R v Davis and Quinn

The evidence on the voir dire

1. As at 10 August 2018, Mr Davis was an aspiring actor. On 3 December 2020, Ms Cunneen tendered an email from Mr Davis to Ms Caitlin Stanton and Ms Faith Martin in relation to his audition tape for the show The Shannara Chronicles. The role required weapon skills. In that email Mr Davis described having 10 years of martial arts training. His résumé, seized at the search warrant, was also tendered on the voir dire.
2. The officer in charge, Detective Senior Constable Scott Kelly, was called by the Crown on the voir dire and through him a number of other items seized from Mr Davis' home under search warrant (not relevant to the trial) were tendered. These were as follows: 1. Silver handled sword, which became Exhibit VD 9; 2. Gold-handled sword, which became Exhibit VD 10; 3. Curved sword in a sheath, which became Exhibit 11; 4. Large black knife in a sheath, which became Exhibit VD 13; 5. Black Ziplock bag containing two "Sais" (knives), which became Exhibit VD 14; 6. A bag containing a sling shot and three ornamental knives (including a Sikh one), which became Exhibit VD 15.
3. The audition DVD was played again, this time without the soundtrack muted. Its contents can be described as follows:
4. The footage goes for about two minutes. There is a theatrical soundtrack similar to what might be found in a fantasy style/heroic scene. Mr Davis is dressed in a black singlet and black pants with ties on his arms. He is standing among trees which are rustling. At all times he looks at the camera very intently and usually with an aggressive or "cranky" expression. One by one he shows his skills with all of the items described above at [14]. His skills with these items are impressive. His use of the very small knives when wielded in both hands simultaneously would require some concentration. There is evidence that he has had cheerleading and baton and ribbon swirling training (which was not challenged on this voir dire) and that would be consistent with what is depicted when he wielded the smaller items.
5. At one stage of the footage he uses a large stick and wields it around him in a figure eight. Most of the moves could best be described as a figure eight or infinity symbol at speed.
6. The first scene of the DVD has Mr Davis using, first VD 9 on its own, and then in conjunction with VD 10. When he uses it alone, he at some points swaps to two hands rather than one. When he has both swords in his hands, he is obviously using one hand for each sword.
7. Detective Kelly was questioned by the Crown Prosecutor about the audition DVD. Whilst this occurred he was provided with Exhibits VD 9 - VD 15 as well as Exhibit Y in the trial (the samurai sword) and asked questions about them. He agreed that part of the audition DVD shows Mr Davis to be wielding exhibit VD 9, variably in one or two hands, and completing manoeuvres with the sword, including bringing the sword to shoulder level at least and twirling it in figure of eight movements. It also showed him throwing some of the other exhibits on the voir dire described above.
8. Another DVD, previously MFI 54, was also played. Detective Kelly agreed that it was a performance by Mr Davis carried out in auditorium, in which he wields a light sabre.
9. Ms Cunneen cross-examined the Officer in Charge. He conceded that he had not weighed any of these items to compare them with Exhibit Y. He also conceded that Exhibit Y was longer than VD 9 and VD 10. He conceded that Exhibit VD 9 was lighter than Exhibit Y but would not concede it was twice as light. He conceded that exhibit VD 10 was lighter than Exhibit VD 9. He also agreed that some of the other items did not have sharp blades.
10. Mr James Davis then gave evidence in the case for the accused. He is the accused's older brother by five years. He gave evidence that the accused had an interest in swords as well as martial arts from childhood. He had gifted several of the swords listed above at [14] to the accused. He gave evidence that the accused has always wanted to be an actor or a model. He had undertaken training in cheerleading and baton twirling in order to supplement his skills. The accused has also undertaken training in gymnastics and stunt work.
11. When asked about the difference between the swords used in the video and Exhibit Y, Mr James Davis stated that those used in the video were cheap alloy, light weight, and were not constructed in the same way. He was presented with VD 10 and indicated that he had bought it in a shop in Penrith around 10 years ago and it cost approximately $50 to $60. He purchased VD 9 in similar circumstances.
12. Mr James Davis then gave evidence that he had purchased Exhibit Y for his brother's 18th birthday. He had ordered it from Japan and it cost several thousand dollars. He did not think that the accused was a martial arts expert, simply that he wished to develop skills to further his acting and modelling career. He could not comment on the accused's statement in his CV that he was a "10 plus year practitioner of martial arts". He confirmed that the accused had trained with the Kyokushin International Martial Arts Association for approximately 18 months.
13. It is to be noted that the trainer at the Kyokushin International Martial Arts Association, Mr Howard Lipman, has given evidence in the trial that the martial arts he taught the accused and Mr James Davis was self-defence and did not use any weapons at all.

Crown Submissions

1. The Crown Prosecutor submitted that a live issue in the trial is the question as to whether at the time that the sword fatally connected with the deceased, Mr Davis wielded it with at least an intention to cause grievous bodily harm, if not an intention to kill. Relevant to that assessment, it was submitted, is any experience that he has with similar items. It was submitted that the audition DVD depicts that, similar with the observations of eye witnesses, Mr Davis holds a sword with two hands, raising it to the shoulder, or head level, and then brings the sword down from that particular area. It was submitted that this was "precisely" the manoeuvre that was described by an eye witness, Mr Rossinni Palmer. It was submitted that the footage is relevant given the similarity between the motions.
2. As for whether it should be excluded under s 137 of the Evidence Act, it was submitted that Mr Davis' level of aptitude with respect to the use of an item of very similar dimensions is of "very high probative value". The audition DVD depicts this skill. Reliance was placed on Mr James Davis' evidence that it would be possible to cause injury with any of the items described at [14] above, even if none of them was sharp, if they were swung over your head and you hit yourself on the back of the head with it. In this context, it was submitted that the competency of the accused in the audition DVD was of "great significance" in the assessment as to whether the sword was wielded with an intent, at least to cause grievous bodily harm, if not kill.
3. It was submitted that if the Crown was prevented from placing this audition DVD before the jury it would be open to the accused to submit that that there is no evidence of his experience with the sword. In the context of Mr James Davis' evidence that they are ornamental, the similarity between Exhibit VD 9 (shown in the DVD) and Exhibit Y (not used in the DVD) in shape, size and weight is highly probative. It was accepted that Exhibit Y is heavier, but in circumstances where there is no evidence of by how much, the fact remains that the same motion applied with the "murderous samurai sword" is depicted by the use of Exhibit VD 9 in the DVD.
4. It was further submitted that Mr Davis' competence is relevant as to whether he used Exhibit Y competently or incompetently on the day. It was also submitted to be "highly" relevant to the question of Mr Davis' skill level and that the DVD "does far more than any description".
5. As for the prejudice associated with its tender, it was submitted that agreed facts that it is an audition DVD and that Mr Davis is only playing a role in it would reduce any potential of unfair prejudice. Mr Davis had described the DVD to the casting agent as "displaying some of my weapon skills". It was submitted that this was the "common denominator". Although it was accepted that the résumé may include some puffery, it was submitted that this fact highlights the importance of the actual video itself because the video is worth "three thousand words".
6. It was suggested that it could be part of the ruling as to admissibility that only some parts are tendered and with the appropriate directions the prejudice would be removed. The Crown Prosecutor submitted that the self-proclaimed weapon skills are evident in the footage and there is "little risk" of it being unfairly used if appropriate directions are provided.
7. Finally, the Crown Prosecutor emphasised that the Crown seeks to adduce this DVD to show Mr Davis' weapon skills. It was submitted that Mr Davis' résumé would be insufficient because he may have "gilded the lily" in the résumé, thus, the probative value of the résumé is not as high as the DVD itself.

Ms Cunneen's submissions

1. Ms Cunneen submitted that there is no point in this audition DVD where Mr Davis swings any sword down in the same manner as described by the eye witnesses in this trial. All of the actions in the DVD are on the diagonal in keeping with the figure of eight which is repeated throughout. At no stage does he bring it down right in front of him.
2. Secondly, it was submitted that Mr Davis' "weapons skills" as depicted in the audition DVD means that he is able to wield the relatively lighter objects in the same way as a baton carried by a cheerleader can be wielded. It is that area in which Mr Davis is actually trained.
3. It was submitted that for these two reasons the audition DVD was not relevant. Even if it was, it was submitted that the overwhelming prejudice far outweighs any probative value. It was submitted that there is an older type of Australian who might think that martial arts are not very "seemly" or a juror's father or grandfather might have fought the Japanese in the Second World War.
4. Ms Cunneen submitted that if the audition DVD went into evidence it would be the one exhibit that it could be guaranteed would be played by the media to the exclusion of almost all other evidence. It would be selected by the journalists as being the most sensational because it is sensational. Mr Davis is playing a character with a "cranky" face and is using his cheerleading skills with weapons that differ from the lethal weapon used on day of the death of Mr McKee. The clear evidence is that Mr Davis has never been trained with weapons.
5. It was submitted that Exhibit Y is heavier and it is curved, whereas Exhibits VD9 and VD 10 are straight and lighter. It was submitted that exhibit Y could not be used to do the figure eights at the same speed as in the DVD. The height of Mr Davis is not in evidence, but it was submitted you would need to be taller than he is to do so given the length of Exhibit Y (which is longer than any of the other exhibits).
6. Finally, it was submitted that the risk of unfair prejudice was significant. It is not in dispute that Exhibit Y was brought down upon the head of the deceased with whatever force Mr Davis thought was necessary to avert the threat in all of the circumstances as he perceived them. There was no particular skill to it; it is one simple stroke not replicated in the DVD. The risk of unfair prejudice is uncurable and if, as Mr Crown submitted, the film is worth "three thousand words", the court should know what those three thousand words are in order to assess its probative value.

Consideration

1. The first question in whether the audition video is relevant in the sense that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55 of the Evidence Act. If the evidence is not relevant, that is the end of the matter: Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 at 653 [6].
2. Despite the spirited submissions of the Crown Prosecutor, I am not satisfied that the audition DVD is relevant for the following reasons.
3. First, at no stage in the DVD does Mr Davis wield Exhibit Y (the weapon used to kill Mr McKee). When the DVD was first presented for tender and objected to by Ms Cunneen, the Crown was not in a position to confirm whether Exhibit Y appeared in the DVD. I indicated at that time that, putting to side the question of prejudice, the tender could pass the threshold test of relevance if Mr Davis was using Exhibit Y in the footage. For example, it could rebut any suggestion made by him that he had never touched it before. When court resumed the following day, it was made clear that Exhibit Y is not at any stage wielded in the footage.
4. Secondly, the swords VD 9 and VD 10 are very different swords. I was invited to handle these items in chambers as there was no evidence as to their respective weight. I am satisfied that exhibit VD 10 is at least half as heavy as Exhibit Y and that Exhibit VD 9 is slightly heavier than Exhibit VD 10. Having looked at them all closely, Exhibits VD 9 and VD 10 are a light plastic alloy and no matter how hard I pressed my finger on their blades it was not possible to hurt myself. On the other hand, I have only touched the blade to Exhibit Y in a very cursory manner as it is obviously very sharp. The evidence of Mr James Davis is that he purchased Exhibits VD 9 and VD 10 in a shop in Penrith for about $50 each, whereas Exhibit Y is an authentic samurai sword he had specially commissioned in Japan and is worth a great deal of money. The difference is apparent.
5. Thirdly, none of the eyewitnesses described Mr Davis doing anything remotely like what was depicted in the audition video.
6. Fourthly, the vast majority of the footage is of Mr Davis performing skills that were not seen by anybody in the street with weapons not used at the scene. It would be very difficult to show the selected freeze frames relied upon by the Crown without the context and the context is very far removed from the facts in issue in this trial, including self-defence and extreme provocation.
7. Finally, as to the submission by the Crown Prosecutor that it is relevant to Mr Davis' intention at the time the blow was struck, there is nothing in the evidence of Mr Palmer or Mr McCaw (the two eye witnesses who saw the fatal blow and demonstrated it in their evidence) to suggest that the act was anything but deliberate (as opposed to a slip, or accident, or a fall, or something inadvertent).
8. For all of these reasons, I am not satisfied that the audition DVD is relevant.
9. Even if I was satisfied that the audition DVD had some relevance, it has such overwhelming prejudice that I am not satisfied that there are any directions which could ever cure that prejudice. Section 137 of the Evidence Act provides that the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.
10. Although the phrase "probative value" is defined in the Dictionary to the Evidence Act, the expression "unfair prejudice" is not. "Probative value" is defined as "[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." It has been held that the danger of unfair prejudice means the risk that the evidence would be misused by the jury in some unfair way that is logically unconnected with the purpose of its tender: see McHugh J in Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91].
11. The real danger with this tender is that the jurors will conflate the angry and at times aggressive demeanour of the character Mr Davis is playing in his audition DVD with his appearance on 10 August 2018 when he struck Mr McKee. In this context, I am unable to accept the Crown submission that the probative value is so high it outweighs any prejudice. That high probative value is said to derive from the fact that if the moving footage is paused at one or more discrete freeze frames (when Mr Davis is holding the lighter, shorter and straighter swords VD 9 and VD 10) he raises both hands behind his head and then brings the sword down. It was submitted that this image was so powerful it was much more probative than words in any agreed fact could ever be.
12. The problem with this submission is that it highlights the prejudice arising from the proposed tender in the first place. It is difficult to identify more prejudicial evidence in a murder trial than footage of Mr Davis acting the part of a weapon-wielding warrior in an audition tape. Ms Cunneen submitted that it is "sensational" footage guaranteed to be repeatedly aired in the media if admitted into evidence. I accept this submission and it is one that highlights how any probative value the evidence might have is completely outweighed by its sensational nature and the real risk of prejudice arising from its tender.
13. Finally, I note that an email was received in my chambers late on Friday 4 December 2020 from the ODPP. It noted that NSW Police would be in a position to "black out" Mr Davis' face to avoid the prejudice of the jury seeing the angry aggressive face of the character Mr Davis is playing in the audition DVD. Not only am I satisfied that this would not remove the prejudice, I am satisfied that it would increase it. Jurors would no doubt be familiar with footage of suspects on the television news where their faces have been blocked out so as to conceal their identity. The prospect of the jury being shown footage of the accused Mr Davis auditioning to be some form of martial arts fighter with his face blacked out (making him appear as a suspect) is one so prejudicial that it hardly warrants consideration.
14. The audition tape is inadmissible. 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