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Supreme Court 14 December 2020

R v Davis and Quinn (No 4)

[2020] NSWSC 1800

Homicide
CRIMINAL LAW MURDER JOINT CRIMINAL ENTERPRISE SELF DEFENCE EXCESSIVE SELF

Citation: R v Davis and Quinn (No 4) [2020] NSWSC 1800
Court: Supreme Court of New South Wales
Date: 14 December 2020
Judge: N Adams J

Background

The co-accused, Blake Davis and Hannah Quinn, stood trial for the murder of Jett McKee, who was killed on 10 August 2018 when Davis struck him on the head with a samurai sword. Davis admitted to the act causing death. Quinn faced the charge on the basis of extended joint criminal enterprise.

The Crown's case against Quinn rested on an alleged agreement formed inside the premises at 87A Hereford Street. The Crown contended that Quinn and Davis agreed to inflict some violence (falling short of grievous bodily harm) on McKee as an act of retribution to protect their drug business, and that Davis's use of the sword was a foreseeable consequence of that enterprise.

At the close of the Crown case on 9 December 2020, Quinn's counsel applied for a directed verdict of acquittal. Counsel submitted that the evidence, taken at its highest, was incapable of sustaining a finding that Quinn had ever formed the requisite joint criminal enterprise with Davis. Adams J directed the jury to return a verdict of not guilty the following day, and these are the reasons for that direction.

  • Whether the evidence, taken at its highest, was capable of supporting a verdict of guilty against Quinn for murder on the basis of extended joint criminal enterprise.
  • Whether the Crown had adduced evidence capable of establishing that Quinn entered into an agreement with Davis to inflict some violence on McKee as a form of retribution.
  • How the directed verdict test applies in a circumstantial evidence case where competing inferences are available.

Decision

Adams J applied the well-established test from Doney v R (1990) 171 CLR 207: a directed verdict of acquittal is appropriate only where there is a defect in the evidence such that, taken at its highest, it cannot sustain a verdict of guilty. In circumstantial cases, the judge must assume all primary facts most favourable to the Crown and draw all inferences most favourable to the prosecution that are reasonably open. Even where a reasonable hypothesis consistent with innocence can be formulated, that alone does not justify a directed verdict.

Applying that test, Adams J found a fundamental defect in the Crown's case. The Crown had not identified evidence capable of establishing that Quinn formed an agreement with Davis inside the premises to inflict some violence on McKee with the samurai sword as an act of retribution. Her Honour noted an internal tension in the Crown's own case: if Quinn had seen Davis with the sword inside and ran out with him in furtherance of an agreement, that would describe a straightforward joint criminal enterprise, not an extended one. The Crown's opening had also acknowledged that when Quinn saw the sword being used, it was already too late for her to withdraw.

Her Honour acknowledged certain weaknesses in Quinn's evidence, including inconsistencies in her ERISP (a recorded interview with police) concerning the extent of her drug dealing, and inconsistencies among eyewitnesses about the positions of the deceased and the two accused as they left the premises. However, those matters did not reach the level of significance necessary to establish the requisite agreement. There was no evidence capable of establishing that Quinn entered into any such joint criminal enterprise.

Orders Made

  • The jury was directed to enter a verdict of not guilty in relation to the count of murder against Hannah Quinn.

Key Takeaways

  • A directed verdict of acquittal is warranted only where there is a defect in the Crown's evidence such that, taken at its highest, it cannot sustain a guilty verdict. The existence of a reasonable hypothesis consistent with innocence does not, by itself, justify removing the case from the jury.
  • To establish murder on the basis of extended joint criminal enterprise, the Crown must adduce evidence capable of proving that the accused entered into an agreement to pursue a common unlawful purpose. Where there is no evidence capable of establishing the requisite agreement, the charge cannot be left to the jury.
  • Internal inconsistencies in the Crown's own case theory, particularly about whether an agreement was reached and what its terms were, can contribute to a finding that the evidence is incapable of sustaining a conviction.
  • Credibility issues in a defendant's police interview, such as untruthfulness about collateral matters, do not necessarily remedy an evidentiary gap going to a fundamental element of the offence.
  • The Supreme Court reaffirmed the principle from Doney v R, R v Bilick and Starke, and Regina v XHR that the directed verdict test requires an assessment of whether evidence is capable of proving each element beyond reasonable doubt, not a weighing of competing inferences.

Legislation and Cases Referenced

Cases Cited:

  • Doney v R (1990) 171 CLR 207; [1990] HCA 51
  • R v R (1989) 18 NSWLR 74
  • Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
  • JMR v R (1991) 57 A Crim R 39
  • R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452
  • Regina v PL [2012] NSWCCA 31
  • Regina v XHR [2012] NSWCCA 247

Legislation: No specific legislation was cited in the judgment.