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Supreme Court 13 November 2020

R v Davis and Quinn (No 1)

[2020] NSWSC 1615

Homicide
CRIMINAL LAW MURDER EVIDENCE RELEVANCE PROBATIVE VALUE UNFAIR PREJUDICE

Citation: R v Davis and Quinn (No 1) [2020] NSWSC 1615
Court: Supreme Court of New South Wales
Date: 13 November 2020
Judge(s): N Adams J

Background

Two accused, a man and a woman, faced trial for the murder of a third man who was killed on 10 August 2018 in Forest Lodge, Sydney. The Crown alleged the deceased had attempted to rob the accused at their home while armed with a balaclava, knuckledusters, and an imitation pistol. Eyewitnesses described the accused pursuing the deceased into Hereford Street, where one accused allegedly struck him with a samurai sword while the other pulled the deceased to the ground.

Both accused were arrested three days after the death and later released on bail. They pleaded not guilty at arraignment in December 2019. The female accused faced an additional alternative charge of being an accessory after the fact to murder.

The pre-trial period was complicated by a late disclosure, on the evening before the scheduled pre-trial hearing, that one accused intended to rely on the partial defence of substantial impairment and sane automatism. By the time the trial was to commence on 9 November 2020, that accused had abandoned both defences. Nonetheless, the Crown was not immediately able to confirm the availability of its expert to provide a reply report, and pre-trial rulings on 18 evidentiary objections were required before the jury could be empanelled.

The pre-trial hearing required the court to resolve a substantial range of evidentiary questions, including:

  • Whether various items of Crown evidence met the threshold of relevance under ss 55 and 56 of the Evidence Act 1995 (NSW)
  • Whether the probative value of particular evidence was substantially outweighed by the danger of unfair prejudice, under ss 135(a) and 137 of the Evidence Act
  • Whether a police officer could give opinion or expert evidence in the proceedings
  • Whether evidence of drug supply by the accused was admissible
  • Whether a view of the Hereford Street area should be ordered under s 53 of the Evidence Act
  • Various other objections to specific items of Crown evidence across 18 discrete rulings

Decision

Adams J worked through all 18 evidentiary objections and delivered written reasons on 13 November 2020, in advance of jury empanelment on Monday 16 November 2020. The Crown had requested full written reasons before the weekend so it could consider its position. Counsel for both accused had opposed delay and sought the earliest possible commencement of the trial.

The full reasoning on each of the 18 objections is contained in the body of the judgment. The extracted text provided publicly addresses the procedural background, the Crown case outline, and the view application in detail. The specific reasoning on individual evidentiary objections is largely contained in parts of the judgment not reproduced in the available text.

On the question of a view under s 53 of the Evidence Act, Adams J ordered that an inspection of the relevant stretch of Hereford Street be conducted. The court was satisfied that all parties would be represented (the two accused being on bail were not required to attend, but their legal representatives would be present), that the inspection would assist in resolving issues of fact or understanding the evidence, and that there was no danger the inspection would be unfairly prejudicial, misleading, or confusing. The view was confined to outdoor areas in and around Hereford Street between Minogue Crescent and Upper Road, as agreed by counsel, with no entry into any dwellings required.

The court noted the relevance of s 53(3)(e), concerning the extent to which the property had been materially altered, and was satisfied that factor did not militate against a view. Details as to time and date of the inspection were to be confirmed by 4.00 pm on 13 November 2020.

Orders Made

The text references orders at paragraphs [225] and [233] but does not explicitly state what those orders are in the provided excerpt. Based on the instruction to extract only formal orders present in the text provided, and given that the actual orders are not detailed in this excerpt:

No orders were made in this decision.

The judgment cross-references orders at paragraphs [225] and [233], but the substantive content of those orders was not included in the text provided.

Key Takeaways

  • Under s 53 of the Evidence Act 1995 (NSW), a court may order a view where it is satisfied that parties will have a reasonable opportunity to be present, the judge and jury will attend, and the inspection will assist in resolving issues of fact. Accused persons on bail are not necessarily required to attend provided their legal representatives are present.

  • Where an accused provides very late notice of a substantive defence (here, on the evening before a scheduled pre-trial hearing), that late disclosure can cause the Crown real procedural difficulty, particularly where a responsive expert report is required. The Supreme Court here afforded the Crown additional time to engage its expert before proceedings continued.

  • Abandonment of a defence (here, substantial impairment and sane automatism) on the day a trial was scheduled to commence does not necessarily resolve all pre-trial complexity, particularly where the Crown's expert was already engaged and the evidentiary objections remained outstanding.

  • Pre-trial rulings on large numbers of evidentiary objections, such as the 18 addressed here, benefit from written reasons delivered in advance of empanelment. This allows all parties to understand the scope of admissible evidence before the Crown opens to the jury.

  • Relevance, probative value, unfair prejudice (under ss 55, 56, 135, and 137 of the Evidence Act), the admissibility of police officer opinion evidence, and evidence of drug supply were among the substantive evidentiary questions the Supreme Court was called upon to resolve in this pre-trial context.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 18, 53, 55, 56, 135(a), 137
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Crimes Act 1900 (NSW), s 23A

Cases
- Colby v The Queen [1999] NSWCCA 261
- D'Agostino v Regina [2019] NSWCCA 259
- Decision Restricted [2020] NSWSC 1297
- Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Griffiths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- Odisho v R [2018] NSWCCA 19
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- R v Adams (No 2) [2016] NSWSC 1359
- R v FDP (2009) 74 NSWLR 645; [2008] NSWCCA 317
- R v Katarzynski [2002] NSWSC 613
- R v Toki (No 3) (2000) 116 A Crim R 536; [2000] NSWSC 999
- Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
- Standen v Regina [2015] NSWCCA 211
- Wilson v R (1970) 123 CLR 334; [1970] HCA 17