Citation: R v Davis and Quinn (No 5) [2020] NSWSC 1887
Court: Supreme Court of New South Wales
Date: 14 December 2020
Judge(s): N Adams J
Background
The accused, Mr Davis, stood trial for the murder of Jett McKee. He did not dispute that he had struck the deceased with a Samurai sword, causing his death. The central issues at trial concerned his intent and whether self-defence was available to him.
During cross-examination, the Crown Prosecutor put to Mr Davis a series of questions about his use of the sword. One question asked whether he had used "such force" as to crack the skull and cut through the brain almost to the base. Mr Davis confirmed those injuries had occurred but denied any intention to cause really serious injury or to kill.
The accused subsequently called a forensic expert, Professor Johan Duflou, whose report concerned injuries Mr Davis himself had suffered during the incident. After Professor Duflou completed his evidence-in-chief on those matters, defence counsel sought leave to ask him further questions, outside the scope of the served report, about the degree of force required to inflict the fatal injury.
Legal Issues
- Whether the defence should be granted leave to elicit expert opinion evidence on a topic not contained in Professor Duflou's served report.
- Whether the Crown's cross-examination of the accused had left an unfair impression in the jury's mind about the degree of force required to cause the fatal wound.
- Whether any jury direction could adequately cure any prejudice arising from that cross-examination, without characterising the Crown Prosecutor as having misspoken.
Decision
Adams J found that the Crown's cross-examination, read as a transcript, raised an unresolved question about how much force was required to inflict the fatal wound. Although the Crown Prosecutor maintained that his questions were directed to the accused's intention rather than any specific degree of physical force, the court was not persuaded that the transcript conveyed that meaning clearly.
The phrase "such force" in the relevant question was capable of leaving the jury with an impression that a very great degree of force was required to cause those injuries. Because the Crown had called no expert evidence on this point in its own case, the issue was left open for speculation.
The court considered whether a jury direction could remedy the prejudice. It concluded that any adequate direction would effectively amount to telling the jury the Crown Prosecutor had misspoken, which he denied. In those circumstances, a direction was not a satisfactory substitute for the evidence itself.
Adams J accordingly granted the defence leave to ask Professor Duflou the additional questions concerning the degree of force required to inflict the fatal injury.
Orders Made
No orders were made in this decision.
Key Takeaways
- Where cross-examination of an accused leaves an ambiguity on the transcript that may mislead a jury, a trial judge may grant leave to adduce expert evidence beyond the scope of a previously served report.
- The court assessed the potential prejudice by reference to how the jury would read the transcript, not solely by reference to what the examining counsel intended by the questions.
- A jury direction is not automatically a sufficient remedy for prejudice arising from cross-examination; here, the only effective direction would have required characterising the Crown Prosecutor's language as a misstatement, which he disputed.
- The Supreme Court's approach reinforced that fairness to the accused in the presentation of evidence is a live consideration when unexpected issues emerge during cross-examination, even at a late stage of trial.
- Leave to ask questions outside a served expert report is not barred simply because the expert's original brief did not cover the topic, provided a proper basis for granting leave exists.
Legislation and Cases Referenced
Legislation: None cited in the judgment text.
Cases: None cited in the judgment text.