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Supreme Court 7 December 2020

R v Davis and Quinn (No 2)

[2020] NSWSC 1726

Homicide
CRIMINAL LAW MURDER JOINT CRIMINAL ENTERPRISE SELF DEFENCE EXCESSIVE SELF

Citation: R v Davis and Quinn (No 2) [2020] NSWSC 1726
Court: Supreme Court of New South Wales
Date: 7 December 2020
Judge: N Adams J

Background

Two accused were on trial for the murder of a man who died after being struck on the head with a samurai sword. The male accused did not dispute delivering the blow but raised self-defence, excessive self-defence, and extreme provocation. The female accused faced murder on the basis of extended joint criminal enterprise, and alternatively, being an accessory after the fact.

Following arrest in August 2018 and subsequent release on bail, both accused came to reside together at the home of the male accused's mother. Police obtained warrants under the Surveillance Devices Act 2007 (NSW) and installed listening devices at the premises. Those devices captured approximately 20 recordings made between August 2019 and June 2020.

The Crown sought to tender a bundle of those recordings. Both accused objected to various portions on multiple grounds, including relevance, legal professional privilege, EAGP scheme confidentiality, earlier rulings excluding drug use and domestic dispute evidence, and unfair prejudice arising from the mental state of the male accused at the time of certain recordings.

  • Whether conversations recorded during or around the Early Appropriate Guilty Plea (EAGP) compulsory conferencing process were admissible, given the statutory confidentiality regime in Part 2, Division 5 of the Criminal Procedure Act 1986 (NSW)
  • Whether conversations in which the accused discussed legal advice they had received, or their intended trial defence, attracted legal professional privilege under the Evidence Act 1995 (NSW), s 119
  • Whether privilege had been waived, whether expressly or by conduct, including through disclosure to third parties
  • Whether certain recordings should be excluded under ss 135 or 137 of the Evidence Act because their probative value was outweighed by unfair prejudice or the risk of misleading the jury
  • Whether specific recordings containing references to drug use, domestic disputes, or the mental state of the accused remained inadmissible in light of earlier pre-trial rulings
  • Whether portions of recordings were relevant within the meaning of s 55 of the Evidence Act

Decision

Adams J worked through each of the 20 recordings in MFI 46 individually. The central and novel question was whether listening device recordings captured during the EAGP scheme process could be admitted. Her Honour accepted that the statutory confidentiality provisions in ss 78 to 80 of the Criminal Procedure Act protected case conference material itself, and that it would be contrary to the legislative purpose for the Crown to circumvent that protection by adducing recordings of discussions that occurred in the context of compulsory plea negotiations. The Crown ultimately accepted it would not press those portions that directly referenced plea discussions.

On legal professional privilege, her Honour considered whether conversations in which the accused relayed or discussed legal advice with each other or with the mother of the male accused attracted privilege under s 119 of the Evidence Act. The court applied established principles, including Mann v Carnell (1999) 201 CLR 1, on implied waiver. Where an accused had disclosed privileged communications to a third party in circumstances inconsistent with maintaining confidentiality, privilege was found to have been waived. Whether waiver occurred depended on the specific content and context of each individual recording.

Several recordings were excluded under ss 135 and 137 of the Evidence Act on the basis that their probative value was substantially outweighed by the danger of unfair prejudice. This included recordings made at times when the male accused had recently attempted to take his own life and whose mental state at the time of recording was relevant to how the jury might interpret what was said. The court was not satisfied those recordings could reliably be used as admissions or as evidence of a guilty consciousness.

The court also applied its earlier ruling from R v Davis and Quinn (No 1) [2020] NSWSC 1615, excluding any portions of the recordings that contained references to drug use or domestic disputes between the accused. One recording in which a voice expressed remorse linking drug use to the death was held to be irrelevant because it was not capable, even in a minor way, of establishing the Crown's theory that the accused acted out of retribution for an intrusion into their drug dealing business.

Orders Made

  • LD 1: the agreed extract (mid-way through page 5 to top of page 6) to be admitted by agreed fact; remainder inadmissible
  • LD 2: pages 9 and 10 to the words "come out" on page 11 admissible
  • LD 3: admissible
  • LD 4: inadmissible
  • LD 5: inadmissible
  • LD 6: inadmissible
  • LD 7: inadmissible
  • LD 10: inadmissible
  • LD 11: inadmissible
  • LD 12: inadmissible
  • LD 15: inadmissible
  • LD 16: inadmissible
  • LD 19: admissible except for reference to the accused's great-grandfather
  • LD 20: excluded

Key Takeaways

  • The confidentiality regime for EAGP case conferences under Part 2, Division 5 of the Criminal Procedure Act 1986 (NSW) extends, in purpose and effect, to protect plea discussions from being adduced at trial via listening device recordings captured during the EAGP process.
  • Legal professional privilege under s 119 of the Evidence Act 1995 (NSW) can attach to conversations between an accused and a third party where those conversations involve the communication of legal advice, but privilege may be lost where disclosure occurs in circumstances inconsistent with maintaining confidentiality, applying the implied waiver principles in Mann v Carnell.
  • Where an accused's mental state at the time of a recorded conversation is significantly compromised, courts may exclude that evidence under ss 135 or 137 of the Evidence Act on the basis that the risk of unfair prejudice substantially outweighs probative value.
  • Relevance under s 55 of the Evidence Act requires that the evidence be capable of rationally affecting the assessment of a fact in issue; expressions of generalised remorse connecting past conduct to a death were held insufficient to establish a specific Crown theory about motive.
  • Of the 20 recordings tendered by the Crown, the Supreme Court admitted only small portions of three recordings, with the overwhelming majority ruled inadmissible across a range of grounds.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 70, 72, 74, 75, 78, 79, 80
- Evidence Act 1995 (NSW), ss 55, 56, 90, 119, 122, 135, 137, 138
- Surveillance Devices Act 2007 (NSW)

Cases
- R v Davis and Quinn (No 1) [2020] NSWSC 1615
- Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
- Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37
- Director of Public Prosecutions (Cth) v Kinghorn [2020] NSWCCA 48
- GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266
- DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384
- Hamilton v State of New South Wales [2016] NSWSC 1213
- Bulk Materials (Coal Handling) Services Pty Limited v Coal and Allied Operations Pty Limited (1988) 13 NSWLR 689
- Buttes Gas and Oil Company v Hammer (No 3) [1981] QB 223