R v Davis and Quinn (No 3) [2020] NSWSC 1750

Supreme Court New South Wales

Medium Neutral Citation: R v Davis and Quinn (No 3) [2020] NSWSC 1750 Hearing dates: 3 and 4 December 2020 Date of orders: 7 December 2020 Decision date: 07 December 2020 Jurisdiction: Common Law Before: N Adams J Decision: The audition tape is inadmissible. Catchwords: CRIMINAL LAW – murder – joint criminal enterprise - self-defence – excessive self-defence – audition video – use of swords and weapons – many weapons tendered on voir dire – defendant aspiring actor and model – skills in baton twirling – The Shannara Chronicles – dramatic music – effect of "cranky" face – probative value – potential prejudice Legislation Cited: Evidence Act 1995 (NSW), s 55, s 56, s 137 Cases Cited: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 R v Davis and Quinn (No 1) [2020] NSWSC 1615 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 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 1. Blake Davis and Hannah Quinn are currently standing trial for the murder of Jett McKee. Ms Quinn is further charged, in the alternative, with being an accessory after the fact to murder. On 10 August 2018, Mr Davis killed Jett McKee with a Samurai sword. Eyewitnesses describe him striking down on the deceased's head once with both of his hands holding the samurai sword. Mr McKee had just broken into Mr Davis' home armed with, inter alia, a pistol and knuckledusters. Ms Quinn is the girlfriend of Mr Davis and was present at the time. She later told police in her ERISP that Mr McKee made serious threats to them both, punched Mr Davis to the eye causing a fractured eye socket, grabbed her handbag and then fled. 2. Eyewitnesses describe the deceased running up the street pursued by Ms Quinn who was heard to call out to him words to the effect of "[w]ho the fuck are you?" Most of those witnesses did not observe the deceased to be carrying anything in his hands. A workman noticed what he thought was a handbag in his hands as did Mr McKee's co-offender, a witness known in these proceedings as Frank O'Connor. Mr Davis was also seen to run out some distance behind Ms Quinn and Mr McKee. Eyewitnesses describe him to have blood over his face. When he caught up with Ms Quinn and Mr McKee, he struck Mr McKee to the head with the samurai sword, as described above. It is common ground that Mr Davis was a collector of ornamental swords and other similar items. 3. The Crown case is that Mr Davis and Ms Quinn formed a joint criminal enterprise at some stage of the home invasion to chase Mr McKee and inflict some violence on him as an act of retribution. The Crown relies upon the fact that a significant amount of cash (approximately $24,360) was found at Mr Davis' premises and in a bag the two accused took from the premises and left in an alleyway nearby with some other items. In addition, some cannabis was found at Mr Davis' premises. 4. It is the Crown case that when Mr Davis struck and killed Mr McKee, he was not facing any threat. On the contrary, he was acting with the intent to kill Mr McKee or at least inflict grievous bodily harm on him to send a message to deter other people who seek to rob drug dealers. Ms Quinn is said to be guilty of murder on the basis of extended joint criminal enterprise as she must have contemplated the infliction of at least grievous bodily harm as part of the agreement she reached with Mr Davis before she ran from the house to inflict some harm on him as an act of retribution. 5. The cases of both Mr Davis and Ms Quinn are that there was no agreement. Ms Quinn chased after the deceased to retrieve her bag. Mr Davis later chased after Mr Quinn. Ms Quinn describes in her ERISP that, as Mr Davis approached Mr McKee, Mr McKee had the pistol in his hand (that he had produced earlier in the premises) and it was at that time that Mr Davis struck the deceased. 6. The said pistol, a balaclava and a set of knuckledusters were found on the street near where Mr McKee was struck. They all had Mr McKee's DNA on them. 7. Mr Davis and Mr Quinn then fled for a few days before handing themselves in to police. Ms Quinn describes that this was because they were terrified and that Mr McKee (who they had never met and did not know) had threatened that other people would find them if they did not hand over their valuables. 8. There is no dispute at trial that Mr Davis did the act which caused the death of Mr McKee. The issues at trial concern whether the killing was unlawful. 9. 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. At [39] of that judgment I noted that part of the Crown case, as included in the Crown case statement, was a video posted by Mr Davis on Facebook earlier in 2016 showing his martial arts skills. 10. On Thursday 3 December 2020, the Crown Prosecutor sought to tender this footage, which I will refer to as "the audition video", through Detective Senior Constable Scott Kelly, the last witness in the Crown case. Ms Cunneen SC, for Mr Davis, objected to its tender. She accepted that she had not, prior to that moment, ever communicated to the ODPP that she objected to the tender. The jury was sent back to the jury room. Ms Cunneen articulated the objection to be relevance and, in the alternative, that it should be excluded under s 137 of the Evidence Act 1995 (NSW) as it was extremely prejudicial. 11. The DVD was played in the absence of the jury (without the music soundtrack). I shall describe it more fully below but, in short, it depicts Mr Davis wielding a number of swords which, at first blush, appear similar to Exhibit Y in the trial, being the samurai sword used by Mr Davis to kill the deceased. There was no common ground as between the Crown Prosecutor and Ms Cunneen as to whether any of the swords in the audition video were Exhibit Y. I invited the Crown Prosecutor to defer the tender until those factual matters underpinning its tender were resolved. 12. On Friday 4 December 2020, I heard final submissions on the question of the admissibility of various of the listening device recordings: see R v Davis and Quinn (No 2) [2020] NSWSC 1726. I also heard evidence on the question of the admissibility of the audition DVD.