr Rossinni Palmer, for example, described hearing a female voice before he looked out the window to see what he was observing, and it certainly has not been suggested he was wrong in that regard. Nor am I satisfied that the fact that her evidence, as to the timing of the builders, does not sit nicely with the triple-0 call means that she is unreliable as to whether she heard a male or a female voice.
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Section 38 of the Evidence Act provides that a Crown can ask leading questions and question their own witness as if they were cross-examining in three circumstances; if the evidence is unfavourable; they have made a prior inconsistent statement; or the witness does not appear to be doing their best to remember the evidence it is anticipated they would give.
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The only relevant factor out of those is that she is unfavourable. There is no doubt that the Crown does consider the witness's evidence to be unfavourable to the extent that it is favourable to the defence case, but the word "unfavourable", although not defined in the Act, cannot mean that it is inconsistent with your case if there is no other evidence to support it.
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Although it is to be accepted that, consistent with cases such as R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487, if the Crown proposes to put to a jury that a witness is unreliable, as a matter of procedural fairness the witness must be put on notice of that, but there has to be a basis to suggest that the witness is unreliable in the first place. I am not satisfied that is the case here and I would refuse the Crown’s s 38(1) application.
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Decision last updated: 23 December 2020
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