R v Davis and Quinn (No 7) - [2020] NSWSC 1907

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:
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

REVISED FROM EX TEMPORE

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.
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.
The only eyewitnesses to the assault were, depending on which version you accept, one or more builders some 80 metres away.
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.
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.
Ms Charlesworth's evidence is that she grabbed her phone and went downstairs and out of her house…

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.

Keep reading for free

Create a free CaseChat account to read R v Davis and Quinn (No 7) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1907
Decision Date: 23 November 2020

CaseChat Overview and Summary

In the case of R v Davis and Quinn (No 7), the respondents were convicted of murder by the Supreme Court of Victoria. The pair were found guilty of being part of a joint criminal enterprise that resulted in the death of a man. They appealed on the basis that the trial judge misdirected the jury on the defence of self-defence and excessive self-defence. In addition, the respondents sought leave to cross-examine a key witness about her reliability in identifying a scream that was heard before the incident.

The legal issues before the court included whether the trial judge erred in his directions to the jury regarding self-defence and excessive self-defence. The respondents argued that the trial judge did not properly consider the possibility of excessive self-defence. The court also had to determine whether the respondents were entitled to cross-examine the witness about her identification of a scream as coming from a man or a woman. This was argued to be relevant to the reliability of her evidence.

The court found that there was no misdirection by the trial judge in relation to the defence of self-defence and excessive self-defence. The court held that the trial judge properly directed the jury on these matters and that there was no error in his Honour's directions. The court further found that the respondents were not entitled to cross-examine the witness about her identification of a scream as coming from a man or a woman. The court held that this evidence was not relevant to the reliability of the witness's identification of the respondents as the perpetrators of the crime. Therefore, the respondents' appeal was dismissed.

The court made no orders in relation to the cross-examination of the witness, as it found that the respondents were not entitled to such cross-examination. The convictions and sentences of the respondents were upheld.

Orders