R v Davis and Quinn

Relevant principles

1. The relevant principles are well settled. In Doney v R (1990) 171 CLR 207; [1990] HCA 51 the High Court observed at 212 that there was: "... no doubt that it is a trial judge's duty to direct [a verdict of acquittal] if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict."
2. The Court went on to observe at 214-215: "... if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."
3. In R v R (1989) 18 NSWLR 74, Gleeson CJ approved the following statement of principle in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 at 415-416: "The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies, J. explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt."
4. In JMR v R (1991) 57 A Crim R 39, at 44, Lee CJ at CL (Carruthers and Finlay JJ agreeing) accepted that R v R was authority for the proposition that a judge may not direct an acquittal in a case dependent upon circumstantial evidence: "... if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated ..." (Emphasis added.)
5. In R v Bilick and Starke (1984) 36 SASR 322; 11 A Crim R 452, the Court was concerned with a no case application in respect of a circumstantial case. King CJ stated at 337: "The case against the appellant Starke was circumstantial in character. The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be answered by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt."
6. His Honour went on to articulate that the question to be asked is as follows: "…On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences most favourable to the prosecution which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction, beyond reasonable doubt, of the guilt of the accused?"
7. The NSW Court of Criminal Appeal (Beazley P, Hall and Campbell JJ agreeing) in Regina v XHR [2012] NSWCCA 247 at [11] approved the passage from R v Bilick and Starke set out at [124] above.
8. In the Victorian decision in Attorney-General's Reference (No 1 of 1983), referred to at [7] above, it was submitted at the close of the Crown case that there was no case to answer. The trial judge found that there were "countervailing inferences which are capable of being drawn from the evidence, and with at least an equal degree of probability." The Attorney-General referred two questions of law to the Court of Appeal, one of which is pertinent. The Court of Appeal stated (at 414): "The second question in substance asks whether, if at the close of the Crown case inferences of fact could be properly drawn which were consistent with the innocence of the accused and other inferences of fact could equally properly be drawn which were consistent with the guilt of the accused, the trial judge is bound or entitled to direct the jury to acquit the accused…we should have thought that the question admitted of only one answer…The question asked should also be answered that as a matter of law the trial judge was neither so bound nor so entitled." (Emphasis added.)
9. In Regina v PL [2012] NSWCCA 31, Bathurst CJ, with whom Simpson J (as her Honour then was) and Adamson J agreed, confirmed that in a circumstantial case a judge cannot enter a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted, even though a reasonable hypothesis consistent with innocence can be formulated (at [32]). It was held that the trial judge in that matter had erred by undertaking an evaluation of the weight of the evidence as distinct from considering whether, taken at its highest, it could support a verdict of guilty. Furthermore, the trial judge erred by reaching his conclusion after evaluating the alternative hypothesis open to the jury.
10. With these principles in mind, I turn to consider the question of whether the evidence, taken at its highest, could support a verdict of guilty for murder against Ms Quinn.

The evidence in the trial

1. The Crown case is that the deceased needed money urgently due to a very serious gambling problem. His partner was pregnant and he had lost a great deal of money in the period leading up to 10 August 2018. He and his close friend, who was known as Frank O'Connor at the trial, decided to rob several drug dealers. Mr O'Connor described it in his evidence this way: "After him losing a lot of money we both decided that we might be able to rob a drug dealer or something ‑ we decided that maybe robbing drug dealers could be an easy option to make money because they would not go to the police after being robbed."
2. Mr O'Connor also gave evidence of several other robberies carried out by Mr McKee and himself: "Okay, we decided we would rob a drug dealer, Jett knew this drug dealer, we would get, he would have, he could have had anywhere been ten or $20,000 or drugs worth, we, Jett and I drove to Dave guy, his name was Dave I had never met him before, I never been to their house before. I did not know Dave at all. Jett showed me where the house was. We both took ski masks with us, I had a crow bar in the boot of the car. We decided to do it in the morning. Jett said we should do it quietly because, the guy did not live alone. So, we drove to the house in Hurstville. I am not exactly sure, the suburb, but it was down towards Hurstville somewhere maybe. After we got out of the car we walked towards their house, when we were almost at the house we pulled our ski masks. I had the crow bar. I opened the door with the crow bar, Jett was right behind me. He pointed to the drug dealer's bedroom and told me that he will be in there so I opened the door quietly, I walked inside and the man was sleeping. I hit him with the crow bar, not to try to knock him out, just to wake him up. He wasn't bleeding or anything like that but he was very scared to see two, with two men standing over him with ski masks and a crow bar, I think, anyone would be scared if you were in the house and saw that. After that I told him to be quiet and, if he doesn't want to be hurt just hand over all the drugs and money. We got a couple pounds of weed and a few thousand dollars, a bit of coke I think as well. After that we, I told Dave to go downstairs and lock the door and, while we leave. So he couldn't see the car or anything like that. As soon as we walked outside the door we pulled our masks off, we hopped in the car and drove away. Split the profits and drugs 50/50."
3. When asked whether the deceased actually did anything in that robbery other than being present, Mr O'Connor replied: "A. No he didn't do anything he was quiet he looked a bit, he looked, a bit shocked or something, he looked he was scared something like that, to me. I think he was worried that maybe the Dave guy could recognise him."
4. Mr O'Connor later agreed that he and the deceased had researched a second drug dealer to rob. They both drove to the dealer's house and found out that they had to enter through a security door downstairs. They did not want to be seen on a screen with a ski mask so they entered through the fire escape with the masks with them. Just as they were putting the ski masks on, their targeted victim, another drug dealer, came into the fire escape. He looked "scared as fuck" and ran away. That "freaked" the deceased out so much he did not want to try it again.
5. Mr O'Connor had had previous dealings with the two accused and knew them to be drug dealers in cannabis. The deceased proposed that they rob them. Mr O'Connor was reluctant but ultimately agreed to drive the deceased to the premises. The deceased made some earlier attempts to rob the accused but balked at the last minute. Mr O'Connor did not believe that the deceased would actually "go through with it" on 10 August 2018.
6. On 10 August 2018, Mr O'Connor drove the deceased to the vicinity of Mr Davis' home at 87A Hereford Street, Forest Lodge. The deceased had a balaclava, knuckledusters and an imitation pistol. Mr O'Connor waited in the car whilst the deceased approached the premises "a couple of hundred metres away".

Events within 87A Hereford Street

1. From the point in time when the deceased left the vehicle driven by Mr O'Connor until he ran from the premises of 87A Hereford Street, the only evidence of what took place within the premises is contained in the ERISP of Ms Quinn. It is common ground that there were only three people in the house at the relevant time: the deceased, Mr Davis and Ms Quinn. Mr Davis did not participate in an ERISP, although there is some listening device evidence before the court about his version of events. Ms Quinn, on the other hand, participated in an ERISP which ran for nearly six hours. Her account of what occurred in the premises is as follows.
2. Ms Quinn describes (at A48) waking up at 87A Hereford Street, the home of Mr Davis, at about midday on 10 August 2018 and walking to the local cafe to buy breakfast. As she returned, she noticed someone near her front gate staring at her and it made her feel uncomfortable. She entered the premises and gave Mr Davis his breakfast and coffee when she heard the screen door open and saw a "really huge scary guy come in and he had a balaclava on". She described how he had a gun and it was pointed at them and he was yelling "give us all of our stuff… any valuables any money". He said that he would shoot them. She described him (at A51) as "really intimidating". He told them that there were: "….more people who would be coming if we didn't, um, give him, like, some money and give him things. He said that there were people who knew who our family were and that they would hurt our families. Um, and I, I, I just, I don't even, I b, believe I was yelling and screaming and just really distressed. Um, I'm not sure what was going on. Um, he put a, he had a gun on one hand and he, he put a knuckle duster on his other hand and he, he punched Blake and Blake fell down, b, um, I think he blacked out. I'm not sure. He fell to the ground."
3. Ms Quinn told police that she yelled at him to "get out, get out". Ms Quinn then described Mr McKee grabbing her bag. When he grabbed her bag, she was still attached to it, stumbling out the front side of the house with him. She stated that after he snatched the bag and ran out the front gate, she ran after him yelling out to him. She then caught up to him. She tried to snatch her bag back and he turned around and tried to punch her. She stepped backwards, he lost his footing and he fell to the ground. She then said he "was holding the gun up, up at me and I was just frozen and that's when… Blake ran up and he hit the guy".
4. Ms Quinn was later invited to return to this topic in more detail throughout her lengthy interview. Ms Quinn stated (at A317) that when she was yelling and screaming in the premises (when first confronted by the deceased) she did not know what to do. She had her arms up because he had the gun pointed at her. She recalls yelling "get out" but cannot recall yelling anything else. She was asked why she thought that Mr Davis blacked out after being struck by the deceased and she responded (A352): "Well, just 'cause he fell to the ground and I don't know how long he was down there for … 'Cause I didn't see him get up."
5. Ms Quinn described how Mr Davis dropped to the ground straightaway after being hit. She was then asked (Q563), whether she saw Mr Davis to be bleeding at that time to which she responded "I couldn't see then no".
6. At Q451 the following exchange took place: "Q OK you've struggled to retain the bag as this man's taken it. Why didn't you let it go all why did you resist? A I don't know. I should've just let that go. I just wasn't thinking. I was just scared. I don't know."
7. When asked (at Q568) what she was thinking when her bag was taken she responded: "...not much at all. Just like, like, Fuck. Um and....I didn't want my stuff to be stolen."
8. Ms Quinn later described (A581) that when she managed to catch up to Mr McKee she grabbed her bag and pulled it towards her and that is when he turned around and tried to punch her but she stepped out of the way. He was holding the gun at that stage. She was asked about the actions of Mr Davis when Mr McKee first arrived. She described (at A615-618) just screaming and screaming at that stage. She did not remember what she screamed, but stated that she was thinking "what the fuck's happening". At A619 she described how when she caught up with the deceased she thought he no longer had the balaclava on.
9. Ms Quinn's interview proceeded for nearly six hours. At the end of the interview, when the questioning ceased, Mr Hughes of counsel, who was present with his solicitor for the entire ERISP, queried with investigating police whether they were going to put the allegation she was charged with to her. At that stage, she had been charged with murder and at no stage during the six-hour ERISP had anything pertaining to her involvement in the murder been put to her. The police then suspended the interview for five minutes or so and the following exchange then took place: "Q 1687 In relation to the death of Jet McKee did you at any time make a plan or have any premeditation is with yourself and Blake in regards to murdering Jet McKee A No, not at all."
10. It was then put to Ms Quinn that she tackled the deceased when she caught up with him, to which she responded that she did not and that her only action was try to get her bag back (A1690-1692).
11. In addition to this version provided to Ms Quinn in her ERISP, the two accused discussed the circumstances as to what occurred in the house over a year later, on 30 August 2019. That conversation was lawfully recorded by police. The conversation at 6:30-6:34pm was as follows (V2 is Ms Quinn and V1 is Mr Davis): "V.2 Yeah. Like, I heard ..... hear and I heard him drop. Like, and it just, I can't explain the fuckin' rush that came ..... when I saw that happen. It was anger ..... it was me just going crazy and then you left ..... and I was, like, No. Fuck that. You don't get to come in here and do that and then me not know who you are, and that's when I ran down the street ..... screaming, Who the fuck are you? Who the fuck are you? Who the fuck are you? What the fuck are you, you fucker? You, 'cause I wanted him to turn around and he's, like, Fuck you, like, this ..... because ..... stopped him and then I would've known who it was ..... do you know what I mean? I just wanted, I wanted a fucking ..... and because of that, because ..... angry and, and, like, like ..... like everyday ..... and what has happened is I've just gone, instead of being, like ..... I feel that rush of anger and shit towards him if I'd just gone, Fuck you, and then just dropped to my knees and just gone, Baby are you OK? You've ..... fuck that guy ..... eye, you know? And then I could've just called the cops and reported a fuckin' break-in and it wouldn't have mattered that all the shit there 'cause they wouldn't've searched our house, they wouldn't be freaked out about it, 'cause then we would've spoken to someone ..... Nah babe. You've just got to report this break-in, blah blah blah ..... shit at Hannah's or whatever, then it would be fine. Then maybe they would've been caught. V.1 ..... V.2 And I'm so sorry ..... V.1 ..... wish I had ..... stopped ..... didn't fuckin' ..... (INDISTINCT CONVERSATION BETWEEN V.1 AND V.2) V.2 Yeah ..... part of me ..... house, you know? ".

The eye witnesses

1. The attempted robbery took place after midday on a Friday. There were a number of persons on Hereford Street or in their homes who either heard or saw different portions of what happened when the deceased fled the premises.
2. In submissions opposing the application for a directed verdict, the Crown Prosecutor tendered an A3 schedule of the evidence of all of these witnesses extracted under nine separate headings.
3. It was submitted by the Crown that if regard was had to the observations of all of the eye witnesses in the case, there was no defect as to the evidence establishing the formation of a joint criminal enterprise between the two accused in the premises to inflict some violence on the deceased. In the limited time available to me to consider this application (prior to ordering a verdict of acquittal on 10 December 2020), I read that document and summarised it as follows (using some of the same headings as in the document). The document has clearly been prepared for closing submissions and covers all of the evidence in the Crown case (not just that relevant to the formation of the joint criminal enterprise). The defect identified by counsel for Ms Quinn was the evidence of a joint criminal enterprise. For the purposes of these reasons I will focus on that aspect of the Crown case against her.

Ms Quinn chasing and screaming

1. All of the eye witnesses describe the deceased to be chased by Ms Quinn and Ms Quinn to be yelling at the time. This was described by Sarah Baker, Thomas Scott, Kerrie Sparks, Courtney Raffaele, Phillip East, Rossinni Palmer, Aaron McCaw, Michael Mullan, Bradley Miller and Gary Foxall. Although all witnesses described this, the descriptions by these witnesses as to the proximity between Ms Quinn and Mr Davis differed.
2. Ms Baker and her boyfriend Mr Scott were close to the entrance of 87 Hereford Street. Ms Baker described the deceased as running or sprinting out. Mr Scott described the deceased as "pissbolting" down the street. Ms Baker heard Ms Quinn to yell aggressively "who are you? who the fuck are you?" Mr Scott described Ms Quinn as yelling quite aggressively "who are you, bro? Who are you bro?" repeatedly. He described her as running the fastest and as being the most "pissed off".
3. Ms Sparks was walking her dog when she heard footsteps coming from behind her and saw the deceased run out into the middle of Hereford Street. She described how Ms Quinn "ran out a few seconds afterwards onto the street screaming. I couldn't understand what was being said". She stated that Ms Quinn was extremely fast and running up to the first person.
4. Ms Raffaele was studying in the front room of 182 Hereford Street and heard a woman screaming and shouting on the street she could hear her yelling violently and aggressively "who the fuck are you? Who the fuck are you?" This was repeated twice back-to-back. She described the voice as strong and solid and not scared.
5. Mr East was inside his home when he heard a loud woman's voice calling out. He believed she was saying "what you think you are? What you think you are?" He thought she said it twice and the loudness and tone caught his attention. The best way he could describe the tone was "distressed".
6. Mr Palmer was working in 9/79 Hereford Street. He was painting the loft level of the residence when he heard a female voice shouting "[w]hat are you doing, who the fuck are you?" He looked out the window facing Hereford Street and saw the deceased being chased by Ms Quinn. They were 15 metres away. He described it as "pretty loud" and as sounding angry. He heard it from where he was, where the windows were closed.
7. There were builders working on a jobsite at 176 Hereford Street, Forest Lodge: Mr McCaw, Mr Mullan, Mr Miller and Mr Foxall. Mr McCaw's evidence is that the first thing he heard was a female shouting. Mr Miller described eating his lunch when he heard a girl shout something and he walked onto the street to observe. First he heard two shouts and stated "she was shouting at the victim… Couldn't make out what she was actually saying…". Mr Foxall heard a female voice yelling out on Hereford Street when he was inside the premises. Mr Mullan heard the woman yell "who the hell are you" and said that she kept repeating it.
8. Only two of these witnesses saw anything in the deceased's hands: Mr O'Connor and Mr Palmer.
9. Mr O'Connor described hearing "screaming coming from down the street. He looked in his rear vision mirror and saw the deceased running towards the car holding something down towards his stomach. Ms Quinn was chasing him not far behind him and Mr Davis was further behind her. He stated, "it looked like he was carrying something… It looked like he had money or drugs"… "[i]t was like a bag or something you know, it was like a small bag or something like that". Later he stated "it wasn't a gun… It was more like a small bag or something to me". Mr O'Connor was the only witness who saw the deceased from front on as he ran.
10. The evidence of Mr Palmer is that, when he saw the deceased and Ms Quinn running by, he thought he saw a bag and assumed she was getting it stolen from her. He also stated that it "sort of just looked to me like a sort of purse". He stated, "well I thought that she grabbed it off him that's what I thought okay she must be getting mugged and then she was stepping back. I don't exactly recall if she had it in her hand, right though, I didn't take much notice of what that was. I think maybe I was thinking maybe obviously she got the bag and that was why she is stepping away now". He later said, "I just made the assumption that she was being mugged for a handbag, and then when I, I did see something see something there, and that is what I assumed was a handbag".

Order/timing when Mr McKee was chased onto the street

1. In addition to all eye witnesses describing Ms Quinn as being the first person to chase the deceased and the one doing all of the screaming, all eye witnesses describe Mr Davis to be following Ms Quinn up the middle of Hereford Street. On this issue, the evidence diverges as to how far behind Ms Quinn Mr Davis was.
2. Ms Sparks saw the two accused following the deceased. She described them as being together, with Ms Quinn being in front of Mr Davis. In cross-examination it was suggested to her that Mr Davis did not appear for 10 seconds after Ms Quinn. She could not remember this but nor did she dispute it.
3. Ms Baker observed to Mr Scott at one stage that the deceased was well ahead of "them". Mr Scott described a woman running after the deceased and then Davis running after her. The third person with the sword was a bit slower and "a little bit further behind".
4. Mr McCaw saw "a guy run down the street with a woman after him and then another guy behind the woman". Mr Mullan saw a man running up the road and a woman maybe 5 to 10 metres behind him. He then saw another male carrying a sword. Mr Miller saw the female in front chasing the deceased, then Mr Davis.
5. Mr Palmer only saw the deceased and Ms Quinn at first. He did not see Mr Davis until later.

Evidence of Mr Davis' face bleeding

1. Most of the witnesses saw Mr Davis with blood all over his face.
2. Ms Sparks agreed in cross-examination that Mr Davis' face was covered in blood. She said that it was mostly on the left side of the face.
3. Ms Baker stated that when Mr Davis and Ms Quinn stood and talked in a driveway at the rear of Ms Baker's premises (after the assault) she saw blood on the left side of Davis' face and that almost half of his face was covered in blood.
4. Mr Mullan saw that Mr Davis' left eye was bloody "like he had been hit" at the time he and Ms Quinn were running towards him before they ducked off to the right into a laneway.
5. Rosaria Guastella stated that Mr Davis had blood on the left side of his face when she saw him and Ms Quinn running down the stairs at the back of the property at 133 Wigram Road at Forest Lodge.

The "Scuffle" between Ms Quinn and Mr McKee

1. Some of the eye witnesses describe Ms Quinn catching up to the deceased. Ms Sparks, Mr Palmer, Mr McCaw and Mr O'Connor gave evidence of what happened then.
2. Ms Sparks stated, "I just saw her catch up with the first person and caught him by the collar or the scruff of his neck and pull him down".
3. Mr Palmer saw the deceased and Ms Quinn running and moved to get a better view. When he looked again "[e]verything had stopped" and "she was sort of backing off at this point" (he presumed she had got her handbag back by then).
4. Mr McCaw described the woman "grab" a hold of the deceased's hoodie and that she brought the deceased to the ground. He also described it as a "scuffle" in which they were "constantly moving… never staying still". He stated "the guy went down on his knees". He stated in cross-examination that he was not sure whether he saw the deceased doing something physically aggressive towards the woman and was not sure if he saw him swing a punch at her either.
5. Mr O'Connor described the deceased falling over and then stated "it looked like she (Ms Quinn) tried to kick him I think she kicked him while he was on the ground but he got up". He also described how he saw that "she grabbed his shoulder and it was like he tripped over at the same time." He stated: "Hannah was behind, like trying to hold onto him. She was just right behind him… not backing away from him at all, she was trying to fight him. She was screaming at him." He also described "from what I saw it was clear vision and I could see they were… angry and they were after something".

Whether the gun was pointed at the scene

1. None of the eye witnesses describe seeing a gun in the hands of the deceased when he was running or a gun being produced by the deceased at the time Ms Quinn caught up with him.

The sword strike

1. A number of eye witnesses saw or heard some or all of the sword strike: Ms Sparks, Mr Palmer, Mr McCaw, Mr Mullan, Mr Miller, Mr Foxall and Ms Lynne Charlesworth.
2. Ms Sparks saw Mr Davis raise the sword (described as a "stick"), up in the air and then come back down again. She did not see it connect but she heard some builders who were across the road groan.
3. Mr Palmer described that "as the girl was backing away" he saw another man (Mr Davis) come from the same direction that the other two had come from and hit the prone man "on the head".
4. Mr McCaw described what he saw in this way: "Basically at my lunch, I seen a guy run down the street with a woman after him, and then another guy behind the woman. The woman and the man started having a scuffle and sort of wrestling. The guy went down on his knees. By that time the other guy had caught and hit him over the head with a samurai sword."
5. At the time of the strike, Ms Charlesworth was upstairs in her home with the French doors open. She heard a woman scream then she heard her scream the words "no, don't". She then heard this "almighty crack". A few seconds later she heard a sound which was like a body hitting the ground. By the time she got outside, neither of the accused were there. Her evidence was that before she heard the woman scream and yell "don't, no don't" she heard an argument by a couple which sounded like it was a little bit further up the road. She could not hear what they were saying but she could tell was an argument between a male and female.
6. After the strike with the samurai sword, Mr Palmer heard Ms Quinn say "what the fuck have you done" before running away with the accused.

Flight

1. There is unchallenged evidence that the two accused did not hand themselves into police for two days. The Crown relies upon flight as consciousness of guilt.

The physical evidence

1. Eye witnesses were able to identify the area on the road where the deceased was struck. It was also evident from blood and brain matter on the road. Despite his fatal head wound, he was able to stagger over to a nearby parked car and lean on it before staggering again until he collapsed and died some distance away. It was later revealed that he had a toxic to lethal amount of ice in his bloodstream which may explain his ability to do so.
2. A balaclava with the DNA of the deceased on it was located in a pool of blood near where he was struck. A pistol and a pair of knuckledusters with the DNA of the deceased were found on the roadway near where Mr McKee leaned on the car.
3. An ALDI shopping bag, consistent with that described by Ms Quinn in her ERISP, was found by police at 87A Hereford Street. It had cable ties in it. It was the same ALDI shopping bag seen to be carried by the deceased in CCTV footage when he arrived at Mr O'Connor's home prior to the attempted home invasion. The ALDI bag was tested and had DNA matching Mr McKee. There were no other fingerprints or DNA of either of the accused in the bag.
4. A can of pepper spray was found in the deceased's pocket at the time of his death.

Issues in dispute at the trial

1. Mr Davis does not dispute that he did the act which caused the death of the deceased. He relies upon self-defence of Ms Quinn. The partial defences of excessive self-defence and extreme provocation are also relied upon.
2. Ms Quinn's defence is that she did not form any agreement with Mr Davis. She ran after the deceased to get her bag back. The deceased had the gun pointed at her when Mr Davis struck the blow that killed the deceased.

Submissions for Ms Quinn

1. Mr Hughes' first submission was to note that the Crown was on notice prior to the commencement of the trial of the problems in the Crown case against Ms Quinn for murder. He relied upon two passages from my decision in R v Davis and Quinn (No 1) [2020] NSWSC 1615. At [63] I stated: "I raised with the Crown Prosecutor during the voir dire how it proposed to put its case that Ms Quinn was guilty of murder. He responded that the Crown's case at its highest was that Ms Quinn was a participant in a joint criminal enterprise because she was aware that Mr Davis had a sword before she left the 87A Hereford Street property. This is based on the witness Ms Hanlon-Schafer who described seeing Mr Davis with a 'lampshade stand' or something similar within that property, hitting the fence. After leaving 87A Hereford Street, Ms Quinn was seen running in a 'furious' manner, followed by Mr Davis. It was submitted that the participation in the joint enterprise is evidenced by Ms Quinn speaking angrily, saying 'who the fuck are you', catching up with the deceased and pulling him to the ground. As counsel for the Crown submitted, 'Mr Davis comes in with the sword, and at the very least intends to cause grievous bodily harm'. It was also acknowledged that a neighbour, Mr Palmer, heard Mr Quinn say 'what the fuck have you done' before running away with the accused and that Lynne Charlesworth, a witness who was inside her residence at the time, heard a woman scream the word '[d]on't' about two seconds prior to hearing a crack and a thud sound." (Emphasis added.)
2. At [225] of my judgment, I observed: "Finally, I have set out the evidence the Crown relies upon to establish that Ms Quinn was part of a joint criminal enterprise with Mr Davis to murder the deceased above at [63]. It seems to me, especially in the context of witnesses hearing Ms Quinn cry out 'what have you done' and 'no', that the Crown faces significant hurdles in establishing the case against Ms Quinn for murder. I will consider the question as to whether there is a case to go to the jury against her for murder if and when that question arises."
3. The reference to the person seeing Mr Davis with a lampshade was Ms Pamela Hanlon-Schafer. It is pertinent to note that a significant amount of court time was spent during the trial concerning the question of whether Ms Hanlon-Schafer would be giving evidence at the trial. Ultimately, a decision was made by the Crown not to call her as a witness in the Crown case. Her anticipated evidence is, thus, irrelevant to this application.
4. The nub of Mr Hughes' submission was that, as none of the eye witnesses saw Ms Quinn looking behind at Mr Davis after she ran from the premises, there is no evidence that once she left the premises she had any opportunity to observe that Mr Davis was carrying a samurai sword. It was submitted that there was no evidence of an agreement being formed between them inside the house either.
5. I accepted there was force in Mr Hughes' submissions and invited the Crown to respond.

Crown submissions

1. The Crown Prosecutor opposed the application. He relied upon the following evidence as being capable of establishing beyond reasonable doubt that Ms Quinn was a party to a joint criminal enterprise formed in the house between the two accused to inflict some form of violence on the deceased.
2. The Crown case is that as at 10 August 2018, both Mr Davis and Ms Quinn were selling cannabis from the premises at 87A Hereford Street, Forest Lodge. Jett McKee entered those premises with the intention of robbing them of their cash and/or drugs. He entered the premises through an open, or partially open, sliding glass door. It was accepted that it would be open to the jury to find that Mr McKee confronted Mr Davis and Ms Quinn and demanded drugs and money.
3. Mr McKee had consumed a toxic, bordering on lethal, amount of ice. He was desperate for money, he had a baby on the way, he had gambling debts and he had been obtaining counselling for his gambling problem. It was conceded that it would be open to a jury to find that when the deceased entered the premises, he was wearing a balaclava, brandishing a blank fire pistol. He punched Mr Davis to the face with knuckle dusters. That punch caused the injuries observed at Royal Prince Alfred Hospital on 12 or 13 August 2018
4. It was not conceded that there was evidence that Mr Davis lost consciousness from the blow. It was submitted that the only evidence of this loss of consciousness comes from Ms Quinn in her ERISP, Exhibit AJ (the hospital records), in which "[p]ossible loss of consciousness" is noted and in Exhibit AK (the ambulance records), which record Mr Davis saying "I don't know if I passed out at the time". It was accepted that there was no positive evidence to establish that he did not lose consciousness. It was also accepted that not a single eye witness described Ms Quinn ever looking behind her as she ran after the deceased. All witnesses described her as running in front of Mr Davis and looking towards the deceased at all times.
5. Against that factual background, the Crown submitted that it could be proved beyond reasonable doubt that a joint criminal enterprise was formed in the premises after Mr Davis was struck. The Crown case is that Mr Davis "presented" the sword to the deceased while he and Ms Quinn were still at the premises and that is what caused him to flee. The Crown accepted that this was an intermediate fact that the Crown needs to prove beyond reasonable doubt.
6. The Crown submitted that the evidence capable of proving this intermediate fact beyond reasonable doubt arises from the fact that the deceased left the premises by sprinting down the side of the premises toward Hereford Street. The Crown submitted that if Mr Davis was unconscious, it must have been for a very short time. After that, "something" caused Mr McKee to leave that premises. It was not accepted by the Crown that the screams of Ms Quinn and Mr Davis (which might have alerted the neighbours as to the deceased's presence) could be an explanation for this.
7. It was submitted that reliance could not be placed on Ms Quinn's version as she had been untruthful with police.
8. It was submitted that something must have caused Mr McKee "to turn on his heels" and it "must have been" the introduction of a sword. It was further submitted that the explanation of Ms Quinn's screams (and risk of the neighbours being alerted) is so improbable that the only inference, to the exclusion of all other hypotheses, is that Mr Davis got off the floor, and produced the samurai sword at which time the two accused entered into a joint criminal enterprise to apply some form of violence on the deceased as an act of retribution (as opposed to in self-defence).
9. It was further submitted that Ms Quinn's explanation that the deceased grabbed her shoulder bag is entirely inconsistent with Mr McKee's motivation to rob them of their money and drugs and there must have been some intervening action that caused him to turn on his heels and leave.
10. Nor was it accepted that the fact that, unlike in the previous successful robbery, Mr Davis and Ms Quinn were not giving him their money easily was a reason to flee. It was submitted that the deceased was too desperate and motivated to carry out the robbery, and as such this was "improbable" and an "unlikely scenario".
11. The following evidence was identified as supporting the Crown case that Mr Davis produced the samurai sword in the premises and the two accused formed a joint criminal enterprise to inflict violence on the deceased as an act of retribution (and not in self-defence): 1. Ms Quinn's ERISP can be rejected as unreliable; 2. When Jett McKee ran out of 87A he was not carrying anything; 3. Ms Quinn was running after him and yelling; 4. Some of the witnesses describe Ms Quinn and Mr Davis running close together (Ms Baker, Mr Scott and Kerrie Sparks); 5. There was a scuffle between Ms Quinn and Mr McKee when she caught up to him (Ms Sparks, Mr Palmer, Mr McCaw and Mr O'Connor); 6. No eye witness saw Mr McKee point a gun at Ms Quinn before his death; 7. Flight; and 8. That Ms Quinn chased him for about 80 metres.
12. As for the basis for rejecting Ms Quinn's version of events in her ERISP, the Crown relied upon the following matters in it as being unreliable: 1. That the deceased pointed a gun at her; 2. That she prevaricated before admitting that she entered into 125 Wigram Road (A51) when being questioned about where she fled; 3. The number of times she replied "I don't remember" or "I can't remember" or "I don't know" when the events were fresh in her mind from four days earlier; 4. At A190 when she described Mr Davis as being hardly able to walk when he was seen running; 5. As to how many phone numbers she had (A207-208); 6. The implausibility that Mr McKee demanded "valuables", when he "would have" demanded drugs and money; 7. That she did not know the person known as Mr O'Connor; and 8. The source of the money.

Submissions in reply

1. In reply, Mr Hughes submitted that the fact that the Crown had to rely upon a summary of the whole trial to answer the question as to what evidence there was of any agreement made within the house leads to the conclusion that there is none. It was submitted that the reason the Crown relies upon what happened outside the house is because there is no evidence of any agreement being formed inside the house.
2. It was further submitted that the Crown case that inferences could be drawn suggests that there is evidence in the first place from which they can be drawn. It was submitted that there is none.

Consideration

1. I would direct the jury to acquit Ms Quinn if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. I could not direct a verdict of acquittal if there is evidence in support of the Crown case on which Ms Quinn could be convicted of murder even though a reasonable hypothesis consistent with innocence can be formulated. The question then is whether the evidence is capable of producing in the mind of a reasonable juror satisfaction, beyond reasonable doubt, of the guilt of the Ms Quinn on count 1, the offence of murder.
2. The nub of the Crown case is that it is so improbable that the deceased would flee the premises without persisting with the robbery that the only inference, to the exclusion of all other reasonable hypotheses, is that Mr Davis, after he was assaulted by the deceased (and sustained a fracture to his eye socket), got off the floor, produced the samurai sword whilst the three of them were still in the premises and the two accused entered into a joint criminal enterprise to apply some form of violence to Mr McKee as an act of retribution for daring to attempt to rob their drug business (as opposed to in self-defence).
3. There are three significant problems with the way the Crown has brought its case for murder against Ms Quinn.
4. First, the inference advanced by the Crown, drawn from the evidence that Mr McKee was observed to flee the premises at speed, is clearly not the only one available. There are at least four other likely inferences having regard to the evidence in the Crown case as a whole. Those inferences are: 1. That the deceased thought this would be an easy robbery. He told Mr O'Connor that he thought they would be asleep. When it was not an easy robbery and the accused did not readily hand over their money he panicked and fled; and/or 2. The screams of Ms Quinn (and, on her version, Mr Davis as well) would no doubt lead to the police being called so he fled to avoid detection. He could not have anticipated the extreme reaction of Ms Quinn in this regard. Although the Crown relied upon the evidence of Mr Scott that the deceased looked scared when he ran from the premises, Mr Scott went on to explain that he looked scared because he had been "busted"; and/or 3. On the other occasions Mr O'Connor had accompanied Mr McKee and Mr McKee had followed Mr O'Connor's lead. Without Mr O'Connor with him he was at a loss as to what to do so he panicked and fled; and/or 4. Mr McKee had just stolen Ms Quinn's bag (as she alleged) and he was running away from her with it.
5. It is to be accepted that where there are competing inferences in a circumstantial case (such as the case to establish a joint criminal enterprise in this matter) if at least one of those inferences is capable of proving the Crown case the charge should be left to the jury. The Crown did not accept that this was a case of competing inferences. Rather, it was submitted that the inference relied upon by the Crown is the only available inference to be drawn given that: the two accused were drug dealers; the deceased was desperate and highly motivated and that Mr McKee fled the premises chased by the two accused. I do not accept this submission.
6. The second problem with the Crown case against Ms Quinn for murder is that, putting aside the inference the Crown seeks to be drawn, there actually is positive evidence in the Crown case to rebut it. This comes from Ms Quinn's explanation in her ERISP as to what occurred inside the premises. None of Ms Quinn's account on this aspect can be contradicted by other evidence. On the contrary, there is evidence in the Crown case which supports it, including the listening device material.
7. Ms Quinn's version of what happened in the premises is that: 1. Mr McKee was loitering outside her gate when she came back from the café that morning. He had a shopping bag with him at that time; 2. Mr McKee entered the premises shortly thereafter with a balaclava on; 3. He had a pistol and knuckledusters; 4. He shouted at them to give him money. Ms Quinn accepts in her ERISP that Mr Davis may have yelled "[t]here's no money here" (A564); 5. When Ms Quinn and Mr Davis kept yelling at Mr McKee, the latter struck Mr Davis with the knuckledusters which left him on the ground half way in and half way out of the sliding door; 6. Mr McKee then grabbed for her handbag (on her shoulder), there was a struggle, he eventually took her bag and he ran with it.
8. There is support for each of these assertions, to differing degrees, by other evidence in the Crown case. As stated above, a shopping bag was found in the premises (containing cable ties) with the deceased's DNA on it and a balaclava was found where the deceased was struck with his DNA on it. The knuckledusters and pistol were found near where the deceased was struck. The Crown case is that he had them in his possession when he was struck. On this point it is to be noted that Mr O'Connor's evidence was that he thought Mr McKee kept the pistol down the back of his tracksuit pants.
9. As for the strike with the knuckledusters, Mr Davis was seen to have blood pouring down his face when he ran from the premises with the samurai sword. Medical evidence established that he had a fractured eye socket. All of the neighbours heard Ms Quinn yelling loudly and angrily as she chased the deceased. Two witnesses saw what they thought was a bag in the deceased's hands. Some of the descriptions of how Ms Quinn pulled at the deceased are consistent with trying to get her bag back (although others are not). Mr Palmer described her backing away from the deceased at the time Mr Davis arrived. He had presumed she had her bag back by then and it was "over".
10. The Crown accepted that Ms Quinn's version of what occurred in the premises is supported by other evidence in the Crown case but submitted that there are unreliable aspects of her ERISP (listed above) which would permit him to put to the jury that all of her ERISP is unreliable, including her explanation for what happened in the premises. This is despite the fact that not only is this version consistent with other evidence in the Crown case, there is no other evidence at all as to what happened in the premises to contradict that of Ms Quinn.
11. Not only is the version provided by Ms Quinn in her ERISP contradictory of any agreement to inflict violence on the deceased, there are two listening device recordings before the jury that are inconsistent with it as well.
12. Exhibit AAM was a statement of agreed facts in these terms: "The following fact is agreed between the parties in these proceedings: 1. Between 9.22 am and 9.31 am on 30 August, 2019, Blake Davis and Hannah Quinn had an argument in their shared home. During the course of the argument Hannah Quinn was shouting. Blake Davis told Hannah Quinn to stop shouting. When Hannah Quinn was shouting, the following exchange occurred between Blake Davis and Hannah Quinn: Blake Davis Stop it. Stop it. Stop it. Stop it. Stop it. I don't want to go back to gaol. You already put me in gaol once. You already put me in gaol once. Hannah Quinn I put you in gaol. Blake Davis You did. Hannah Quinn Did I kill someone? Blake Davis You did. Hannah Quinn DID I FOLLOW HIM OUT WITH A FUCKING SWORD? Blake Davis You did. Because of you. You followed him out and pushed him over you idiot. You set up the fucking whole thing with Count. Hannah Quin I SET IT UP WITH COUNT ‑ WHAT THE FUCK??? Blake Davis You set up with Count 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."
13. The third listening device played to the jury was titled "LD 3 9217 - Hannah Quinn and Blake Davis: 30.8.2019": "V. I didn't know what was going on. I didn't know if he'd ..... try to shoot me and it'd get fired properly or I didn't know, like, I didn't know. V.2 ..... the truth ..... I don't know. Like, I know I know I was thinking about ..... contacted and ..... whatever. But this guy, like, burst into your house. Like ..... house ..... and then he fuckin' ..... and then ..... and that's just pull at my fuckin' heart. I've been ..... way. Angry and pain..... V.1 ..... V.2 Yeah. V.1 ..... V.2 Yeah. Yeah. Like, and I fuckin', I got, like, so - - - V.1 Like ..... like, make a noise? V.2 Yeah. Like, I heard ..... hear and I heard him drop. Like, and it just, I can't explain the fuckin' rush that came ..... when I saw that happen. It was anger ..... it was me just going crazy and then you left ..... and I was, like, No. Fuck that. You don't get to come in here and do that and then me not know who you are, and that's when I ran down the street ..... screaming, Who the fuck are you? Who the fuck are you? Who the fuck are you? What the fuck are you, you fucker? You, 'cause I wanted him to turn around and he's, like, Fuck you, like, this ..... because ..... stopped him and then I would've known who it was ..... do you know what I mean? I just wanted, I wanted a fucking ..... and because of that, because ..... angry and, and, like, like ..... like everyday ..... and what has happened is I've just gone, instead of being, like ..... I feel that rush of anger and shit towards him if I'd just gone, Fuck you, and then just dropped to my knees and just gone, Baby are you OK? You've ..... fuck that guy ..... eye, you know? And then I could've just called the cops and reported a fuckin' break-in and it wouldn't have mattered that all the shit there 'cause they wouldn't've searched our house, they wouldn't be freaked out about it, 'cause then we would've spoken to someone ..... Nah babe. You've just got to report this break-in, blah blah blah .... shit at Hannah's or whatever, then it would be fine. Then maybe they would've been caught. V.1 ..... V.2 And I'm so sorry ..... V.1 ..... wish I had ..... stopped ..... didn't fuckin' ..... (INDISTINCT CONVERSATION BETWEEN V.1 AND V.2) V.2 Yeah ..... part of me ..... house, you know? ....."
14. These conversations, recorded at a time when they were not aware they were being recorded, are inconsistent with any agreement between them to assault the deceased.
15. The third significant problem with the way the Crown puts its case against Ms Quinn is its reliance upon extended joint criminal enterprise, as opposed to straightforward joint criminal enterprise, to make her liable for the actions of Mr Davis. Prior to the commencement of the trial, the Crown indicated that he relied upon both joint criminal enterprise (that the two accused formed an agreement to inflict grievous bodily harm on the deceased) and extended criminal enterprise in the alternative (that the two accused formed an agreement to inflict some harm on the deceased and Ms Quinn contemplated the possibility that Mr Davis would intentionally inflict grievous bodily harm on the deceased as part of it).
16. When the Crown opened to the jury he relied upon extended joint criminal enterprise only and put it this way (these are extracts of the opening on this issue). "The case against the female accused Ms Quinn is that she was part of a team efforts with the male accused. In other words she was part of a joint criminal enterprise and in fact an extended joint criminal enterprise. The allegation is that she was part of a team effort to cause some harm to the deceased, to assault the deceased, to cause some harm to the deceased. But that where more serious harm, that is the grievous bodily harm was within, or foreseen as a possibility. That is, in essence, chasing a bloke down the street Ms Quinn pulls him to the ground while the male accused is running behind with a sword, she was in it for causing some harm to the deceased and aware of the possibility, or within contemplation that grievous bodily harm would and could be caused to the deceased." "So to be clear the Crown case against Ms Quinn, the female accused, is that after this altercation at 87A Hereford Street she led the charge in chasing the deceased. She and Mr Davis, Mr Davis with the sword in hand, chased the deceased down the street… Ms Quinn was angrily yelling words to the effect to the deceased 'who the fuck are you', she pulled him to the ground in circumstances where you might think she was no doubt furious that the deceased had entered their premises to rob them of their drug dealing proceeds and she desperately wanted to retrieve what it was that he, the deceased, had taken from the premises." "In the case of the female accused, or the case against the female accused, she at the very least was part of a joint criminal enterprise to cause some harm, that harm was less than grievous bodily harm but it was foreseeable that grievous bodily harm might be caused." "In relation to the female accused, even though she didn't swing the sword, she can still, on the Crown case, fall within the umbrella of murder by an extended joint criminal enterprise, where some harm less than grievous body harm is to be caused, but it is within contemplation that grievous bodily harm might be caused, and it was, and it caused death." "In relation to the female accused's case it is expected the evidence will reveal that when the male accused had the sword above his head ready to strike the deceased, in a way that was arguably an intent to kill, the female accused possibly said words to the effect 'no' or 'no don't'… The evidence is expected to be such that the female accused then in fact said the words: 'What the fuck have you done?' Again, even assuming that that is attributable, that is, the female accused saying to the male accused just for the purpose of me assisting you as to what the Crown case is in the view of this evidence, the Crown case against the female accused is that she did not contemplate the male accused's intention to outright kill the deceased. But she nevertheless comes under the umbrella of the definition of murder on the basis that it was within her contemplation that grievous bodily harm might be caused and it is a fine distinction there, the female accused was, on the Crown case, content to contemplate that grievous bodily harm might be caused as part of this extended joint criminal enterprise, but it was beyond her contemplation that the sword would be used to outright kill the deceased. If she saw the male accused lift the sword high above his head and if it is attributable to her that she says 'no, don't', but the male accused proceeded anyway, if it is on that basis that you find the facts in the case in effect she saw that things at that point were going beyond the contemplated grievous bodily harm and going into a situation where this is an intent to kill, this is beyond what I had agreed to. It was too late to withdraw from the contemplated grievous bodily harm at that stage. It was too late at that stage, given what, the train of events that she had set in place by the chase and the pulling down and such things." (Emphasis added.)
17. I pause to note that although the Crown Prosecutor opened to the jury that Ms Quinn was angry that something had been taken from her, during this application Ms Quinn's version of events that her bag was taken from her was submitted by the Crown to be unreliable.
18. The Crown may well have opened on extended joint criminal enterprise in order to overcome from the outset the Crown witnesses who did not support the Crown case theory that there had been an agreement between the two accused to kill or inflict grievous bodily harm on the deceased. That evidence included Mr Palmer who stated that immediately after the strike that killed Mr McKee Ms Quinn was seen to be distressed, and saying "[w]hat have you done?" to Mr Davis. It also included the evidence of Ms Charlesworth that just before the strike that killed Mr McKee a female voice, which on the evidence could only have been Ms Quinn, was heard to shout "No, don't".
19. The Crown thus opened on extended joint criminal enterprise only, based on the agreement between Ms Quinn and Mr Davis being formed inside the premises to inflict "some" violence with the samurai sword as an act of retribution falling short of grievous bodily harm.
20. It was at no time articulated how Ms Quinn could have formed an agreement with Mr Davis inside the premises to inflict "some" violence on Mr McKee, falling short of grievous bodily harm, as an act of retribution, based on the production/use of a samurai sword. If in fact, contrary to the evidence, Ms Quinn did see Mr Davis with the samurai sword inside the house and ran out with him as an act in furtherance of that agreement to inflict an act of retribution on the deceased then that would be a straightforward rather than an extended joint criminal enterprise. It is difficult to envisage how a person could inflict some harm falling short of grievous bodily harm with the use of the samurai sword (Exhibit Y). In addition, this position completely contradicts the Crown case in its opening that when Ms Quinn saw Mr Davis use the sword it was too late to withdraw from the joint criminal enterprise to only inflict "some" form of violence with the samurai sword.
21. I accept that there are inconsistencies as between the eye witnesses as to how close the deceased and the two accused were when they ran from the premises. I accept that none of the eye witnesses saw a gun in the hands of the deceased as he was running from the premises. I also accept that there are times in Ms Quinn's ERISP when she was not truthful to police, in particular about the extent of her drug dealing. But these aspects of the evidence do not rise to the level of significance advanced by the Crown in this application given all of the other evidence in the Crown case.
22. I am satisfied that there is a defect in the evidence in that there is no evidence capable of establishing that Ms Quinn entered into a joint criminal enterprise with Mr Davis whilst within the premises of 87A Hereford Street to inflict some violence on the deceased as a form of retribution to protect their drug business, which is the Crown case.
23. It is for these reasons that I directed the jury to enter a verdict of not guilty in relation to count one for Ms Quinn. 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