R v Davis and Quinn

Supreme Court of NSW|2020-12-04|Before: Adams J

Solicitors: Solicitor for Public Prosecutions (Crown) Bannisters Lawyers (Accused Davis) Korn MacDougall Legal (Accused Quinn) File Number(s): 2018/249752; 2018/248991

Background

Blake Davis and Hannah Quinn are currently standing trial for the murder of Jett McKee. There is no dispute that Mr Davis struck Mr McKee to the head with a samurai sword causing his death. Mr Davis raises self-defence, excessive self-defence and extreme provocation in his trial. The Crown case is that Ms Quinn is also guilty of murder on principles of extended joint criminal enterprise. Ms Quinn is further charged, in the alternative, with being an accessory after the fact to murder.

The listening device evidence generally

The accused Mr Davis and Ms Quinn were both arrested and charged with murder on 13 August 2018. The accused Ms Quinn was released on bail on 16 August 2018 and the accused Mr Davis was released on bail on 27 November 2018. It is to be inferred that either at the time, or sometime after Mr Davis' release on bail, both accused came to be bailed to reside together at the premises of the accused Mr Davis' mother, Kim Davis.
Police sought and were granted warrants under the Surveillance Device Act 2007 (NSW) to place surveillance devices at the premises of Ms Davis. There was no agreement as to how long those LDs were in place and the Crown did not adduce any evidence on this issue.
At a pre-trial directions hearing on 12 October 2020, the Crown Prosecutor submitted that the listening devices were deployed for a period of eight months only. It was submitted that there were about 20-30 days during that eight month period where there was some discussion of the case. Ms Cunneen SC, on the other hand, submitted that the listening devices were deployed for a period in excess of 12 months (from 30 August 2019 to September 2020).
The 20 recordings in MFI 46 were recorded between 30 August 2019 and 9 June 2020. The content of these recordings fall into the following categories: 1. Recordings of domestic disputes between the two accused in which accusations are flung at each other; 2. Recordings of conversations in which one or both of the accused discuss legal advice they have received and how they intend to approach their defence at trial; 3. Recordings in which either Mr Davis and Ms Quinn or Mr Davis and Ms Davis or Ms Quinn and Ms Davis discuss their proposed defence with Ms Davis in which Ms Davis provides her advice and opinions about their defence at trial; and 4. Recordings of conversations either on or around occasions in which Mr Davis made attempts on his own life.
The objections to the recordings were based on relevance, traversal of my earlier ruling, unfairness caused by the mental state of Mr Davis at the time of some of the recordings and unfairness caused by the fact that the LDs were installed at a time shortly after the accused were ordered to participate in the EAGP scheme.

The EAGP Scheme

Part 2, Division 5 of the Criminal Procedure Act 1986 (NSW) provides for compulsory case conferencing as part of committal proceedings in the Local Court.
Section 70(1) provides that a case conference is to be held in accordance with this Division and s 70(2) provides that the principal objective of the case conference is to determine whether there are any offences to which the accused person is willing to plead guilty. Under s 72, the legal representative of an accused is required to obtain the accused person's instructions concerning the matters to be dealt with in the case conference before participating in the case conference and must explain the effect of the scheme. Under s 74(1), the Magistrate is to make an order setting the day on or before which the case conference certificate is to be filed.
Section 75 sets out the requirement of the contents of the case conference certificate. The matters to be certified include: "(b) any offers by the accused person to plead guilty to an offence specified in the charge certificate or to different offences".
Section 78(1) provides that case conference material (including what was said between the parties at the conference) is not admissible in any proceedings before a court, tribunal or body. Section 78(3) provides that any part of a case conference certificate cannot be required to be produced under a subpoena or request issued in any proceedings. Section 79 provides that the matters that are specified in a case conference certificate are to be treated as confidential and s 80(1) provides that it is an offence to publish, or permit a person to publish, any case conference material.
Thus, the scheme requires an accused person to participate in plea discussions with the DPP and any such discussions must be kept confidential.
It was common ground that many of the recordings of the two accused were made during the EAGP process, the relevant dates of which were agreed to be as follows.
On 16 July 2019, the accused were ordered to participate in the EAGP scheme.
On 30 August 2019, the LD warrants were granted.
On 3 September 2019, a case conference was conducted.
On 10 September 2019, a second case conference was conducted.
On 12 September 2019, the DPP sought an adjournment to consider an offer made by the accused.
On 21 November, there was a final case conference and case certification.

Other evidence on the voir dire

The dates set out above were before the court and agreed as between the Crown and Ms Cunneen.
Other evidence was placed before the court being: 1. An affidavit of Abigail Bannister sworn on 3 December 2020; 2. A statement of Ms Kim Davis dated 3 December 2020; and 3. A statement of James Davis dated 3 December 2020.
None of these witnesses were required for cross-examination.
In her affidavit Ms Bannister explained the EAGP scheme and her obligations under it. She explained that she had numerous telephone conversations with Mr Davis during this time. Not all of those conversations were subject to a subsequent file note if, for example, she was in a car or away from a desk at the time she took the call. Despite this, her records can confirm that she had conferences or discussions with Mr Davis in relation to the EAGP (either alone or with then senior counsel Mr Phillip Strickland SC) on at least the following dates: 1. 30 August 2019; 2. 3 September 2019; 3. 11 September 2019; 4. 12 September 2019; 5. 14 September 2019; 6. 15 September 2019; 7. 16 October 2019; 8. 17 October 2019; 9. 17 October 2019; 10. 23 October 2019; 11. 30 October 2019; 12. 19 November 2019; 13. 20 November 2019; 14. 21 November 2019.
Ms Kim Davis' statement outlines that she is Mr Davis' mother. She is a retired teacher. She states that on the evening of 22 November 2019 she found Mr Davis semi-conscious and very inebriated on the lawn. He had taken prescription medication as well as alcohol. She states that she and Ms Quinn decided not to get medical help because this could lead to Mr Davis' bail being revoked. They did not want him to be returned to custody because he had been sexually and physically assaulted in gaol and suffered a mental breakdown.
Ms Davis and Ms Quinn then induced Mr Davis to vomit. After sleeping for perhaps an hour, Mr Davis then began a "verbal tirade" against Ms Davis. She states that "[t]his was the complete opposite to what he had always professed" and he had never said such things to her before. He then directed attention to Ms Quinn and her mother. Ms Davis states that he was not himself and suffered a mental breakdown. In her opinion, he was never the same after this incident. Afterwards, he had little memory of the incident. In her statement she provides evidence of another two suicide attempts and her concerns in 2019 to 2020 that Mr Davis would not make it to trial because he would take his own life.
In his statement of 3 December 2020, James Davis, the older brother of the accused, states that his brother has been in an emotionally fragile state for an extended period of time and that he has put himself "through hell" over the past two years trying to come to terms with the events of August 2018. This has included him breaking down many times over the incident, saying things to Ms Davis and him in order to get them to "hate" him and reject him, self-harm and suicide attempts. He states that due to possible breach of bail concerns the police and emergency services were not called in relation to his self-harm and suicide attempts prior to 2 January 2020.
Mr James Davis states that in December 2019 he travelled with his wife from Queensland, where he lives, to the Blue Mountains to spend Christmas and New Year with his mother, the accused, and his wife's family. The plan was also to have a group talk on New Year's Day about the whole situation and the way forward in the New Year but, for some reason, that conversation did not take place. He states that on the morning of 2 January 2020, after the accused became frustrated with Hannah and his mother, it became clear to Mr James Davis that the accused's behaviour was an attempt to divert them from having a planned conversation and that he did not want to face the reality of the situation.
Knowing that the accused was not handling things well at that point, Mr James Davis states that he convinced the accused to talk with him. At one point he goaded the accused to hit him but the accused did not do so. Instead, he left and drove off in his car by himself. During the day he received a phone call from one of the accused's friends about a "goodbye message" the accused had posted on Snapchat. Their attempts to call him were initially unsuccessful, but the accused then responded to a text message and telephoned Mr James Davis. James Davis observed by the accused's speech that he was "inebriated" following which the accused told him that he had drunk half a bottle of whisky and taken prescription medication but did not disclose where he was. Mr James Davis drove around the area looking for him while a cousin from Lismore, who had seen Snapchat, alerted the police. He stated that while he was looking for him his mother informed him that the police had found the accused and taken him to hospital. Mr James Davis stated that both he and his mother spent the night in hospital where the accused was monitored and kept under observation overnight.

The Listening Device recordings

The 20 intercepts the Crown initially relied upon were as follows (some of them were either not pressed or the objection withdrawn over the three day period in which I heard submissions on them): 1. 9207 - Hannah Quinn and Blake Davis: 30.8.2019 at 9:22 - 9:31am; 2. 9217 - Hannah Quinn and Blake Davis: 30.8.2019 at 18:17 -18:22pm; 3. 9217 - Hannah Quinn and Blake Davis: 30.8.2019 at 18:30 -18:34pm; 4. 9314 - Blake Davis and Hannah Quinn: 3.9.2019 at 7:53 - 8pm; 5. 9664 - Blake Davis and Kim Davis: 17.9.2019 at 4:38 - 5:00pm; 6. 9664 - Blake Davis and Kim Davis: 17.9.2019 at 4:25 - 4:27pm; 7. 9825 - Blake Davis and Kim Davis: 24.9.2019 at 1:05 - 1:09am; 8. 10395 - Hannah Quinn, Blake Davis and Kim Davis: 16.10.2019 at 5:52 - 5:54pm (this was eventually not pressed); 9. 10397 - Blake Davis and Kim Davis: 16.10.2019 at 8:57 - 8:59pm (this was eventually not pressed); 10. 10443 - Hannah Quinn and Blake Davis: 18.10.2019 at 4:23 - 4:25pm; 11. 11271 - Blake Davis, Hannah Quinn and Kim Davis: 20.11.2019 at 4:28pm; 12. 11300 - Blake Davis and Kim Davis: 21.11.2019 at 8:34 - 8:35pm; 13. 11328 - Blake Davis: 22.11.2019 at 10:52 - 10:54pm (this was eventually not pressed); 14. 11329 - Blake Davis and Kim Davis: 22.11.2019 at 11:46 - 11:49pm (this was eventually not pressed); 15. 11329 - Blake Davis and Hannah Quinn: 22.11.2019 at 11:46 -11:49pm; 16. 12333 - Blake Davis, Hannah Quinn, Kim Davis and James Davis: 2.1.2020 at 11:06 - 11:15am; 17. 11576 - Blake Davis and Kim Davis: 2.12.2019 at 9:47 - 9:53pm (this was eventually not pressed; 18. 12342 - Hannah Quinn, Kim Davis and unidentified male: 2.1.2020 at 8:00 - 8:11pm (this was eventually not pressed); 19. 12487 - Blake Davis and Kim Davis: 8.1.2020 at 5:44 - 5:52pm; 20. 16140 - Hannah Quinn, Kim Davis and unidentified male: 9.6.2020 at 2:53 - 2:58pm.

LD 1: Quinn and Blake Davis: 30.8.2019 at 9:22 - 9:31am

This recording is of a very heated argument between the two accused. It appears to have taken place on the first day that the LDs were installed and after the EAGP scheme had commenced. On Ms Bannister's evidence she had a conference with Mr Davis that day.
Ms Quinn sounds to be hysterical in the recording and is throwing things. Mr Davis is pleading with her to stop doing so. At one stage, he sounds as if he is hyperventilating or having a panic attack. He begs her to stop yelling in case someone telephones the police. The cause of the argument is not stated.
The Crown relies upon admissions said to have been made during this argument.
The Crown initially proposed to play all of the recording. After further consideration, the portion of the conversation relied upon was reduced somewhat. Initially, portions of the argument where Ms Quinn accused Mr Davis of "controlling" her were pressed. This occurs whilst Mr Davis sounds as if he is having a panic attack. Mr Crown submitted that this part of the fight was relevant because of the Crown case theory is that Mr Davis was controlling Ms Quinn to get her to change her defence to assist him. I expressed to Mr Crown my initial view that such an inference seemed remote and ultimately that portion was not pressed. The final position of the Crown Prosecutor was that he proposed to rely on two portions of this recording only.
The first portion relied upon occurs a significant way through this very raw and emotional exchange. It is in these terms (V1 is Mr Blake and V2 is Ms Quinn): "V.l Stop it. Stop it, Stop it, Stop it. Stop it. V.l I don't want to go back to gaol. You already put me in gaol once. You already put me in gaol once. V.2 I put you in gaol? V.l You did. V.2 Did I kill someone? V.l You did. V.2 Did I follow him out with a fucking sword? V.l You did. Because of you. You followed him out and pushed him over you idiot. You set up the fucking whole thing with.... V.2 I set it up with .... What the fuck??? V.l You set up .... to be met and everything. If it wasn't for you we wouldn't be in this situation. You did this. You did this to all of us."
The second portion, after the fighting continues for some time, is in these terms. "V.2 You fucking tyrant. V.1 Stop screaming. You'll get the police called. This is my brother's house and my mum's house. You wrecked the other two houses. Stop wrecking this one. V.2 Stop wrecking my life. V.1 You wrecked my life, you idiot. I wish so much--- V.2 Ahhhhh. Did I kill someone just like that? V.1 How dare you do that. V.2 Did I fuckin' do that? V.1 Get away from me. I hate you. ...You fucking thief. You ruined the house. You ruined my Glebe house. Yu ruined my Forrest Lodge house. You ruined everything. (pause) If I get found guilty of that shit, when I kill myself in gaol, please know that it is at least thirty per cent your fault. At least (pause) You know I always say I wish I had a time machine. I wish I could go back to the 20th of July, 2017. I would never have met you. (pause) And you've hit me in my eye and I'm getting...now (pause) Shut up. The police are going to get called because of you. This is my brother's house, stop ruining it. You selfish, evil person."
Counsel for both accused ultimately did not object to the first of these two extracts. The Crown had opened on it and there had been no objection at that time. The only question was whether it should be before the jury in the form of a few lines from the audio recording or as an agreed fact that it was said. The Crown opposed it being before the jury in transcript form, despite the difficulty in editing those lines out of a lengthy conversation.
The Crown's primary position was that it should be played in fairness on the basis that submissions could be made either way in relation to the heat of an argument as to whether a person is likely to say something they mean or likely to say something they do not mean.
In circumstances where the evidence is not objected to, I was not required to rule on its admissibility. For my part, I consider its relevance to be marginal, especially when considered with LD 2 below.
Section 55 of the Evidence Act 1995 (NSW) provides that evidence is relevant if, if it were accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. There is no dispute at trial that it was Mr Davis rather than Ms Quinn who killed the deceased. The fact that Mr Davis, in the heat of an argument, suggests to Ms Quinn that it is all her fault because if she had not run out after the deceased he would not have followed seems of marginal relevance.
The Crown relies upon this extract as an admission and opened to the jury on that basis. An "admission" is defined in the Dictionary to the Evidence Act as a previous representation made by a party to the proceedings, which is adverse to that person's outcome in the outcome of the proceedings. The exchange is inconsistent with any joint criminal enterprise as between the two accused. It is no doubt for that reason it was not objected to.
As for the form in which it should be before the jury, although the evidence is usually what the jury hear and not the transcript of what others say can be heard, there is no dispute as between the parties as to what can be heard on the recording. In those circumstances I am satisfied that the recording should be before the jury by way of an agreed fact. It would be too confusing for the jury otherwise. The jury will hear Mr Davis' voice on other LDs and has already heard it during the playing of his Forensic Procedure at Newtown Police Station. His voice is unrecognisable on this recording. If only a few sentences are played with him speaking in this voice during what sounds like a panic attack, there would be a risk that the jury would speculate about the rest of the argument. Furthermore, Mr Davis' voice is so distorted that hearing that portion in isolation creates the real risk the jury would be confused by it. It is a matter for counsel to agree the fact, but it would be to the effect that during a heated exchange these words were spoken.
As for the second portion of the fight pressed by the Crown, the Crown submitted that when Ms Quinn can be heard saying "[d]id I kill someone just like that?" she is making an admission to knowing that the deceased was dead when she left the scene, which is an element of the alternate count against her. It was also submitted that the reference to it being 30% her fault was an admission by Mr Davis that he and Ms Quinn had entered into a joint criminal enterprise to inflict injury on the deceased. This was relied upon as an admission by Mr Davis that Ms Quinn was involved with him in the joint criminal enterprise.
I am not satisfied that this recording is relevant. The Crown submits that this passage contains an admission by Ms Quinn that she knew that Mr McKee was dead when she fled the scene and an admission by Mr Davis that he was part of a joint criminal enterprise with Ms Quinn to inflict some form of violence on Mr McKee. I am not satisfied that either inference is available to be drawn from this passage. This conversation between the two accused took place over a year after their arrest for murder. The fact that Ms Quinn points out to Mr Davis that it was he not she who killed the deceased cannot speak to her state of knowledge regarding whether Mr McKee was dead or alive, as she fled the scene on 10 August 2018.
As for the "30%" reference, I am unable to accept the Crown submission that this is capable of being an admission by Mr Davis to being part of a joint criminal enterprise with Ms Quinn. Rather, it is a nasty accusation thrown at Ms Quinn that if Mr Davis kills himself it will be 30% Ms Quinn's fault. This does not go to a fact in issue in the trial.
I should add that these recordings were initially tendered as being admissible against both accused. I observed that I would be directing the jury otherwise. Admissions made by an accused in a joint trial are only admissible against that accused in a joint trial. None of the assertions made by the accused could be said to be in furtherance of the alleged joint criminal enterprise given they were uttered over a year later.
This second part of the LD is not relevant and, thus, inadmissible.

LD 2 9217 - Hannah Quinn and Blake Davis: 30.8.2019 at 18:17 - 18:22pm

This recording follows the first recording. By this time the two accused have reconciled. The portion relied upon, after some consideration by the parties, is as follows (V2 is Ms Quinn and V1 is Mr Davis): "V.2 …from the person that I love more than anything. Does it make amends? I can't, I can't, I can't explain that, I can't explain it, or even how that feels, you know. And there is no, (pause) there is no place. I'm not angry at you, I'm not disappointed at you. I was there. I understand every single second of it. But I'm, like, a human being and when things like that happen, they fuck humans up. V.1 …. babe. I didn't know if the guy was…. V.2 I know. V.1 and fuckin' kill you V.2 I know. V.1 or bash the fuck out of you V.2 I know. V.1 I didn't know what to do. And I remember, in my head, I remember thinking, 'Oh fuck, be careful, you might hit Hannah,' so I stepped to the side, and I just swung down .... side of his leg .... I moved out of the way because I was worried about hitting you. And that's why I hit his head. And I even had it in my head, I was like, 'Oh, what do I do? What do I do? Just get Hannah away,' and then you were there and I was like, 'Fuck, don't hit Hannah,' and then, I tell everyone that I can't remember it but I can remember it (cries and sobs in anguish). I know exactly what was going on - V.2 I know (comforting). V.1 and I just thought, 'If he just turns around and he just fuckin' BOOM or if he just grabs you. I don't even know what I was thinking. And then, and then I just ran up. And I didn't, I didn't, aim for the head at all. And then you were there. And then I just thought, 'Get away from you.' And then, and then it happened, And then (pause) I saw it and I was like, NOooo, NOooo - - V.2 I know. V.1 NOooo. (howling, crying) - - V.2 I know, I know (crying). V.1 It's not, It's not what I do. V.2 I know. V.1 They took my money and they threatened me, fine. They put a knife to my throat, fine. I didn't run and, you know, bring out a weapon and run out and go, let's kill these guys. I didn't put a vendetta and go, let's find these people and fuckin' kill these guys. I didn't put a vendetta and go, let's find these people and fuck' kill them. V.2 I know….. V.1 You don't know one knows. V.2 I do know. V.1 No-one can know. But no one can know. But---- V.2 I can't know how you feel or whatever but I know more than anyone that you didn't mean to do that. (crying) And that's why I'm really sorry about what I said today. It came out, it came out."
Ultimately, it was agreed that all but the italicised and underlined portions were to be admitted. Mr Crown objected to the underlined portion and Ms Cunneen objected to the italicised portion.
Ms Cunneen submitted that the underlined portion clearly referred to a different incident where Mr Davis was assaulted and did not retaliate. It was submitted that this was not relevant to the issues at trial.
Mr Crown objected to the italicised version where Ms Quinn apologises to Mr Quinn for what she said earlier (in LD 1). The objection was based on a submission that there was a lack of clarity as to what Ms Quinn was referring to when she said "that" and the evidence should thus be excluded under s 135(a) of the Evidence Act.
Although I am satisfied that discussion of a previous time when Mr Davis was held up at knifepoint and he did not retaliate may have some (exculpatory) relevance, it was objected to by Ms Cunneen and beyond being evidence of good character, or a tendency not to retaliate, it is not otherwise relevant and thus should be excluded.
As for the question of any ambiguity about what Ms Quinn is referring to when she said "I know you didn't mean it", it is clearly referable to the fight they had earlier and Ms Quinn's accusation that Mr Davis killed Mr McKee. Although Ms Quinn's opinion that Mr Davis did not mean it would not be admissible for a hearsay purpose, the fact that she said it is highly relevant to the accusations she was making against him earlier, as set out above at [43]. She is retracting what she yelled at him earlier during the fight about it being his fault. It is thus relevant.
As for the Crown submission that it should be excluded on the basis of being confusing or unfairly prejudicial under s 135 or 137 of the Evidence Act, I am unable to identify a basis upon which there is a risk of unfair prejudice under s 135 or 137 of the Evidence Act. I would not uphold the Crown objection. The portion objected to by the Crown is admissible.

LD 3 9217 - Hannah Quinn and Blake Davis: 30.8.2019 at 18:30 - 18:34pm

This recording contained an exculpatory explanation by Ms Quinn which was objected to by Mr Hughes. During the course of the submissions the objection was ultimately withdrawn.

LD 4 9314 - Blake Davis and Hannah Quinn: 3.9.2019 at 7:53 - 8pm

This recording was made on 3 September 2019 and is a conversation between the accused Mr Davis and his mother (contrary to the way that the recording has been labelled, which records it as a conversation between Mr Davis and Ms Quinn). This is the same date as the first case conference ordered under the EAPG. V1 is Mr Davis and V3 is his mother, Kim Davis. I do not propose to extract this recording for the purposes of these reasons because I am satisfied that client legal privilege rendered it inadmissible. It refers to what is contained in various statements in the Crown brief, and Ms Davis asks Mr Davis what he discussed with his lawyer at the conference that day (she is paying for his legal fees)
In addition to there being a case conference with the DPP that day, there was also a conference between Mr Davis and his solicitor, Ms Bannister, that day. Mr Crown accepted during submissions that this is a conversation in which Ms Davis is asking Mr Davis about what he discussed with his lawyers and was thus privileged. Despite this, he submitted that the last six lines could be taken out and stand alone as admissions, this is a portion which commences with Mr Davis stating "[i]n my defence…."
I ruled this extract to be inadmissible at the time that submissions were made. I am satisfied that it is excluded by the operation of ss 119 and 122 of the Evidence Act which provide as follows: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of - (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.
What Ms Bannister said to Mr Davis in the conference is privileged and inadmissible. The question is whether when Mr Davis responded to his mother's questions about that conference he was acting inconsistently with the maintenance of that client legal privilege. Section 122 of the Evidence Act is in the following terms: 122 Loss of client legal privilege: consent and related matters (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if - (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because - (a) the substance of the evidence has been disclosed - (i) in the course of making a confidential communication or preparing a confidential document, or (ii) as a result of duress or deception, or (iii) under compulsion of law, or (iv) if the client or party is a body established by, or a person holding an office under, an Australian law - to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or part of the law, under which the body is established or the office is held, or (b) of a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (c) of a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to the proceeding or an anticipated or pending proceeding in an Australian court or a foreign court.
As Gleeson CJ, Gaudron, Gummow and Callinan JJ explained in Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29]: "What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large."
The common law conception of fairness articulated in Mann v Carnell is relevant in determining the "statutory question" posed by s 122(2) of the Act. In this respect, the observations of Allsop J in DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384 are of assistance: "…the party entitled to the privilege makes an assertion (express or implied), or brings a case, which is either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny and, by such conduct, an inconsistency arises between the act and the maintenance of the confidence, informed partly by the forensic unfairness of allowing the claim to proceed without disclosure of the communication." (Emphasis added.)
This statement was endorsed by the Court of Criminal Appeal in Director of Public Prosecutions (Cth) v Kinghorn; Kinghorn v Director of Public Prosecutions (Cth) [2020] NSWCCA 48 at [154]. There, the court noted at [155] that the focus of an enquiry under s 122 must be "analysing some specific aspect of the conduct of the privilege holder in the context of the litigation to determine whether there is an inconsistency of the relevant kind" (see also Osland v Secretary to the Department of Justice (2008) 234 CLR 275; [2008] HCA 37).
Any potential unfairness caused must be unfairness to the opposing party in the litigation. Macfarlan JA reviewed these authorities in GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd [2020] NSWCA 266 at [36]-[41]. His Honour concluded at [57] that: "57. I draw from these authorities the following propositions of present relevance: (1) The test is one of inconsistency between the privilege holder's conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings. (2) Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore 'laid open the communications to scrutiny', assists in ensuring that the court's focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised. (3) On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency - something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party. (4) The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness. (5) Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder's conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ." (Emphasis added.)
I have considered these authorities and applied them to the contents of the recording. As stated above, Ms Davis was paying for Mr Davis' legal fees and following a conference with his lawyer, she asked her son to tell her what was said in conference. I am not satisfied that Mr Davis acted in any way inconsistently with wishing to keep that advice confidential
I note in passing that even if Mr Davis had disclosed the substance of the communication in the way envisaged by s 122(3), (and I am not satisfied this has occurred) there is a question as to whether his mother shares a "common interest" in the litigation in any event and thus the privilege extend to her as well (s 122(5)(b)).
Lord Denning MR explained this privilege in Buttes Gas and Oil Company v Hammer (No 3) [1981] QB 223 in the following manner (see also Bulk Materials (Coal Handling) Services Pty Limited v Coal and Allied Operations Pty Limited (1988) 13 NSWLR 689): "There is a privilege which may be called 'common interest privilege'. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant had other persons standing along side him - who have the self-same interest as he - and who have consulted lawyers on the self-same points as he - but these others have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsels' opinions. All collect information for the purpose of litigation. All make copies. All await the outcome with the same anxious anticipation - because it affects each as much as it does the others. Instances come readily to mind... In all such cases I think the courts should - for the purposes of discovery - treat all the persons interested as if they were partners in a single firm or departments in a single company. Each can avail himself of the privilege in aid of litigation. Each can collect information for the use of his or the other's legal adviser. Each can hold originals and each can make copies. And so forth. All are the subject of the privilege in aid of anticipated litigation, even though it should transpire that, when the litigation is afterwards commenced, only one of them is made a party to it. No matter that one has the originals and the other has the copies. All are privileged."
The scope of what is meant by "common interest" was considered by Beech-Jones J in Hamilton v State of New South Wales [2016] NSWSC 1213 at [76]: "In relation to the second issue, what kind of 'interest' must the non-party have in the party's successful pursuit of the litigation? Clearly the relevant interest must be more than a mere preference as to how the litigation should unfold. In many of the cases where a common interest was established the prospects of a non-party avoiding a legal liability on the one hand or successfully establishing a liability and recovering on the other were advanced by the party's successful pursuit of the litigation. Thus the most common example given is where an insurer's exposure to its insured is limited by the insured successfully defeating litigation against it (e.g. Nauru Phosphate). In Marshall v Prescott, an insurer's ability to pursue separate recovery action was predicated on the successful recovery by a party to proceedings and that was found to be sufficient to ground a common interest. Moreover, a financial interest in the outcome of litigation may suffice. In Rickard, Bergin J found that a litigation 'funder had and has an interest in the most advantageous conduct of these proceedings by the plaintiff' and that sufficed at least in circumstances where the relationship between the funder and the plaintiff was 'collaborative and supportive'."
His Honour also observed at [80] that: "Neither the parties or my research has revealed any case that has considered whether an adverse reflection on a statutory office holder's performance would be capable of amounting to an 'interest' sufficient to satisfy the phrase 'common interest' in s 122(5)(c). Given the instances of commercial or financial interests that have been held to fall within that phrase (or its equivalent at common law) there does not seem to be any reason for construing the phrase 'common interest relating to the proceedings' as excluding the 'interest' of a statutory office holder in countering allegations of the kind made in the ASOC. However, in light of the conclusion in [76] it is not necessary to decide that."
Ultimately, I do not consider it necessary to determine whether Mr Davis and his mother shared a common interest privilege because I am not satisfied there was any waiver by Mr Davis.

LD 5 9664 - Blake Davis and Kim Davis: 17.9.2019 at 4:38 - 5:00pm

This is a conversation between Mr Davis and his mother about Ms Quinn in these terms: "V.1 She found some, she fifteen people she was seeing and I went, 'Nup it's gone down to four. You're only seeing four people from now on.' And then it was good, it was really, really great. But one of the contacts that had been trying to get to him for ages came around one, one day and I bought weed off him..... and that's the one who ..... V.2 Yeah he's gone to court right. V.3 Yeah well it's really hard now 'cause Hannah said that she didn't know him in the statement and she's worried about him but I don't care. If it comes up did you know this person I'm going to say, 'Yes. I knew this person', and I'm not yeah she was helping me getting his phone, thanks Hannah. And we put everything on that person I know exactly what I'm doing. V.4 Yeah."
During submissions on 2 December 2020 I inquired of Mr Crown how this recording was relevant against the accused Mr Davis. He indicated that he would have to consider his position. On 4 December 2020 when submissions resumed, he conceded that the only portion relevant to Mr Davis (as opposed to Ms Quinn against whom it is inadmissible) was the words "[i]f it comes up did you know this person I'm going to say, 'Yes. I knew this person'."
It was accepted by all the parties that this was a reference to Mr Davis knowing the witness Frank O'Connor. Mr O'Connor drove the deceased to Mr Davis' home on 10 August 2018. Mr O'Connor has already given evidence in this trial. He was cross-examined by both Ms Cunneen and Mr Hughes. It was at no time suggested to him that he and Mr Davis did not know each other. In fact, during submissions on this point Ms Cunneen indicated that her client was willing to sign an agreed fact that he had met Mr O'Connor.
When it was indicated to Mr Crown that this fact was not in dispute he submitted that "just because there is evidence in the Crown case otherwise does not preclude it" and confirmed that it is relied upon as an admission.
This extract is not relevant to a fact in issue at trial and is inadmissible.

LD 6 9664 - Blake Davis and Kim Davis: 17.9.2019 at 4:25 - 4:27pm

This is another conversation between Mr Davis and his mother in which Mr Davis discusses his relationship with Ms Quinn and how he needs her to "support him". It is in these terms (V1 is Mr Davis and V2 is Ms Davis): "V.1 Anyway. I need her to get her mum to retract these statements and fuck off out of the picture. I need her to take whatever charges she can from me. V.2 Yeah. V.1 And we really got to keep her fucking happy for that. And the thing is, like I'll just be honest with you now, if she doesn't get her act together with a whole bunch of things which I need, especially supportive wise, once this is all done, you know, there won't be a place for her. V.2 Yeah, but don't threaten her with that. V.1 No, I would never say- if I said that to her that would start making her wonder if she should support me because then she'd- I'd be fucking off after the case. V.2 Exactly. V.1 Of course I'd never say that to her. I'm not stupid. And the thing is, if she's beautifully, if's she's as supportive as she was last year when I was in gaol and she steps back up and how she was when I got out of gaol and if she's there and like 'yeah I want to make breakfasts, I wanna make dinners I want to be there to support you. I'll take work off if we need it.' If she reverts back to that. I know she's been all fucked up and depressed and stuff lately. But if she can revert back to that for the next year then, you know, maybe I will go overseas with her and what not. But at this point, next year, I'm just going to go do my own thing for a while. V.2. She's high maintenance. V.1 She used to not be."
This entire conversation concerns the relationship between Mr Davis and Ms Quinn. The only reference to anything remotely concerned with the pending trial is Mr Davis' opinion that Ms Quinn's mother should withdraw her statement and "take charges from" him. I briefly considered the admissibility of Ms Quinn Snr's statement in my pre-trial ruling - see at [208]-[217] of R v Davis and Quinn (No 1). I observed at that time that her statement was not reliable on its face and that Ms Quinn Snr was not a compellable witness being the mother of one of the accused. I noted that an application pursuant to s 18 of the Evidence Act would need to be made in any event. The Crown did not ultimately call Ms Quinn Snr to give evidence.
Although the Crown initially pressed all of this conversation he accepted that the reference to the need to get Ms Quinn Snr to retract her statements and "take charges" had only marginal probative value.
I am not satisfied that the fact that Mr Davis briefly wanted Ms Quinn's mother to withdraw her (arguably unreliable) statement against him takes the matter any further. Further, although this conversation did not take place on the actual day of a case conference or legal conference, it was held two days after one. The accused Mr Davis and his mother discussed Mr Davis's defence extensively during this period.
Even if I was satisfied that this recording extract is relevant (which I am not), I am further satisfied that there is an unfairness arising from the fact that police recorded these conversations between Mr Davis and his mother about his defence during the time of the compulsory case conferencing under the EAGP scheme. I will discuss this question of general unfairness under s 90 of the Evidence Act further below.

LD 7 9825 - Blake Davis and Kim Davis: 24.9.2019 at 1:05 - 1:09am

This is another conversation between Mr Davis and his mother. It occurred at a time when Mr Davis was anxious and depressed and his mother is consoling him. It is in these terms (V1 is Mr Davis and V3 is Ms Davis): "V.3 We used to call you Joy. You brought us so much joy. V.1 Joy killed someone. Killed someone mum. V.3 You need to forgive yourself darlin'. He wanted to die V.1 No he didn't V.3 Yeah he did, couldn't cope with having a baby. Junkie. And- V.1 You know how they said Hannah screamed don't in the street V.3 Yeah? V.1 ….. V.3 Pardon? V.1 ….. V.3 … screamed don't? V.1 I didn't know what the fuck he was going to do V.3 He had the gun in his hand? V.1 (CLEARS THROAT) I don't know V.3 He bloody well must have Blake because it was on the ground. He didn't, when once he was hit, take the gun out of his pocket and the knuckle dusters out of his pocket and put them on the ground. Of course the gun was in his fucking hand… Otherwise he wouldn't have left it there on the ground. V.1 He's dead and it's me at court… V.3 …He's a low life criminal nobody. You could have been- you could have been the one dead. Imagine if you'd hit your head on the glass doors … he hit you. V.1 …hit my head… V.3 You could have easily been the one who died… V.1 I don't care if you're anyone. Someone comes into your house and puts a gun to up to someone… gun up to the head… and see their reaction. V.3 I know. That's exactly right. People will understand that. There was a guy on TV tonight, had a thing on a current affair in this part of Melbourne where they've got all these gangs and this guy just said you know someone comes in my house I'll kill them you know, that's how people feel. V.1 Yeah but the threat was gone. V.3 I know. That's the problem. V.1 … V.3 Well, unless the gun was on Hannah (PAUSE) I mean, you told me you believed you'd been shot, he was going to shoot Hannah."
On 1 December 2020, I queried with Mr Crown the relevance of Ms Davis' criticisms of the deceased and how much distress they may cause the parents of the deceased. The following day when submissions resumed, the Crown Prosecutor ultimately did not press the italicised portions above but pressed the remainder of the conversation.
The Crown submitted that one of the issues that is likely to arise in the trial is whether Mr McKee had the gun in his hand at the time that Mr Davis struck him with the sword. It was submitted that the italicised portion above is relevant to that. His mother tells him he must have (in her opinion).
When I inquired of the Crown Prosecutor as to whether there was any dispute in the trial that Mr Davis killed the deceased, he indicated that in the absence of an agreed fact, he was not in a position to concede that any references in the LDs to Mr Davis "killing" the deceased were irrelevant and should be excluded.
When I suggested that the issue in this trial was not whether Mr Davis killed the deceased, but whether he did so lawfully or unlawfully (or whether a partial defence is open to him) the following exchange took place: "CROWN PROSECUTOR: I understand that your Honour and it is not an unreasonable position for me to take surely that until it is before the jury by way of an agreed fact or utterance by my learned friend then I am not in a position to concede that it should simply be excised from the transcript. HER HONOUR: If Ms Cunneen puts in writing that there is no dispute that he killed him then there can be no relevance to that assertion in line two of recording 9825, do you accept that? Crown PROSECUTOR: That is something that I need to consider."
Shortly thereafter Ms Cunneen produced a typed draft agreed fact in these terms. It is admitted that: "[o]n the 10th of August 2018 Blake Davis did an act that caused the death of Jett McKee."
In light of this admission, the Crown ultimately conceded the following day that the references to "Joy killed someone" need not be relied on by the Crown. What the Crown pressed was the reference to him not knowing whether the deceased had a gun in his hand. It was submitted that this has "high and significant probative value".
The second aspect of this concerns discussion of a television show where there was a threat in a house (rather than on the street as is alleged in this trial), the Crown submitted that this portion is of such significance in the Crown case that it would be of great disadvantage to the Crown if that was not in the evidence.
Ms Cunneen submitted that it is a discussion of a current affairs show where an intruder came into the house and people say "if someone came into my house I'd kill them." In that context Mr Davis responds "[y]eah but the threat was gone". In doing so he is quoting the Crown case and what he expects the Crown would say about the fact that he pursued both the deceased and Ms Quinn out of the house which is a different case to the TV show: it is not about whether the threat was gone in the street but about whether the threat was gone from the house.
When I invited the Crown Prosecutor to respond to this he stated that the Crown "strenuously, presses that".
Turning first to the relevance of this recording, it is not in issue that Mr Davis killed someone. It is not in issue that Ms Quinn screamed in the street. It is not in issue that the deceased is dead and Mr Davis is in court. It is not in issue that, as a matter of general observation, if someone comes into your house and puts a gun up to you, you will react. In this context, very little in this conversation adds to any aspect of the Crown case. As for the portion of the recording where there is a discussion about the threat in the home being gone, there is real ambiguity as to what is being discussed.
The high point of any relevance in this conversation is when Ms Davis questions her son as to whether the deceased had the gun in his hand and he replies that he does not know. This could be relevant if Mr Davis positively asserts in court that he did. As yet, it is not known whether he will give evidence in this matter. Despite this, even if this discrete portion is relevant, there is a real question about the fairness of adducing that portion of the conversation.
Ms Davis is paying for her son's defence. This conversation is taking place during the EAGP. I would be in breach of the Criminal Procedure Act if I set out what those plea negotiations were about (although they are impliedly disclosed in some of the recordings which are no longer pressed). Suffice to say there appears in them to be serious consideration relevant to the EAGP scheme. In that context Ms Davis questions her son about his defence on a number of occasions and in doing so raises matters relevant to whether there should be a plea.
Ms Cunneen submitted that it would be unfair to permit these conversations between Mr Davis and his mother to be admitted into evidence. She noted that during the EAGP period Mr Davis and his mother frequently spoke about all the "pros" and "cons" of the Crown case and that serious consideration was being given to the offer of a plea. It was submitted as being counter to the spirit of the EAGP legislation to then tender their conversations because, under that scheme, an accused is encouraged to consider what he might offer as a plea to any part of the charge. His mother is also his financial benefactor and she had a financial interest in whether there was ultimately a plea of guilty to a lesser charge. It was submitted that the unfairness is manifest in these circumstances because the EAGP period does not extend over just a few days.
It was submitted that these LDs are particularly unfair in circumstances where Mr Davis became so depressed by it all he tried to take his own life, twice.
Ms Cunneen did not go so far as to submit that they had been improperly obtained under s 138 of the Evidence Act.
Mr Crown made no submissions about the unfairness of the recordings taking place during the EAGP scheme.
Section 90 of the Evidence Act provides: 90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if - (a) the evidence is adduced by the prosecution, and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.
Section 90 reflects the common law unfairness discretion. In R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1, Toohey, Gaudron and Gummow JJ held at [69] that a court's consideration of s 90 should concentrate on the following matters: "… turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards."
In Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 the High Court held that there is no relevant unfairness in the police recording a conversation covertly in circumstances where an accused person has otherwise exercised their right not to be subject to an electronically recorded interview or to provide a version of events "on the record": at [78] (Gleeson CJ and Heydon J) and [107]-[116] (Gummow and Hayne JJ). As Gummow and Hayne J noted at [107], "the focus of s 90 falls upon the fairness of using the evidence at trial". Kirby J noted the following in Em v The Queen at [192]-[193]: "192. In my own reasons in Swaffield, I also referred to the principles stated in Van der Meer. I made reference by way of comparison to s 90 of the Uniform Evidence Acts, even though it was not there applicable. I acknowledged that s 90 'reflects the common law unfairness discretion' and permitted changing social circumstances to be considered. In discussing such changing circumstances, I accepted that '[m]odern surveillance technology and covert police operations are potentially effective means for [bringing wrongdoers to justice]'. 193. After reviewing overseas authority, I remarked, in words to which I adhere (and which were cited in the second Court of Criminal Appeal in these proceedings): 'Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in an endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused … that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police … in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent'."
Consistent with these principles, there is no prima facie unfairness in placing LD warrants in the home of two accused whilst they are on bail for murder, even in circumstances where Mr Davis exercised his right to silence. But the complaint made is more refined that this. There were no LDs placed in the premises where the accused were residing until over a year after they were arrested. This was at a time which coincided with the commencement of the compulsory EAGP scheme. Some of the recordings the Crown initially sought to tender (listed above at [38]) contained express discussions of possible pleas arising out of the case conferences. Although they were not ultimately pressed after objection was raised, a real question remains as to the fairness of the timing of the LD warrants and the admissibility of the conversations between Ms Davis and his mother about his defence at trial.
There was no evidence before me that the timing of the placement of the LDs was deliberate and I make no finding in that regard. But the fact remains that police recorded all conversations made during the EAGP scheme including between Mr Davis and his mother when she is clearly trying to help him make a decision as to what to do in this regard.
Although I am not satisfied that every single conversation recorded during the EAGP scheme should be excluded on the basis of unfairness, I am satisfied that it would be unfair for the Crown to rely on any specific conversations between Mr Davis and his mother in which his defence is discussed. In these circumstances I would exclude this recording.

LD 10 10443 - Hannah Quinn and Blake Davis: 18.10.2019 at 4:23 - 4:25pm

This is a conversation between the two accused about preparation for their case. It is in these terms (V2 is Ms Quinn and V2 is Ms Davis: "V.2 'Cause basically I think ..... my ..... my phone or emailing the brief, I need to get my own copy of the brief, I need to read it now, highlight things ..... maybe have a chat to a lawyer Lauren about things that I think we need to talk about. But then ..... we're gunna have to do it all again a month before the trial. Do you know what I mean? And, like - - - V.1 ..... V.2 - - - and wrap our heads completely through, like, we need to know everything ..... V.1 ..... you could just stand there we need to sit down and go, think of the worst questions that we can be asked and then come up with the answer and then write down the answers and then memorise those answers and then, it's just, it'd be like preparing for, like, the biggest pop quiz you could ever go to, like, you know what I mean? If there's. This is gunna be, like, 13 years of school work ..... (INDISTINCT CONVERSATION BETWEEN V.1 AND V.2) V.2 like, but, yeah, I did study fucking early childhood ..... doing it and whatever and smoking would help me do it ..... not fucking, like - - - V.1 Nuh ..... V.2 - - - you know? V.1 - - - and then - - - V.2 Yep. V.1 - - - ..... V.2 Who the ..... fucking ..... in there. V.1 Yeah, I know."
The reference to "Lauren" is to Ms Quinn's solicitor. Ms Bannisters' evidence is that there were two conferences on 17 October 2019 and one on 16 October 2019. This conversation on 18 October is between the two accused about getting a copy of the brief and preparing for the trial.
The Crown submitted that this conversation was not covered by any client legal privilege as it simply reveals the approach to the Crown case to be taken by the accused. The inference is available, it was submitted, that the two accused are going to create a "false" story. It was submitted that this was consistent with other recordings "that relate to a desire to come up with a story to attempt to defeat the Crown case". It was submitted that if the two accused were going to tell the truth they would not need to "come up with the answer, write it down and then memorise" it.
In response to a question by me as to what is the "false" story the Crown alleged the accused are concocting the following exchange took place: "CROWN PROSECUTOR: When your Honour has had the opportunity to review all of the material in one sitting, there is an ongoing theme of a desire by Mr Davis to come up with a story and this is consistent with coming up with a false story. HER HONOUR: What is the false story that you say they come up with. CROWN PROSECUTOR: Well we are yet to know what‑ HER HONOUR: You can't say it is false if you don't know what it is Mr Crown."
When I inquired of Mr Crown why this was relevant he made the following submission: "Your Honour has heard previous submissions in relation to what that is the Crown presses. I'm not inviting your Honour to horse trade by inviting your Honour to consider the extent to which the Crown case may be weakened by the taking out of various of these parts from the listening device material in its entirety."
The following exchange then ensued: "HER HONOUR: The weakening of the Crown case is not a rule for admissibility. I have to look at each all of these listening devices, and in relation to each of them, are they relevant in conjunction with everything else, are they covered by client legal privilege; were they made in circumstances that are unfair? Does the probative value of them outweigh the prejudice effect? Those are the matters I need to look at. If the consequences are they're inadmissible, the fact whether it strengthens or weakens a case is not the test. CROWN PROSECUTOR: I understand that. I invite your Honour's consideration if, for example, all of the matters the Crown relies upon were taken out, they collectively may substantially weaken the Crown case."
The submission that the Crown case would be substantially weakened by the exclusion of these LDs is a surprising one given that there was no mention of them in the Crown Case Statement filed on 26 October 2020.
Putting to one side the Crown submission that this recording should not be excluded because to do so would substantially weaken the Crown case, I am not satisfied that the conversation is consistent with the two accused concocting a false story in the event that they give evidence at their trial. In any event, Ms Quinn, who had already participated in a six hour ERISP well prior to this conversation, will not be giving evidence in her trial.
I am not satisfied that the conversation is relevant. Even if I was, in circumstances where Mr Davis has just had a conference with his lawyer that day and the EAGP process was still ongoing, I am satisfied that it would be unfair for the Crown to rely upon it for the reasons I have already provided.

LD 11 11271 - Blake Davis, Hannah Quinn & Kim Davis: 20.11.2019 at 4:28pm

This is a lengthy conversation between the two accused and Ms Davis. They discuss, inter alia, another self-defence case of Benjamin Batterham (I disclosed that I was aware of this much publicised case and that it involved a person killing a person who entered his home in self-defence after the intruder had already left the house). The Crown ultimately did not press most of this recording but did press the following against Ms Quinn as being relevant to her willingness to concoct a false story in her evidence at trial (V2 is Ms Quinn and V3 is Ms Davis). The extract relied upon is as follows: "V.2 Well his claim [that of Mr Batterham], no, his claim was that he ran down the to make a citizen's arrest ..... and that's probably something ..... V.3 Mmm. V.2 'Cause I was just gunna break off ..... fuckin' should have said. V.3 Mmm. V.2 That I was chasing him down to hold him down - - - V.3 Mmm. V.2 - - - while we called the appropriate authorities. 'Cause you have legal rights to do that. It was ..... V.3 ..... V.2 But I never mentioned anything ..... in my interview or anything like that. V.3 Yeah. V.2 And I just said that I was scared and freaked out and wanted to know who it was. You know, and Blake's saying, It doesn't matter. You could still bring it up now and say, you know, That you wanted to hold him down until the appropriate authorities - - - V.3 Mmm. V.2 - - - came and whatever and arrested him, so I dunno. Like, I just, yeah, I'm gunna bring up ..... this case and see what we can learn from it, I suppose. V.3 Yeah. But ..... I mean, this is good."
The Crown submitted that this was an admission by Ms Quinn that she would add another aspect to her defence of alleging she was going to affect a citizen's arrest.
The difficulty with the Crown position in relation to this recording is that Ms Quinn is not giving evidence. At no time did she in fact vary or add to her version of events. The Crown submitted that the recording was relevant to Ms Quinn's credibility nonetheless.
I have given consideration to whether the fact that Ms Quinn may have briefly considered adding a further explanation to that in her ERISP as to why she ran but ultimately did not is relevant to her credibility given that her ERISP will be played before the jury. I am not satisfied that the evidence takes the facts in issue any further. Even if I was satisfied that there is a bare relevance to this recording on the question of credibility, I would exclude it under s 137 on the basis that its probative value is very low compared with the danger that the jury would speculate that she had planned to pervert the course of justice. For these reasons I do not need to go on to also consider its exclusion under s 90 of the Evidence Act.

LD 12 11300 - Blake Davis and Kim Davis: 21.11.2019 at 8:34 - 8:35pm

This is another conversation between Mr Davis and his mother in which they discuss the co-accused Ms Quinn. It is in these terms (V1 is Mr Davis and V3 is Ms Davis): "V.1 (footsteps) Yeah. All right. (bumping sounds) V.3 Plus it's not good for you. You know? That's why I said be clever. You can, you have Hannah 'round your little finger, get her to do anything you want. The last thing we want is her to rush to a friend and tell 'em things you've said. V.1 What? V.3 The last thing we want is for her, for her to rush to her friend and just blurt out all the hurtful things you've said. V.1 Nah she won't....."
The Crown submitted that this was further evidence of Mr Davis controlling Ms Quinn in some way so as to get her to concoct a false story at trial.
This recording is of a conversation in which Ms Davis tells her son how to behave with Ms Quinn. Mr Davis says nothing of relevance besides suggesting that Ms Quinn won't do "something".
I am not satisfied that Mr Davis' mother is saying things to her son that are not adopted by him and do not go to any issue at trial that is relevant. This recording is therefore inadmissible.

Track 15 11329 - Blake Davis and Hannah Quinn: 22.11.2019 at 11:46 - 11:49pm

This is another fight between the two accused. In it Mr Davis seems to be putting pressure on Ms Quinn to do something with her evidence. It took place on 22 November 2019. This was the day after the two accused were committed to stand trial for murder in the Supreme Court. This is also the day that Ms Davis and Ms Quinn found the accused passed out from an overdose as described by Ms Davis above at [33]-[34].
Ms Cunneen asked for the court to be closed as the contents are so distressing. I agreed to listen to it in chambers instead: "(CONTINUOUS MEDIA IN BACKGROUND) V.1 - - - to be over ..... have got all my stuff, um, my stuff there. We have lied in your ..... point where I'm going to write an affidavit to show where you have lied and I'm also going to have to stand up in, in court and get ..... Kieran 'cause I don't feel like he'll ..... you know ..... get Kieran ....so you do that fuckin' SMS in the next few days 'cause I don't trust you with what you've been saying you're gunna do to your mum. We are done and I don't want you here. You can choose. You can either be a part of it with me - - - V.2 ..... V.1 - - - and fuckin' go ahead with the trial or you can fuck off and we're against each other. And that's the two choices from now on. Either you're with me and you show me actively that you're with me and you're gunna get me off going to gaol or you fuck off out of my life, stop putting the stress on me and mum and know that you're against me. You make the decision. You have 24 hours. OK? OK? V.2 Yep ..... V.1 Well, I want to see both of those SMSs within the next 24 hours. I want to see an email to Lauren and I want to see an SMS from your mum. I have never put it on you since we've had this court that you have to do anything. I have never given you a ultimatum that it's me or you do this. I have always let you make your own decisions. Now I'm not. Now you can choose. You either fuckin' send this SMS to your mum in the next 24 hours and you let Lauren know that you will be on the fuckin' stand and you do whatever the fuck Abigail tells you to do or you get out of my life and you go on with your own shit and know that you're gunna be acquitted and know that when you stand up in court, or when you're there in court that you have nothing to do with me and I will be fucking going against you. Which one is it? V.2 ..... V.1 Well I want to see it within 24 hours. V.2 ..... V.1 Understood? V.2 ..... V.1 She has 24 hours to do that. I am not having my life put in jeopardy anymore and your health put in jeopardy to keep her happy ..... she helped ..... she's either with us, with ..... she's part of the family or she's not and she ..... fucked ..... that is it from now on. None of this her crazy ..... not being part of my, rah, rah. Either she's here, part of the family and we're all on the same page and we do exactly what my lawyer says because I'm ..... or she fucks off and she ..... leaves up in Bentley so that we know where we stand. You have 24 hours, Hannah. (BUMPING NOISE)"
Mr Crown submitted that this recording was relevant to the question of Mr Davis seeking to persuade Ms Quinn or her mother to give false evidence.
Ms Cunneen submitted that the first statements pertain to Ms Quinn's sibling, Kieran, and concern an unrelated issue. That person has a disability and there is some dispute about the mother getting him back. As for the references to "Lauren" (Ms Quinn's solicitor) and "Abigail" (Mr Davis' solicitor) it was submitted that what it is alleged they have said was "nonsense". It was noted that this conversation took place at a time when the medication from the overdose had already been consumed.
It was submitted that Mr Davis is speaking in a slurred speech, not making much sense and that the evidence is confusing. Even if there was an expectation at that time on the part of Mr Davis that Ms Quinn would give some evidence, that did not come to pass. It was submitted that it may cause the jury to speculate on why Ms Quinn is not ultimately giving evidence in her trial and they might infer that it is due to some threat made by Mr Davis.
Ms Cunneen also submitted that none of this conversation goes to a fact in issue of the case, such as whether or not Mr Davis was acting in self‑defence at the time that he struck Mr McKee. It was submitted that any probative value it could have would be outweighed by the "enormous" prejudice to the accused.
The Crown Prosecutor submitted that the evidence was relevant. As for the evidence of Ms Davis that she had never heard Mr Davis speak this way before, he submitted that there is no indication of how much alcohol or medication was consumed or how long before this product that event was. Nor was there any hospitalisation on this occasion. It was also submitted that it is not evident that Mr Davis is obviously in a state of intoxication by drug or alcohol with respect to the s 85 factors regarding mental health and nothing to suggest that he was diagnosed with a condition that would have affected the reliability of what was said. It was submitted that a warning under s 165 of the Evidence Act could be given but there is no reason to render it inadmissible outright.
Although the focus of submissions on this recording was on its potential unreliability, the recording has to first be relevant. The high point of it is that, in a state of intoxication and emotional distress after a suicide attempt, Mr Davis told Ms Quinn: 1. That she had to "get me off going to gaol" or leave him; 2. That he wants an email from Ms Quinn's solicitor advising him that Ms Quinn will be giving evidence at the trial; 3. That he wants an SMS from Ms Quinn's mother; 4. That he has never given Ms Quinn an ultimatum before but now she can choose between getting off or helping him.
If there was to be any suggestion in the Crown case that Mr Davis attempted to pervert the course of justice by getting Ms Quinn Snr to withdraw her statement or that Ms Quinn only gave evidence in the trial because she was threatened to by Mr Davis, this recording could be relevant. The problem is that Ms Quinn Snr did not withdraw her statement (although she did object to giving evidence against her daughter at trial). Furthermore, Ms Quinn is not giving evidence at trial.
Even if I was satisfied that the evidence was relevant, there is significant prejudice associated with this recording as it would lead the jury to speculate as why Ms Quinn Snr did not give evidence (which had nothing to do with this recording) and why the accused Ms Quinn is not giving evidence (most likely because she had already given a six hour ERISP).
I would exclude this recording under ss 55/137 of the Evidence Act. In those circumstances it is not necessary for me to consider the reliability of the assertions made in it.

Track 16 12333 - Blake Davis, Hannah Quinn, Kim Davis and James Davis: 2.1.2020 at 11:06 - 11:15am

This is a very long recording (14 pages of transcript) during which the accused has a fight with his brother James Davis. The accused gets very worked up during it. Only a small portion of it is relied upon by the Crown as follows (V1 is Mr Blake Davis and V4 is Mr James Davis): "V.1 No, no, you're not listening to me. You're not fuckin' listening to me (DOOR SLAMS) V.4 It's the same shit, bro. V.1 Oh, fuck off. No ..... it's mum that's fuckin' done this. I, I was fuckin' fine. Everyone was fine. V.4 .... tell you, you fuckin' idiot ..... V.1 No, was not me in this. It was fuckin' Hannah's bullshit. It was Hannah's contact. Hannah left the fucking door open. V.4 Oh, yeah. It's always everyone else's fault, isn't it? V.1 Everything to do with it was fuckin' Hannah's fault. It was. V.4 Everyone else's fault."
There is other evidence that after this lengthy fight with his mother the accused wrote a suicide note on Snapchat, drove to bushland and took an overdose. He was found by police and taken to hospital.
The Crown pressed this portion as being relevant because it is an admission by the accused that he was in a joint criminal enterprise with Ms Quinn. That is, the statement as to what Ms Quinn did was relied upon as an admission by the accused.
The first "admission" in this passage relied upon by the Crown is that it was "Hannah's bullshit" and "Hannah's contact" (who robbed them). The Crown case is that although Ms Quinn and Mr Davis knew Mr O'Connor, who drove Mr McKee to the scene, neither of them knew the deceased. As stated above, it is not disputed that both accused knew Mr O'Connor. Nothing to the contrary was put to Mr O'Connor in cross-examination. The fact that it was "Hannah's contact" is not a fact in issue.
The other "admission" relied upon is that Ms Quinn left the sliding door to his home open, which allowed Mr McKee to enter their premises easily. Ms Quinn does not dispute this. She has stated as much in her ERISP.
None of this conversation goes to a fact in issue at trial. This recording is inadmissible.

LD 19 12487 - Blake Davis and Kim Davis: 8.1.2020 at 5:44-5:52pm

This is another conversation between Mr Davis and his mother. V1 is Mr Davis and V3 is his mother. This recording takes place a few days after Mr Davis was taken to hospital for his overdose attempt. During the conversation Ms Davis is trying to console her son. The portion relied upon is as follows. The Crown prosecutor opened to the jury on the italicised portion: "V.3 Yep. Blake - - - V.1 Mmm? V.3 - - - you do realise that when someone's been attacked the natural response of any human being is to defend themselves - - - V.1 Mmm. V.3 - - - and, and to, and to fight back? That's natural. That's what, what you did was p- a perfectly natural human response. V.1 Mmm. V.3 You've got to e- you've got to not think, I'm back (sic) bad because I did this, because you did what any human being would do. V.1 But, like, if I chopped his leg off I'd be standing and going, Fuck that cunt - - - V.3 I know. I know. V.1 - - - chopped his leg off? He deserves it. V.3 And how the fuck did he get his ..... V.1 Yeah. Yeah. V.3 How did that happen? V.1 I dunno. I have no clue. I, I think it depends, Hannah was standing on this side and, like, where his legs were - - - V.3 Mmm. V.1 - - - um - - - V.3 You told me at first you were going for the gun and he moved. V.1 I, uh, my head's all over the place as to what was in my head. V.3 Yep. Well that's what you must say. V.1 ..... but that's what was in my head. V.3 Yeah. V.1 Like, 100 per cent true. V.3 Yep. V.1 In my head it was running up and it was just, I don't even know, it was just a, it was just like a hit, all right - - - V.3 Yeah. V.1 - - - Get away Hannah. Get away right now. V.3 Yep. V.1 Get out of the way, I ..... thought he was fuckin' chasing her. V.3 Yeah. V.1 I didn't know ..... to the next day, mum. V.3 Yep. V.1 ..... day later. Anyway ..... V.3 Good. No, it's good, darling. It's good. You just keep that story and keep - - - V.1 Well, it's the truth. V.3 Yep. V.1 ..... V.3 I just don't want you to feel bad about doing something terrible. Because you haven't. You've done what - - - V.1 I feel terrible about doing something fuckin' horrible. V.3 Yeah. But, you know, the same thing happened to your great grandfather. V.1 Yeah. The same thing's happened to lots of people. It doesn't take off any onus, mum. V.3 No, but, you know, of course it doesn't. But, still. V.1 ....."
There was no objection to that portion of this LD that the Crown opened on. After some further submissions, the objection by Ms Cunneen was ultimately confined to the reference to Mr Davis' grandfather. Mr Crown did not press that portion. Thus, it was agreed that that two pages only of this LD would be played: from the last two lines on page 69 to the bottom of 71 excluding the reference to Mr Davis' grandfather.

LD 20 16140 - Hannah Quinn and unidentified male: 9.6.2020 at 2:53 - 2:58pm

This is a recording made on 9 June 2020. In it, Ms Quinn can be heard to be crying. Ms Quinn is V2. The portion relied upon by the Crown is as follows: "(FOOTSTEPS) (INDISTINCT CONVERSATION) V.1 Uh-huh. (INDISTINCT CONVERSATION) V.2 Please do not ..... I'm not ..... and shit ..... and the reality is that that should not ..... and that's not the way I ..... work.....fucking made. V.1 ..... V.2 And I'm a fucking junkie. Like, really, like, I'm a fucking drug addict who can't fucking put their life together. That's the reality of the situation. And I thought it was OK to fuckin' push to forget that fucking part of my life, pay for my fucked ..... you know? ..... some fucking..... better than fuckin' anyone else. V.1 ..... V.2 And I'm not a good person either." (INDISTINCT CONVERSATION BETWEEN V.1 AND V.2) V.2 - - - fucking pay for my fuckin' habit and then someone's fuckin' dead because of it and my life's in fuckin' havoc and so is yours. And that's reality of our fuckin' lives. They can fuckin' like I was gunna fuckin'do good and I was studyin' fuckin' early childhood ..... who fuckin' cares? V.1 drugs. V.2 I fuckin' made a bunch of those stupid ..... and then didn't stick and I got fucking nothing to show for my life.....absolutely nothing. Nothing. I've done nothing. In 26 years I've done nothing but learn how to fucking hate things and how to love things and learn how to fucking do drugs. (DOG BARKING) V.2 I want to be happy. V.1 ..... V.2 (CRYING) ..... never ..... and never......my fuckin' fault. Yeah. You told me ..... you're only ..... for me. I didn't know that. You told me ..... because....there was other people. V.1 ..... V.2 No. V.1 You know ..... want ..... (DOG BARKING) V.2 ..... to be ..... only have......(CRYING) V.1 ....."
Mr Hughes objected on the basis that in my previous ruling I excluded any evidence of drug use. The Crown accepted that in principle but submitted that the words "[f]ucking paid for my fucking habit and then someone's fucking dead because of it" was relevant to the assessment by the jury as to the motive of the accused to engage in the joint criminal enterprise because it was drug-related. It was submitted that this portion was relevant to the Crown case that Ms Quinn (and Mr Davis) were motivated at the time to affect some form of retribution on Mr McKee for breaking into and attempting to steal from their drug dealing business.
Although the Crown accepted that my earlier ruling meant that words such as "I'm a fucking junkie" were not admissible, it was submitted that they were admissible in this different context to give context to the words "pay for my fucking habit" which, it was submitted, was evidence that because of that drug habit someone is dead.
Turning first to the question of relevance, I am not satisfied that the fact that Ms Quinn is remorseful that someone is dead and that if she had not been using and dealing drugs he might not be dead, is capable of going, even in a very small part, to establishing the Crown case theory. This theory is that it was because Ms Quinn and Mr Davis were drug dealers that they formed a joint criminal enterprise to assault the deceased as an act of retribution for daring to steal from their business.
This recording is irrelevant and therefore inadmissible.

RULINGS

To summarise, my rulings are as follows: 1. LD 1 - the extract agreed upon to be played (from mid-way through page 5 to the top of page 6) is to be before the Court by way of an agreed fact. The rest of the recording is inadmissible; 2. LD 2 - pages 9, 10 to the words "come out" on page 11" is admissible; 3. LD 3 - admissible; 4. LD 4 - inadmissible; 5. LD 5 - inadmissible; 6. LD 6 - inadmissible; 7. LD 7 - inadmissible; 8. LD 10 - inadmissible; 9. LD 11 - inadmissible; 10. LD 12 - inadmissible; 11. LD 15 - inadmissible; 12. LD 16 - inadmissible; 13. LD 19 - admissible except for the reference his great-grandfather; 14. LD 20 - excluded. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2020

Surveillance Device Act 2007(NSW)

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