Quinn v R

1. [1]

   BELL CJ:

Introduction

1. [2]

   A summary and abbreviated version of the facts is set out in the trial judge’s remarks on sentence (ROS) (R v Hannah Quinn (No 1) [2021] NSWSC 493):

2. [3]

   On 7 May 2021, the trial judge sentenced the Applicant to a two year community corrections order, subject to standard conditions. Her Honour also imposed an additional condition that the Applicant receive mental health treatment.

3. [4]

   At trial, it was not in issue that on 10 August 2018, Davis caused the deceased’s death by way of a single blow to the head using a samurai sword. The incident occurred in the aftermath of the violent invasion of Davis’ home by the deceased, as recorded by the trial judge: see [2] above. The deceased was armed with a gun and knuckledusters. His intention was to rob the Applicant and/or Davis.

4. [5]

   After threatening the Applicant and Davis with his gun and then striking Davis violently with the knuckledusters in the bedroom of the house, the deceased left the house having taken the Applicant’s handbag. She gave pursuit down Hereford Street, caught up with the deceased from behind at a site which, according to a scale map tendered in evidence, was about 160 metres down the road, and grappled with him causing him to fall over.

5. [6]

   In a police interview conducted on 14 August 2018, she told police that the deceased had pointed his gun at her from his position on the ground at which point Davis (who had also given pursuit down Hereford Street a short time after the Applicant) arrived on the scene and struck the deceased with a ceremonial samurai sword which he had on display near the door of his house, and which he had picked up immediately before commencing his pursuit down Hereford Street.

6. [7]

   The Applicant was indicted on three alternative charges. By Count 1, the Crown charged the Applicant with murder and alleged that she and Davis had formed a joint criminal enterprise, whilst inside Davis’ home, to inflict violence on the deceased as a form of retribution and to protect their drug business. The trial judge held that there was no evidence capable of establishing that the Applicant had entered such a joint criminal enterprise with her co-accused and ordered that the jury enter a verdict of not guilty in relation to Count 1: R v Davis and Quinn (No 4) [2020] NSWSC 1800 (the Directed Verdict Judgment). On this basis, her Honour ordered that the Crown pay 70% of the Applicant’s costs: R v Hannah Quinn (No 2) [2021] NSWSC 494 (the Costs Judgment).

7. [8]

   In the alternative to Count 1, the Applicant was charged with being an accessory after the fact to Davis’ murder of the deceased (Count 2) and, in the alternative to both Counts 1 and 2, with being an accessory after the fact to the manslaughter of the deceased (Count 3).

8. [9]

   While the Applicant admitted to having committed several acts in the period between Davis striking the deceased on 10 August 2018 and attending Newtown Police Station on 13 August 2018, the Applicant did not accept that those acts were done in order to assist her co-accused in evading arrest. In defence of the accessorial charges, the Applicant also argued that Davis had not committed either murder or manslaughter and that his conduct in striking the deceased was merely a reasonable response by way of defence to the threat posed by the deceased to herself.

9. [10]

   Davis pleaded not guilty to a single charge of murder by reason of self-defence. It was his case at trial that the Applicant was threatened by the deceased with a firearm immediately prior to him striking the deceased with the sword and that, consequently, his conduct was a reasonable response in the circumstances which was necessary to defend the Applicant.

10. [11]

    It was the Crown’s case at trial that Davis had not acted in self-defence. It relied on Davis’ post-offence conduct as being inconsistent with him believing that it was necessary for him to have acted as he did to defend the Applicant. The Crown also disputed that the Applicant was threatened with a firearm immediately prior to Davis striking the deceased. This was on the basis that a number of witnesses observed the interaction between the deceased and the Applicant on the street prior to the deceased’s being struck by Davis but said that they had not seen a gun in the deceased’s hand. Only the Applicant gave evidence that the deceased had threatened her with the gun. Davis’ evidence at the trial was that, at the time he struck the deceased with the sword, he could not say one way or the other whether the deceased had a gun: see [25] below.

11. [12]

    It should be noted that a gun was located in the immediate vicinity of where the deceased was struck by Davis, as were his knuckledusters and the balaclava which he had been wearing during the home invasion.

12. [13]

    The jury acquitted Davis of murder but convicted him of manslaughter. As the trial judge said in sentencing him (R v Blake Davis [2021] NSWSC 235) at [49]-[50]:

13. [14]

    Self-defence having been raised by Davis, the onus of proof lay on the Crown to prove beyond reasonable doubt that Davis did not kill the deceased in self-defence (including in defence of the Applicant): Crimes Act, ss 418-419.

14. [15]

    By her draft amended Notice of Appeal, the Applicant seeks leave to appeal from her conviction on three grounds:

15. [16]

    Davis has not sought to appeal from his conviction.

Further factual background and evidence at trial

1. [17]

   At [8]-[11] of the Costs Judgment, the trial judge set out the following factual background which was common ground at trial:

2. [18]

   The deceased was driven to the vicinity of Davis’ home in Hereford Street, Glebe on the morning of 10 August 2018 by his friend, Mr O’Connor, with a view to his committing a home invasion. He was carrying a balaclava, knuckledusters, pepper spray, cable ties and an imitation pistol with him. Mr O’Connor waited in the car some distance away while the deceased approached the premises.

3. [19]

   In her Electronic Record of Interview with Suspected Person (ERISP) with police on 14 August 2018, the Applicant gave an account of what took place during the home invasion. At ROS [19], the trial judge accepted that account on the basis that it was consistent with all other evidence in the Crown case.

4. [20]

   The Applicant’s version of events was that, shortly after she returned home from a nearby café at 12.24pm on 10 August 2018, the deceased burst into Davis’ home wearing a balaclava and pointing a gun at them. He then yelled something like, “[give] me all your fucking money or I’ll kill you”. When Davis told the deceased there was no money, the deceased then said something like, “people know where your fucking family lives, give me all your money or we will kill your family too”.

5. [21]

   The deceased is then said to have pointed the gun at the Applicant’s head. After Davis took a few steps back, the deceased moved the pistol away from the Applicant, banged it with something metallic and then punched Davis in the eye with the knuckledusters. Davis was later observed by eyewitnesses bleeding from his face and was found to have an orbital fracture which was consistent with having been struck with knuckledusters. Medical evidence of Dr Allnutt and Professor Beran was also adduced at trial to support the submission that Davis may have also suffered a concussive head injury leading to loss of memory surrounding the events of 10 August 2018.

6. [22]

   In her ERISP, the Applicant gave the following account of what happened after Davis was struck and fell to the ground in the house:

7. [23]

   This sequence of answers condenses what in fact occurred, as observed by a number of witnesses either on, or in houses adjacent to, Hereford Street, as described more fully below. In short, the Applicant gave chase of the deceased approximately 160 metres down Hereford Street before she grabbed him from behind. Davis was observed to have followed the Applicant and the deceased up Hereford Street, but some way behind. After the Applicant had scuffled with the deceased, causing the latter to fall to the ground, Davis fatefully caught up with them.

8. [24]

   At trial, Davis gave evidence that, following the attack with the knuckledusters in his home, he heard the Applicant screaming in the distance and feared that the deceased would shoot the Applicant. So, he grabbed one of the ceremonial samurai swords which he had on display in his home and ran out onto the street, chasing the deceased and the Applicant.

9. [25]

   Although his evidence was that his memory as to the events after being punched by the deceased was “patchy”, under cross-examination by the Crown Prosecutor as to the presence of a gun on the street prior to him striking the deceased, Davis gave the following evidence (with emphasis added):

10. [26]

    As already noted, there were also several witnesses to the events on the street. Those witnesses, whose evidence will be outlined more completely in relation to Ground 3 below, included:

    1. (1)

       the residents of other properties in Hereford Street, principally Ms Lynne Charlesworth;

    2. (2)

       tradesmen working at 176 Hereford Street: Mr Aaron McCaw, Mr Bradley Miller, Mr Gary Foxall and Mr Michael Mullan;

    3. (3)

       Mr Rossinni Michael Palmer, who was working as a painter in the loft of unit 9/69 Hereford Street;

    4. (4)

       Ms Kerrie Sparks, who was walking her dog on the left-hand side of Hereford Street facing Minogue Crescent;

    5. (5)

       Ms Sarah Baker and Mr Thomas Scott, who were crossing the road from Cross Street to Hereford Street; and

    6. (6)

       Mr Frank O’Connor, who had driven the deceased to the vicinity of Davis’ house and was waiting for the deceased in his car on Hereford Street facing towards Minogue Crescent.

11. [27]

    Although, as identified by the trial judge at ROS [20], the accounts of the eyewitnesses differed in various respects, they all described the Applicant as chasing the deceased down the street from Davis’ home towards Minogue Crescent, screaming very loudly. The eyewitnesses also observed Davis chasing after them with the sword and some observed he had a bleeding face. None of the eyewitnesses gave evidence that the Applicant looked behind her at Davis as she pursued the deceased or that she appeared to know what Davis was carrying as he ran behind her.

12. [28]

    The evidence of the eyewitnesses also differed as to the nature of the interaction between the Applicant and the deceased once she caught up with him. However, none of the eyewitnesses gave evidence that they observed the deceased threatening the Applicant with a gun on the street, or, with the exception of Mr O’Connor who, in evidence, seemed to originally suggest that the deceased was holding a gun, that the deceased was carrying a gun on the street. It will be necessary to consider this evidence in some closer detail later in these reasons, but it is obvious that the events moved extremely quickly and followed the traumatic events at Davis’ home, including him being hit powerfully with knuckledusters, with some evidence being led at the trial that this had a concussive effect on Davis.

13. [29]

    As to the Applicant’s account to police that she was threatened by the deceased with a gun after she had scuffled with him from behind and he had fallen to the ground on Hereford Street, the trial judge observed in her sentencing remarks that “that aspect was obviously not accepted by the jury”: ROS [34].

14. [30]

    Implicit in her Honour’s observation is that, had the jury accepted the Applicant’s case that the deceased was threatening her with a gun shortly before his being struck by Davis, to her perception at least, the killing would have been done in reasonable defence of her, and she could not therefore have had the mens rea to sustain the charge of being an accessory after the fact to Davis’ manslaughter of the deceased by reason of excessive self-defence: see Gall v R [2015] NSWCCA 69 at [164]ff and [249]-[256] (Gall).

15. [31]

    The evidence of one of the “eyewitnesses”, Mrs Charlesworth, was that, from within her home but with the French doors open, she heard an argument between a man and a woman about “four houses down” from her. She heard the woman (who must have been the Applicant) scream out the words “No, don’t”, shortly before hearing a thud (which was inferred to be the striking of the deceased by Davis). Ms Charlesworth was sure that the Applicant had screamed “no, don’t” because she wrote an email to her friends on the morning of “the Saturday” when everything “was extremely clear in [her] mind”.

16. [32]

    When Ms Charlesworth ran outside, she saw the deceased lying about three to four steps down the path and on the road in front of her house. She did not see anybody else on the street at this time. According to her evidence, she then ran inside her home in order to contact emergency services. In that call, Ms Charlesworth said, “oh fuck there is a gun on the ground”. In her evidence at the trial, she clarified that she had seen a gun on the ground near the deceased’s head when she first saw him lying on the road but had not realised that it was a gun until that later point.

17. [33]

    When Ms Charlesworth came back outside, she yelled out for help. It would appear that Messrs Miller, McCaw, Mullan and Foxall arrived very soon thereafter. Ms Charlesworth observed the deceased roll onto his stomach and pull himself across the road to where her husband’s white Mazda was parked opposite her house. He was then able to pull himself up to sit with his back to the car. She then watched him stumble and fall briefly again before he was able to get up and stumble up Minogue Crescent where he disappeared from her sight. At about this point, an ambulance arrived.

18. [34]

    A gun, knuckledusters and a balaclava were found in the vicinity of a pool of blood located next to where the deceased was lying before he used the white Mazda to pull himself up. It was the Crown’s case at trial that the gun, along with the other items, had fallen from the deceased’s pocket as he got to his feet against the white Mazda. This, however, was inconsistent with Mrs Charlesworth’s evidence that she saw the gun on the ground (albeit that she did not appreciate that it was a gun when she first observed the object) before the deceased crawled over to and pulled himself up by the car.

19. [35]

    Mr Palmer was the closest eyewitness to the dramatic events that occurred on Hereford Street. (Ms Charlesworth heard, but did not see, the attack on the deceased or the chase that preceded it). Mr Palmer was doing a painting job in the loft of unit 9 of 69 Hereford Street. The unit complex was described as a row of “maybe 10 or 12” townhouses of which unit 9 was located approximately in the middle. Mr Palmer gave evidence that the incident took place “20 metres” from the unit and that the loft, which faced directly out onto Hereford Street, was about three storeys from ground level and was located about three metres back from the road.

20. [36]

    To his right, Mr Palmer saw the Applicant chasing a man, who was inferred to be the deceased, along Hereford Street. He recalled the Applicant as having shouted out, “What the fuck are you doing? Who the fuck are you?”

21. [37]

    After his initial observation, Mr Palmer had to hoist himself up onto a ledge at the window at which point he lost sight of the Applicant for about five seconds. He then saw the Applicant and the deceased stopped on the street together, “slightly to his left”. Mr Palmer’s evidence as to the subsequent interaction between the Applicant and the deceased was as follows:

22. [38]

    During cross-examination, Mr Palmer agreed that in his demonstration to the jury, he had indicated that the deceased was “getting up with his palms on the tarmac”. It was the Crown’s submission on appeal that if the deceased had been positioned on all fours with his palms on the ground, he could not have been wielding a gun as alleged by the Applicant. However, under cross-examination, Mr Palmer accepted that in his original statement to police he had said that the deceased was positioned on his “knees and elbows”.

23. [39]

    Mr Palmer ultimately accepted that “with time [he] may have forgotten the precise position” of the deceased and that he was not sure whether the deceased had his palms down on the ground or whether he was on his elbows. If the deceased was positioned on his knees and elbows, rather than on his palms, this left open the reasonable possibility that he was holding a gun.

24. [40]

    Mr Palmer’s evidence was that he did not see a gun at the scene. However, Mr Palmer also accepted under cross-examination that he could not recall whether the deceased was wearing gloves and that the deceased’s hands were not a particular focus of his attention. Indeed, he said he could not remember whether he could see the deceased’s hands and accepted under cross-examination that he could not see the deceased’s hands.

25. [41]

    The only item Mr Palmer saw at the scene was what he assumed was a bag. He gave the following evidence as to that item:

26. [42]

    Mr Palmer gave evidence that “another guy” came from the same direction the Applicant and the deceased had run from and hit the deceased on the head with what “looked like a stick”. A couple of seconds after the deceased was struck, Mr Palmer described the Applicant as having shouted out, “What the fuck have you just done?” and gave evidence that those words were definitely directed towards her co-accused. The fact that the Applicant said those words was not contested.

27. [43]

    Mr Palmer’s evidence was that the Applicant and Davis then ran from the scene and he watched the deceased crawl off to his left at which point Mr Palmer lost vision and closed the windows of the loft.

28. [44]

    The evidence of the tradesmen eyewitnesses as to what they observed was somewhat variable. They were working at 176 Hereford Street. According to the scale map, this was approximately 120 metres from where the deceased was struck by Davis. Mr McCaw estimated it as about 300 metres away. Mr Miller’s evidence was that it was 84 metres away. He agreed that his view was partly blocked by the other tradesmen and some parked cars, although Mr McCaw’s evidence was that he had a “clear view”.

29. [45]

    Mr McCaw and his work colleagues testified to having seen the Applicant chasing the deceased down the street, with Mr Miller recalling that the Applicant was shouting at the deceased. Neither Mr Mullan nor Mr McCaw saw the deceased carrying anything. Mr McCaw gave evidence that he saw the Applicant and the deceased in a “scuffle and sort of wrestling” at which point the deceased “went down on his knees”. He also testified to having seen the deceased struck by Davis when the former was trying to get up off the ground.

30. [46]

    Ms Baker and Mr Scott were crossing the road on Hereford Street, about four or five metres from the Cross Street and Hereford Street intersection. This placed them in the middle of the road about four metres from 87A Hereford Street when the deceased ran outside, followed by the Applicant and Davis who was carrying a “silver blade”. Mr Scott and Ms Baker heard the Applicant yelling similar words to those heard by Mr Palmer as she ran down Hereford Street (see [36] above).

31. [47]

    Mr Scott and Ms Baker followed behind the deceased, the Applicant and Davis as they ran down the middle of Hereford Street towards Minogue Crescent. Ms Baker’s evidence was that she did not recall seeing the deceased carrying anything when he ran out onto the street, nor did she see a gun at any point. However, she gave evidence that, when he was about 20 metres in front of her, she saw him pull his hood up over his head using both hands.

32. [48]

    Under cross-examination, Ms Baker accepted that she had not told police in her initial interview that the deceased had flipped his hoodie with two hands, rather than one, because she thought it was implied given that “it’s quite difficult to put a hood on with one hand”. However, she did not recall that the deceased was wearing gloves and instead gave evidence that she could “see the skin on his hands”. Shortly after making these observations, Ms Baker and Mr Scott lost sight of the Applicant and the deceased as they turned into the driveway of their apartment block at 77 Hereford Street. In other words, they did not make any further relevant observations.

33. [49]

    Mr Scott also gave evidence that he did not recall the deceased was holding anything and that he had not seen anyone in possession of a gun. However, his evidence was also that he did not specifically look at the deceased’s hands during the incident. Similarly to Ms Baker, he did not recall that the deceased was wearing black gloves and rather, had gotten a “fleeting” look at what he presumed was the “white skin” of the deceased’s hands.

34. [50]

    Mr O’Connor was the only witness to observe the chase down Hereford Street from front on. He gave evidence that after dropping the deceased off, he parked the car a couple of hundred metres down Hereford Street, facing Minogue Crescent, where he left the engine running and remained in the car. From this position, he was able to observe through his rear view mirror as the deceased ran down Hereford Street, followed by the Applicant and then Davis. Mr O’Connor gave the following evidence as to what the deceased was holding as he ran:

35. [51]

    Ms Kerri Sparks was walking her dog from Cross Street to Hereford Street on the left-hand side of Hereford Street facing Minogue Crescent when the deceased ran out of 87A Hereford Street towards her, followed by the Applicant and Davis who was carrying what she thought was a long stick. Ms Sparks recounted having seen the Applicant pull the deceased to the ground by grabbing his collar or the scruff of his neck. She agreed under cross-examination that her view was obscured by the parked cars on the street such that she could not see the deceased or anything he was doing on the ground.

36. [52]

    After delivering the fatal blow, it was not contested that Davis seized a car cover from the shed of a nearby property in which he wrapped the sword before leaving it in the backyard of his home to which he and the Applicant had fled after the striking of the deceased on Hereford Street. A number of items which were said to be related to Davis and the Applicant’s involvement in drug supply were then placed in an Uber Eats bag and later discarded in an alleyway. Those items were two mobile phones which were alleged to be “burner phones”, four sets of metal nunchakus, one set of timber nunchakus, a gold coloured air soft gun in a cardboard box, Davis’ medication and $21,380 in cash. The Applicant told police that Davis had packed this bag.

37. [53]

    The Applicant, together with Davis, then fled Hereford Street by jumping over a neighbour’s fence and then running until they found themselves at a dead end at which point they entered the nearest house, broke out of it, and fled the vicinity.

38. [54]

    As will be outlined more completely in relation to Ground 1, the Crown sought to rely on the fact that Davis fled the scene and hid the various items in the Uber Eats bag, alongside the fact that the Applicant and Davis did not hand themselves into police until 13 August 2018, as demonstrating that Davis did not believe that his actions were necessary to defend himself or the Applicant.

39. [55]

    Prior to turning themselves into police, the Applicant and Davis made a number of phone calls to, and met with, several friends and family. In particular, on 10 August 2018, the day of the incident, the Applicant and Davis arrived at the house of a friend of Davis, Mr Craig Anthony Blake, who gave evidence at the trial. That evidence included the following (with emphasis added):

40. [56]

    Before the Applicant and Davis handed themselves into Newtown Police Station on 13 August 2018, it was the Crown case that the Applicant did numerous (largely admitted) acts which assisted Davis in evading arrest. Those acts were outlined by the trial judge at ROS [31]:

41. [57]

    In her ERISP, the Applicant explained that she had stayed with Davis over the weekend before they handed themselves into police because she was terrified of the threats made by the deceased during the home invasion and worried that persons associated with the deceased would come after her: see [20] above. The trial judge at ROS [37] held that the verdict was also inconsistent with that part of the Applicant’s account having been accepted by the jury.

42. [58]

    At ROS [42], her Honour held that she was satisfied beyond reasonable doubt that the Applicant knew the deceased was very seriously injured when she fled the scene but that she did not know that he had died until sometime on 11 August 2018 when she heard about his death on the news.

43. [59]

    It was also common ground at trial that Davis, after speaking to a lawyer together with the Applicant, telephoned Glebe Police Station at 11.08am on 12 August 2018 and told them that they were “going to come in and see police tomorrow”. The trial judge held at ROS [46] that she was not satisfied beyond reasonable doubt that the Applicant continued to assist Davis to evade detection after this time.

Ground 1

1. [60]

   By Ground 1 of her draft amended Notice of Appeal, the Applicant contended that a miscarriage of justice was created by the Crown Prosecutor’s reliance on consciousness of guilt reasoning.

2. [61]

   The following exchange between the trial judge and the Crown Prosecutor took place in relation to the possibility of a jury direction being given prior to the Crown Prosecutor delivering his closing address to the jury:

3. [62]

   It will be apparent from the passage emphasised in the extract of the Crown Prosecutor’s response that a distinction was sought to be drawn between, on the one hand, consciousness of guilt reasoning and, on the other hand, reliance on post-offence conduct which goes to prove a fact in issue, namely whether Davis believed that his actions were necessary to defend the Applicant.

4. [63]

   The Applicant submitted that the Crown relied very heavily on consciousness of guilt reasoning in relation to the guilt of Davis. This was said to have necessarily impacted on the Applicant’s guilt because of her derivative liability. The Applicant acknowledged that the submissions evidently complained of “were ostensibly directed towards Davis’ guilt for murder (on which he was acquitted) rather than manslaughter.” The passages of the Crown’s address which were relied on by the Applicant for the purposes of Ground 1 are set out below, noting that the Applicant also contended that consciousness of guilt reasoning was embedded in a series of questions asked of Davis during cross-examination (although what was put in the relevant questions was not taken issue with by Davis nor, it should be added, were the questions the subject of any objection by Davis’ extremely experienced counsel at trial, Ms Cunneen SC).

5. [64]

   The passages from the Crown’s closing submissions which were said to entail consciousness of guilt reasoning were as follows:

6. [65]

   The following submission was then made by the Crown:

7. [66]

   It was then submitted that:

8. [67]

   The Crown then made the following submission:

9. [68]

   The Crown submitted that it did not invite the jury to rely on Davis’ post-offence conduct as illustrating a consciousness of guilt in the sense that it was an implied admission or independent evidence of his guilt of murder or manslaughter. Rather, the Crown put that the post-offence conduct formed part of the Crown’s circumstantial case as to Davis’ state of mind at the time of the sword strike. In particular, his post-offence conduct was said to rebut his contention at trial that he believed that it was necessary for him to strike the deceased with the sword in order to defend the Applicant. Relying on Gall, the Crown argued that in these circumstances, a consciousness of guilt direction was not required.

10. [69]

    In Gall, the crucial issue was whether the Applicant had shot the deceased in order to protect his father, whom he saw running away from the deceased, because he believed the deceased and another man were carrying guns. The Crown led evidence as to the Applicant’s post-offence conduct, including his disposal of the deceased’s body, dismantling of the gun and destruction of the van he used to transport the body. Hoeben CJ at CL reasoned as follows:

11. [70]

    The Applicant in the present proceedings submitted that Gall should only be taken as determining that, on the facts of that case, there was no requirement for a protective direction of the kind discussed in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63. This was on the basis that there was a “low focus” on the consciousness of guilt reasoning in Gall and stark differences between the facts in Gall and those of the case at hand.

12. [71]

    To the extent that the decision in Gall was taken as determining that post-offence conduct can be relied upon as simply part of the Crown case to prove intention and disprove self-defence such that an Edwards direction was not required, the Applicant submitted that it was wrong.

13. [72]

    Although it had not been decided at the time of the hearing, this Court recently decided Cavanagh v R; McIvor v R; O’Keefe v R [2023] NSWCCA 164 which affirmed the decision in Gall holding that post-offence conduct can be relied upon in proof of the critical elements of an offence, rather than as evidencing a consciousness of guilt. At [372] it was held that:

14. [73]

    A distinction between, on the one hand, post-offence conduct which is relied upon as an implied admission or as evidence of a consciousness of guilt and, on the other hand, post-offence conduct which forms part of all of the circumstances establishing a fact in issue, such as the accused’s state of mind at the time they performed a particular act, was also drawn in two first instance decisions of this Court: R v Manuel [2015] NSWSC 1562 at [14] and R v Valencia Valencia [2023] NSWSC 163 at [221]-[222].

15. [74]

    There is no cogent reason to revisit the correctness of Gall: see AC v R [2023] NSWCCA 133 at [24]-[26] and the cases there cited. In any event, the Crown submitted that r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) should apply to exclude consideration of Ground 1. As outlined at [61] above, the trial judge raised the issue of whether a consciousness of guilt direction would be required. No objection was taken or direction sought by the Applicant’s trial counsel at that time, or at any other time during the trial.

16. [75]

    The Applicant submitted that the Crown’s conduct did not attract the operation of r 4.15 but that, if the contrary were held, leave to appeal should be granted given the heavy focus on consciousness of guilt reasoning by the Crown and the fact that there was no plausible forensic advantage in competent defence counsel not complaining about this process of reasoning at trial.

17. [76]

    I would refuse leave under r 4.15 for a number of reasons.

18. [77]

    The distinction drawn in Gall has recently been confirmed in this Court and the reasoning of Hoeben CJ at CL may readily be transposed to the facts of the present case.

19. [78]

    Moreover, many of the passages upon which the Applicant relied and which have been set out and emboldened above did not exemplify consciousness of guilt reasoning at all so as to require a particular direction to be given to the jury.

20. [79]

    Further, as was acknowledged in the Applicant’s written submissions on appeal, the context in which the submissions in respect of which complaint is now made went and were directed towards whether Davis should be convicted of murder. The failure to give the direction which it is now said should have been sought and given at the trial did not result in a miscarriage of justice.

21. [80]

    It is not necessary to engage in further consideration of this ground or ground 1A in view of the conclusion reached in relation to ground 3, to which attention is now turned.

Ground 3

1. [81]

   By Ground 3 of her draft amended Notice of Appeal, the Applicant argued that her conviction was unreasonable.

2. [82]

   It is uncontentious that this Court should approach its assessment of whether the jury’s verdict was unreasonable by asking itself whether it was open to the jury to be satisfied beyond reasonable doubt, on the whole of the evidence, that the Applicant was guilty of the offence charged. In answering that question, the Court must conduct its own independent assessment of the evidence: M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen).

3. [83]

   The Court in Coghlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55] held that in substantially circumstantial cases, the Court must:

4. [84]

   Consistent with Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [39], in assessing the whole of the evidence, the Court should also proceed upon the assumption that a witness’ evidence was assessed by the jury to be credible and reliable, but then examine the record of the trial to see whether:

5. [85]

   Setting aside a jury’s verdict as unreasonable is a “serious step” which should not be taken without the Court having regard to the “advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial”: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]. If the Court entertains a reasonable doubt that the accused is guilty on the basis of its assessment of the evidence, it is only where the jury’s advantage in having seen and heard the evidence is capable of resolving that doubt that the Court may conclude that no miscarriage of justice has occurred: Libke v the Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], M v The Queen at 494.

6. [86]

   The scope of the advantage that the jury will have had over this Court by reason of having seen and heard the evidence at trial will vary based on matters such as the form in which the evidence was adduced and the nature of the issues at trial: Dansie v The Queen (2022) 96 ALJR 728; [2022] HCA 25 at [17]. A tribunal of fact (in this case, the jury) must be taken to have enjoyed a greater advantage over a court of criminal appeal where evidence was given in person and was the subject of sustained cross examination: Slattery v R [2023] NSWCCA 117 at [119].

7. [87]

   Counsel for the Applicant, Ms Rigg SC, submitted that the jury ought to have entertained a reasonable doubt as to the Applicant’s guilt such that the jury’s verdict was unreasonable. This was advanced on two alternate bases.

8. [88]

   First, it was submitted that, notwithstanding Davis’ evidence that he could not say that he had seen a gun immediately prior to him striking the deceased with the sword (see [25] above), the evidence did not exclude the reasonable possibility that Davis did in fact see the Applicant being threatened with a gun on the street but did not recall having done so due to memory loss arising from the injuries he incurred after being struck by the deceased with knuckledusters during the home invasion. On this hypothesis, Ms Rigg submitted that the jury ought not to have been satisfied beyond a reasonable doubt that Davis’ conduct was not a reasonable response to the circumstances, as he perceived them, which he believed was necessary in defence of the Applicant.

9. [89]

   If this argument were made out, then by reason of the fact that the Applicant’s liability was derivative of that of Davis, the Applicant’s conviction would also be unreasonable.

10. [90]

    This first ground may be dealt with shortly. In light of Davis’ evidence extracted at [25] above, namely that he could not honestly give evidence that he saw the deceased point a gun at the Applicant before striking him, it was open to the jury to conclude that Davis could not have believed that his conduct in striking the deceased was necessary for him to defend the Applicant, and that his conduct was a reasonable response in the circumstances as he perceived them: Crimes Act, s 418. Given s 418’s focus on Davis’ perception of the circumstances, and in light both of the fact that he gave evidence before the jury and the nature of that evidence, the jury’s verdict in relation to Davis could not, in my view, be described as unreasonable.

11. [91]

    Secondly, and in the alternative, it was submitted that the jury ought to have entertained a reasonable doubt that the Applicant knew or appreciated that Davis knew that his response was unreasonable in the circumstances as Davis perceived them. If the deceased had in fact pointed a gun at her immediately before he was struck by Davis, the possibility could not reasonably be excluded that the Applicant believed that Davis had seen this threat and was acting in reasonable defence of her.

12. [92]

    Just because the jury may have reached the view, as part of its chain of reasoning leading to his conviction, that Davis did not see the gun being pointed by the deceased at the Applicant immediately before he, Davis, struck the deceased, it did not follow that the deceased was not in fact pointing a gun at the Applicant. If this was in fact the case, there was every possibility that the Applicant may have believed that Davis saw this (even if this was not the case, or the jury did not accept it to be so).

13. [93]

    Given the speed with which events moved, the violent nature of the home invasion and the fact that Davis approached the Applicant and deceased from behind the Applicant’s back, moving up Hereford Street, it is a short step from a conclusion that the Crown could not exclude the reasonable possibility that the deceased pointed a gun at the Applicant to the reasonable possibility that the Applicant believed, in the days immediately following the deceased’s death, that Davis’ act in killing the deceased was a reasonable response to the Applicant being threatened by a gun, as she believed Davis perceived the circumstances to be.

14. [94]

    It was submitted that this was an inference consistent with innocence that was reasonably open to the jury. If there was a reasonable possibility that the Applicant had that belief, she should not have been convicted because the jury, acting rationally, must have entertained a reasonable doubt as to proof of her guilt.

15. [95]

    In the course of argument on appeal, Ms Wright SC for the Crown accepted that it was for the Crown to exclude as a reasonable possibility the Applicant’s account that the deceased pointed a gun at her immediately prior to him being struck by Davis, but contended that the evidence before the jury did exclude that possibility. The written and oral submissions before this Court principally focussed on whether the evidence in fact sustained that conclusion.

16. [96]

    Ms Wright placed reliance on what was described as eyewitness evidence from people on, or adjacent to, the street during the Applicant’s pursuit of the deceased. The essence of that evidence was that various eyewitnesses did not see the deceased holding a gun. This was coupled with the evidence of one witness that, after Davis had struck the deceased, the Applicant said to Davis, “what the fuck have you just done?”. It was suggested that these words indicated that she immediately appreciated that Davis’ action in striking the deceased was unreasonably disproportionate to the threat posed by the deceased to her. Ms Wright also relied upon an intercepted telephone call between Davis and the Applicant well after the events in question (which is extracted at [137]-[138] below), suggesting that, in the course of this conversation, the Applicant made no reference to the fact that the deceased had pointed a gun at her after he had fallen to the ground.

17. [97]

    The Applicant’s submission was that, although none of the eyewitnesses nor Davis saw the deceased threaten the Applicant with a gun immediately prior to the sword strike, it did not follow that he did not threaten the Applicant with a gun (as the Applicant said in her ERISP). It was put that the eyewitnesses’ respective vantage points were not such or so clear that their evidence pointed to the absence of a gun. This was said to be especially so in circumstances where a gun was found in the immediate vicinity of where the deceased had fallen to the ground, and in the context that he had threatened both the Applicant and Davis with the gun during the home invasion.

18. [98]

    As was submitted in writing:

19. [99]

    Reliance was also placed by Ms Rigg on uncontradicted evidence that the Applicant had screamed “No, don’t” whilst she was facing the deceased who had fallen to the ground on Hereford Street and from whom she was retreating whilst still facing him, the inference being that she was screaming in response to him pointing the gun at her. Ms Rigg also relied upon the account of the events given by the Applicant to Mr Blake later in the day which was to the effect that the deceased had indeed pointed a gun at her shortly before he was struck down by Davis: see [55] above.

20. [100]

    As to the Crown’s reliance on the telephone intercept, as will be explained below, that evidence was, at best, equivocal and, at least on one view, reinforced the Applicant’s account.

21. [101]

    In these circumstances it was submitted that “the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt” and that its verdict was therefore unreasonable. Underpinning this submission was an attack on the rationality of the jury’s evident rejection of the Applicant’s account that the deceased, albeit whilst on the ground but perhaps because of the fact that he had been knocked to the ground, pointed his gun at the Applicant shortly before being struck by Davis.

22. [102]

    For the reasons that follow, I agree with the Applicant’s submissions.

Consideration

1. [103]

   As noted in New South Wales Law Reform Commission, Complicity (Report No 129, December 2010) at 59-70, New South Wales is alone among Australian jurisdictions in not statutorily defining an accessory after the fact, or in providing a specific offence, and rather, leaving it to the common law. Section 347 of the Crimes Act which provides that:

2. [104]

   The Law Reform Commission Report identified the position at common law as being that:

3. [105]

   R v Tevendale [1955] VLR 95 (Tevendale) and R v Stone [1981] VR 737 at 739-740 are cited in support of the third, mental element in this statement of the elements of the common law offence of accessory after the fact. In Gall, Hoeben CJ at CL made reference to Tevendale and Winning v The Queen [2003] WASCA 245 (Winning) and said at [170] that, to the extent that Stone said anything to the contrary of Winning, it should not be followed. His Honour did not, however, identify whether or if anything said in Stone was contrary to Winning. At least as applied to the facts of the present case, I do not see any material difference between Winning and Stone in relation to the identification of the third element of the common law offence as set out by the Law Reform Commission Report.

4. [106]

   The essential facts and circumstances that made up Davis’ offence, and of which the Applicant would have needed to be aware to be guilty of providing assistance to him after the fact, were that Davis’ striking of the deceased was an objectively unreasonable act by way of defence of the Applicant in light of the circumstances as Davis understood them to be.

5. [107]

   The critical (but complex) question is whether the Crown excluded the reasonable possibility that the Applicant believed that Davis saw her being threatened with a gun on the street such that, at the time she performed the acts which were alleged to have assisted Davis after the fact in evading arrest, she believed that Davis’ conduct was a reasonable response to the circumstances as she must have believed he perceived them, namely that it was necessary to defend her whilst she was being threatened with a gun.

6. [108]

   This possibility could not have been excluded if the Applicant had seen the gun being pointed at her, as she claimed. On that footing, a reasonable inference, consistent with innocence, was that she believed that Davis probably saw this too and responded to that threat by striking the deceased with the sword. As such, it would be reasonably open to conclude that the Applicant’s understanding of Davis’ actions was that they were taken as a measure of reasonable self-defence (in the extended sense, including in defence of the Applicant).

7. [109]

   If, of course, the Applicant did not see the deceased pointing a gun at her, she could not have held a belief that Davis perceived the circumstances to warrant his conduct in striking the deceased with the sword. That observation leads to the need for a close independent examination and review, consistent with M v The Queen and Pell, of the whole of the evidence at trial, in particular, focussing on the Applicant’s account that the deceased drew and pointed his gun at her after he had fallen to the ground.

8. [110]

   At the outset, it should be acknowledged that the jury must be taken to have enjoyed an advantage over this Court in being able to assess the credibility and reliability of evidence given by Davis, Mr Blake and the eyewitnesses to the events on the street. Their evidence was given in person over several days and was subject to cross-examination which was, in some cases, extensive. However, the only form in which the Applicant’s account was given was by way of a transcript of her ERISP interview with police on 14 August 2018. It follows that the jury enjoyed no greater advantage on the basis of having seen or heard that account than this Court does on appeal.

9. [111]

   The Applicant’s account in relation to the deceased having pointed a gun at her was contained in her response to question 355 referred to at [22] above.

10. [112]

    That account was given strong support in the evidence of Mr Blake, with whom the Applicant spoke on the day of the events in question. That evidence has been set out at [55] above. It was not relevantly challenged by the Crown. It is entirely consistent with the account the Applicant gave to the police in her ERISP some days after her speaking to Mr Blake. The conversation recounted occurred within hours of the events on Hereford Street, and prior to the Applicant learning that the deceased had in fact died. There was no obvious reason why the Applicant would have told Mr Blake a falsehood. Mr Blake’s evidence was that the Applicant was “clear that he had had the gun at her”.

11. [113]

    Mr Blake made it plain in his evidence that he had been “careful and vigilant” in not contaminating his evidence in the period subsequent to that conversation. His account that Davis “could barely recall anything to me” was consistent with Davis’ evidence at trial as to his recollection whether he saw that the deceased had brandished a gun at the Applicant. It was also consistent with him having been struck by a powerful blow by the deceased with knuckledusters during the home invasion.

12. [114]

    The Crown submitted that the reference by Davis to having been told about a gun was consistent with the deceased’s brandishing of a gun in the course of the home invasion (as to which, see [5] and [20] above). I would reject that submission. The sequence of Mr Blake’s account makes it plain that the reference to the deceased pointing a gun at the Applicant was to events on Hereford Street, after they had left the house and prior to the deceased being struck by Davis with the sword.

13. [115]

    The Crown ultimately accepted that Mr Blake’s evidence supported the Applicant’s account, but also submitted that it was open to the jury not to accept it and that it was open to this Court not to find that it compelled a reasonable doubt. I would also reject that submission. The evidence was unchallenged and was given by a witness who spoke to the Applicant and Davis within hours of the events. Mr Blake was also adamant that his recollection of what had occurred had not been contaminated by what had been said to him in subsequent interactions with the Applicant and Davis. His evidence also related to an account given to him prior to any suggestion of the Applicant being charged with anything.

14. [116]

    There was also evidence given by Davis’ mother following a recorded conversation between mother and son on 8 January 2020. In that conversation, Davis’ mother is recorded as saying:

15. [117]

    Under cross-examination, Mrs Davis gave the following evidence as to her comments about the presence of a gun on the street captured by the listening device:

16. [118]

    Little weight should be put on this evidence one way or the other.

17. [119]

    Other circumstantial evidence consistent with, and indeed supportive of, the Applicant’s account of the deceased pointing a gun at her shortly before he was struck by Davis includes:

    1. (1)

       the presence of the deceased’s gun with his fingerprints on it in very close proximity to where he fell, following the Applicant having grabbed him from behind, and where he was shortly thereafter struck by Davis;

    2. (2)

       Mrs Charlesworth’s evidence recounted at [31] above, namely that she heard the Applicant scream out the words “No, don’t” shortly before she heard a thud which it may be inferred was the striking of the deceased by Davis. The screaming of such words is, at the very least, consistent with the deceased having pulled his gun on the Applicant after he had fallen to the ground, and the Applicant imploring him not to pull the trigger in circumstances where no eyewitness observed her turning to face Davis as he approached from behind her up Hereford Street;

    3. (3)

       that conclusion is only strengthened by the evidence of Mr Palmer, referred to at [37] above, who saw the Applicant stepping “backing off” from the deceased but, as a matter of necessary inference, continuing to face him prior to his being struck by Davis. This is consistent with the Applicant being threatened with the gun;

    4. (4)

       the evidence that the Applicant was in retreat whilst still facing the deceased was also consistent with her ERISP account as well as evidence given by Davis at the trial: see [25] above (“I saw Hanna coming towards me, backing up, as I got close up to them”); and

    5. (5)

       the fact that, according to the uncontroversial evidence concerning the home invasion derived from the Applicant’s ERISP and Davis’ evidence at the trial, the deceased had, only minutes before the events on the street, threatened to kill both Davis and the Applicant with his gun in the course of the home invasion, and had struck Davis with knuckledusters with such force as to fracture Davis’ eye socket: see [21] above. As was submitted by Ms Rigg, this showed that, consistent with the Applicant’s account, the deceased was willing to brandish his gun by way of threat and, it might be inferred, would have been desperate to escape to his nearby getaway vehicle, having been caught up from behind and wrestled to the ground by the Applicant. Mr O’Connor also gave evidence that the deceased had, at an earlier point in time, said to him that “no one’s going to try to fight me if they see a gun”, a statement consistent with the deceased’s willingness to brandish his weapon as a means of self-defence. A post-mortem examination of the deceased also disclosed that he had a toxic to lethal level of methamphetamine in his blood which may have increased his propensity for violent behaviour.

18. [120]

    As to the first of these points, Ms Rigg’s submission was that the presence of the gun on the ground very close to where the deceased fell gave rise to only two possibilities: either the deceased was holding it when he fell or, alternatively, it fell from somewhere else on his person.

19. [121]

    The Crown’s case theory was that the gun, knuckledusters and balaclava, which were all found on the street in close proximity to where the deceased had fallen and was struck, had fallen out of the deceased’s pockets or hoodie as he tried to pull himself up on the white Mazda parked across the street from where he fell and to which he crawled after being struck by Davis. As observed at [34] above, however, this was inconsistent with Ms Charlesworth’s evidence.

20. [122]

    Even if a possibility, the Crown’s case theory was only that and was certainly no more likely than that the deceased had pulled off his balaclava and was holding it, the knuckledusters and his gun as he ran down the street after conducting the invasion of Davis’ home, before pointing the gun at the Applicant after he had fallen and she had grabbed her bag. That this may not have been noticed by the eyewitnesses is not surprising, as shall be explained in further detail below.

21. [123]

    It was also pointed out on the Applicant’s behalf that a can of pepper spray was found in the deceased’s pockets after he had been killed, a fact that was said to be inconsistent, or potentially inconsistent, with the Crown’s case theory that the contents of the deceased’s pockets fell out as and when he used the white Mazda to pull himself up.

22. [124]

    In written submissions, the Crown properly accepted that the onus lay on it to negate the two limbs of self-defence. The Crown submitted that the Applicant’s account of a gun being pointed at her by the deceased “was entirely implausible on the whole of the evidence” and that the “eyewitnesses’ evidence only strengthened the conclusion that her account about the gun could not reasonably be accepted”.

23. [125]

    As to the submission that the Applicant’s account was “entirely implausible on the whole of the evidence”, the matters considered at [112]-[124] point to the opposite conclusion. As to the eyewitnesses’ evidence to the effect that, as they observed the deceased run down Hereford Street, they did not observe him to be carrying a gun, the following analysis shows that the Crown’s reliance on this body of evidence was misplaced and/or undue. It certainly did not negative the fact that the deceased plainly had a gun with him which was found on the ground near to where he was struck. A number of points may be made.

24. [126]

    First was the fact that, as was common ground, the deceased was wearing black gloves on his hands which supplied a potential explanation why various eyewitnesses may not have noticed a gun if the deceased was carrying it.

25. [127]

    The only witnesses to say, at least by implication, that the deceased was not carrying anything in his hands were Ms Baker (who said she saw the deceased use both his hands to pull up his hoodie), and Mr Scott. Their recollection was substantially undermined by the fact that they recalled that they saw the flesh of the deceased’s hands, but their recollection cannot have been correct as it was accepted that he was wearing black gloves. This is apt to suggest that they did not accurately observe the deceased’s hands at all, a matter reinforced in the cross-examination of Mr Scott to the effect that he “wasn’t specifically looking at [the deceased’s] hands”.

26. [128]

    Secondly, during a dramatic foot pursuit, accompanied by screaming, it would not have been surprising that eyewitnesses, especially at a distance, would not have been directing their eyes to the hands of the deceased but, rather, to the whole scene of commotion.

27. [129]

    Third, the fact that none of the eyewitnesses saw a gun during the chase down Hereford Street, or when the deceased was on the ground, is hardly surprising given that none of the eyewitnesses were in fact particularly close to the scene. All were viewing from varying distances away. The closest witness was Mr Palmer who was 20 metres away from the site of the strike, three floors up and three metres back from the street. Ms Charlesworth only saw the deceased after he had ben struck by Davis and Mr Palmer could not see anything for a short period as he moved himself to the ledge. His evidence, set out at [41] above, that the only item he saw at the scene was a small bag, was denuded of forensic significance by his acknowledgement under cross examination that in fact he could not see the deceased’s hands. The view of some of the tradesmen and Ms Sparks was, by their own admission, obstructed while the deceased was on the ground and although Ms Baker and Mr Scott were close to the deceased and the Applicant as they exited 87A Hereford Street and ran out onto the road towards Minogue Crescent, they lost sight of the Applicant and the deceased shortly thereafter.

28. [130]

    Moreover, that the deceased may not have been carrying a gun in his hands whilst running down Hereford Street, even assuming the reliability of Ms Baker’s observation that the deceased used both hands to pull his hoodie up over his head, also did not negative the Applicant’s evidence that the deceased pointed the gun at her after she had caught up with him and he had fallen to the ground. On the hypothesis that he did not have the gun in his hand as he ran down the street, given the short period of time between the time at which he threatened the Applicant and Davis with it in the house and his running out onto the street, he must have had it on his person in a pocket from which it could readily be withdrawn such that he could have easily done so in order to threaten the Applicant after falling to the ground.

29. [131]

    Thus, the Crown’s heavy reliance on the so-called eyewitness evidence did not exclude the possibilities either that the deceased was carrying a gun as he ran down the street or, if he was not, that he withdrew it from his person when he was caught by and scuffled with the Applicant.

30. [132]

    The additional arm of the Crown’s case on appeal was that the words “What the fuck have you just done?” overheard by Mr Palmer (not Ms Charlesworth, contrary to a mistaken submission on appeal) being shouted by the Applicant following Davis striking the deceased with the sword (see [42] above) was consistent with her having believed at the time of the sword strike that the co-accused’s conduct was unreasonable. However, these words are equally, if not more, consistent with being an expression of shock in the course of an extraordinarily traumatic sequence of events. Occurring seconds after the sword strike, they cannot reasonably be construed as a considered assessment by the Applicant that Davis’ actions were a disproportionate response to the threat she was under, as perceived by him. She simply would not have had the opportunity to process what had occurred.

31. [133]

    As was submitted on the Applicant’s behalf, her:

32. [134]

    The Applicant’s subsequent flight, in the company of Davis, was also not, unequivocally, any admission as to an appreciation by her of the unreasonableness of Davis’ actions. The most nearly contemporaneous evidence as to her mental state and understanding is what she told Mr Blake later that very day. For reasons set out above, there was no rational basis for the jury to have rejected his evidence (which they must be taken to have done).

33. [135]

    Nor should the decision of the Applicant, in conjunction with Davis, to contact police on 12 August be understood as an implied admission as to the Applicant having come to some understanding of any necessary unreasonableness in Davis’ response of striking the deceased in all of the circumstances.

34. [136]

    Finally, in support of its submission that the evidence excluded any reasonable possibility that the Applicant was threatened with a gun on the street, the Crown also relied on conversations between the Applicant and Davis which were recorded using lawful listening devices. It was submitted that the credibility of the Applicant’s account was undermined by the fact that she did not mention having been threatened with a gun in any of those recorded conversations.

35. [137]

    In particular, the Crown pointed to the following passage of a conversation recorded between the Applicant and Davis on 30 August 2019, about a year after the incident, in which the Applicant said the following about the events on the street:

36. [138]

    Earlier in the same conversation, Davis said the following with respect to his actions on the street:

37. [139]

    The record of the conversation also contains an incomplete transcription of the following words which were attributed to Davis: “… gun … face. I didn’t know if he was …” It was the Crown’s submission during oral argument that, although it was unclear, that reference by Davis to a gun was not a reference to the presence of a gun on the street. Rather, it was argued that Davis was referring to the presence of a gun inside the house which was said to be consistent with his evidence that the deceased threatened him and the Applicant with a firearm during the home invasion.

38. [140]

    However, the reference appears in the context of Davis discussing with the Applicant his thought processes at the time at which he struck the deceased on the street. It is most unfortunate that the transcript is incomplete, but the better view is that this transcribed recording is more consistent with the Applicant’s account of the deceased pointing the gun at her face when on the street. At the very least, it did not, in my view, support the Crown’s case.

39. [141]

    Having carefully reviewed the record of the trial in accordance with the authorities noted at [81]-[86] above, and conscious of the advantages of the jury, I have concluded that the jury ought nonetheless to have entertained a reasonable doubt as to proof of the Applicant’s guilt, and that the jury’s verdict in respect of the Appellant was unreasonable within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW).

Conclusion

1. [142]

   In this most unusual of cases, the jury’s verdict in relation to the Applicant should, in my considered opinion, be set aside as unreasonable and the Applicant acquitted.

2. [143]

   WILSON J: I have had the advantage of reading the judgment, in draft, of Bell CJ, and gratefully refer to the factual outline and statement of the issues set out there. His Honour has concluded that ground 1 is not established, and I agree with that conclusion for the reasons the Chief Justice has given. I have, however, come to a different conclusion as to ground 3. As mine is the minority view it can be stated relatively briefly.

3. [144]

   This was a trial in which the testimony of eye witnesses as to the events in Hereford Street on 10 August 2018 was of critical importance. The evidence of those witnesses was, generally, that the deceased was not seen to be carrying a gun. The evidence given by Blake Davis did not contradict the eye witness accounts, since Mr Davis said he had no memory of the events immediately before he struck the fatal blow to the deceased’s head. The evidence was available to the jury as the context in which the applicant’s testimony fell to be assessed. Clearly, the jury did not accept the applicant’s account of the relevant events.

4. [145]

   A summary of the evidence given by those in Hereford Street on this day may be found at [19]–[29] of R v Hannah Quinn [2021] NSWSC 494, the costs judgment already referred to by the Chief Justice. Sarah Baker, who was crossing Hereford Street at the time she made her observations, saw the deceased running down the street being chased by the applicant. She saw him use both hands to pull his hooded top up over his head, very shortly before the applicant caught up to the deceased and pulled him to the ground, having grabbed him as another witness, Kerrie Sparks, said, by the scruff of the neck. Ms Baker did not see anything in the deceased’s hands other than the hood.

5. [146]

   Although there were concessions made by some witnesses in cross-examination as to the possibility of mistake or a limited opportunity to make observations, none of the Hereford Street witnesses saw a gun during the chase, or when the deceased was on the ground. Common sense suggests that an individual familiar with carrying out robberies would be unlikely to run along a well populated public street in hours of daylight brandishing a firearm, even in circumstances of some urgency, particularly when a pocket was available for concealment.

6. [147]

   When the deceased was pulled to the ground by the applicant he was, at least initially, seen to be “on all fours” or on knees and elbows. Rossinni Palmer gave a demonstration to the jury of the deceased’s prone position, and the movement by which he raised himself to his arms and knees – something no description given for the benefit of the trial transcript can ever hope to replicate.

7. [148]

   Some witnesses observed a scuffle or tussle between the deceased and the applicant. On witness accounts, the applicant did not immediately desist from that struggle with the deceased. Frank O’Connor saw the applicant appear to kick out at the deceased and described her shouting at him. That she was willing to physically engage with the deceased at that point suggests that he did not have a gun in his hand, since it is highly unlikely that the applicant would have acted as she did if she saw the deceased holding a firearm.

8. [149]

   That the deceased had a gun in his possession is clear, but its later presence on the street near to where he fell is not evidence that it was formerly in his hand. Had the gun been placed by him in the front pocket of the hooded top he was wearing, that being a ready place in which to quickly conceal a weapon on flight from Mr Davis’ home, it could have easily fallen from his clothing during the events of the following moments. If the applicant had seen a gun, it is unlikely that she would have called out to Mr Davis, “No, don’t”, a cry that seems to have been directed to him and not the deceased; nor would she have remonstrated with Mr Davis after he struck the fatal blow by shouting to him, “what the fuck have you done”. If the deceased had been menacing the applicant with a gun, the applicant would have been grateful for Mr Davis’ intervention in her defence, not prohibiting or querying his conduct.

9. [150]

   Whilst the concessions made in cross-examination concerning the possibility of the deceased having displayed a gun to the applicant are sufficient to raise some doubt, that doubt is resolved when the jury’s advantage in seeing the witnesses give evidence is taken into account: M v The Queen (1994) 181 CLR 487; [1994] HCA 63 at 494.

10. [151]

    Recorded on transcript, the words of a witness are devoid of tone, expression, and nuance. The tone in which the evidence was given and the manner of the witness in giving it is entirely opaque from a written account. A witness may concede something in an earnest and thoughtful way, accepting it as a very real possibility; or with an air of scepticism, all but rejecting it. Although the manner of delivering the statement will define its meaning in such circumstances for those listening to and watching the witness, that meaning is lost to the reader of a transcript. That is one reason why juries are, in our system of criminal justice, of constitutional importance. Although the reference therein is to the Queensland Criminal Code Act 1899, the following statement from The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66] applies:

11. [152]

    In my conclusion, on the whole of the evidence and giving weight to the jury’s singular advantage in having seen the witnesses give that evidence, it was open to the jury to be satisfied of the applicant’s guilt to the criminal standard. The verdict was not in my view unreasonable. I would dismiss ground 3.

12. [153]

    As I am in the minority, there is no utility in considering the remaining grounds.

13. [154]

    SWEENEY J: I have had the considerable benefit of reading the draft judgment of Bell CJ. I gratefully adopt his Honour’s detailed analysis of the evidence in the trial in relation to the grounds of appeal. I agree with his Honour’s disposition of the grounds of appeal, and his reasons for so deciding. Having conducted my own assessment of the evidence in the trial, I am also of the view that the jury’s verdict was unreasonable. I agree with the orders proposed by the Chief Justice.