Citation: Quinn v R [2023] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 8 September 2023
Judges: Bell CJ at [1]; Wilson J at [143]; Sweeney J at [154]
Background
The applicant was convicted by a jury of being an accessory after the fact to manslaughter. Her co-accused had killed the deceased with a single blow from a samurai sword on a suburban street. The killing followed a violent home invasion in which the deceased had entered the co-accused's residence armed with a gun and knuckledusters, threatened both the applicant and the co-accused, and then left carrying the applicant's handbag.
The applicant pursued the deceased down the street, grappled with him, and caused him to fall. Her account, given in a recorded police interview, was that the deceased pointed his gun at her from the ground immediately before the co-accused arrived and struck him with the sword. The co-accused was acquitted of murder but convicted of manslaughter by excessive self-defence.
Between the killing and attending a police station three days later, the applicant and the co-accused fled the scene, stayed in hotels, discarded the sword concealed in a stolen car cover, and disposed of various items from the co-accused's home. The applicant admitted these acts but denied they were intended to assist the co-accused in evading arrest, saying she remained in fear of associates of the deceased. The jury rejected that explanation and convicted her.
Legal Issues
- Whether the verdict was unreasonable, specifically whether the Crown had excluded the reasonable possibility that the applicant genuinely believed the co-accused had witnessed her being threatened with the gun and therefore believed his conduct was a lawful response in her defence.
- Whether a miscarriage of justice arose from the Crown's reliance on consciousness of guilt reasoning in its closing address, where no direction on that reasoning had been sought at trial.
Decision
On the consciousness of guilt ground (Ground 1): The Court refused leave to appeal. The trial judge had raised the issue of whether a consciousness of guilt direction was required, but the applicant's trial counsel did not seek one. The Court also declined to revisit the distinction, established in Gall v R, between post-offence conduct used as an implied admission of guilt and post-offence conduct used as part of a circumstantial case going to the accused's state of mind at the relevant time. The Crown had used the post-offence conduct in the latter way, namely to rebut the co-accused's claim that he believed it necessary to strike the deceased in defence of the applicant.
On the unreasonable verdict ground (Ground 3): Bell CJ and Sweeney J (with Wilson J dissenting) held the verdict was unreasonable and upheld the appeal. The Court conducted its own independent assessment of the evidence, accepting that the jury's advantages in assessing live witness credibility must be respected. However, the applicant's account was not given in person at trial but only through a transcript of her police interview, so the jury enjoyed no particular advantage in evaluating it.
The critical question was whether the Crown had excluded the reasonable possibility that the applicant believed the co-accused had seen her being threatened with the gun and, on that basis, had assisted him while believing his conduct was a lawful response to the situation as she understood he perceived it. The Court found the Crown had not excluded that possibility. The applicant's police account was supported by unchallenged evidence from a friend, Mr Blake, that she had told him within hours of the killing, and before any suggestion she would be charged, that the deceased had threatened her with a gun on the street.
Further, the Court found it was the most persuasive inference that the deceased, who had been armed minutes earlier inside the house and who had a high level of methamphetamine in his system, had indeed been holding the gun when felled on the street. A gun, knuckledusters, and a balaclava were found in close proximity to where the deceased was struck. Wilson J dissented, taking the view that on the whole of the evidence it remained open to the jury to be satisfied of the applicant's guilt beyond reasonable doubt.
Orders Made
• The appeal is dismissed.
Key Takeaways
- For a conviction as accessory after the fact to succeed where the principal offender was convicted of manslaughter by excessive self-defence, the Crown must exclude the reasonable possibility that the accessory genuinely believed the principal's conduct was a lawful response to the circumstances as the accessory believed the principal perceived them.
- The Court of Criminal Appeal confirmed the approach in Gall v R: post-offence conduct used as part of a circumstantial case on a fact in issue, such as a principal offender's state of mind at the time of an act, is analytically distinct from post-offence conduct used as an implied admission or consciousness of guilt, and the two engage different directions and principles.
- Where an applicant's account at trial was given only through a police interview transcript rather than live testimony, the appellate court is not required to defer to the jury's advantage in assessing credibility to the same degree as it would for in-person evidence.
- Contemporaneous statements made to a third party before any charge was laid can carry significant weight in an appellate assessment of whether a reasonable doubt existed, particularly when that evidence was unchallenged at trial.
- Refusing leave to appeal on a point where trial counsel neither objected nor sought a direction remains the appropriate course, consistent with r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 347, 350, 418, 419, 421
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
- Criminal Code Act 1899 (Qld)
Cases:
- M v The Queen (1994) 181 CLR 487
- Pell v The Queen (2020) 268 CLR 123
- Coghlan v The Queen (2020) 267 CLR 654
- Dansie v The Queen (2022) 96 ALJR 728
- The Queen v Baden-Clay (2016) 258 CLR 308
- Gall v R; Gall v R [2015] NSWCCA 69
- AC v R [2023] NSWCCA 133
- Cavanagh v R; McIvor v R; O'Keefe v R [2023] NSWCCA 164
- Slattery v R [2023] NSWCCA 117
- R v Manuel [2015] NSWSC 1562
- R v Valencia Valencia [2023] NSWSC 163
- R v Tevendale [1955] VLR 95
- R v Stone [1981] VR 737
- Winning v The Queen [2003] WASCA 245
- Edwards v The Queen (1993) 178 CLR 193
- Libke v The Queen (2007) 230 CLR 559