Supreme Court New South Wales Medium Neutral Citation: R v Davis [2018] NSWSC 1831 Hearing dates: 27 November 2018 Date of orders: 27 November 2018 Decision date: 27 November 2018 Jurisdiction: Common Law Before: Rothman J Decision: Conditional bail granted. Catchwords: BAIL – murder – show cause – strength of Crown case - no prior record – killing of intruder – bail granted Legislation Cited: Bails Act 2013 (NSW) Crimes Act 1900 (NSW), s 18 Category: Principal judgment Parties: Blake Davis (Applicant) The Queen (Respondent) Representation: Counsel: P Strickland SC (Applicant) J Ly, Solicitor Advocate (Respondent) Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2018/263794 Publication restriction: Nil EX TEMPORE Judgment 1. HIS HONOUR: The application before the Court is an application for bail in relation to Blake Davis, who is charged with murder contrary to s 18 of the Crimes Act 1900 (NSW). Murder has been described by judges of this Court, including me, as the most serious crime in the criminal calendar. It involves the unlawful taking of human life in circumstances where the perpetrator has a state of mind that elevates the crime to the kind of seriousness with which society treats it. 2. The maximum penalty for murder is life imprisonment. That, of course, is confined to the worst case scenario. I am not dealing with sentencing and nor am I dealing with the guilt or innocence of the accused. Rather, the Court is dealing with the provisions of the Bail Act 2013 (NSW). 3. There is, ordinarily, a presumption in favour of the liberty of an individual who has not been convicted of an offence. Section 16A is an exception to that presumption. There are other exceptions other than the Bail Act but for present purposes that is the only relevant exception. 4. The issue before the Court in this case is complicated by a number of factors. It seems to me that it is necessary to set up the legal requirements before I do anything else. I have already dealt with the nature of the crime with which the applicant is accused. It is necessary for me to deal with further matters. 5. Because of the seriousness of the offence and, in particular, the provisions of s 16B of the Bail Act, the applicant is facing a charge for an offence that is a "show cause" offence to which s 16A of the Bail Act applies. 6. Section 16A of the Bail Act provides that in circumstances where a person is governed by the provisions of s 16A, any Court or bail authority, faced with a bail application, must be satisfied by the applicant for bail that the applicant's continued detention is not justified. 7. If an accused overcomes the barrier of s 16A and shows cause why continued detention is not justified, the court is required to look at the bail concerns that are described or prescribed by the Act in s 17. There are four bail concerns. The first of them is a failure to appear, or what used to be called flight. The second is the commission of a serious offence whilst on conditional liberty. The third is the endangerment of victims, individuals and the community; and the fourth, if not otherwise within the third, is the interference with witnesses or evidence. 8. Ordinarily, when faced with a serious offence of the kind now before the Court, being murder, there is automatically a risk that the applicant for bail will fail to appear at any proceedings for the offence, but there are some peculiar aspects of this case. The first is something that is most unusual in criminal proceedings of this kind and that is that the applicant has never before been convicted of a criminal offence. 9. This is the first time that the applicant has ever been imprisoned and, on the material before the Court, this is the first time that he has ever come to the attention of the police in that regard. I should add that criminal records also include a number of driving offences and it doesn't seem that the applicant has ever been convicted of any serious driving offence. 10. As a consequence, we are dealing with a person who is, to use the vernacular, a "clean-skin". There can be little doubt that a person, who is not otherwise associated in criminal conduct, has a much more difficult time in prison than people who are associated with organised crime or a criminal element generally or who have previously been imprisoned. Such is recognised in sentencing principles, and persons who are first time offenders are generally treated with a degree of leniency in very serious offences than might otherwise have been the case if they had a criminal history of some note. 11. The second aspect is that because he has never been before the court, there has never been any situation where a failure to appear has ever arisen, and there is certainly no evidence before the Court, other than the fact that he has been charged, that would satisfy the Court that there was an unacceptable risk or, indeed, any risk associated with his failure to appear. 12. The third aspect, which is unusual, is that the applicant's offence has been committed on a person with whom he has not before had a relationship and for which there is, on the Crown case, no motive. The Court is required to take the Crown case at its highest but the Court is also entitled to look at what, if any, weaknesses exist in the Crown case at its highest. 13. The Crown case at its highest is that the deceased unlawfully entered the premises at which the accused was living. The Crown cannot say for what reason that break and enter occurred. Nevertheless, there is at least a strong inference that corroborates the statement of the co-accused that there was a break and enter for the purpose of stealing which itself is a serious offence although, obviously, not as serious an offence as murder. The facts also indicate that the deceased had possession at the time of the replica pistol which at least the co-accused believed was real. He also had possession of what in common parlance is called a "knuckle duster". The other objective evidence is that at some stage, on the Crown case, the three of them left the premises. The first person to leave being the deceased; the second to leave being the co-accused, Ms Quinn; and the third person to leave being the applicant for bail today. 14. It seems on the statement of Ms Quinn, which is not contradicted by anyone, and seems to be corroborated by the surrounding circumstances, that the deceased took with him some property of the applicant and the co-accused, including a black satchel bag of the co-accused. It seems, at least on Ms Quinn's version of events, that the co-accused chased the deceased in order to get her black bag and other property that he had. Frankly, on the material limited though it is before the court at the moment, this is an inference that would be drawn. 15. The crux of the issue before the Court is that which occurred when Ms Quinn caught the deceased. There seems to be no issue that there was a scuffle. There seems to be no issue that during the scuffle both Ms Quinn and the deceased fell to the ground. 16. There is also no controversy that during, or shortly after the scuffle, when the deceased and the co-accused were apart, the applicant struck the deceased across the head with what has been described as a samurai sword, which blow was fatal. 17. In terms of the elements of the crime of murder they are variously described. 18. The first element is that there has to be a deliberate act of the accused that has caused death. There is little doubt on the statements of Ms Quinn and the several witnesses, at least to the extent that they are before the Court, that the striking of the deceased by the applicant was a deliberate blow that caused death. 19. The second element is that there has to be an intention to cause grievous bodily harm or to kill. I make no comment about the evidence insofar as it deals with that issue but I am prepared, for present purposes, to infer that subject to the issues raised in the interview with Ms Quinn, the co-accused, there would be sufficient evidence to allow a jury to draw an inference that there was an intention at least to cause grievous bodily harm. 20. The third aspect, relevant to the current proceedings, is that the Crown is required to negative self defence. By self defence, I include the defence of another. 21. In order to negative self defence, the Crown has to prove, beyond reasonable doubt, that the applicant did not have a subjective belief, that is a belief in his own mind, that the conduct, in which he was engaged, was necessary to protect the co-accused. Apart from the subjective element, there is an objective element, which requires that the Crown, if it has not already negatived the subjective element, also to negative the proposition that the accused, in a trial for murder, has reacted reasonably to the situation as he perceived it, or as a person in his position would have perceived it, that being an objective rather than a subjective test of perception. Notwithstanding that it is an objective test, it is to be assessed on the circumstances as the applicant in this case perceived it. There are a number of eyewitnesses to some of the events that occurred. There is certainly some post-incident conduct that could be used to suggest a consciousness of guilt. It is dismissed by the co-accused at least on the basis of panic, and, frankly, common sense may support that proposition or it may not -- they have juries because judges are thought not to have common sense. I am prepared to accept that, at least arguably, there is or may be action which is suggestive of a consciousness of guilt. Whether it is a consciousness of guilt of murder is a slightly different issue and, therefore, whether it is admissible is a different issue again. I do not, for obvious reasons, go into any of that. 22. The Crown case, which is before the Court in the submissions, is certainly more complete and the material is more complete than it usually is in a bail application. The Crown case repeats, to some extent, the statement of the co-accused. That statement is in the following terms: "She states she then chased the deceased along Hereford St to recover her black bag and when she caught up to him she grabbed the black bag and had a further wrestle with the deceased over the black bag. She states she successfully wrestled the black bag away from the deceased. She states that the deceased threw a punch at accused QUINN which missed. The deceased lost balance from the force of the missed punch and fell onto his knees, he then pointed a gun at her, which is the moment when accused DAVIS arrived and "hit" the deceased. She later clarifies with the police that the deceased also said "he was going to shoot her when he was on the ground and holding the gun up at her." 1. As a consequence of that statement by the co-accused, the evidence that she gives is essentially that when she, the co-accused, caught up with the deceased, she grabbed the black bag and wrestled with the deceased. She states that she successfully wrestled the black bag away from the deceased. She also states that the deceased punched at her, lost his balance and fell to his knees and then pointed the gun at her. It was at that point that the applicant hit the deceased with a samurai sword, seemingly coming from behind the deceased although it is not absolutely clear on the material before me. 2. Other evidence before the Court from independent witnesses suggests that the co-accused screamed out, "Don't" at or about the point in time when the gun was pointed at her, on her version, and/or the blow was struck by the applicant with the samurai sword. The obvious inconsistency in the Crown's progress of this matter needs to be stated. If the exclamation "Don't" was directed at the applicant in these proceedings, then the co-accused was expressing her non-consent to the conduct which caused death, or, possibly, withdrawing from any joint enterprise, if agreement for criminal conduct had ever been reached. The co-accused, however, has been charged with murder by joint criminal enterprise. 3. As a consequence, it must be said that the Crown accepts or must accept that the word "Don't" was not directed at the applicant, in which case it must be inferred that the word "Don't" was directed at the deceased. In those circumstances, where the deceased was approximately a metre or so away from the co-accused, the exclamation corroborates, independently, the version of events given by the co-accused, that the deceased was pointing what the co-accused believed was a gun at her and was thought to be able to shoot. In that sense, that would corroborate the self defence aspects which would make it difficult for the Crown to disprove that self defence was not an available defence in total, or at the very least, that there was a partial defence, based upon either the subjective elements of self defence, or on extreme provocation, each of which would give rise to manslaughter, as distinct from murder. 4. I do not underestimate the seriousness of manslaughter. It is certainly an extremely serious offence which involves the unlawful taking of human life by an act which is unlawful and dangerous or involved an unreasonable act in self defence. It carries a maximum sentence of twenty five years imprisonment and I do not in any way underestimate the seriousness of such a charge, if a partial defence only succeeded. 5. Nevertheless, manslaughter does not require a state of mind or intention to commit or inflict grievous bodily harm or to kill. In fact, such an intention would be inconsistent with the verdict of manslaughter. 6. Each of those issues goes to both the strength of the Crown case and the unacceptability of the risk associated with the applicant being on conditional liberty. 7. As earlier stated, there are a number of witnesses, most, if not all of whom, live in and around the residence previously occupied by the applicant in Forest Lodge. The co-accused's mother has a fear, I don't wish to put the fear any higher than supposition, but it is a fear, nevertheless, of the effect of continued contact between the applicant and the co-accused on the co-accused and her family, which in my view, the Court should take into account in determining what, if any, conditions are appropriate to ameliorate any unacceptable risk. 8. It seems to me that there is, or will be, some difficulty on the material before the Court in the Crown negativing, particularly given the positive evidence associated with the absence of motive, the subjective elements in self defence or the defence of another. There are also very good grounds for provocation defences to arise, even on the limited basis that applies since the amendments, I think, in 2014. 9. It seems to me, that aspects of the Crown case are such that the applicant has shown cause why his continued detention is unjustified. That does not take into account the issues associated with the bail concerns to which I have already alluded, and the detailed prescription of the matters to be taken into account in dealing with those bail concerns which are prescribed by s 18 of the Bail Act. I turn to those aspects. 10. I have already described the four bail concerns in s 17. I do not consider that there is an unacceptable risk of a failure to appear. I do not consider that there is an unacceptable risk of the commission of another serious offence, unless it is a serious offence of the kind with which paras (c) and (d) deal in s 17(1). 11. In terms of s 17(1)(c) and (d), I consider that there is an unacceptable risk relating to the endangerment and the safety of victims, individuals or the community, or the interference with witnesses, but I also consider that, bearing in mind the factors which I am required to consider under s18 of the Bail Act, that unacceptable risk can be sufficiently ameliorated by the imposition of conditions, most of which are proposed by the applicant to allow for bail to be granted. 12. The Crown submits, if bail were to be granted, that there should be a condition prohibiting contact between the applicant and the co-accused "to prevent collusion". Each is subject to a murder charge. Neither is capable of being compelled by the Crown to give evidence. 13. Ms Quinn is currently able to contact the applicant in prison, and they could have discussed their evidence, if any is to be given. Ms Quinn has already provided a statement, which, on the most probable view, is exculpatory of each of them. 14. I have not before seen an order preventing co-accused discussing the cases against them. I am prepared to accept that such an order can be made, but, in the circumstances, I am not inclined to make it a condition and it is, therefore, unnecessary decide whether such a condition could be imposed. 15. In the matter of R v Blake Davis, on the charge of murder said to have been committed on 10 August 2018, bail is granted subject to the following conditions: 16. FOR BAIL CONDITIONS SEE COURT FILE ********** Amendments 30 November 2018 - Formatting errors corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2018