R v Davis and Quinn (No 6)

1. [1]

   On 17 December 2020 I ruled that Mr Davis was permitted to rely upon the ERISP of his co-offender, Hannah Quinn, in his case under s 65(8) of the Evidence Act 1995 (NSW). I indicated at that time that I would provide my reasons at a subsequent time.

2. [2]

   These are my reasons for making the ruling on evidence I did at that time.

3. [3]

   Blake Davis and Hannah Quinn are currently standing trial for the murder of Jett McKee. They were both arrested on 13 August 2018. On 14 August 2018, following her initial refusal, Ms Quinn agreed to participate in an electronically recorded interview. The interview commenced at 4:36pm and concluded at 11:35pm, including breaks.

4. [4]

   The trial against both accused commenced on 16 November 2020. In pre-trial submissions, Ms Cunneen SC, appearing for Mr Davis, put the Crown on notice that Mr Davis consented to Ms Quinn’s ERISP being used in his case.

5. [5]

   The last witness in the Crown case was the officer in charge, Detective Senior Constable Kelly. On 7 December 2020, the Crown Prosecutor tendered Ms Quinn’s ERISP in her case through the officer in charge. At that time, Ms Cunneen SC stated before the jury, “Mr Davis consents to this evidence in the case concerning him”. I deferred making any direction to the jury about this at that time in order to afford the Crown the opportunity to consider its position.

6. [6]

   In the absence of the jury, Ms Cunneen later confirmed that Mr Davis relied upon s 83(2) of the Evidence Act. The Crown Prosecutor submitted that the ERISP is not tendered against Mr Davis and, as such, there is nothing to consent to. It was submitted that it would only be if the ERISP was sought to be tendered against Mr Davis, who is not strictly a party to the proceedings that Ms Quinn is a party to, that s 83(2) would be activated and that that party would be entitled to consider whether they consent to it being tendered against that particular party.

7. [7]

   Given that there was no agreement at the bar table concerning the application of s 83 in the circumstances relied upon by Mr Davis, I invited counsel to make further submissions on the scope of s 83 of the Evidence Act the following day.

8. [8]

   On 7 December 2020, Mr Davis served a notice on the DPP, pursuant to s 65(8) of the Evidence Act, of an intention to adduce hearsay evidence.

9. [9]

   On 8 December 2020, the playing of the ERISP concluded and I sent the jury home at 3.30pm so submissions could be made after that time as to the scope of s 83 of the Evidence Act.

10. [10]

    Section 83 of the Evidence Act is to be found in Part 3.4 of the Evidence Act which is concerned with “Admissions”. An “admission” is defined in the Dictionary to the Evidence Act as:

11. [11]

    Section 81(1) provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. Section 81(2) provides that the hearsay rule and the opinion rule do not apply to evidence of a previous representation (a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and (b) to which it is reasonably necessary to refer in order to understand the admission. Section 82 provides that s 81 does not prevent the application of the hearsay rule to evidence of an admission unless (a) it is given by a person who saw, heard or otherwise perceived the admission being made, or (b) it is a document in which the admission is made.

12. [12]

    Section 83 of the Evidence Act is in these terms:

13. [13]

    Section 83 was considered by the Victorian Court of Appeal in Power v The Queen (2014) 43 VR 261; [2014] VSCA 146 where it was observed at [65] that (footnotes omitted):

14. [14]

    Their Honours went on to state that s 83:

15. [15]

    The Australian Law Reform Commission, Report No 26, Interim – Evidence (1985) discloses that it was considered that, despite s 83(1), an accused should be able to use an admission that is already in evidence provided that all aspects of the admission are admissible against him, whether favourable or not. To put this another way, there can be no cherry picking.

16. [16]

    More recently, in Abernethy & Hawkins v The Queen [2020] VSCA 96 (“Abernethy”), it was held, inter alia, that the consent must be given not only in respect of an admission that has been admitted under s 81 but also to other evidence that is reasonably necessary to have reference to in order to understand the admission.

17. [17]

    On 8 December 2020, I indicated to counsel that I had considered the applicability of s 83(2) of the Evidence Act overnight. I was satisfied at that time that Mr Davis is a “third party” in that he is a party to this joint trial other than the party who made the admission or adduced the evidence (Ms Quinn or the Crown).

18. [18]

    I then expressed my preliminary view that the ERISP of Ms Quinn per se was not an “admission” Consistent with the practice in NSW for some years (R v Rymer (2005) 156 A Crim R 84; [2005] NSWCCA 310) and confirmed by the High Court earlier this year in Nguyen v The Queen (2020) 380 ALR 193; [2020] HCA 23, the Crown is required to tender the ERISP of an accused even if it is exculpatory and could not be described as a statement against that person’s interests in the outcome of the proceedings. This was the finding of the court in Abernethy.

19. [19]

    It seemed to me at that time that the only basis for representations that Ms Quinn’s ERISP cannot be used by Mr Davis in his case is if it could be said that Ms Quinn’s ERISP does not contain an admission or admission as defined.

20. [20]

    I invited Ms Cunneen to provide me with a list of the representations in the ERISP which Mr Davis submitted were against her interest in the outcome of the proceedings.

21. [21]

    It was agreed that the issue did not need to be resolved before the Crown closed its case.

The Defence Case

1. [22]

   The Crown case closed on 10 December 2020. On that day, Mr Davis gave evidence. He was cross-examined, and his evidence concluded on 11 December 2020.

2. [23]

   Some expert and other witnesses were then called in the case of Mr Davis. They included:

   1. (1)

      Craig Blake, on 11 December 2020;

   2. (2)

      Professor Roy Beran, on 14 December 2020;

   3. (3)

      Professor Johan Duflou, on 14 December 2020;

   4. (4)

      Dr Stephen Allnutt, on 15 December 2020;

   5. (5)

      James Davis, on 15 December 2020;

   6. (6)

      Kim Davis, on 16 December 2020.

3. [24]

   On 15 December 2020, as the defence case drew to a close, I reminded Ms Cunneen that she had not provided a list of the representations she relied upon in Ms Quinn’s evidence for the purpose of the application under s 83(2) of the Evidence Act. In response, Ms Cunneen filed in court an affidavit of Ms Abigail Bannister sworn on 10 December 2020 with annexures.

4. [25]

   Ms Bannister’s evidence is that on 23 October 2020 she was served with the mandatory Notice of Prosecution case, which contained a Crown case statement. The statement filed against Mr Davis contained the summary of Ms Quinn’s ERISP extracted below. Ms Quinn’s ERISP was also relied upon by the Crown in Mr Davis’ Supreme Court bail application. On 29 October 2020, when she received service of the “e-brief” against Mr Davis, it contained Ms Quinn’s ERISP. On 31 October 2020, she received an “outline of evidence to be adduced” by the Crown. On page 6 of this document Ms Quinn’s ERISP was marked as an exhibit to be tendered. During pre-trial legal arguments and the Crown closing address, the Crown made mention of Ms Quinn’s ERISP.

5. [26]

   The Crown advanced that the account given in the ERISP by Ms Quinn was untruthful.

6. [27]

   When the Crown tendered the ERISP at trial on 7 December 2020, he stated that it was not being relied upon in the case against Mr Davis.

7. [28]

   On 9 December 2020, the solicitor acting for Ms Quinn wrote to Ms Bannister and indicated to her that Ms Quinn did not agree to give evidence in Mr Davis’ case.

8. [29]

   Section 65 of the Evidence Act provides for an exception to the hearsay rule and applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact: s 65(1).

9. [30]

   The meaning of “not available” is provided in section 4(1) to the Dictionary to the Evidence Act and provides as follows:

10. [31]

    Section 17(3) of the Evidence Act provides that:

11. [32]

    Section 65(8) of the Evidence Act is in these terms:

12. [33]

    Before turning to consider the respective submissions, it is necessary to have regard to the probative value of the evidence Mr Davis seeks to rely upon in his case. The following summary of Ms Quinn’s ERISP is taken from the Crown Case Statement against Mr Davis filed on 28 October 2020:

13. [34]

    Prior to the closing of the Crown case on 16 December 2020, I inquired of the Crown whether, given the s 65(8) notice and the affidavit of Ms Bannister he accepted that the ERISP of Ms Quinn could be relied upon in the case for Mr Davis. He replied that this was not accepted by the Crown.

14. [35]

    The Crown Prosecutor did not accept that Ms Quinn was “unavailable” as Mr Davis had not subpoenaed her. When I pointed out that s 17(3) of the Evidence Act precluded that course, it was submitted that there was an “artificiality” about the course taken by Mr Davis. The ultimate submission was that the ERISP should not be able to be relied upon by Mr Davis in this way in reliance upon s 135(a) of the Evidence Act. That section provides that:

15. [36]

    The Crown Prosecutor submitted that it would be unfairly prejudicial to the Crown if Mr Davis was able to rely upon the statements made by Ms Quinn in her ERISP in his case. It was submitted that at the time that the ERISP was tendered, it was tendered only against Ms Quinn ahead of Mr Davis giving evidence. The question of it being adopted by Mr Davis was always a live issue. The Crown submitted that had Mr Davis been shown the ERISP during his evidence and accepted everything in it as true, the Crown would have had the opportunity to cross-examine him in relation to the content of Ms Quinn’s ERISP.

16. [37]

    It was accepted that the s 65(8) notice was given on 7 December and Mr Davis did not give evidence until 10 and 11 December but it was submitted that that was a separate issue. The Crown noted that the intention of Mr Davis was initially to rely upon s 83(2) and this was changed to s 65(8). It was assumed by the Crown that when Mr Davis gave evidence, he did so to overcome those arguments. If he had adopted Ms Quinn’s ERISP entirely in his evidence the Crown would not have opposed its admissibility pursuant to s 65(8). It was submitted that it was the failure to ask Mr Davis to adopt Ms Quinn’s ERISP in his evidence, followed by reliance on s 65(8), which had caused unfairness to the Crown. The failure to ask Mr Davis to adopt Ms Quinn’s ERISP meant that the Crown was left without the opportunity to cross-examine Mr Davis in relation to Ms Quinn’s ERISP.

17. [38]

    It was also noted that Ms Cunneen never provided the list identifying which of the representations in Ms Quinn’s ERISP were said to be admissions.

18. [39]

    It was submitted that it was fair for the Crown to assume that Mr Davis no longer pursued the s 65(8) application when he was not asked to adopt the ERISP in his evidence. As the opportunity had passed, it was submitted that it is too late to “re-agitate” the s 65(8) application. It was submitted that this has given rise to precisely the unfairness that was referred to in R v O'Connor [2003] NSWCCA 335 (“O’Connor”). The Crown relied upon O’Connor at [12]-[13] and the principle that the Crown has not had the opportunity to test the evidence.

19. [40]

    It was submitted that the obvious inference to be drawn from the fact that Ms Cunneen did not ask Mr Davis to adopt Ms Quinn’s ERISP in his evidence was that both the s 65(8) and s 83(2) applications had been withdrawn. It was accepted by the Crown Prosecutor that he had made no inquiry in this regard. It was also accepted by him that at no time did Ms Cunneen ever indicate on the record that the pending application to rely upon Ms Quinn’s ERISP (either under s 83(2) or 65(8) of the Evidence Act) had been withdrawn. Nonetheless, it was submitted that this was a reasonable assumption to make in the circumstances.

20. [41]

    It was not accepted that the Crown was on notice that Mr Davis accepted Ms Quinn’s version by the fact that he gave evidence consistently with it. This was because the Crown was entitled to know precisely that he was adopting all the things that Ms Quinn said in relation to him. That would have enabled cross-examination in relation to those aspects.

21. [42]

    It was submitted that the easiest and fairest way to put the Crown on notice that the application had not been abandoned was, rather than to “knowingly sit on a 65(8) application” and not ask Mr Davis about it, knowing that that would give rise to disadvantage to the Crown, was to have asked Mr Davis whether he adopted Ms Quinn’s ERISP in his evidence. Had the Crown known that Mr Davis was accepting the exculpatory statements made by Ms Quinn in her ERISP he would have tested them and, where possible, challenged them.

22. [43]

    Ms Cunneen responded that it was not unfair to allow the s 65(8) application. It was submitted that it was not for Mr Davis to “adopt” all the things that Ms Quinn with her senses perceived herself. That is impossible. He merely consented or submitted that the material was available in his case.

23. [44]

    Ms Cunneen noted that whenever Ms Quinn's ERISP has been mentioned during these proceedings Ms Cunneen had make it plain that, by whichever route, Mr Davis relied upon the representations made by Ms Quinn in her ERISP. It was accepted that the first route was s 83(2) but, after my initial observations on that issue, a view was taken that s 65(8) was another way in which the material was admissible in the case of Mr Davis.

24. [45]

    It was noted that the application to rely upon Ms Quinn’s ERISP in Mr Davis’ case was never abandoned.

25. [46]

    It was identified that the two areas of Ms Quinn’s account in her ERISP relied upon by Mr Davis in particular related to what happened when Mr Davis used the sword and as to how Mr Davis received the injury to his face.

Consideration

1. [47]

   The Crown ultimately accepted that the gateway to admissibility of Ms Quinn’s ERISP under s 65(8) of the Evidence Act had been established but submitted that I would exclude it as being “unfairly” prejudicial to the Crown. That expression is not defined in the Evidence Act but, in the context of s 137 of the Evidence Act, it has been held to mean a real risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]. As Mason P observed in Colby v The Queen [1999] NSWCCA 261 at [97]:

2. [48]

   The Crown relied upon the decision in O'Connor. I have had regard to that decision but am not satisfied that it is of any assistance in this matter. In that case a robbery was committed by a couple (a male and a female). The case against the male was stronger. The couple had a child together. The male fled the country before the trial leaving his partner, the appellant, to stand trial alone. At her trial, the Crown called a police officer to give evidence of a conversation he had had with the appellant. The appellant’s counsel sought to adduce from the police officer that the male offender had also told him that he had committed the robbery with another woman and the appellant had nothing to do with it. The trial judge rejected the evidence under s 65(2) of the Evidence Act rather than s 65(8) of the Evidence Act.

3. [49]

   In dismissing the appeal, Barr J (with whom Greg James and Howie JJ agreed) stated the following at [12]-[13]:

4. [50]

   The case in O’Connor concerned out of court statements by absent co-offenders who were not in the trial facing possible conviction. That is not this case. It is to be accepted that there will usually be an unfairness in not being able to cross-examine hearsay assertions but that is the case with any application under s 65 of the Evidence Act. Whenever hearsay evidence is adduced by either the Crown or an accused person the maker is always unavailable and there is never any possibility of cross-examination.

5. [51]

   A further distinction is that, unlike in O’Connor, Ms Quinn’s ERISP is already before the jury and was relied upon by the expert witnesses called in the defence case in arriving at their expert opinions. No objection was made by the Crown to that course being taken.

6. [52]

   Admissibility under s 65(8) of the Evidence Act differs in several respects to admissibility under s 65(2) of the Evidence Act. For example, there is no need to satisfy the additional requirements set out in s 65 (2) (a)-(d) nor, in relation to s 65(2)(d), to consider each representation relied upon separately, as held by the High Court in Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32.

7. [53]

   The Crown did not contend that reliance upon Ms Quinn’s ERISP by Mr Davis in his case had the potential to be misused by the jury in some unfair way logically unconnected with the case. Rather, it was submitted that it would be unfair from a forensic perspective to allow the application because, once Mr Davis gave evidence, the Crown had presumed that Mr Davis no longer sought to rely upon Ms Quinn’s evidence in his case and he has been deprived of the opportunity to cross examine Mr Davis on Ms Quinn’s ERISP.

8. [54]

   I am unable to accept the Crown submission that there was anything unfair in the manner in which Ms Cunneen led evidence from Mr Davis because she didn’t ask Mr Davis to “adopt” Ms Quinn’s evidence in the witness box. There are several difficulties with this Crown submission. First, Mr Davis is unable to “adopt” those parts of the event he cannot remember. Secondly, he gave evidence entirely consistent with Ms Quinn’s ERISP so it must have been obvious that he did not challenge her version of events. Thirdly, it is difficult to understand how, even if there was some way that her version could be “adopted” by Mr Davis, Mr Crown could have cross-examined him any differently to the way he did. Finally, there was at no time any indication by Ms Cunneen that she had abandoned the foreshadowed application to rely upon Ms Quinn’s ERISP in Mr Davis’ case.

9. [55]

   At no time was it ever foreshadowed that Mr Davis proposed to “adopt” Ms Quinn’s ERISP; the application was always to rely upon it in his case. In the same way in which Mr Davis relies upon the evidence of Mr Blake, his brother and mother and the expert evidence of Professor Roy Beran, Dr Stephen Allnutt and Dr Johann Duflou in his case, he also relies upon the representations made by Ms Quinn in her ERISP. He seeks to do so because, it is presumed, he has been advised that it assists in some parts of his case, namely those that he cannot recall.

10. [56]

    Another difficulty with the Crown claim of unfairness is that there is no forensic or tactical basis upon which Mr Davis, having given evidence, would abandon the opportunity to adduce additional evidence in his case that assists his case. I am unable to accept that the fact that Mr Davis did not “adopt” Ms Quinn’s ERSP in his evidence was akin to him abandoning the application to rely upon Ms Quinn’s ERISP.

11. [57]

    It seems to me that the nub of the complaint made by the Crown is that he has somehow been deprived of the opportunity to attack the credibility of Ms Quinn (who did not give evidence) through another witness, namely Mr Davis. That would not have been permissible in any event.

12. [58]

    The complaint made by Mr Crown is, in effect, one of forensic disadvantage. I am not satisfied that the Crown has been misled or deliberately taken by surprise such as to give rise to any unfairness. The Crown Prosecutor mistakenly believed that the application had been abandoned. It was not.

13. [59]

    I am satisfied that the probative value of the representations made by Ms Quinn as to what happened inside the premises and what happened at around the time of the fatal blow is extremely high. There were only three people in the house. One of them is Mr Davis. Mr McKee is now deceased. Ms Quinn is the only person who has given a detailed description of what happened in the house and a significant portion of that account is confirmed by other physical evidence. There is no inherent unreliability in Ms Quinn’s description of what occurred during the home invasion, such as there might have been in the uncorroborated out of court confession which the Court of Criminal Appeal was faced with in O’Connor.

14. [60]

    I have had regard to the Crown submission that although some discrete portions of Ms Quinn’s ERISP may have significant probative value, not all the statements in the ERISP do. That is to be accepted. There was a great deal of questioning in considerable detail about every step taken by Mr Davis and Ms Quinn from the time they fled Hereford Street until the time they handed themselves into police. Some aspects of this have more significant probative value than others. The practicality of the matter is that the trial was running precariously close to Christmas at the time I was asked to make this ruling and there was insufficient time for any analysis of the six hour ERISP, answer by answer, in order to assess its probative value for the purpose of any balancing exercise. Even if some of the answers are less probative of the facts in issue than others, I was satisfied that there was no risk of unfairness to the Crown such that the court ought to have precluded some of the ERISP from being relied upon by Mr Davis.

15. [61]

    It is for these reasons that I upheld Mr Davis’ application under s 65(8) of the Evidence Act. As I observed at the time, the ERISP may well have been admissible to be used by Mr Davis under s 83(2) as well given that the Crown relied upon it as being unreliable and containing lies. I was not ultimately required to consider that question.