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Court of Criminal Appeal 8 September 2023

Quinn v R

[2023] NSWCCA 229

Public order & justice offences
CRIME APPEALS APPEAL AGAINST CONVICTION UNREASONABLE VERDICT DEFENCE WHERE THE CO

Citation: Quinn v R [2023] NSWCCA 229
Court: Court of Criminal Appeal
Date: 8 September 2023
Judge(s): Bell CJ (majority, with Sweeney J agreeing); Wilson J dissenting

Background

The applicant was tried alongside her co-accused, Davis, following events on 10 August 2018 in Glebe. The deceased had invaded Davis's home wearing a balaclava and armed with a gun and knuckledusters, threatening the applicant and Davis before striking Davis in the face and fleeing with the applicant's handbag. The applicant gave chase down Hereford Street. Davis followed with a ceremonial samurai sword and struck the deceased a single fatal blow to the head after the applicant had caught up with and grappled with the deceased, causing him to fall.

The applicant was tried on three alternative charges. The trial judge directed a verdict of not guilty on the murder charge (joint criminal enterprise) for want of any capable evidence of such an enterprise. The jury then acquitted Davis of murder but convicted him of manslaughter by excessive self-defence, and convicted the applicant of being an accessory after the fact to that manslaughter.

The applicant appealed on the grounds that a miscarriage of justice arose from the Crown's reliance on consciousness of guilt reasoning, and that her conviction was unreasonable. She had admitted to a number of acts assisting Davis in the days after the incident but denied that those acts were performed with knowledge that Davis's conduct was unlawful, maintaining that the deceased had pointed a gun at her on the ground immediately before Davis struck him.

Legal Issues

  • Whether the Crown's reliance on Davis's post-offence conduct as part of its circumstantial case created a miscarriage of justice by embedding impermissible consciousness of guilt reasoning, in circumstances where no direction had been sought at trial (Ground 1)
  • Whether the jury's verdict convicting the applicant of being an accessory after the fact to manslaughter was unreasonable, specifically whether the Crown had excluded the reasonable possibility that the applicant believed the deceased had threatened her with a gun on the street and that Davis acted in reasonable defence of her (Ground 3)

Decision

Ground 1: Consciousness of guilt reasoning

The Crown drew a distinction, accepted by the majority, between post-offence conduct adduced as an implied admission or independent evidence of guilt (which requires a protective direction) and post-offence conduct adduced as part of the circumstantial case on a fact in issue, here Davis's state of mind at the time of the sword strike. The Court confirmed, following Gall v R [2015] NSWCCA 69 and Cavanagh v R; McIvor v R; O'Keefe v R [2023] NSWCCA 164, that post-offence conduct can properly be relied upon to prove intention and to rebut self-defence without requiring a consciousness of guilt direction (at [68]-[72]).

The Court also refused leave to raise this ground under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021. No objection had been taken and no direction sought by the applicant's trial counsel, the Crown's impugned submissions were directed to the murder charge on which Davis was acquitted, and the failure to give the relevant direction did not produce a miscarriage of justice (at [74]-[79]).

Ground 3: Unreasonable verdict

The central question was whether the Crown had excluded the reasonable possibility that the applicant, having seen the deceased point a gun at her, believed Davis perceived the same threat and acted in reasonable defence of her. If that possibility was not excluded, the applicant could not have had the requisite mental state to be an accessory after the fact to manslaughter (at [107]).

Bell CJ, with Sweeney J agreeing, conducted an independent review of the whole of the evidence and concluded that the verdict was unreasonable. The majority identified several reasons why the eyewitness evidence did not displace the applicant's account. All eyewitnesses were at significant distances from the incident. The witnesses who said they did not see a gun also claimed to have seen the flesh of the deceased's hands, but the deceased was wearing black gloves throughout, which substantially undermined the reliability of their observations about his hands (at [126]-[127]). Mr Palmer, the closest witness, conceded he could not in fact see the deceased's hands (at [40], [129]). The Crown's case theory that the gun fell from the deceased's pockets when he pulled himself up against a parked car was inconsistent with Ms Charlesworth's evidence that she saw the gun on the ground before the deceased crawled to the car (at [121]).

The majority also found the unchallenged evidence of Mr Blake, a friend the applicant and Davis visited within hours of the incident, to be of significant weight. Mr Blake gave evidence that the applicant clearly told him the deceased had pointed a gun at her on the street, and that Davis could barely recall the events. That evidence was given before the applicant knew of the deceased's death and before any charge was contemplated, and it was not relevantly challenged by the Crown (at [112]-[115]). The applicant's words immediately after the sword strike ("What the fuck have you just done?") were equally, if not more, consistent with shock in an extraordinarily traumatic situation than with a considered assessment that Davis's conduct was unreasonable (at [132]). Accordingly, the jury ought to have entertained a reasonable doubt as to the applicant's guilt (at [141]).

Wilson J dissented. His Honour gave weight to the jury's advantage in seeing and hearing the witnesses, including a demonstration by Mr Palmer of the deceased's position on the ground, and considered that the eyewitness accounts, the applicant's conduct in continuing to physically engage with the deceased, and her words immediately after the blow collectively supported the conclusion that the deceased was not pointing a gun at her. In his Honour's view, it was open to the jury to be satisfied of guilt to the criminal standard and the verdict was not unreasonable (at [150]-[152]).

Orders Made

  • Extension of time and leave to appeal granted
  • Appeal allowed
  • Conviction for accessory after the fact to manslaughter quashed
  • Applicant acquitted in lieu thereof

Key Takeaways

  • The Court of Criminal Appeal confirmed that post-offence conduct can be tendered as part of a Crown's circumstantial case on a fact in issue, such as an accused's state of mind at the time of an act, without the Crown being required to give the jury a consciousness of guilt warning of the kind described in Edwards v The Queen (1993) 178 CLR 193 (at [68]-[72]).

  • For a conviction of accessory after the fact to stand, the Crown must exclude the reasonable possibility that the accessory believed the principal offender's conduct constituted a reasonable response to the circumstances as the accessory believed the principal perceived them; where that possibility is not excluded, the requisite mental element is not established (at [106]-[108]).

  • Eyewitness evidence that a person was not seen carrying a weapon during a rapidly unfolding street incident carries limited weight where those same witnesses held factual beliefs, such as seeing bare skin on the person's hands, that were demonstrably wrong given undisputed evidence the person was wearing gloves (at [126]-[127]).

  • Spontaneous words spoken by an accused in the immediate aftermath of a violent incident do not necessarily constitute an admission; the majority found that the words "What the fuck have you just done?" were equally consistent with a shocked reaction as with a considered acknowledgment that the co-accused's conduct was unlawful (at [132]).

  • Where an accused's account was given only in transcript form, the jury held no advantage over the Court of Criminal Appeal in assessing that evidence, whereas the jury's advantage remained significant in respect of witnesses who gave oral evidence subject to cross-examination and demonstration (at [110]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 347, 350, 418-419, 421
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Criminal Code Act 1899 (QLD)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases
- AC v R [2023] NSWCCA 133
- Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164
- Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Gall v R; Gall v R [2015] NSWCCA 69
- Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Blake Davis [2021] NSWSC 235
- R v Davis and Quinn (No 4) [2020] NSWSC 1800
- R v Hannah Quinn (No 1) [2021] NSWSC 493
- R v Hannah Quinn (No 2) [2021] NSWSC 494
- R v Manuel [2015] NSWSC 1562
- R v Stone [1981] VR 737
- R v Tevendale [1955] VLR 95
- R v Valencia Valencia [2023] NSWSC 163
- Slattery v R [2023] NSWCCA 117
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- Winning v The Queen [2003] WASCA 245