R v Hannah Quinn (No 2)

On 16 November 2020, Hannah Quinn pleaded not guilty on indictment before me to a charge that on 10 August 2018 she, along with her boyfriend Blake Davis, murdered Jett McKee. The Crown case was that Mr Davis had killed Mr McKee by striking him to the head with a samurai sword. Ms Quinn was charged with having formed a joint criminal enterprise with Mr Davis to murder Mr McKee. She was also charged, and pleaded not guilty to, the alternative charge of being an accessory after the fact to murder. A trial proceeded before me and a jury of twelve.

The Crown case against Ms Quinn closed on Wednesday 9 December 2020. At that time, Mr Tom Hughes of counsel, appearing for Ms Quinn, made an application for a directed verdict of not guilty in relation to the charge of murder against Ms Quinn. That application was successful. [1] On 10 December 2020, I directed the jury to enter a verdict of not guilty for Ms Quinn on the count of murder.

On 22 December 2020, the jury found Mr Davis guilty of manslaughter and Ms Quinn guilty of being an accessory after the fact to manslaughter. At that time Mr Hughes foreshadowed that he would be making an application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) (“the Act”) in relation to the murder charge

A timetable for the filing of submissions was agreed upon between the parties and I subsequently received detailed submissions from both parties. Brief oral submissions were heard on 23 April 2021.

The Act provides for a limited basis upon which costs can be awarded to an accused person who is acquitted of criminal charges. Section 2 of the Act provides the power for the court to make such an order, s 3 sets out the statutory test to be established in order for a costs certificate to be granted and s 4 sets out the effect of a certificate being granted. Sections 2, 3 and 4 of the Act are in these terms:

I will consider the relevant principles concerning the determination of such applications below at [120]-[129]. Suffice to say that I would grant a certificate if I was satisfied that it would not have been reasonable to institute proceedings against Ms Quinn for murder if the prosecution had been in possession of all the “relevant facts” now known.

The “relevant facts” for the purposes of s 3(1)(a) of the Act are, as Ipp JA observed in Chahal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580 at [29], the “facts relevant to the reasonableness of the institution of the criminal proceedings” and include the evidence adduced at trial. I found facts based on the evidence at the trial, consistent with the jury’s verdict, for the purposes of sentencing Mr Davis and Ms Quinn. [2] The evidence at trial against Ms Quinn for murder can be summarised as follows.

It was common ground at the trial that:

The only evidence in the Crown case as to what happened inside the premises was in the Electronic Record of Interview with Suspected Person (“ERISP”) made by Ms Quinn on 14 August 2018. Ms Quinn was arrested and charged on 13 August 2018. She participated in a six-hour ERISP the following day, on 14 August 2018.

The Crown case was that Ms Quinn was lying in her ERISP. Thus, her version of what happened in the premises was disavowed by the Crown Prosecutor. There was no other evidence in the Crown case against Ms Quinn for murder as to what happened in the premises.

Mr Davis did not participate in an ERISP when he was arrested but gave evidence at trial consistent with her version. I had already directed a verdict of acquittal in relation to Ms Quinn before that evidence was given.

Ms Quinn told police that she and Mr Davis had slept late that day. She arose about midday and walked to a nearby café to get breakfast. She is seen on CCTV footage returning home at 12.24pm. As she approached her home, she saw a man outside the premises carrying an ALDI bag who made her feel uncomfortable. The ALDI shopping bag described by Ms Quinn in her ERISP was earlier seen in the possession of Mr McKee in CCTV footage outside Mr O’Connor’s home. Mr McKee left the ALDI bag inside the premises where it was later found by police. It contained cable ties and had a DNA profile matching Mr McKee.

Ms Quinn told police that she entered the premises and gave Mr Davis his breakfast. She began to mention the suspicious man outside whereupon Mr McKee (who was not previously known to her) burst into the premises wearing a balaclava and pointed a pistol at them. The pistol and balaclava were all located near where Mr McKee first fell consistent with Ms Quinn’s version.

Ms Quinn told police that after entering the premises Mr McKee yelled something like “[g]ive me all your fucking money or I’ll kill you”. Mr Davis told him there was no money, Mr McKee then said something like “people know where your fucking family lives, give me all your money or we will kill your family too”. At this time, he had the pistol pointed at Ms Quinn’s head. Mr Davis took a few steps back and Mr McKee moved the pistol from Ms Quinn, banged it with something metallic and then punched Mr Davis to the eye with a set of knuckledusters. These knuckledusters were later found near the area where Mr McKee first fell, consistent with Ms Quinn’s version.

Ms Quinn’s version was supported by other evidence in the Crown case, including evidence from multiple eyewitnesses that Mr Davis’ face was bleeding when he emerged from the premises. He was later found to have an orbital fracture consistent with being struck in that area with a set of knuckledusters.

After Mr Davis was struck and fell to the ground, Mr McKee fled. Ms Quinn chased after him screaming very loudly as she did so. Ms Quinn’s account that she started screaming at Mr McKee and chased after him is consistent with the observations of all of the eyewitnesses.

Although the versions from a number of eyewitnesses as to what happened next differed, there were commonalities. They all described Ms Quinn to be chasing Mr McKee whilst running very fast and yelling loudly words described variously as “[w]ho are you? Who the fuck are you?”, “[w]ho are you, bro?”, “[w]ho the hell are you?” and “[w]hat you think you are?”. Mr Davis was observed to be running after her, bleeding from his face, and carrying either a sword or a stick. It was common ground that Mr Davis was only wearing boxer shorts (consistent with having just woken up).

The Crown case against Ms Quinn for murder relied heavily on the fact that she and Mr Davis ran out together. This was said to be evidence from which it was to be inferred beyond reasonable doubt that she was acting pursuant to a joint criminal enterprise to kill or inflict grievous bodily harm on Mr McKee.

The Crown relied, both at trial and on this costs application, on the evidence of Ms Kerrie Sparks, Ms Sarah Baker and Mr Thomas Scott on this question. Ms Sparks saw Ms Quinn and Mr Davis following the deceased. She described seeing them together, with Ms Quinn in front of Mr Davis. Ms Sarah Baker saw the deceased “raise both of his hands and put his hood up over his head” as he continued to run and then observed to Mr Thomas Scott that the deceased was well ahead of “them”. Mr Scott described a woman running after the deceased and then Mr Davis running after her. He described Mr Davis (the person with the sword) as being a bit slower and “a little bit further behind”.

Other witnesses gave different descriptions. Mr Aaron McCaw saw “a guy run down the street with a woman after him and then another guy behind the woman”. Mr Michael Mullan saw a man running up the road and a woman maybe 5 to 10 metres behind him. He then saw another male carrying a sword behind her. Mr Miller saw the female in front chasing the deceased, then Mr Davis. Mr Palmer only saw Mr McKee and Ms Quinn at first. He did not see Mr Davis until later.

The weight of the evidence (as I found for sentencing purposes) was that Ms Quinn was some short distance ahead of Mr Davis, but they were both running at the same time. The evidence was that she was running very fast and not carrying anything, that Mr Davis was less fit looking and carrying a heavy sword and that Mr Davis had been punched to the eye with knuckledusters prior to running from the premises and was thus injured.

Some of the eyewitnesses described Ms Quinn catching up to the deceased. Ms Sparks, Mr Palmer, Mr McCaw and Mr O'Connor gave evidence of what happened then. Ms Sparks stated, “I just saw her catch up with the first person and caught him by the collar or the scruff of his neck and pull him down”. Mr Palmer saw the deceased and Ms Quinn running and moved to get a better view. When he looked again “[e]verything had stopped” and “she was sort of backing off at this point.”

Mr McCaw described the woman “grab” a hold of the deceased’s hoodie and bring him to the ground. He also described it as a “scuffle” between Ms Quinn and Mr McKee in which they were “constantly moving… never staying still”. He stated, “the guy went down on his knees”. Mr O’Connor described the deceased falling over and then stated that it “looked like” Ms Quinn tried to kick him while he was on the ground, but Mr McKee got up. He also described how Ms Quinn grabbed Mr McKee’s shoulder and it was “like” he tripped over at the same time. He stated: “Hannah was behind, like trying to hold onto him. She was just right behind him… not backing away from him at all, she was trying to fight him. She was screaming at him.” Mr O’Connor then drove away to park in a position where he might more readily collect Mr McKee. This meant that he did not see what happened next, including the fatal blow.

A number of eyewitnesses saw or heard some or all of the fatal sword strike. Mr McCaw described what he saw in this way:

He described the hit as making a "loud clap". He described Mr Davis as "pu[lling] the sword back over his right shoulder", with two hands, then dropping it down.

Mr Palmer stated that “as the girl was backing away” he saw another man (Mr Davis) come from the same direction that the other two had come from and hit the prone man “on the head”. Mr Palmer stated that he (Mr McKee) was on the floor on “all fours” and was getting up off the ground at this point. Mr Palmer physically demonstrated this in court by lying prostrate on the ground and then getting up on his arms and knees.

Mr Bradley Miller also saw the strike. Mr Michael Mullan did not see the sword strike but described hearing a "clap" sound. Ms Kerrie Sparks did not see the strike but did see "a pole or stick” go up in the air. She looked over at the builders and heard them groaning at the time of impact.

At the time of the strike, Ms Charlesworth was upstairs in her home with the French doors open. She heard a woman screaming including the words “no, don’t”. She then heard this “almighty crack”. She described the "crack" as sounding "like a whip cracking. It was very, very loud and very crisp." A few seconds later she heard a sound which was like a body hitting the ground.

After the strike with the samurai sword, Mr Palmer heard Ms Quinn say “what the fuck have you done” before running away with the accused.

The area on the road where Mr McKee was struck is evident from a pool of blood and brain matter found there, as well as the balaclava with the DNA of Mr McKee on it. Despite his fatal head wound, Mr McKee was observed to stagger over to a nearby parked car. As stated above, a pistol and a pair of knuckledusters with Mr McKee’s DNA were found on the roadway near where Mr McKee leaned on the car. He then ran 79.8 metres until he collapsed on Minogue Crescent. The post-mortem report found that the cause of Mr McKee’s death was a sharp force head injury caused by a single slicing/chop wound to the right side of the head extending from the right lateral upper eyebrow to the right occipital aspect measuring 255mm in length and 21mm in width.

It was common ground at the trial that after the blow Mr Davis ran onto a property nearby and stole a car cover from a shed and then wrapped the sword in it and left it in the back yard of his unit. He and Ms Quinn then collected an Uber Eats bag containing two mobile telephones, four sets of metal nunchakus, one set of timber nunchakus, a gold coloured air soft gun in a cardboard box, medication for Mr Davis and $21,380 cash.

It was also common ground at the trial that Mr Davis and Ms Quinn then jumped over a neighbour’s fence and then ran from the scene until they found themselves at a dead end. They left the Uber Eats bag with the cash and weapons in it in the laneway, entered the nearest house illegally, broke out of it and fled. Both Ms Quinn and Mr Davis then spent Friday, Saturday, Sunday and Monday morning booking into various hotels around Sydney and then moving on. Ms Quinn was convicted by the jury of being an accessory after the fact to manslaughter based on these actions. It is not necessary to recount those facts in any detail for the purposes of these reasons.

Ms Quinn described in her ERISP how after Mr McKee punched Mr Davis inside the premises, he then grabbed her handbag. They struggled over the bag, but he grabbed it and fled. Ms Quinn chased him. She described how when she caught up to Mr McKee, she tried to snatch her bag back and he turned around and tried to punch her. She stepped backwards, he lost his footing and he fell to the ground. She then said he “was holding the gun up, up at me and I was just frozen and that’s when… Blake ran up and he hit the guy”. She had thrown this handbag out by the time she was interviewed by police.

No eyewitness saw Mr McKee pointing a gun at Ms Quinn prior to the assault by Mr Davis. Mr O’Connor described him having “something like a small bag” in his hands as he fled the scene and Mr Palmer’s evidence was that was that, when he saw the deceased and Ms Quinn running by, he thought he saw a bag and assumed it had been stolen from her. He also stated that it “sort of just looked to me like a sort of purse”. He described that when Ms Quinn caught up to him he thought that she “grabbed it off him”. Both of these witnesses did not see what the object was but either presumed or thought it was a small bag. The Crown Prosecutor, in his opening address, stated that “she desperately wanted to retrieve what it was that he, the deceased, had taken from the premises”. [3] There was thus some support for Ms Quinn’s version but it was ultimately a matter for the jury. The only support for her version that a gun was pointed at her was that a gun was found on the ground nearby after the strike.

Ms Quinn was not asked one single question in her six hour ERISP to suggest she was a suspect for murder. When the questioning by police finished, Mr Hughes, who was present with Ms MacDougall during the ERISP, pointed this out to police. There was a short break and the following question was finally asked of Ms Quinn:

At the close of the Crown case the high point of the evidence against Ms Quinn for murder was that she was the victim of a violent home invasion because she was known to sell cannabis. She saw her partner violently assaulted after which time she chased after her assailant from the premises unarmed. She yelled at him as she ran. Mr Davis followed not far behind her (depending on which eyewitness version is accepted). Ms Quinn caught up with Mr McKee, and there was some altercation between her and the deceased prior to the fatal blow (again, depending on which eyewitness version is accepted). She was heard to say “no, don’t” just before the fatal blow and “what have you done” after the blow. She then fled the scene with Mr Davis.

The Crown case as to the formation of the joint criminal enterprise relied on inferences to be drawn from the fact that Mr McKee was chased from the premises by both Ms Quinn and Mr Davis. I summarised the Crown case at [94] of my reasons for directing a verdict of not guilty to murder in this matter as follows:

Although the Crown opened on principles of extended joint criminal enterprise, that case shifted in the course of submissions on the no case application to one of straightforward joint criminal enterprise. [4] As I observed in my reasons at [110], it seems to me that the Crown most likely opened on principles of extended joint criminal enterprise in order to overcome from the outset the Crown witnesses who did not support the Crown case theory that there had been an agreement between the two accused to kill or inflict grievous bodily harm on the deceased. This included the evidence that Ms Quinn was heard to call out “No, don’t” just before the fatal strike and “what have you done” immediately afterwards. Structuring a Crown case in order to get around evidence unfavourable to the Crown case is often unwise and this a good example of that. I repeat my conclusion at [112] of that decision:

I do not consider it necessary to repeat all of the findings I made in that judgment. Contrary to the submission by the Crown on this application, those findings are nonetheless highly relevant to this application.

I note for completeness that after Ms Quinn was acquitted of murder the question arose as to what the jury was to be told about the fact that the Crown opened on a significant witness who was not called at trial. After a number of proposed directions were considered, the ultimate position of counsel for both accused was that it would be less prejudicial to say nothing at all and I acceded to that application.

As will be seen below, the Crown resisted this application on three bases:

I shall consider these arguments below in my consideration but the first two of them require an assessment of matters pertaining to the relevant facts. The first of these arguments concerns a Crown witness who was ultimately not called by the Crown and the second concerns my pre-trial rulings. It is necessary to consider all of that factual background in order to determine this first two arguments raised by the DPP.

As at 10 August 2018, PHS resided in a fourth-floor unit next door to 87A Hereford Street and could see into Mr Davis’ flat from her balcony. She was at home at the time of the home invasion by Mr McKee. It is common ground that she did not and in fact could not have seen anything that happened on Hereford Street. She was, however, in a position to see what happened shortly before and afterwards.

PHS was spoken to by police at the scene. I was not provided with the notes made by the police officer at that time. She was then transported to Glebe Police Station to make a statement. Her first statement was made on 10 August 2018 in which she relevantly stated the following:

On 11 August 2018, PHS made a second statement in which she stated, relevantly, the following:

Both of these statements were served as part of the Crown brief. They were consistent with the version of Ms Quinn and Mr Davis that Mr McKee assaulted Mr Davis during the home invasion. Thus, the evidence of PHS was exculpatory of both Ms Quinn and Mr Davis. Despite this, there were aspects of it which were confusing.

Unsurprisingly, given the confused status of this evidence, the solicitor for Mr Davis made an application under s 82 of the Criminal Procedure Act 1986 (NSW) that PHS be cross-examined at the committal proceedings. In her written submissions in support of that application she submitted the following:

It is to be noted that Mr Davis’ solicitor squarely raised the fact that there was no evidence that PHS had any “mental obscurity”. She was not provided with any material to the contrary.

What was not disclosed to the defence at that time was that the Crown Prosecutor, (Mr Taylor) and a DPP solicitor (who was not the DPP solicitor at trial) conducted a lengthy conference with the witness on 29 May 2019. There is a dispute as to how long that took. The DPP suggests it took one and a half hours whereas the witness states it went for four hours. I am content to proceed on the basis that it took at least one and a half hours but that that time felt like four hours to the witness.

The conference notes (which were not provided until during the trial on 25 November 2020) are lengthy and I do not propose to extract them in full. Present at the conference were Mr Taylor, Mr Ly and PHS. Relevantly, it was explained to PHS that she might have to give evidence twice (once at the committal and again at trial). The witness stated that the legal process had had a “bad impact” on her. This included in the form of trauma, costs, and being filmed by the media without her permission. Despite this, the notes reflect that she stated that if she had to give evidence twice she would.

The notes record Mr Taylor then saying to PHS:

The notes then detail questions and answers given by the witness. There is nothing in the notes to suggest any leading questions. The version she then gave following questioning by counsel is consistent with her third statement which I will summarise below. It included an assertion for the first time that both men had beards.

After this conference the witness was referred to investigating police to make a third statement. In that third statement, made on 29 May 2019, PHS stated the following:

On the same date that the third statement was made the DPP filed submissions opposing the s 82 application. In submissions prepared by Mr Taylor (the same Crown Prosecutor who appeared at the trial in this matter and who conferenced PHS) it was submitted that reliability and credibility of witnesses was an issue for the jury, and for the purposes of assessing probative value the Crown case had to be taken at its highest. In relation to the witness PHS, the Crown opposed the s 82 application in this way:

The DPP resisted PHS being called at committal by serving this third statement. Ms Quinn was committed for trial on 21 November 2019 and on 6 December 2019 the matter was listed for trial in the Supreme Court that was due to commence on 9 November 2020.

On 26 October 2020, the Crown case statement was filed. The proposed evidence of PHS was summarised in it. Relevantly, the Crown case as to her observations of what happened in the flat during the robbery was summarised in this way:

I propose to recount what happened next chronologically, although neither defence counsel nor I became aware of most of it until 25 November 2020.

Sometime in early September 2020, PHS was subpoenaed to give evidence at the pending trial.

On 8 September 2020, a solicitor engaged by PHS contacted the new trial solicitor for the DPP attaching an email from PHS’ mother outlining her concerns for her daughter’s mental health should she be called to give evidence at trial.

On 21 September 2020, the DPP solicitor emailed a reply and acknowledged PHS mother’s concern for her daughter. She advised the she had been referred to the DPP’s witness assistance service. There are email exchanges between the witness assistance officer and PHS’ mother indicating ongoing contact.

In an email on 2 November 2020, the DPP solicitor advised PHS’ solicitor that PHS’ concerns would be discussed in a meeting with the Crown Prosecutor that day. A conference was conducted remotely with the same Crown Prosecutor and a new DPP solicitor. Present at the conference were PHS’ mother and the DPP witness assistance officer. The conference notes reveal the following about that conference (I have summarised some portions and extracted others):

I pause here to note that the witness directly accused Mr Taylor of making her change her statement. Although no doubt Mr Taylor denies this, it was a serious allegation and an important matter that raised the question of whether Mr Taylor could even appear at a trial in which PHS was called as a witness. The notes go on as follows:

Thus, as at 2 November 2020 the DPP was aware that the witness was unlikely to be able to give evidence, had developed PTSD as a result of the questioning of her by Mr Taylor and police on 26 May 2020, had tried to kill herself as a result of being questioned that day, had alleged Mr Taylor made her change her evidence and been told by Mr Taylor that she was under subpoena so it was out of his hands. That was not correct. The decision as to whether to call witnesses is one entirely for the Crown consistent with the DPP Guidelines. Guideline 2.3 of the DPP Guidelines provides:

Despite all of those significant difficulties, nothing was disclosed to the defence about this conference.

On 3 November 2020, PHS’ solicitor advised that she was no longer acting for her.

The trial was due to start on 9 November 2020. Prior to the commencement of the trial I was advised that I would be asked to make a number of evidentiary rulings. I listed those to be heard on 4 November 2020. On that day Mr Davis, through Ms Cunneen SC gave notice that he would be relying upon a defence of automatism. The Crown Prosecutor indicated that he would not be able to meet the expert evidence on automatism in time for the trial to commence. I stood the matter over until 9 November 2020 for an update.

On 9 November 2020 Ms Cunneen SC informed the court that a defence of automatism would not be pressed. I then turned to hear submissions on the numerous pre-trial objections on 9-11 November 2020.

On 10 November 2020, during the pre-trial submissions, my chambers were sent two emails by PHS’ mother concerning the proposed evidence of PHS.

The first email attached a medical certificate dated 4 November 2020 from PHS’ acting psychiatrist, Dr Mosadek Miah. He stated that he last reviewed PHS on 20 July 2020. Dr Miah provided details of PHS’ mental health history and mental health issues for which she was receiving treatment and stated that she reported distressing post-traumatic symptoms in 2019 with respect to her witnessing the alleged murder. He stated that it “might be detrimental to her mental stability to expose her to re-traumatisation in an uncontrolled way such that might occur in a murder trial”. Dr Miah requested that the Court consider exempting PHS from giving evidence at trial or otherwise minimising her re-exposure to traumatic events.

A second email attached a letter dated 4 November 2020 from PHS’ psychologist, Ms Diana Sales. Ms Sales stated that she had been seeing PHS weekly since February 2020 and provided details of her complex mental health issues. Her main stressors at the time she commenced therapy were anxiety and severe trauma exacerbated by her witnessing the alleged murder in 2018. Ms Sales detailed how that event impacted on PHS’ physical and mental well-being, her everyday functioning including her inability to be in crowded spaces. PHS had to move from the place she had lived at for six years and could not continue to work in the field she was working in before the event.

Ms Sales stated that each time PHS was required to go through her statement with the DPP she would disassociate, both in depersonalisation (feeling disconnected from her body) and derealisation (disconnected from the world around) and that she needed assistance from the DPP to mentally prepare for court.

I provided these letters to the Crown in open Court on 10 November 2020 for general distribution. In the absence of any indication to the contrary from the Bar table, I proceeded on the basis that this was material already known to the parties. It was the first time I became aware of PHS’ mental condition.

A third email was sent from PHS’ mother that day copying in the DPP solicitor. The DPP solicitor’s recommendation was that PHS obtain independent legal advice using the Duty Barrister scheme.

On 13 November 2020, I delivered my evidentiary rulings and reasons: R v Davis and Quinn (No 1) [2020] NSWSC 1615. None of the pre-trial rulings concerned the evidence of PHS but I summarised her evidence as part of the background to the Crown case at [17]-[18] of my judgment consistent with what was in the Crown case statement. At that time, I was unaware of any of the matters I have summarised above at [61]. I observed the following at [63]:

I later observed the following at [225]:

The jury was empanelled on 16 November 2020. Prior to the Crown opening address on 16 November 2020, Ms Cunneen SC, for Mr Davis, raised the question of what Mr Crown would be putting to the jury in relation to the anticipated evidence of PHS. The transcript records that she placed the following on the record:

This was the first time I became aware that PHS had made three statements. The Crown Prosecutor responded as follows:

Further submissions were made on this question and Mr Crown indicated that he understood the basis of the objection. When the Crown subsequently opened to the jury, he described the evidence of PHS as follows:

Thus, at the time the Crown Prosecutor opened to the jury and chose (over objection) to open only on the third version given by the witness, he was aware that the witness was mentally ill, that she had made a serious allegation against him, and that it was highly unlikely that she would be able to give evidence at the trial. He also opened that the “first man” was the deceased even though in her first two statements that person could only be Mr Davis.

As for the Crown case against Ms Quinn specifically, the Crown opened in reliance upon principles of extended joint criminal enterprise as follows:

On 11 November 2020, the solicitor for Mr Davis sought short service of a subpoena on PHS’ psychiatrist Dr Mosadek Miah. It was later revealed that although Mr Davis’ solicitor was aware of his report following the emails sent to me, a copy of the report from Ms Sales was inadvertently not obtained by her at that time.

On 18 November 2020, the Crown Prosecutor made an application that PHS (along with three other witnesses, one of whom had PTSD as a result of witnessing the killing on 10 August 2018) give evidence by way of AVL. The affidavit in support of that application annexed, inter alia, the documents that had been forwarded directly to me prior to the trial commencing. The application was not opposed.

On 19 November 2020, the solicitor for Mr Davis sought short service of three subpoenas pertaining to PHS. Those subpoenas were as follows:

Ms Sales appeared by AVL on 23 November 2020 and objected to producing the documents sought on the basis that the documents recorded protected confidences unrelated to the trial: s 298 of the Criminal Procedure Act. She ultimately agreed to produce edited notes that deleted references to other personal issues of the witness not relevant to the trial. Those notes revealed:

As for the subpoena served on the DPP (seeking, inter alia, all the conference notes), Ms Cunneen SC called on it in Court on 23 November 2020. The Crown Prosecutor’s response was as follows:

At that time, there had been no disclosure of any conference notes with PHS. Given that PHS had developed PTSD after a lengthy conference with the DPP, this statement by the Crown was surprising to say the least. Ms Cunneen SC queried it and the following exchange took place:

The Crown Prosecutor was aware there were documents caught by the subpoena and did not produce them to the Court. It was only after further interrogation that the Crown admitted that there was additional material but the Director claimed client legal privilege over them. The Crown Prosecutor misled the Court by stating that there were no documents caught by the subpoena to produce. That is very troubling. I will proceed, however, on the basis that this was the result of ignorance on the part of the Crown Prosecutor of relevant subpoena law and practice rather than a deliberate attempt to mislead the Court.

On 25 November 2020, the solicitor for Mr Davis sought short service of another subpoena pertaining to PHS to the Director of Public Prosecutions.

The following day separate counsel from the DPP appeared in response to the subpoena. She objected to production of the conference notes on alternate bases: first, that no legitimate forensic purpose for their production could be established and, failing that, client legal privilege was relied on. She produced the documents caught by the subpoena and requested that I read them. I retired to chambers and did so. The documents were clearly relevant as they pertained to different versions given by a Crown witness and an explanation as to why PHS changed her evidence.

When I returned to Court, I indicated that I was satisfied that there was a legitimate forensic purpose to the documents and the real question was whether there had been a waiver of privilege. I noted in that respect that the Crown had opened on the evidence of PHS and the fact that she had made different versions and that my preliminary view was that any privilege had been waived on that basis. I afforded counsel for the Crown on the subpoena the opportunity to obtain instructions on that issue.

The following day the DPP produced all of the documents covered by the subpoena except for the conference notes of a conference held at the DPP between the witness, the previous solicitor and the current Crown on 29 May 2019. After a further exchange the DPP finally ceased resisting production of those file notes and they were produced as well.

Unsurprisingly, following the disclosure of all of this material, Senior Counsel for Mr Davis and counsel for Ms Quinn indicated that they sought a Basha inquiry (R v Basha (1989) 39 A Crim R 337) as to the circumstances of the making of the third statement by PHS. Ms Cunneen SC noted that, given the allegation by PHS that Mr Taylor had forced her to change her statement, he clearly could not appear for the Crown in that inquiry. Mr Hughes submitted that a further question arose as to whether Mr Taylor could continue to represent the Crown for the rest of the trial if any of PHS’ evidence suggested adverse findings as to his involvement in changes to her evidence.

After obtaining instructions as to whether he could appear in a Basha inquiry for a witness who had alleged he had made her change her evidence, Mr Taylor placed on the record that he had instructions to appear and saw no conflict in such an approach. He went on to state:

On 27 November 2020, the Crown Prosecutor provided an “Outline of Proposed Agreed Facts”. It was subsequently agreed that PHS would give evidence on a Basha inquiry on Tuesday 1 December 2020 as to the circumstances of the making of her third statement.

On Monday 30 November 2020, a juror was sick and the trial was unable to proceed. I requested that counsel make use of this court time by raising any outstanding matters. One matter I raised with counsel was whether any thought had been given to what would happen in the event that PHS could not give any evidence at all at the Basha inquiry (that is, she disassociated due to her PTSD and associated mental health issues) or she made an allegation that Mr Taylor had forced her to change her evidence. Ms Cunneen SC raised the prospect of PHS requiring a certificate under s 128 of the Evidence Act 1995 (NSW), given the suggestion that she had changed her statement in order to avoid giving evidence, as she may have committed a public justice offence such as perverting the course of justice in doing so. [6]

Counsel agreed that two things could happen the following day: either PHS would be able to give evidence in which case all three versions would be adduced; or a decision would be made by the DPP that she would not be called. A third option was that some form of agreed facts could be before the jury (given that the Crown had opened on the proposed evidence of PHS). [7]

I inquired of the Crown as to what he proposed to do if the witness disassociated in the witness box and he replied that he would make applications under ss 32 and then 38 of the Evidence Act to get her evidence before the Court. [8] I inquired of the Crown what the Crown case was in relation to the first statement of PHS dated 10 August 2018; in particular as to who the man pushed out of the house wearing boxer shorts and a white bed sheet was. The Crown Prosecutor responded: [9]

When I pressed the Crown Prosecutor as to what the Crown case was as to the evidence of PHS in her first statement he replied: [10]

I then reminded the Crown Prosecutor that he had filed submissions in the Local Court opposing a s 82 application on the basis that there was no ambiguity in the evidence of PHS. I asked him what his position about her first statement had been at that time to which the Crown replied:

As the transcript reveals, the Crown was unable to put to the Court his position as to what the Crown case was in relation to the first statement of PHS. Instead, he proceeded to make submissions about what should be included in the agreed facts should PHS not be able to give evidence (MFI 41). The nub of his position was that her three statements could be extracted and then it would be a matter for the jury to work out what she was saying (despite the fact that she had not been cross-examined on them at the committal proceedings). [11]

I then inquired of the Crown Prosecutor whether there was anything in the first two statements of PHS which assisted the Crown case in relation to an extended joint criminal enterprise between the two accused, that being the case against Ms Quinn for murder. He replied: [12]

I then suggested to Mr Crown that his submission that PHS did not have the “capacity” to recall certain matters in her first two statements (but did in her third) was inconsistent with the evidence of Dr Miah and Ms Sales as to the mental health history of PHS. [13]

The Crown then indicated that the notes of the first DPP solicitor would be tendered on the Basha and Constable Luke Jansen, who took the third statement, could be called as well. He then went on to explain what the purpose of the conference was on 29 May 2019 and the circumstances of the taking of the third statement. [14] I then stated:

I asked the Crown whether he accepted that portions of PHS’ third statement are very different to the first two. He responded:

This was inconsistent with what he told PHS in conference on 2 November 2020. The notes record he told her he had no discretion as she was under subpoena. The Crown Prosecutor continued to make submissions as to what could be included in agreed facts about PHS’ evidence. [15] During those submissions the Crown conceded that the evidence of PHS was unreliable. [16] He also referred to that portion of the third statement of PHS when she referred to Ms Quinn “leaning back into the house” and the following exchange took place. [17]

Thus, the Crown position was there was a case against Ms Quinn without the evidence of PHS. The Crown Prosecutor went on to explain how the Crown case against Ms Quinn for murder could be sustained without the evidence of PHS based on inferences arising, inter alia, from the fact that Mr McKee ran from the premises. [18]

I then inquired of defence counsel what the position was if PHS was not called by the Crown. [19] Ms Cunneen SC responded that it may be that none was required, but she placed on the record her concerns that the third statement was obtained to defeat the s 82 application and that that statement also changed the Crown case. [20] I then indicated this to the parties: [21]

The transcript then records the following exchange: [22]

Later on 30 November 2020, after the luncheon adjournment, the Crown indicated the following:

In circumstances where the Crown ultimately decided not to call PHS and she was still, at that time “available” no application under s 65(2) of the Evidence Act was made, nor could it have been. There was no legal basis for the Crown to rely on “Agreed Facts” other than by consent. No consent was forthcoming.

The second argument relied upon by the Crown to oppose this costs application was that the Crown could not have anticipated that I would exclude so much of the Crown case. As stated above, I delivered my evidentiary rulings and reasons on 13 November 2020. [23] The Crown relies upon the fact of these evidentiary exclusions in support of the contention that a costs certificate should not be granted in this case. It is thus necessary to briefly note the evidence that was admitted and excluded at that time.

Mr Hughes relied upon my observations prior to the trial (extracted above at [74]-[75]) and in the judgment directing a verdict of not guilty. [24]

Further reliance was placed on the fact that two applications for no further proceedings were made and rejected by the DPP: on 14 November 2020 (following the observations I made in my first judgment) and on 26 November 2020.

Mr Hughes submitted that I would note in any certificate an estimation that 90% of the costs was attributable to the murder charge.

As stated above, the Crown opposed the application on three grounds.

The first was that the fact that PHS became unwell rendered it less likely that s 3 of the Act could be answered affirmatively given the relevant principles concerning credibility. It was submitted that the Crown’s inability to rely upon PHS ought not to unfavourably “feed into” the s 3 inquiry. In support of that submission the Crown relied upon some 21 factors. I have extracted the following from the Crown’s written submissions

The second submission was that the Crown could not have anticipated the exclusion of evidence prior to the trial which precluded the Crown from relying upon retribution as a motive. [25]

The third submission was to rely on a summary of all of the evidence of all the Crown witnesses I have already summarised above at [17]-[32] to support a submission that the case was a circumstantial one and one of competing inferences which were matters for the jury. It was submitted that even without PHS it was not unreasonable to commence these proceedings. The effect of these submissions was to challenge the finding I made at the close of the Crown case.

I will consider these arguments below.

There was no dispute between Mr Hughes and the Crown as to the relevant principles. They are well established. I have previously considered them in R v Loeung (No 2) [2019] NSWSC 1691 and R v Hawat (No 6) [2020] NSWSC 532.

I do not understand there to be any suggestion that any act or omission of Ms Quinn contributed, or might have contributed, to the institution or continuation of the prosecution: s 3(1)(b) of the Act. The only submission on this issue was in the Crown written submissions at [42]:

I propose to proceed on the basis that no act or omission is in fact relied upon by the Crown for the purposes of s 3(1)(b) of the Act.

In R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997) the Court observed that the question is to be determined in this way:

The Court’s enquiry was described by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] in this way:

As to what is meant by “relevant facts”, in Chahal v DPP Ipp JA (Giles JA agreeing) observed at [29]:

Further, in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 (“Mordaunt”), McColl JA (Beazley and Hodgson JJA agreeing) noted the following on the question of “relevant facts” at [36(f)]:

As to what is meant by not being “reasonable”, Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], that the test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious (citing Regina v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [10] per Wood CJ at CL). Similarly, as Hamill J observed in R v Moore [2015] NSWSC 1263 at [6(6)]:

It is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. The Crown relied upon the observation of McColl JA where her Honour stated the following in Mordaunt at [36(m)]:

As for the relevance of evidence being excluded by a trial judge such that the prosecution is left with little or no case, Hamill J observed the following in R v Moore at [28]-[29]:

I have had regard to all of these principles.

I have already made an evaluation of all of the evidence as it emerged at trial and assumed that all that evidence was available to the prosecution before the proceedings were instituted. The relevant facts are those relevant to the reasonableness of the decision to prosecute. They include all of the matters I have already referred to including the evidence led at trial and the conduct of the trial. That leaves the determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings.

I accept that the test for reasonableness is not the same as sufficiency of evidence. The mere fact that I ordered a verdict by direction is not determinative. I have also had regard to the fact that I am not being asked to award costs against the Crown; I am simply considering whether a certificate should be granted. [26]

I expressed concern prior to the commencement of the trial that the Crown could not establish a case for murder against Ms Quinn at [225] of R v Davis and Quinn (No 1). That concern was cemented at the close of the Crown case. I also had the opportunity to observe the manner in which the trial against Ms Quinn was conducted, the exercise of the prosecutorial discretion before and during the trial and the approach taken by the Crown Prosecutor to the formulation of a Crown case theory that sought to get around facts in the Crown case that were inconsistent with the guilt of Ms Quinn for murder. I have also had regard to the approach taken the Crown Prosecutor to the evidence of PHS and the significant reliance in the Crown Case Statement and opening address on her evidence to implicate Ms Quinn in the extended joint criminal enterprise. All of these matters are relevant to the question of reasonableness for the purposes of the statutory test.

Turning to the first of the three arguments relied upon by the Crown in opposition to the application. I do not accept that the fact that PHS was too unwell to give evidence is a matter militating against a finding of unreasonableness (for the purposes of s 3(1)(a)) in this matter. She was in that state prior to the commencement of the trial. I have set out the troubled history of her evidence above because the Crown sought to rely upon it as a matter that would persuade the Court against the making of the order. Some of it bears repetition.

I am tolerably satisfied that the early statements of PHS were exculpatory of the accused but were also the product of conflation of a number of events caused by her underlying mental condition. The witness first described Ms Quinn being pushed out of the house with a man with no shirt on who was wearing boxers and had a white bedsheet around him. Mr Davis was shirtless and was later seen running back to his premises carrying a car cover with similar dimensions to a sheet. The witness clearly described Mr Davis as the victim but conflated the times she saw him leaving the premises with the time she later saw him running back to the premises with the car cover.

PHS then described how “another guy came out and was hitting the shirtless man with something which may have been a lamp”. In the context of the first statement taken as a whole, this second man could only have been Mr McKee and is consistent with the defence case that Mr McKee was the aggressor inside the premises.

In her second statement she described both men as shirtless in circumstances where although Mr Davis was shirtless, the deceased was wearing dark pants, a dark hoodie, black gloves and, at one stage, a balaclava.

Despite the obvious need for the evidence of PHS to be clarified at committal proceedings, the Crown opposed the application to do so and instead conducted a lengthy conference with her which resulted in the making of her third statement. The witness now states that she was forced to change her statement by the Crown Prosecutor so that she would not have to give evidence. I do not propose to make any finding on this issue. As I indicated to counsel at the time, it is sufficient if I proceed on the basis that that is how the witness felt rather than that that is what actually happened. As a matter of procedural fairness, it would unfair to the Crown Prosecutor if I was to find otherwise nor is there any need to make an express finding for the purpose of this application.

A further difficulty is that even after her third statement, the evidence of PHS was still unreliable and internally inconsistent on its face. Had there been no opposition to PHS giving evidence at the committal that could have been clarified. Regrettably that did not happen.

Despite all of this, the Crown opened on a favourable interpretation of the last, non-contemporaneous version given by PHS. He did not, even in the face of objection by Ms Cunneen SC, refer in terms to her earlier exculpatory versions. Nor did he suggest the possibility that the assailant that he believed was Mr Davis could have been Mr McKee. Further, he failed to make any mention of the serious pre-existing mental illness from which PHS suffered. Nor did he explain that the version he opened on was not a recent one and that the versions he did not rely upon were in fact made on the day of and the day after the relevant events. Significantly, he opened in this way knowing that the week before the witness had squarely put to him “you made me change my freakin statement”.

It does not appear that the Crown ever ascertained the position of the defence in the event that PHS was not called. When I first raised that issue in Court on 30 November 2020 (as extracted above at [109]]) counsel for both accused indicated that she was not required. As for the suggested reliance upon agreed facts, the problems with the evidence of PHS meant that there could never have been any agreed facts unless they fully set out all of the history including the role of the DPP in the change of her evidence, which was opposed and would have aborted the trial in any event.

It is against this factual background that the Crown relied upon the principles derived from cases such as Mordaunt in support of the proposition that where the Crown case relies upon issues of credibility, costs will not usually be awarded. That is not this case, as the above narrative makes clear. The “relevant facts” as they pertain to the witness PHS militate in favour of a finding of unreasonableness rather than against such a finding.

Turning to the second argument relied upon by the Crown, I do not accept that the Crown case was significantly weakened by the rulings I made on 13 November 2020. In particular, I do not accept the Crown submission that these rulings prevented the Crown from putting “retribution” as a motive for the murder. I have summarised the relevant rulings above at [111]. I admitted (over objection) evidence that the two accused were dealing in cannabis, that drugs and money were found at the premises and the evidence of Mr O’Connor. I subsequently ruled that Mr O’Connor could give evidence, inter alia, that his dealings with Ms Quinn and Mr Davis were in large amounts on more than one occasion and that Ms Quinn and Mr Davis’ drug business started small “and they got big quickly”.

The evidence I excluded was pressed by the Crown to show the extent of the drug dealing of Ms Quinn and Mr Davis. It included some indicia of minor cannabis supply at Ms Quinn’s home (premises which were not the subject of the home invasion), photos of marijuana and references to “marijuana” in the Cellebrite downloads from the two phones found in the Uber Eats bag, admissions to drug dealing in general terms in the SDs placed in the home of Mr Davis and Ms Quinn whilst they were on bail, evidence of ongoing cannabis use whilst on bail and the evidence of Detective Wakeham. It is to be noted that I also excluded evidence of the good character of the deceased because the Crown submitted it was relevant for “balance”.

This was a murder trial. It was not a trial concerned with the extent of drug dealing by Ms Quinn and Mr Davis. Despite this the Crown sought to run the trial in that way, which would have had the effect that significant amounts of prejudicial material would be before the Court, far removed from the circumstances of the death of Mr McKee. I summarised the Crown case theory put to me in pre-trial submissions at [55] of R v Davis and Quinn (No 1) as follows:

The “Crown case theory” that the two accused agreed to either kill or inflict grievous bodily harm on Mr McKee on an inner city street full of onlookers in broad daylight in order to send a message to anyone else who tried to rob their drug empire was fanciful to say the least. I am not only not satisfied that the Crown case was weakened by my rulings; to the extent that it is relevant to decide, I am also satisfied that it was a significant overreach on the part of the Crown to run the case in that way in the first place.

As Hamill J observed R v Moore at [28], although it is to be accepted that the hypothetical prosecutor is not to be attributed with the ability to predict what factual findings will be made nor how the trial judge’s discretion will be exercised, there may still be cases where the hypothetical prosecutor ought not to have attempted to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Act. This is such a case.

The third submission opposing this application was a repeat of the submissions made on the no case application as to the strength of the Crown case against Ms Quinn, contrary to my findings in R v Davis and Quinn (No 4). I adhere to the findings I made therein.

The power to award costs is a discretionary one. The Crown submitted that a factor militating against me exercising my discretion to grant a certificate is the fact that a trial would have had to be conducted against Ms Quinn for being an accessory after the fact in any event. I have had regard to that submission but I am not satisfied that my discretion should be exercised in that way given the “relevant facts” I have found in this matter.

It seems to me that another relevant factor in this matter is that there was nothing put to Ms Quinn in her lengthy ERISP to suggest she had agreed to murder Mr McKee. There was insufficient evidence on 14 August 2018 when Ms Quinn gave her ERISP to charge with murder and the situation did not change at any later time.

The Crown’s position from the outset of the trial is that it did not accept anything Ms Quinn stated in her ERISP. The jury verdict reflects that her explanation for fleeing was not accepted. There were other aspects of her ERISP which I found to be somewhat disingenuous. But there were many aspects of it which were supported by other evidence, as I found for the purposes of sentencing her. In addition, the first statements of PHS were supportive of Ms Quinn’s version of Mr Davis being assaulted by Mr McKee.

The Crown Prosecutor was reluctant to accept any aspect of Ms Quinn’s account. This can be demonstrated by the following example.

The Crown Case Statement filed on 26 October 2020 stated the following:

During pre-trial argument the Crown Prosecutor sought to distance himself from this (it was consistent with what Ms Quinn had told police in her ERISP). The following exchange then took place:

The Crown case statement is an important document and is a requirement under s 141 of the Criminal Procedure Act. Judges will often be required to make pre-trial rulings based on such a document having not heard the relevant evidence at trial as yet. I was required to do so in the present case. It is the role of counsel appearing for the Crown to draft or at least settle such a document carefully. In the present matter, the Crown Case statement was filed only two weeks before the trial and at least some 18 months prior to the Crown Prosecutor’s first involvement in the matter. I am unable to accept that the Crown Prosecutor was not aware of its contents. To suggest that I could not ask him questions about it reflects a misunderstanding as to the significance of the document as part of the pre-trial process.

People act under pressure in different ways. When confronted with the violent acts of Mr McKee, Ms Quinn’s “fight or flight” instinct appears to have been triggered. She ran after Mr McKee. Had she not done so the day would have ended very differently for her, Mr McKee and Mr Davis. But the fact that she ran rather than staying with Mr Davis could never make her a murderer on the relevant facts available to the Crown.

To conclude, I am comfortably satisfied that if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings.

Although Ms Quinn was ultimately legally aided, a grant of Legal Aid is no impediment to an application for costs. [27]

As for the question of whether I can apportion costs, I do not accept the Crown submission that I am unable to do so. Section 4(2) of the Act provides that the amount of the costs is a matter for the Director-General. But there is nothing in the Act which would preclude me from indicating on the certificate that, of the amount as assessed by the Director-General, a particular percentage of the costs incurred was attributable to the murder prosecution. This Court is often required to make such estimates and it is well settled that an impressionistic approach is to be taken. If I chose not to do so, a costs assessor would be required to go through the transcript to arrive at such a percentage. I consider it appropriate that I do so instead, given my knowledge of the relevant issues.

Counsel for Ms Quinn submitted that Ms Quinn should be granted a certificate for 90% of her costs. This was calculated on the basis of 32 hearing days in the Supreme Court (of which two were pre-trial hearing days and 30 were trial days).

It was further noted that Ms Quinn had two privately funded attendances at Newtown Police Station and Newtown Local Court on 14 and 15 August 2018 respectively in relation to her ERISP and bail application. Ms Quinn’s solicitor then carried out pro bono work between her grant of bail and her grant of Legal Aid. Ms Quinn’s preparation for trial, pre-trial hearings and appearances at trial were funded by the Legal Aid Commission.

It was submitted that, had the Crown accepted Mr Davis’ plea of guilty to manslaughter, Ms Quinn’s trial for accessory after the fact to manslaughter could have been completed in no more than three days. This was calculated on the basis that a separate trial, covering only the events after the sword strike, would have been confined to the following evidence:

I have carefully considered these submissions. It is to be accepted that had the DPP accepted Mr Davis’ offer to plead guilty to manslaughter then Ms Quinn’s trial could have been short and would have largely turned on whether a jury accepted her explanation for remaining with Mr Davis until they both handed themselves into police. It seems to me that this was a joint trial and many of the forensic decisions appear to have been made jointly. Accordingly, I am satisfied that I am able to take this factor into account.

I am unable to accept the submission made on behalf of Ms Quinn that 90% of the costs are attributable to defending the murder charge but I am satisfied that had she not been charged with murder her legal costs would have been significantly reduced.

After an impressionistic analysis of all of this material I would indicate that 70% of the legal costs incurred by Ms Quinn was attributable to her being charged with murder.

Accordingly,