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Supreme Court 17 December 2020

R v Davis and Quinn (No 6)

[2020] NSWSC 1888

Assault & violenceHomicide
CRIMINAL LAW MURDER JOINT CRIMINAL ENTERPRISE SELF DEFENCE EXCESSIVE SELF

Citation: R v Davis and Quinn (No 6) [2020] NSWSC 1888
Court: Supreme Court of New South Wales
Date: 17 December 2020
Judge(s): N Adams J

Background

Two accused, referred to here as the male accused and the female accused, were jointly tried for murder following the death of a third person at residential premises in August 2018. Shortly after her arrest, the female accused participated in an electronically recorded interview with police (known as an ERISP), which ran for approximately seven hours including breaks.

The Crown tendered the female accused's ERISP as part of its own case against her. The male accused's legal team then sought to rely on the same ERISP in his defence case, on the basis that the female accused's detailed account of events inside the premises was highly probative to the issues of self-defence and excessive self-defence.

The Crown resisted this application, initially on the basis that the male accused had nothing to consent to under s 83(2) of the Evidence Act 1995 (NSW) because the ERISP had not been tendered against him. The male accused then served a notice under s 65(8) of the Act, signalling an intention to adduce the material as hearsay evidence. This prompted the court to determine the admissibility question in detail.

  • Whether the male accused qualified as a "third party" under s 83 of the Evidence Act 1995 (NSW), such that he could consent to the co-accused's ERISP being used in his case
  • Whether the co-accused's ERISP constituted an "admission" as defined in the Evidence Act, and whether s 83(2) was therefore available
  • Whether the ERISP was alternatively admissible under s 65(8) of the Evidence Act as hearsay evidence in the male accused's case
  • Whether admitting the ERISP in the male accused's case would cause unfair prejudice to the Crown under ss 135 or 137 of the Evidence Act

Decision

Adams J confirmed that the male accused satisfied the definition of "third party" under s 83(4), being a party to the proceedings other than the party who made the admission or adduced the evidence. However, the court found it unnecessary to resolve the s 83 question definitively, because a ERISP tendered by the Crown is not necessarily an "admission" for the purposes of the Evidence Act. Consistent with the High Court's decision in Nguyen v The Queen (2020), the Crown is required to tender an accused's ERISP even where it is exculpatory and does not operate against that person's interests.

The court instead ruled that the male accused could rely on the female accused's ERISP under s 65(8) of the Evidence Act, which provides a pathway to adduce hearsay evidence in criminal proceedings. A notice had been served on the DPP on 7 December 2020, satisfying the procedural requirement. The court found there was no evidence the Crown had been misled or deliberately surprised, and the Crown Prosecutor's belief that the application had been abandoned did not amount to prejudice justifying exclusion.

Adams J assessed the probative value of the female accused's ERISP as extremely high. Only three people were present in the premises: the male accused, the female accused, and the deceased. The deceased could not give evidence. The female accused had provided the only detailed account of events inside the premises, and significant portions of that account were corroborated by physical evidence. There was no inherent unreliability in the account of that kind that might, in other cases, have supported exclusion.

The court acknowledged that not every answer in a six-hour interview carried equal probative value, but declined to conduct an answer-by-answer analysis given the trial's proximity to Christmas and the absence of any real risk of unfairness to the Crown. The court also noted, without deciding the point, that the ERISP may additionally have been admissible under s 83(2), given the Crown itself had relied on the ERISP as containing lies and being unreliable.

Orders Made

• Mr Davis' application under s 65(8) of the Evidence Act was upheld

Key Takeaways

  • Under s 65(8) of the Evidence Act 1995 (NSW), a co-accused in a joint criminal trial may adduce a co-offender's ERISP as hearsay evidence, provided the procedural notice requirement is satisfied and no unfairness to the Crown is established.
  • A co-accused's ERISP tendered by the Crown is not automatically an "admission" under the Evidence Act; consistent with Nguyen v The Queen (2020) 380 ALR 193, the Crown must tender an ERISP even if it is exculpatory, meaning it may not satisfy the definition of a representation adverse to the maker's interests.
  • Section 83(2) permits a "third party" (being a co-accused in the same proceedings who neither made nor adduced the admission) to consent to the use of an admission in their own case, but the consent must extend to the whole of the evidence, not selected parts only.
  • High probative value weighed strongly in favour of admission where the ERISP provided the only detailed eyewitness account of events, that account was substantially corroborated by physical evidence, and the only alternative witnesses were the accused himself and a deceased victim.
  • A mistaken belief by the prosecution that an evidentiary application had been abandoned did not, without more, constitute the kind of unfair surprise sufficient to justify exclusion of otherwise admissible evidence.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 17(3), 65, 81, 82, 83, 84(1), 85(2), 87-89A, 90, 135(a), 137

Cases:
- Nguyen v The Queen (2020) 380 ALR 193; [2020] HCA 23
- Power v The Queen (2014) 43 VR 261; [2014] VSCA 146
- Abernethy & Hawkins v The Queen [2020] VSCA 96
- R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310
- Australian Law Reform Commission, Report No 26, Interim: Evidence (1985)