R v Hannah Quinn

Relevant statutory provisions

1. The Act provides for a limited basis upon which costs can be awarded to an accused person who is acquitted of criminal charges. Section 2 of the Act provides the power for the court to make such an order, s 3 sets out the statutory test to be established in order for a costs certificate to be granted and s 4 sets out the effect of a certificate being granted. Sections 2, 3 and 4 of the Act are in these terms: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or (b) where, on appeal, the conviction of the defendant is quashed and: (i) the defendant is discharged as to the indictment upon which he or she was convicted, or (ii) the information or complaint upon which the defendant was convicted is dismissed, grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. … 3 Form of certificate A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. … 4 Payment of costs (1) A person to whom a certificate has been granted under this Act may apply to the Director-General for payment from the Consolidated Fund of costs incurred in the proceedings to which the certificate relates. The application is to be accompanied by a copy of the certificate. (2) The Director-General may, if of the opinion that, in the circumstances of the case, the making of a payment to the applicant is justified, determine the amount of costs that should be paid to the applicant, not exceeding the maximum amount referred to in subsection (3). …
2. I will consider the relevant principles concerning the determination of such applications below at [120]-[129]. Suffice to say that I would grant a certificate if I was satisfied that it would not have been reasonable to institute proceedings against Ms Quinn for murder if the prosecution had been in possession of all the "relevant facts" now known.

"Relevant facts"

1. The "relevant facts" for the purposes of s 3(1)(a) of the Act are, as Ipp JA observed in Chahal v DPP [2008] NSWCA 152; (2008) 185 A Crim R 580 at [29], the "facts relevant to the reasonableness of the institution of the criminal proceedings" and include the evidence adduced at trial. I found facts based on the evidence at the trial, consistent with the jury's verdict, for the purposes of sentencing Mr Davis and Ms Quinn. [2] The evidence at trial against Ms Quinn for murder can be summarised as follows.
2. It was common ground at the trial that: 1. The deceased, Mr McKee, was a gambling addict, a user of crystal methamphetamine ("ice") and a seller of prohibited drugs. 2. As at 10 August 2018 Mr McKee needed money urgently. His partner was pregnant, and he had lost all of his money through gambling in the preceding period. He and a friend, known in the proceedings as Frank O'Connor, formed an agreement to rob some drug dealers as they would be easy targets and less likely to go to police. The two men robbed one drug dealer and later attempted to rob a second. A decision was then made to rob Ms Quinn and Mr Davis. 3. Mr O'Connor knew Mr Davis and Ms Quinn through their mutual involvement in the supply of cannabis. Mr McKee had heard of the couple through Mr O'Connor but had never met them. 4. After a number of false starts, Mr McKee arrived at Mr O'Connor's home in the morning of 10 August 2018 and asked him to drive him to Forest Lodge to commit the robbery. Mr O'Connor drove Mr McKee to the vicinity of the offender's home. 5. Mr McKee had a balaclava, knuckledusters, pepper spray, cable ties and an imitation pistol with him.
3. The only evidence in the Crown case as to what happened inside the premises was in the Electronic Record of Interview with Suspected Person ("ERISP") made by Ms Quinn on 14 August 2018. Ms Quinn was arrested and charged on 13 August 2018. She participated in a six-hour ERISP the following day, on 14 August 2018.
4. The Crown case was that Ms Quinn was lying in her ERISP. Thus, her version of what happened in the premises was disavowed by the Crown Prosecutor. There was no other evidence in the Crown case against Ms Quinn for murder as to what happened in the premises.
5. Mr Davis did not participate in an ERISP when he was arrested but gave evidence at trial consistent with her version. I had already directed a verdict of acquittal in relation to Ms Quinn before that evidence was given.

Ms Quinn's ERISP (events inside 87A Hereford Street)

1. Ms Quinn told police that she and Mr Davis had slept late that day. She arose about midday and walked to a nearby café to get breakfast. She is seen on CCTV footage returning home at 12.24pm. As she approached her home, she saw a man outside the premises carrying an ALDI bag who made her feel uncomfortable. The ALDI shopping bag described by Ms Quinn in her ERISP was earlier seen in the possession of Mr McKee in CCTV footage outside Mr O'Connor's home. Mr McKee left the ALDI bag inside the premises where it was later found by police. It contained cable ties and had a DNA profile matching Mr McKee.
2. Ms Quinn told police that she entered the premises and gave Mr Davis his breakfast. She began to mention the suspicious man outside whereupon Mr McKee (who was not previously known to her) burst into the premises wearing a balaclava and pointed a pistol at them. The pistol and balaclava were all located near where Mr McKee first fell consistent with Ms Quinn's version.
3. Ms Quinn told police that after entering the premises Mr McKee yelled something like "[g]ive me all your fucking money or I'll kill you". Mr Davis told him there was no money, Mr McKee then said something like "people know where your fucking family lives, give me all your money or we will kill your family too". At this time, he had the pistol pointed at Ms Quinn's head. Mr Davis took a few steps back and Mr McKee moved the pistol from Ms Quinn, banged it with something metallic and then punched Mr Davis to the eye with a set of knuckledusters. These knuckledusters were later found near the area where Mr McKee first fell, consistent with Ms Quinn's version.
4. Ms Quinn's version was supported by other evidence in the Crown case, including evidence from multiple eyewitnesses that Mr Davis' face was bleeding when he emerged from the premises. He was later found to have an orbital fracture consistent with being struck in that area with a set of knuckledusters.
5. After Mr Davis was struck and fell to the ground, Mr McKee fled. Ms Quinn chased after him screaming very loudly as she did so. Ms Quinn's account that she started screaming at Mr McKee and chased after him is consistent with the observations of all of the eyewitnesses.

Observations of eyewitnesses

1. Although the versions from a number of eyewitnesses as to what happened next differed, there were commonalities. They all described Ms Quinn to be chasing Mr McKee whilst running very fast and yelling loudly words described variously as "[w]ho are you? Who the fuck are you?", "[w]ho are you, bro?", "[w]ho the hell are you?" and "[w]hat you think you are?". Mr Davis was observed to be running after her, bleeding from his face, and carrying either a sword or a stick. It was common ground that Mr Davis was only wearing boxer shorts (consistent with having just woken up).
2. The Crown case against Ms Quinn for murder relied heavily on the fact that she and Mr Davis ran out together. This was said to be evidence from which it was to be inferred beyond reasonable doubt that she was acting pursuant to a joint criminal enterprise to kill or inflict grievous bodily harm on Mr McKee.
3. The Crown relied, both at trial and on this costs application, on the evidence of Ms Kerrie Sparks, Ms Sarah Baker and Mr Thomas Scott on this question. Ms Sparks saw Ms Quinn and Mr Davis following the deceased. She described seeing them together, with Ms Quinn in front of Mr Davis. Ms Sarah Baker saw the deceased "raise both of his hands and put his hood up over his head" as he continued to run and then observed to Mr Thomas Scott that the deceased was well ahead of "them". Mr Scott described a woman running after the deceased and then Mr Davis running after her. He described Mr Davis (the person with the sword) as being a bit slower and "a little bit further behind".
4. Other witnesses gave different descriptions. Mr Aaron McCaw saw "a guy run down the street with a woman after him and then another guy behind the woman". Mr Michael Mullan saw a man running up the road and a woman maybe 5 to 10 metres behind him. He then saw another male carrying a sword behind her. Mr Miller saw the female in front chasing the deceased, then Mr Davis. Mr Palmer only saw Mr McKee and Ms Quinn at first. He did not see Mr Davis until later.
5. The weight of the evidence (as I found for sentencing purposes) was that Ms Quinn was some short distance ahead of Mr Davis, but they were both running at the same time. The evidence was that she was running very fast and not carrying anything, that Mr Davis was less fit looking and carrying a heavy sword and that Mr Davis had been punched to the eye with knuckledusters prior to running from the premises and was thus injured.
6. Some of the eyewitnesses described Ms Quinn catching up to the deceased. Ms Sparks, Mr Palmer, Mr McCaw and Mr O'Connor gave evidence of what happened then. Ms Sparks stated, "I just saw her catch up with the first person and caught him by the collar or the scruff of his neck and pull him down". Mr Palmer saw the deceased and Ms Quinn running and moved to get a better view. When he looked again "[e]verything had stopped" and "she was sort of backing off at this point."
7. Mr McCaw described the woman "grab" a hold of the deceased's hoodie and bring him to the ground. He also described it as a "scuffle" between Ms Quinn and Mr McKee in which they were "constantly moving… never staying still". He stated, "the guy went down on his knees". Mr O'Connor described the deceased falling over and then stated that it "looked like" Ms Quinn tried to kick him while he was on the ground, but Mr McKee got up. He also described how Ms Quinn grabbed Mr McKee's shoulder and it was "like" he tripped over at the same time. He stated: "Hannah was behind, like trying to hold onto him. She was just right behind him… not backing away from him at all, she was trying to fight him. She was screaming at him." Mr O'Connor then drove away to park in a position where he might more readily collect Mr McKee. This meant that he did not see what happened next, including the fatal blow.
8. A number of eyewitnesses saw or heard some or all of the fatal sword strike. Mr McCaw described what he saw in this way: "… 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."
9. He described the hit as making a "loud clap". He described Mr Davis as "pu[lling] the sword back over his right shoulder", with two hands, then dropping it down.
10. Mr Palmer stated that "as the girl was backing away" he saw another man (Mr Davis) come from the same direction that the other two had come from and hit the prone man "on the head". Mr Palmer stated that he (Mr McKee) was on the floor on "all fours" and was getting up off the ground at this point. Mr Palmer physically demonstrated this in court by lying prostrate on the ground and then getting up on his arms and knees.
11. Mr Bradley Miller also saw the strike. Mr Michael Mullan did not see the sword strike but described hearing a "clap" sound. Ms Kerrie Sparks did not see the strike but did see "a pole or stick" go up in the air. She looked over at the builders and heard them groaning at the time of impact.
12. At the time of the strike, Ms Charlesworth was upstairs in her home with the French doors open. She heard a woman screaming including the words "no, don't". She then heard this "almighty crack". She described the "crack" as sounding "like a whip cracking. It was very, very loud and very crisp." A few seconds later she heard a sound which was like a body hitting the ground.
13. 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.
14. The area on the road where Mr McKee was struck is evident from a pool of blood and brain matter found there, as well as the balaclava with the DNA of Mr McKee on it. Despite his fatal head wound, Mr McKee was observed to stagger over to a nearby parked car. As stated above, a pistol and a pair of knuckledusters with Mr McKee's DNA were found on the roadway near where Mr McKee leaned on the car. He then ran 79.8 metres until he collapsed on Minogue Crescent. The post-mortem report found that the cause of Mr McKee's death was a sharp force head injury caused by a single slicing/chop wound to the right side of the head extending from the right lateral upper eyebrow to the right occipital aspect measuring 255mm in length and 21mm in width.
15. It was common ground at the trial that after the blow Mr Davis ran onto a property nearby and stole a car cover from a shed and then wrapped the sword in it and left it in the back yard of his unit. He and Ms Quinn then collected an Uber Eats bag containing two mobile telephones, four sets of metal nunchakus, one set of timber nunchakus, a gold coloured air soft gun in a cardboard box, medication for Mr Davis and $21,380 cash.
16. It was also common ground at the trial that Mr Davis and Ms Quinn then jumped over a neighbour's fence and then ran from the scene until they found themselves at a dead end. They left the Uber Eats bag with the cash and weapons in it in the laneway, entered the nearest house illegally, broke out of it and fled. Both Ms Quinn and Mr Davis then spent Friday, Saturday, Sunday and Monday morning booking into various hotels around Sydney and then moving on. Ms Quinn was convicted by the jury of being an accessory after the fact to manslaughter based on these actions. It is not necessary to recount those facts in any detail for the purposes of these reasons.

Ms Quinn's ERISP

1. Ms Quinn described in her ERISP how after Mr McKee punched Mr Davis inside the premises, he then grabbed her handbag. They struggled over the bag, but he grabbed it and fled. Ms Quinn chased him. She described how when she caught up to Mr McKee, she tried to snatch her bag back and he turned around and tried to punch her. She stepped backwards, he lost his footing and he fell to the ground. She then said he "was holding the gun up, up at me and I was just frozen and that's when… Blake ran up and he hit the guy". She had thrown this handbag out by the time she was interviewed by police.
2. No eyewitness saw Mr McKee pointing a gun at Ms Quinn prior to the assault by Mr Davis. Mr O'Connor described him having "something like a small bag" in his hands as he fled the scene and Mr Palmer's evidence was that was that, when he saw the deceased and Ms Quinn running by, he thought he saw a bag and assumed it had been stolen from her. He also stated that it "sort of just looked to me like a sort of purse". He described that when Ms Quinn caught up to him he thought that she "grabbed it off him". Both of these witnesses did not see what the object was but either presumed or thought it was a small bag. The Crown Prosecutor, in his opening address, stated that "she desperately wanted to retrieve what it was that he, the deceased, had taken from the premises". [3] There was thus some support for Ms Quinn's version but it was ultimately a matter for the jury. The only support for her version that a gun was pointed at her was that a gun was found on the ground nearby after the strike.
3. Ms Quinn was not asked one single question in her six hour ERISP to suggest she was a suspect for murder. When the questioning by police finished, Mr Hughes, who was present with Ms MacDougall during the ERISP, pointed this out to police. There was a short break and the following question was finally asked of Ms Quinn: "Q1687 ...Um, in relation to the, the death of Jett McKee, did you at any time make a plan or have any premeditations with yourself and Blake in regards to murdering Jett McKee? A No, not at all."

Verdict by direction

1. At the close of the Crown case the high point of the evidence against Ms Quinn for murder was that she was the victim of a violent home invasion because she was known to sell cannabis. She saw her partner violently assaulted after which time she chased after her assailant from the premises unarmed. She yelled at him as she ran. Mr Davis followed not far behind her (depending on which eyewitness version is accepted). Ms Quinn caught up with Mr McKee, and there was some altercation between her and the deceased prior to the fatal blow (again, depending on which eyewitness version is accepted). She was heard to say "no, don't" just before the fatal blow and "what have you done" after the blow. She then fled the scene with Mr Davis.
2. The Crown case as to the formation of the joint criminal enterprise relied on inferences to be drawn from the fact that Mr McKee was chased from the premises by both Ms Quinn and Mr Davis. I summarised the Crown case at [94] of my reasons for directing a verdict of not guilty to murder in this matter as follows: "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)." (emphasis in original)
3. Although the Crown opened on principles of extended joint criminal enterprise, that case shifted in the course of submissions on the no case application to one of straightforward joint criminal enterprise. [4] As I observed in my reasons at [110], it seems to me that the Crown most likely opened on principles of extended joint criminal enterprise in order to overcome from the outset the Crown witnesses who did not support the Crown case theory that there had been an agreement between the two accused to kill or inflict grievous bodily harm on the deceased. This included the evidence that Ms Quinn was heard to call out "No, don't" just before the fatal strike and "what have you done" immediately afterwards. Structuring a Crown case in order to get around evidence unfavourable to the Crown case is often unwise and this a good example of that. I repeat my conclusion at [112] of that decision: "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." (emphasis in original)
4. I do not consider it necessary to repeat all of the findings I made in that judgment. Contrary to the submission by the Crown on this application, those findings are nonetheless highly relevant to this application.
5. I note for completeness that after Ms Quinn was acquitted of murder the question arose as to what the jury was to be told about the fact that the Crown opened on a significant witness who was not called at trial. After a number of proposed directions were considered, the ultimate position of counsel for both accused was that it would be less prejudicial to say nothing at all and I acceded to that application.

Opposition to the costs application

1. As will be seen below, the Crown resisted this application on three bases: 1. That costs applications are not usually successful when they turn on questions of credit (Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510); 2. That the Crown could not have anticipated that I would exclude so much of the Crown case (R v Moore [2015] NSWSC 1263); and 3. That my decision to direct a verdict of acquittal should be revisited for the purposes of the application.
2. I shall consider these arguments below in my consideration but the first two of them require an assessment of matters pertaining to the relevant facts. The first of these arguments concerns a Crown witness who was ultimately not called by the Crown and the second concerns my pre-trial rulings. It is necessary to consider all of that factual background in order to determine this first two arguments raised by the DPP.

The evidence of the witness PHS

1. As at 10 August 2018, PHS resided in a fourth-floor unit next door to 87A Hereford Street and could see into Mr Davis' flat from her balcony. She was at home at the time of the home invasion by Mr McKee. It is common ground that she did not and in fact could not have seen anything that happened on Hereford Street. She was, however, in a position to see what happened shortly before and afterwards.
2. PHS was spoken to by police at the scene. I was not provided with the notes made by the police officer at that time. She was then transported to Glebe Police Station to make a statement. Her first statement was made on 10 August 2018 in which she relevantly stated the following: 1. She had seen the male who lived next door (Mr Davis) before and could describe him; 2. On 10 August 2018 she heard a scuffle in 87A Hereford Street and could hear things being thrown; 3. The glass door opened and the woman (Ms Quinn) came out; She was pushed out of the house with a man with no shirt on, who was wearing boxers with a white bedsheet around him. (It was common ground at the trial that Mr Davis was wearing boxers at the time. It was also common ground that he was seen running back into his unit with a sheet-like car cover after the fatal blow. PHS was clearly referring to Mr Davis but had conflated these two events); 4. Another guy came out and was hitting the shirtless man. She couldn't see his face and couldn't see what he was wearing from the waist down. The object may have been a lamp. It was quite long and possibly grey. (There was only one other "guy" present: Mr McKee. This is consistent with the evidence of Ms Quinn and Mr Davis that Mr McKee assaulted Mr Davis in the premises); 5. She described the female (Ms Quinn) and first male (Mr Davis) being chased by the second male (the deceased). (This is contrary to all other evidence in the case and unreliable); 6. The man with the object went into the house and the other two ran off. (This is contrary to all other evidence in the case and unreliable); 7. Later she saw the man and woman return (Mr Davis and Ms Quinn) and was not sure if the man with the object was there as well (the deceased); 8. The shirtless man who was being chased out of the house had now put a red t-shirt on. (Mr Davis had the red t-shirt on. He was not the man who was chased out of the house).
3. On 11 August 2018, PHS made a second statement in which she stated, relevantly, the following: 1. When she saw the woman come out of the sliding door, she was with a man who was shirtless; 2. Another shirtless man came out and the two men started scuffling. They both looked similar due to the distance. (There were not two shirtless men: Mr Davis was shirtless but Mr McKee was at that time dressed in a dark hoodie, dark trousers, black gloves and possibly a black balaclava); 3. The first shirtless man (Mr Davis) was being hit with the long possibly grey object; 4. The first shirtless man and the woman appeared to be being chased by the other man; 5. At some point the man who was being hit with the object said, "[o]h Fuck, I'm going to gaol". (It was Mr Davis who said this. Mr McKee was most likely deceased by that time).
4. Both of these statements were served as part of the Crown brief. They were consistent with the version of Ms Quinn and Mr Davis that Mr McKee assaulted Mr Davis during the home invasion. Thus, the evidence of PHS was exculpatory of both Ms Quinn and Mr Davis. Despite this, there were aspects of it which were confusing.
5. Unsurprisingly, given the confused status of this evidence, the solicitor for Mr Davis made an application under s 82 of the Criminal Procedure Act 1986 (NSW) that PHS be cross-examined at the committal proceedings. In her written submissions in support of that application she submitted the following: "[Ms PHS] asserts that both the men the deceased and DAVIS, are 'shirtless'. It is at odds with what is said by all other witnesses who makes critical observations n the property, before the pursuit down the street. The version advanced by [PHS] is confusing and seemingly contrary to all other witness accounts. However, she is 24 years of age and reports no mental or physical obscurity that would prevent proper observation. Ms [PHS] says the man (the Deceased) who hits the man in the bed sheet (DAVIS) chases the man and woman out. Contrary to this, all other witness' accounts refer to the deceased leaving first, followed by Quinn, followed by DAVIS. The DPP asserts that this man, who hits the other man with the long possibly grey object, is DAVIS hitting the deceased with the sword in the property. Yet this cannot be correct, because she describes the man (who was hit) and woman returning from the street. This must be DAVIS, as the deceased never returns. However, she describes that when the man and woman run to the street, the other man (who must be the deceased) goes back into the house. On a piecing together of the accounts of all other witnesses this could not have occurred, namely there is no occasion that DAVIS and Quin[n] runout onto the street and the Deceased remains within the property. She says, at paragraph 30, that the man who had been chaser out (on the DPP version this is the Deceased) by the man with the object, came back and put a t-shirt on. Contrary to the DPP assertion and interpretation of her version, this must be DAVIS, as the deceased never returned and put a t-shirt on. The confusing nature of her statement is perhaps best illustrated by the entirely conflicting interpretations taken to date, by the Accused and the Crown. Whilst the reliability of a witness is often a matter of contest between the parties, the fact of what they assert to have observed, Is not." (emphasis added)
6. It is to be noted that Mr Davis' solicitor squarely raised the fact that there was no evidence that PHS had any "mental obscurity". She was not provided with any material to the contrary.
7. What was not disclosed to the defence at that time was that the Crown Prosecutor, (Mr Taylor) and a DPP solicitor (who was not the DPP solicitor at trial) conducted a lengthy conference with the witness on 29 May 2019. There is a dispute as to how long that took. The DPP suggests it took one and a half hours whereas the witness states it went for four hours. I am content to proceed on the basis that it took at least one and a half hours but that that time felt like four hours to the witness.
8. The conference notes (which were not provided until during the trial on 25 November 2020) are lengthy and I do not propose to extract them in full. Present at the conference were Mr Taylor, Mr Ly and PHS. Relevantly, it was explained to PHS that she might have to give evidence twice (once at the committal and again at trial). The witness stated that the legal process had had a "bad impact" on her. This included in the form of trauma, costs, and being filmed by the media without her permission. Despite this, the notes reflect that she stated that if she had to give evidence twice she would.
9. The notes record Mr Taylor then saying to PHS: 1. "What I am sensing really you would rather have one occasion where you go to court then it is done and finished"; and 2. (After explaining the nature of the s 82 application) "I am taking the view that you shouldn't be put to the trouble of doing that, wanted to run through what it is you recall now about the event - might clarify any issues."
10. The notes then detail questions and answers given by the witness. There is nothing in the notes to suggest any leading questions. The version she then gave following questioning by counsel is consistent with her third statement which I will summarise below. It included an assertion for the first time that both men had beards.
11. After this conference the witness was referred to investigating police to make a third statement. In that third statement, made on 29 May 2019, PHS stated the following: 1. Three people came out of the sliding door; 2. The first was a male and she did not know what he was wearing. He had a beard and white skin. (The deceased's skin would have been barely visible but he did have a beard. This is the person she had previously described as wearing boxer shorts and carrying a sheet); 3. The woman and second male had pushed out the first male; 4. The second male appeared to be holding a grey pole; 5. The female was leaning into the house and yelling; 6. The second male eventually stopped hitting the first male; 7. A male and the female then ran; 8. The male was wearing something loose like a white bed sheet - it was billowing. She does not know which of the two men this was. (This could only be an image of Mr Davis who was described running back with a large car cover which he used to wrap and leave the samurai sword in. Mr Davis did not run out first so this is unreliable in every respect); 9. She did not see the man being hit again (she saw Mr Davis again but not Mr McKee); 10. Eventually the woman ran back. "The man" came back and this time he was wearing fitted clothing - not like the loose fitting clothing she had seen previously. (Mr Davis was only wearing boxer shorts when she first saw him). She couldn't tell which male he was - the one who was pushed out of the house or the one with the pole. (Only one man came back. Mr Davis. Mr McKee was most likely deceased by this time); 11. The man was now wearing a red shirt (not the dark t-shirt he was wearing before). He looked at me and said he was going to gaol. (Mr Davis was wearing a red t-shirt later on but was not wearing any top when she first saw him).
12. On the same date that the third statement was made the DPP filed submissions opposing the s 82 application. In submissions prepared by Mr Taylor (the same Crown Prosecutor who appeared at the trial in this matter and who conferenced PHS) it was submitted that reliability and credibility of witnesses was an issue for the jury, and for the purposes of assessing probative value the Crown case had to be taken at its highest. In relation to the witness PHS, the Crown opposed the s 82 application in this way: "… It is evident that the witness is mistaken about her description of the clothing of at least one of the two males. She does note that because of the distance she was observing both males looked similar. In her third statement she lost recall of what the first male was wearing upon he apparently being 'shoved out of the door' at the start of her observations. It is clear however, notwithstanding this clear error in description, the witness is consistent in her versions across the three statements obtained by the police. In the first two statements a male and female come out of the house, followed by another male with a long grey object. The male with the long grey object hits the first male with it and then chases the first male and the female out of the backyard and onto Hereford Street. The witness describes losing sight of them and then making eye contact with a male and female who are walking towards 87 Hereford Street. The Crown's case is that the male and female referred to are Sarah BAKER and Thomas SCOTT. It is important for the evidence of [PHS] to be viewed in the context of all the evidence, and most importantly in conjunction with BAKER and SCOTT. The version of the events advanced by the Crown … is very clear. Although [PHS] does not specify the order in which the first male and female are chased out… she is clear in both statements that it is the male with the long object who is doing the chasing. It is evidence from the accounts of BAKER and SCOTT that they observe the deceased, QUINN and the accused run out from 87 Hereford Street. BAKER and SCOTT describe, with detail, the order in which they are running as well as describe each of the individuals (identifying the accused), and note that the accused is wielding at that time a samurai sword. [PHS] is certain that the male with the object is chasing the other two and sees them run out of the premises, the three run right part BAKER and SCOTT (who [PHS] sees and notes in her first statement), BAKER and SCOTT then make observations of the accused and others who then run past the witness SPARKS and then onto the incident which ultimately results in the deceased's death. All witnesses who observe the incident observe a male being chased by a female, and a second male behind the female, armed with a sword. The Crown's submission is that the evidence of [PHS] when viewed with the context of all of the evidence, supports the Crown's case theory that it was the accused who armed himself with the sword whilst in the premises and prior to chasing the deceased to his death. The matters which are focussed on by the accused, namely, the description of the two males across the statements of this witness, amount to enquiries relating to the reliability and credibility of the witness which is a matter for trial. The inconsistencies with this witnesses [sic] description of the two males compared to the balance of the witnesses is a matter which the accused could rightfully cross-examine the witness about at trial. In the Crown's submission it is clear what the Crown's case is against the accused, and that the reasons set out by the accused would not amount to substantial reasons in the interests of justice." (emphasis added)
13. The DPP resisted PHS being called at committal by serving this third statement. Ms Quinn was committed for trial on 21 November 2019 and on 6 December 2019 the matter was listed for trial in the Supreme Court that was due to commence on 9 November 2020.

Crown case statement

1. On 26 October 2020, the Crown case statement was filed. The proposed evidence of PHS was summarised in it. Relevantly, the Crown case as to her observations of what happened in the flat during the robbery was summarised in this way: "When [PHS] looked towards the accused's residence she saw the glass sliding door open quickly, three people came out of the door quickly. a. The first was the deceased, he had a beard and white skin and he looked like he was being shoved out of the door, it looked like this because he fell backwards out of the door and hit into the wooden fence, the witness saw the fence shake. b. The accused and co-accused then appeared and stood in the doorway of the sliding door. They were standing side by side, almost shoulder to shoulder, it looked to [PHS] that they had pushed the male out of the house. c. The accused then appeared to be holding what looked like a long grey pole (described as a lamp pole before the lamp shade is put on), he began to swing the pole up over one of his shoulders in a 'clubbing like' downwards motion. It looked like he was hitting the area of the fence the deceased was pushed out onto. d. Whilst this was occurring, the co-accused was leaning back into the house as the man with the pole was striking the first male, she was yelling. e. The incident lasted for about 1 - 2 minutes." (emphasis added)

Attitude of PHS

1. I propose to recount what happened next chronologically, although neither defence counsel nor I became aware of most of it until 25 November 2020.
2. Sometime in early September 2020, PHS was subpoenaed to give evidence at the pending trial.
3. On 8 September 2020, a solicitor engaged by PHS contacted the new trial solicitor for the DPP attaching an email from PHS' mother outlining her concerns for her daughter's mental health should she be called to give evidence at trial.
4. On 21 September 2020, the DPP solicitor emailed a reply and acknowledged PHS mother's concern for her daughter. She advised the she had been referred to the DPP's witness assistance service. There are email exchanges between the witness assistance officer and PHS' mother indicating ongoing contact.
5. In an email on 2 November 2020, the DPP solicitor advised PHS' solicitor that PHS' concerns would be discussed in a meeting with the Crown Prosecutor that day. A conference was conducted remotely with the same Crown Prosecutor and a new DPP solicitor. Present at the conference were PHS' mother and the DPP witness assistance officer. The conference notes reveal the following about that conference (I have summarised some portions and extracted others):

• That PHS "has been traumatised by sittings. Shes [sic] been off work now for a year. She sees a psych weekly. She had a breakdown when it was coming up to the [Local Court]. She had to go through details and traumatised her".
• That PHS had been under the care of a psychiatrist and a psychologist. She had been diagnosed with PTSD and borderline personality disorder;
• That PHS had a breakdown at the time the matter was in the Local Court; "[i]t was coming up to [Local Court] and that's when it went downhill." After that she was diagnosed with borderline personality disorder.
• That PHS started crying saying that she felt "like [she was] going to be sick" and then left the video conference. The Crown Prosecutor (Mr Taylor) enquired whether she could listen to him outlining the court process and what would be involved. Her mother advised she thought PHS was having a panic attack at that time.
• That when PHS returned, the Crown Prosecutor attempted to explain the trial process and the way he would be asking questions of her this exchange took place: "C - ... In any event if Janelle was witness. Id just ask all questions about what she saw and heard. I would ask as if I knew nothing about the case P - that hasn't been my experience with police and DPP. I dout is whats going to b. C - what has your exp with DPP or how about we draw a line in the sand. Ill be asking the questions. For example P - id rather you not give me specific example. If you say that I don't know if that's how it will happen. Theres no point sticking to that C - im sorry that someone has breached your trust. Without asking specific question, I would ask questions about role...what she heard, what she saw P - again, that was not my experience when I went to dpp office. I ended up going to police afterward. I instructed to say dpp that I didn't know. It was worse when I went to police. You made me change my freakin statement." (emphasis added)

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

• That when PHS said "the last time I took time to go to DPP and police. I tried to kill myself a few weeks after" and with her mother adding "although it seems like...short in court, it retraumatised her. It's the conern [concern] here I don't think she can in. I don't think she can go outside" Mr Taylor responded by saying "the tricky bit is what im tasked. Technically the subpoena requires her to go to court" and "I don't have discretion to say because subp issued by court".
• That PHS said "parents of the deceased are upset and al but what about my parents when I kill myself". (That is, the witness threatened to kill herself if she had to give evidence).
• That PHS said "I don't feel well enough to give evidence and to be cross-examined" and that there was nothing that they could do to make her feel better e.g. giving evidence via AVL, with a dog present, breaks, support person.
• That as the meeting ended the Crown Prosecutor asked to be provided with a psychiatrist report in order to consider his position.

1. Thus, as at 2 November 2020 the DPP was aware that the witness was unlikely to be able to give evidence, had developed PTSD as a result of the questioning of her by Mr Taylor and police on 26 May 2020, had tried to kill herself as a result of being questioned that day, had alleged Mr Taylor made her change her evidence and been told by Mr Taylor that she was under subpoena so it was out of his hands. That was not correct. The decision as to whether to call witnesses is one entirely for the Crown consistent with the DPP Guidelines. Guideline 2.3 of the DPP Guidelines provides: "Calling witnesses 1. A prosecutor should generally call all witnesses whose testimony: a. is admissible and necessary to present the relevant circumstances b. gives the prosecutor reasonable grounds to believe that it could provide evidence relevant to any matter in issue; unless: … iv. the prosecutor believes on reasonable grounds that the testimony of a particular witness is untruthful or unreliable v. the prosecutor, having the responsibility of ensuring that the prosecution case is presented properly and fairly, believes on reasonable grounds that the interests of justice would be harmed if the witness was called as part of the prosecution case…"
2. Despite all of those significant difficulties, nothing was disclosed to the defence about this conference.
3. On 3 November 2020, PHS' solicitor advised that she was no longer acting for her.

Pre-trial rulings

1. The trial was due to start on 9 November 2020. Prior to the commencement of the trial I was advised that I would be asked to make a number of evidentiary rulings. I listed those to be heard on 4 November 2020. On that day Mr Davis, through Ms Cunneen SC gave notice that he would be relying upon a defence of automatism. The Crown Prosecutor indicated that he would not be able to meet the expert evidence on automatism in time for the trial to commence. I stood the matter over until 9 November 2020 for an update.
2. On 9 November 2020 Ms Cunneen SC informed the court that a defence of automatism would not be pressed. I then turned to hear submissions on the numerous pre-trial objections on 9-11 November 2020.
3. On 10 November 2020, during the pre-trial submissions, my chambers were sent two emails by PHS' mother concerning the proposed evidence of PHS.
4. The first email attached a medical certificate dated 4 November 2020 from PHS' acting psychiatrist, Dr Mosadek Miah. He stated that he last reviewed PHS on 20 July 2020. Dr Miah provided details of PHS' mental health history and mental health issues for which she was receiving treatment and stated that she reported distressing post-traumatic symptoms in 2019 with respect to her witnessing the alleged murder. He stated that it "might be detrimental to her mental stability to expose her to re-traumatisation in an uncontrolled way such that might occur in a murder trial". Dr Miah requested that the Court consider exempting PHS from giving evidence at trial or otherwise minimising her re-exposure to traumatic events.
5. A second email attached a letter dated 4 November 2020 from PHS' psychologist, Ms Diana Sales. Ms Sales stated that she had been seeing PHS weekly since February 2020 and provided details of her complex mental health issues. Her main stressors at the time she commenced therapy were anxiety and severe trauma exacerbated by her witnessing the alleged murder in 2018. Ms Sales detailed how that event impacted on PHS' physical and mental well-being, her everyday functioning including her inability to be in crowded spaces. PHS had to move from the place she had lived at for six years and could not continue to work in the field she was working in before the event.
6. Ms Sales stated that each time PHS was required to go through her statement with the DPP she would disassociate, both in depersonalisation (feeling disconnected from her body) and derealisation (disconnected from the world around) and that she needed assistance from the DPP to mentally prepare for court.
7. I provided these letters to the Crown in open Court on 10 November 2020 for general distribution. In the absence of any indication to the contrary from the Bar table, I proceeded on the basis that this was material already known to the parties. It was the first time I became aware of PHS' mental condition.
8. A third email was sent from PHS' mother that day copying in the DPP solicitor. The DPP solicitor's recommendation was that PHS obtain independent legal advice using the Duty Barrister scheme.
9. On 13 November 2020, I delivered my evidentiary rulings and reasons: R v Davis and Quinn (No 1) [2020] NSWSC 1615. None of the pre-trial rulings concerned the evidence of PHS but I summarised her evidence as part of the background to the Crown case at [17]-[18] of my judgment consistent with what was in the Crown case statement. At that time, I was unaware of any of the matters I have summarised above at [61]. I observed the following at [63]: "Crown case for murder against Quinn 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 [PHS] 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."
10. I later observed the following at [225]: "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."
11. The jury was empanelled on 16 November 2020. Prior to the Crown opening address on 16 November 2020, Ms Cunneen SC, for Mr Davis, raised the question of what Mr Crown would be putting to the jury in relation to the anticipated evidence of PHS. The transcript records that she placed the following on the record: "… although Ms [PHS] sees a male appear to be hit out of the door and hit against the wooden fence she gives three statements which can't really hold together in many aspects but nowhere does she, when one takes them all into account and I can certainly hand them to your Honour if your Honour wishes to peruse them, nowhere does she maintain that it was indeed the deceased. She is very confused about who the men are and from some of the things she says later about the same man being the man who says something about going to gaol it is on the defence case Mr Davis who is punched out of the door and hits the fence a metre away."
12. This was the first time I became aware that PHS had made three statements. The Crown Prosecutor responded as follows: "I am proposing to open to the jury to assist the jury as to what the Crown says its case is and to suitably qualify the observations of Ms [PHS] by words such as 'On the Crown case' and when my learned friend hears what I say about that it is representing what the Crown case is at its highest what it hopes it to be and merely the jury would not be told at this stage that there are three statements from Ms [PHS] but it would be done in a way that sets out clearly what her observations were and what the Crown makes of those observations in its case." (emphasis added)
13. Further submissions were made on this question and Mr Crown indicated that he understood the basis of the objection. When the Crown subsequently opened to the jury, he described the evidence of PHS as follows: "She heard what she might describe to you as a scuffle at the residence of the accused. It sounded to her like there was a verbal argument as well as a fight, as a result of which she went to see what she could see. When she looked towards 87A, she saw the glass sliding door, that you will probably see yourselves tomorrow when we go and have a look, if not, you will see photographs of the premises. She saw the glass sliding door open quickly and she saw three people come out of that door quickly. She saw, and you will need to consider what it is that ultimately she saw, this witness has provided a number of statements to police, when an investigation is undertaken, the police might attend upon a person, they provide a written statement. She's provided a number of statements and some consideration will need to be given by you in relation to what it is that she precisely saw and heard. In any event, she says that she saw a person with a beard and white skin and he looked to her like that person was being shoved out the door. On the Crown case, that is the deceased person. It looked like this, she might tell you, because he fell backwards out of the door and hit into the wooden fence. She saw the fence shake from where she was standing on her balcony. That then left another two people, a male person and a female person. She, this witness, may tell you that they stood in the doorway and that they were standing side‑by‑side, almost shoulder to shoulder, and it appeared to her as if they had pushed the male out of the house. On the Crown case, that male and female who stood in the door was the male accused and the female accused. She said that one of the persons was holding what looked like a long grey pole to her. She, in fact, described it as like a pole in a lamp before you put the lampshade on, as she saw it from four storeys up, looking down into the back of 87A. She says that he, the male, began to swing the pole up over one of his shoulders in a clubbing‑like downward motion, and it looked like he was hitting the area of the fence where the person that first came out had been pushed up against or fell into. On the Crown case, that was the male accused with the item described as the lamp pole at that stage. Whilst this was occurring this witness may tell you that the female accused was leaning back into the house as the man with the pole was striking the first male and she, the female, was yelling. This witness may tell you that her observations took place over about a minute or two, was the timeframe she may help you with. Following this, one person was seen then to run away from 87A. That person, who was a male, was followed shortly by the female, and then followed shortly thereafter by the second male, so a trio of running people, male first, female, second male. On the Crown case, it was the deceased first, the female accused second, and the male accused third in that sequence." (emphasis added)
14. Thus, at the time the Crown Prosecutor opened to the jury and chose (over objection) to open only on the third version given by the witness, he was aware that the witness was mentally ill, that she had made a serious allegation against him, and that it was highly unlikely that she would be able to give evidence at the trial. He also opened that the "first man" was the deceased even though in her first two statements that person could only be Mr Davis.
15. As for the Crown case against Ms Quinn specifically, the Crown opened in reliance upon principles of extended joint criminal enterprise as follows: "The case against the female accused Ms Quinn is that she was part of a team efforts [sic] 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." [5] (emphasis added)
16. On 11 November 2020, the solicitor for Mr Davis sought short service of a subpoena on PHS' psychiatrist Dr Mosadek Miah. It was later revealed that although Mr Davis' solicitor was aware of his report following the emails sent to me, a copy of the report from Ms Sales was inadvertently not obtained by her at that time.
17. On 18 November 2020, the Crown Prosecutor made an application that PHS (along with three other witnesses, one of whom had PTSD as a result of witnessing the killing on 10 August 2018) give evidence by way of AVL. The affidavit in support of that application annexed, inter alia, the documents that had been forwarded directly to me prior to the trial commencing. The application was not opposed.
18. On 19 November 2020, the solicitor for Mr Davis sought short service of three subpoenas pertaining to PHS. Those subpoenas were as follows: 1. To Ms Diana Sales returnable on 19 November 2020; 2. To the Director of Public Prosecutions returnable on 19 November 2020; 3. To the Commissioner of Police NSW returnable on 19 November 2020.
19. Ms Sales appeared by AVL on 23 November 2020 and objected to producing the documents sought on the basis that the documents recorded protected confidences unrelated to the trial: s 298 of the Criminal Procedure Act. She ultimately agreed to produce edited notes that deleted references to other personal issues of the witness not relevant to the trial. Those notes revealed:

• That PHS was retraumatised, felt low and was dissociating after 8 hours of police statement of "all you can recall";
• That the detectives were domineering and dismissive on the day of the incident and in the recording of her statement;
• That the DPP was meant to be supportive but had not been so;
• That she found out about the court case on the news and the DPP sent her a text but did not call her;
• That the DPP mishandled the case and had a case worker to handle her case;
• That she had a fear of being cross-examined;
• That the last interaction with the DPP was not great, that they turned it into cross-examination telling her how to feel and manage her emotions, that she felt that her power was taken away and felt dissociated, spaced out and overwhelmed; (emphasis added)
• That in 2019 she spent 4 hours with the DPP and 7 hours at the police station;
• That in relation to her letter the DPP called and apologised for the impact.

1. As for the subpoena served on the DPP (seeking, inter alia, all the conference notes), Ms Cunneen SC called on it in Court on 23 November 2020. The Crown Prosecutor's response was as follows: "CROWN PROSECUTOR: Yes I am instructed that all material has been disclosed that is contained in the affidavit of Ms Doi and there is nothing else to disclose from the DPP."
2. At that time, there had been no disclosure of any conference notes with PHS. Given that PHS had developed PTSD after a lengthy conference with the DPP, this statement by the Crown was surprising to say the least. Ms Cunneen SC queried it and the following exchange took place: "CUNNEEN: Your Honour I just wish to place on record that that, it cannot be the case that the lawyers for Mr Davis have been provided with all the material because even Ms Sales in her letter of the 4th of November 2020 talks about Ms [PHS'] additional contact with the DPP in September 2019 when she was informed that going through the statement with her was to help her not be cross‑examined in court, and such, and there is nothing about that. That conference, for example, so I just place that on record and also another conference in relation to the 2nd of November 2020, that has come to our attention but we have no notes of. HER HONOUR: I know nothing about this. That might be with the witness assistance officer or police, I know nothing about this factually, but Mr Crown, do you know whether she was conferenced at some time like that? CROWN PROSECUTOR: I was in a conference with her about the 2nd of November, but there is a claim of privilege in relation to all other documents, so all things have been ‑‑ HER HONOUR: So is this, rather than saying everything has been produced, are you saying there are other documents but the Director claims client legal/ privilege over them? CROWN PROSECUTOR: Yes, your Honour, yes. CUNNEEN: May we argue that right now your Honour? HER HONOUR: Well I would have to see the documents, so perhaps that could be listed, that argument, if that is to happen the usual practice is you still produce them to the Court and then if there is any claim made the claims made normally the Crown solicitor comes along and argues client legal privilege raised by the director. So perhaps, yes, if that is the case the documents over which you claim privilege could be produced to the court in the next 24 hours and if you do wish to make a claim and get a solicitor to come along and argue the case." (emphasis added)
3. The Crown Prosecutor was aware there were documents caught by the subpoena and did not produce them to the Court. It was only after further interrogation that the Crown admitted that there was additional material but the Director claimed client legal privilege over them. The Crown Prosecutor misled the Court by stating that there were no documents caught by the subpoena to produce. That is very troubling. I will proceed, however, on the basis that this was the result of ignorance on the part of the Crown Prosecutor of relevant subpoena law and practice rather than a deliberate attempt to mislead the Court.
4. On 25 November 2020, the solicitor for Mr Davis sought short service of another subpoena pertaining to PHS to the Director of Public Prosecutions.

Proposed Basha inquiry of PHS

1. Unsurprisingly, following the disclosure of all of this material, Senior Counsel for Mr Davis and counsel for Ms Quinn indicated that they sought a Basha inquiry (R v Basha (1989) 39 A Crim R 337) as to the circumstances of the making of the third statement by PHS. Ms Cunneen SC noted that, given the allegation by PHS that Mr Taylor had forced her to change her statement, he clearly could not appear for the Crown in that inquiry. Mr Hughes submitted that a further question arose as to whether Mr Taylor could continue to represent the Crown for the rest of the trial if any of PHS' evidence suggested adverse findings as to his involvement in changes to her evidence.
2. After obtaining instructions as to whether he could appear in a Basha inquiry for a witness who had alleged he had made her change her evidence, Mr Taylor placed on the record that he had instructions to appear and saw no conflict in such an approach. He went on to state: "Otherwise I have instruction that, if there can be ‑ I have instruction that a set of agreed facts could be arrived at in relation to Ms [PHS] and, when I get the opportunity, I will draft that and issue that to the parties."
3. On 27 November 2020, the Crown Prosecutor provided an "Outline of Proposed Agreed Facts". It was subsequently agreed that PHS would give evidence on a Basha inquiry on Tuesday 1 December 2020 as to the circumstances of the making of her third statement.
4. On Monday 30 November 2020, a juror was sick and the trial was unable to proceed. I requested that counsel make use of this court time by raising any outstanding matters. One matter I raised with counsel was whether any thought had been given to what would happen in the event that PHS could not give any evidence at all at the Basha inquiry (that is, she disassociated due to her PTSD and associated mental health issues) or she made an allegation that Mr Taylor had forced her to change her evidence. Ms Cunneen SC raised the prospect of PHS requiring a certificate under s 128 of the Evidence Act 1995 (NSW), given the suggestion that she had changed her statement in order to avoid giving evidence, as she may have committed a public justice offence such as perverting the course of justice in doing so. [6]
5. Counsel agreed that two things could happen the following day: either PHS would be able to give evidence in which case all three versions would be adduced; or a decision would be made by the DPP that she would not be called. A third option was that some form of agreed facts could be before the jury (given that the Crown had opened on the proposed evidence of PHS). [7]
6. I inquired of the Crown as to what he proposed to do if the witness disassociated in the witness box and he replied that he would make applications under ss 32 and then 38 of the Evidence Act to get her evidence before the Court. [8] I inquired of the Crown what the Crown case was in relation to the first statement of PHS dated 10 August 2018; in particular as to who the man pushed out of the house wearing boxer shorts and a white bed sheet was. The Crown Prosecutor responded: [9] "I can't commit to that your Honour on such short notice."
7. When I pressed the Crown Prosecutor as to what the Crown case was as to the evidence of PHS in her first statement he replied: [10] "I can only answer that by referring to the third statement."
8. I then reminded the Crown Prosecutor that he had filed submissions in the Local Court opposing a s 82 application on the basis that there was no ambiguity in the evidence of PHS. I asked him what his position about her first statement had been at that time to which the Crown replied: "CROWN PROSECUTOR: Your Honour, this is becoming unfair. I need to look at the submission. If your Honour is asking me whether I adhere to submissions that were done in May of 2019, I need to look at those. HER HONOUR: I am not asking whether you need to adhere to them. I am somewhat surprised that at this stage of the trial you don't have a position as to what the Crown case is in relation to the first of this witness' statements. CROWN PROSECUTOR: I can answer that in this way, your Honour: That as is indicated in MFI 41, it would be in the interests of justice if we're considering. HER HONOUR: Interests of justice, what test is that under the Evidence Act? CROWN PROSECUTOR: It is a submission I am making, and if the consideration is, if I might invite your Honour to the third of your Honour's helpful suggestions, the question of agreed facts."
9. As the transcript reveals, the Crown was unable to put to the Court his position as to what the Crown case was in relation to the first statement of PHS. Instead, he proceeded to make submissions about what should be included in the agreed facts should PHS not be able to give evidence (MFI 41). The nub of his position was that her three statements could be extracted and then it would be a matter for the jury to work out what she was saying (despite the fact that she had not been cross-examined on them at the committal proceedings). [11]
10. I then inquired of the Crown Prosecutor whether there was anything in the first two statements of PHS which assisted the Crown case in relation to an extended joint criminal enterprise between the two accused, that being the case against Ms Quinn for murder. He replied: [12] "Well, that, I would need to review, your Honour. I have reviewed this carefully for the purpose of preparing MFI 41. But to assist your Honour, I need a short time to be able to answer that question as to whether there is anything in the first and second statement that the Crown would say is part of, ultimately what it says and what ultimately says when you would consider statement three, that therein it is apparent that the witness simply gives an account of movements of people. She doesn't by that stage apparently have a capacity to recall their clothing and such things." (emphasis added)
11. I then suggested to Mr Crown that his submission that PHS did not have the "capacity" to recall certain matters in her first two statements (but did in her third) was inconsistent with the evidence of Dr Miah and Ms Sales as to the mental health history of PHS. [13]
12. The Crown then indicated that the notes of the first DPP solicitor would be tendered on the Basha and Constable Luke Jansen, who took the third statement, could be called as well. He then went on to explain what the purpose of the conference was on 29 May 2019 and the circumstances of the taking of the third statement. [14] I then stated: "HER HONOUR: Can I be really clear. I am in no way suggesting that you or Mr Ly did anything improper at that conference. Please don't get me wrong. I am suggesting this mentally ill person has responded in a certain way to that conference."
13. I asked the Crown whether he accepted that portions of PHS' third statement are very different to the first two. He responded: "Yes, absolutely. On that side note, the Director would be quite entitled, arguably, to say we're not going to call this lady at all because she's totally unreliable."
14. This was inconsistent with what he told PHS in conference on 2 November 2020. The notes record he told her he had no discretion as she was under subpoena. The Crown Prosecutor continued to make submissions as to what could be included in agreed facts about PHS' evidence. [15] During those submissions the Crown conceded that the evidence of PHS was unreliable. [16] He also referred to that portion of the third statement of PHS when she referred to Ms Quinn "leaning back into the house" and the following exchange took place. [17] "CROWN PROSECUTOR: …. Now, that would appear to be that Ms Quinn is observing Davis striking with the grey pole, on the Crown case. It could well be the other way around; that is, that it was McKee striking Davis with the pole, but extraordinary one might think that Ms Quinn would just be leaning back into the house as this was taking place. HER HONOUR: You've just struck on the nub of the issue, which is, as I understand the Crown case, please, if I misstate it, prior to the trial commencing I asked you to articulate what the Crown case against Ms Quinn for murder was. And it would only be in circumstances where she [sic: it] could be established beyond a reasonable doubt that she was party to a joint criminal enterprise. When I asked you what the evidence of that was, you said it was based, this is paragraph 63 of my pre‑trial judgment, it was based on the witness, Ms [PHS], that is the evidence of the joint criminal enterprise; that she saw Mr Davis with a lampshade stand hitting the fence. Then the other evidence is that Ms Quinn ran out and was yelling 'who the fuck are you.' So putting to one side that she ran out, do you accept that how you articulated the whole case, the jury has to be satisfied beyond a reasonable doubt that it was Mr Davis hitting the deceased with the something while Ms [PHS] saw it. That is the high point of your case on joint criminal enterprise? CROWN PROSECUTOR: No." (emphasis added)
15. Thus, the Crown position was there was a case against Ms Quinn without the evidence of PHS. The Crown Prosecutor went on to explain how the Crown case against Ms Quinn for murder could be sustained without the evidence of PHS based on inferences arising, inter alia, from the fact that Mr McKee ran from the premises. [18]
16. I then inquired of defence counsel what the position was if PHS was not called by the Crown. [19] Ms Cunneen SC responded that it may be that none was required, but she placed on the record her concerns that the third statement was obtained to defeat the s 82 application and that that statement also changed the Crown case. [20] I then indicated this to the parties: [21] "I know you all understand this and please I am not trying to tell you, state the obvious to you all, but if it could just all be put, all her versions put before the jury that would be fine, but in fairness, the way to describe, in order to describe the significant change will involve matters such as ‑ Why did you change? What happened on that day? And what were you told, which inevitably is going to make Mr Taylor a witness and the trial will have to be aborted, and that is why I am so concerned about these agreed facts. It is [they are] entirely forensic decisions for all of you, entirely forensic decisions. I do not want to enter into that. All I am trying to make clear is what your respective cases are and what the impact of various forensic decisions will be."
17. The transcript then records the following exchange: [22] "HER HONOUR: Is there anything else? CUNNEEN: No, well we understand very much about the vexed position in fact over the weekend, Ms Bannister asked the DPP to put in a substitute Crown Prosecutor for the evidence of Ms [PHS] and that was refused. HER HONOUR: Mr Crown, you placed on the record that you have instructions from the Director's chambers that you were to run the Basha is that correct? CROWN PROSECUTOR: That is so. HER HONOUR: And those are your instructions, as any counsel you act on your instructions, do you personally have any professional or ethical doubt yourself about that? CROWN PROSECUTOR: No your Honour. HER HONOUR: Well if that is the case, Ms Cunneen, that is the case. And that is all on the record."
18. Later on 30 November 2020, after the luncheon adjournment, the Crown indicated the following: "CROWN PROSECUTOR: In relation to the issue of the calling or adducing evidence of [PHS], on the basis of exchanges prior to lunch that my friend, if, in the scenario that the Crown doesn't call or adduce any evidence from Ms [PHS], on that scenario my learned friends have indicated that she will not be required to be produced as a witness or appear as a witness; nor there will be any requirement for cross‑examination. On the basis of those utterances, or if they are undertakings, the Crown does not propose to call Ms [PHS] as a witness; nor adduce any evidence from Ms [PHS]; nor from Mr Luke Jansen who took a statement or took both statements from her, one in a notebook and one in the statement form."
19. In circumstances where the Crown ultimately decided not to call PHS and she was still, at that time "available" no application under s 65(2) of the Evidence Act was made, nor could it have been. There was no legal basis for the Crown to rely on "Agreed Facts" other than by consent. No consent was forthcoming.

Evidence excluded on 13 November 2020

1. The second argument relied upon by the Crown to oppose this costs application was that the Crown could not have anticipated that I would exclude so much of the Crown case. As stated above, I delivered my evidentiary rulings and reasons on 13 November 2020. [23] The Crown relies upon the fact of these evidentiary exclusions in support of the contention that a costs certificate should not be granted in this case. It is thus necessary to briefly note the evidence that was admitted and excluded at that time. 1. I excluded evidence of a domestic dispute between Ms Quinn and Mr Davis heard by neighbours. 2. I admitted (over objection) the evidence of the finding of cash in the search at 87A Hereford Street premises. 3. I excluded portions of Ms Quinn's ERISP concerning Q 1522-1581 (regarding phones found in the Uber bag said to be used for drug dealing); Q 1653-1654 (to the effect that neither the deceased nor Mr O'Connor was the person who handed her the mobile phones); and Q 1656 (Ms Quinn's admission that she and Mr Davis smoked "lots of weed"). 4. I admitted (over objection) all the evidence of cannabis and drugs found at 87A Hereford Street. 5. I excluded an empty container for smoking implement "Brass knuckles" found at Ms Quinn's address at Sutherland Street, St Peters (it was later confirmed that this was a vaping implement). 6. I deferred rulings on the evidence of Mr O'Connor and Mr Hill as to the background of the robbery. 7. I admitted (over objection) all evidence of an Uber Eats bag with the name "Hannah" written on it, containing $21,380 cash, 2 mobile phones, 6 pairs of nunchucks and a pellet gun, found near the scene. 8. I allowed evidence from Mr Hill that Mr McKee that needed money because of his gambling addiction but excluded the "good character" evidence of the deceased relied upon by the Crown. 9. Similarly, I allowed evidence from Mr O'Connor that Mr McKee needed money because of his gambling addiction but excluded the "good character" evidence of the deceased relied upon by the Crown. 10. I deferred the defence objection to the statement of Ms Quinn's mother until her objection under s 18 of the Evidence Act could be heard. 11. I ruled the good character evidence about Mr McKee to be given by his mother and relied upon by the Crown to be irrelevant and inadmissible. 12. I ruled the good character evidence about Mr McKee to be given by his father and relied upon by the Crown to be irrelevant and inadmissible. 13. I ruled the evidence of Detective Senior Constable Mark Wakeham as inadmissible under ss 55 or 137. His detailed statement covered expert evidence as to the sale of cannabis in Australia and the fact that cannabis dealers use code to avoid detection. He examined intercepts of the accused whilst on bail and concluded they were still using drugs on bail. He located photos of a marijuana flower in Ms Quinn's phone and the use of Wickr and Signal. In one text message there is a reference to "Mary" which is said to be a common name for cannabis. He also gave evidence that drug suppliers often have weapons at their premises (such as the ornamental weapons found at Ms Davis' home) to protect their drugs and proceeds. He gave an estimate of the street value of the 122g of cannabis seized as $2,442. He stated that the money at the premises was consistent with the supply of street level quantities of prohibited drugs. 14. I excluded the mobile phone downloads from the phones found in the paper bag in the laneway, being the downloads referred to by Detective Wakeham. 15. I excluded the listening device material obtained whilst the accused were on bail as to drug use and supply. 16. I excluded the telephone intercept material while the accused were on bail as to continued drug use. 17. I excluded the CCTV footage of the deceased at The Star Casino. 18. I excluded all evidence of anything seized during the search warrant executed on Ms Quinn's premises in St Peters.

Mr Hughes' submissions regarding costs

1. Mr Hughes relied upon my observations prior to the trial (extracted above at [74]-[75]) and in the judgment directing a verdict of not guilty. [24]
2. Further reliance was placed on the fact that two applications for no further proceedings were made and rejected by the DPP: on 14 November 2020 (following the observations I made in my first judgment) and on 26 November 2020.
3. Mr Hughes submitted that I would note in any certificate an estimation that 90% of the costs was attributable to the murder charge.

Crown submissions

1. As stated above, the Crown opposed the application on three grounds.
2. The first was that the fact that PHS became unwell rendered it less likely that s 3 of the Act could be answered affirmatively given the relevant principles concerning credibility. It was submitted that the Crown's inability to rely upon PHS ought not to unfavourably "feed into" the s 3 inquiry. In support of that submission the Crown relied upon some 21 factors. I have extracted the following from the Crown's written submissions "a) In Crown conference with the witness [PHS] - as evident by the conference note of ODPP Solicitor James Ly - made a relevant disclosure; b) PHS was referred to the NSW Police having regard to her disclosure such that a further statement could be obtained (which it was); c) PHS had a separate lawyer at various times; d) The trial commenced; e) It was anticipated that Ms PHS would give evidence; f) In pre-trial arguments it was readily acknowledged that PHS had given numerous statements; g) In the opening TX39:5-10 Crown acknowledgment was made of the need to view what PHS said in the context of her full statements: 'She saw, and you will need to consider what it is that ultimately she saw, this witness has provided a number of statements to police, when an investigation is undertaken, the police might attend upon a person, they provide a written statement. She's provided a number of statements and some consideration will need to be given by you in relation to what it is that she precisely saw and heard'; h) PHS via her mental health practitioner wrote directly to the learned trial judge; i) This in turn caused the accused (Davis) to issue numerous subpoena; j) The Crown raised in open Court the potential need for provision to be made regarding the giving of evidence by PHS given notification of her mental health state; k) It became evident that PHS was not in a position to give evidence; l) A decision was made by the Crown not to call PHS; m) Defence did not in any event require the witness for cross-examination; n) The Crown proffered Agreed Facts; o) The proposed Agreed Facts [not extracted] p) The proposed Agreed Facts were such that all material favourable to the accused (as highlighted in the Statements of PHS) was to be agreed. These were not agreed by Defence; q) At the conclusion of the evidence in the trial consideration was given to a direction to the jury in relation to the absence of the witness; r) Defence drafted a proposed direction in the following terms (Crown strike-out text and proposed [not extracted]; s) Defence ultimately (after some negotiation as to the proposed direction) requested that the learned trial judge not say anything at all to the jury about PHS; t) No direction was given; u) The Crown did not make any reference to PHS nor any of the proposed evidence of PHS in the closing."
3. The second submission was that the Crown could not have anticipated the exclusion of evidence prior to the trial which precluded the Crown from relying upon retribution as a motive. [25]
4. The third submission was to rely on a summary of all of the evidence of all the Crown witnesses I have already summarised above at [17]-[32] to support a submission that the case was a circumstantial one and one of competing inferences which were matters for the jury. It was submitted that even without PHS it was not unreasonable to commence these proceedings. The effect of these submissions was to challenge the finding I made at the close of the Crown case.
5. I will consider these arguments below.

Consideration

1. There was no dispute between Mr Hughes and the Crown as to the relevant principles. They are well established. I have previously considered them in R v Loeung (No 2) [2019] NSWSC 1691 and R v Hawat (No 6) [2020] NSWSC 532.
2. I do not understand there to be any suggestion that any act or omission of Ms Quinn contributed, or might have contributed, to the institution or continuation of the prosecution: s 3(1)(b) of the Act. The only submission on this issue was in the Crown written submissions at [42]: "It is encumbent upon the applicant to demonstrate whether any act or omission of the applicant contributed to the commencement of or continuation of the proceedings, or not. Having particular regard to the matter involving the exclusion of evidence by the Court, the obligation is upon the applicant to demonstrate when such objections were raised and whether such objections complied with pre-trial directions, such that consideration could be given to the resulting impact upon the continuation of the proceedings."
3. I propose to proceed on the basis that no act or omission is in fact relied upon by the Crown for the purposes of s 3(1)(b) of the Act.
4. In R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997) the Court observed that the question is to be determined in this way: "The primary test to be applied when deciding whether a certificate should be granted is to be found in the wording of s3(1)(a): if the prosecution had been in possession of all the relevant evidence as it is now known before the proceedings had begun, would it have been reasonable to institute proceedings? The section calls for: ' … a hypothetical exercise in the sense that the question is whether it would have been reasonable to prosecute at the time of (the) institution (of the proceedings) if the hypothetical prosecutor had possession of evidence of all the relevant facts including those established even after the trial and on (the) application (see Allerton v DPP (1991) 24 NSWLR 550 per Blanch J, Regina v Warwick Ian McFarlane (unreported 12 August 1994).'"
5. The Court's enquiry was described by Simpson J (as her Honour then was) in R v Johnston [2000] NSWCCA 197 at [16] in this way: "The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be re-stated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial; (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted; (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings; ..."
6. As to what is meant by "relevant facts", in Chahal v DPP Ipp JA (Giles JA agreeing) observed at [29]: "'All the relevant facts', as this phrase is used in s 3(1)(a), are facts relevant to the reasonableness of the institution of the criminal proceedings. That is because, in that section, the 'relevant facts' are concerned solely with that issue. Section 3A(1) is a definition section relating to the meaning of 'all the relevant facts' in s 3(1). Therefore, the word 'relevant' in the phrase 'relevant facts' in s 3A(1) must carry the same meaning as that word in s 3(1), namely, facts relevant to the reasonableness of the institution of the criminal proceedings."
7. Further, in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121; (2007) 171 A Crim R 510 ("Mordaunt"), McColl JA (Beazley and Hodgson JJA agreeing) noted the following on the question of "relevant facts" at [36(f)]: "The hypothetical question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the CCC Act; all of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker: Allerton (at 559 - 560); Manley per Wood CJ at CL (at [9]); the relevant facts include those relevant to the offences charged and the threshold question posed by s 3(1)(a); other facts will also be relevant and admissible going, amongst other things, to the question posed by s 3(1)(b) and to the ultimate question whether, assuming that the court is of the opinion required to be specified, it should exercise its discretion under s 2: Gwozdecky v Director of Public Prosecutions (1992) 65 A Crim R 160 (at 164 - 165) per Sheller J (with whom Mahoney JA and Hope AJA agreed)."
8. As to what is meant by not being "reasonable", Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], that the test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, whether there is reasonable suspicion or whether the prosecution was malicious (citing Regina v Jonathon Harold Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [10] per Wood CJ at CL). Similarly, as Hamill J observed in R v Moore [2015] NSWSC 1263 at [6(6)]: "A decision to prosecute is not 'reasonable' simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial: R v Warwick Ian MacFarlene cited with approval in R v Fejsa 255."
9. It is well-established that a decision to prosecute will not generally be unreasonable where questions of credibility or reliability are in issue. The Crown relied upon the observation of McColl JA where her Honour stated the following in Mordaunt at [36(m)]: "Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt or inherent weaknesses in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases it would be quite reasonable for the prosecution to allow those matters to be decided by a jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." (citations omitted)
10. As for the relevance of evidence being excluded by a trial judge such that the prosecution is left with little or no case, Hamill J observed the following in R v Moore at [28]-[29]: "The hypothetical prosecutor envisaged by s 3 is assumed to have possession of the relevant facts and evidence. But that prosecutor is not to be attributed with the ability to predict what factual findings will be made either at trial or on the voir dire, let alone to be able to predict the exercise of discretion residing in the trial judge. There may well be cases where the legal principles are so clear that the hypothetical prosecutor ought not to attempt to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Costs in Criminal Cases Act 1967 (NSW). Equally, there will be cases where the attack on the credibility of the evidence is so substantial that it would be unreasonable for the prosecutor to rely on the evidence of a particular witness either at trial or on the voir dire…"
11. I have had regard to all of these principles.
12. I have already made an evaluation of all of the evidence as it emerged at trial and assumed that all that evidence was available to the prosecution before the proceedings were instituted. The relevant facts are those relevant to the reasonableness of the decision to prosecute. They include all of the matters I have already referred to including the evidence led at trial and the conduct of the trial. That leaves the determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings.
13. I accept that the test for reasonableness is not the same as sufficiency of evidence. The mere fact that I ordered a verdict by direction is not determinative. I have also had regard to the fact that I am not being asked to award costs against the Crown; I am simply considering whether a certificate should be granted. [26]
14. I expressed concern prior to the commencement of the trial that the Crown could not establish a case for murder against Ms Quinn at [225] of R v Davis and Quinn (No 1). That concern was cemented at the close of the Crown case. I also had the opportunity to observe the manner in which the trial against Ms Quinn was conducted, the exercise of the prosecutorial discretion before and during the trial and the approach taken by the Crown Prosecutor to the formulation of a Crown case theory that sought to get around facts in the Crown case that were inconsistent with the guilt of Ms Quinn for murder. I have also had regard to the approach taken the Crown Prosecutor to the evidence of PHS and the significant reliance in the Crown Case Statement and opening address on her evidence to implicate Ms Quinn in the extended joint criminal enterprise. All of these matters are relevant to the question of reasonableness for the purposes of the statutory test.
15. Turning to the first of the three arguments relied upon by the Crown in opposition to the application. I do not accept that the fact that PHS was too unwell to give evidence is a matter militating against a finding of unreasonableness (for the purposes of s 3(1)(a)) in this matter. She was in that state prior to the commencement of the trial. I have set out the troubled history of her evidence above because the Crown sought to rely upon it as a matter that would persuade the Court against the making of the order. Some of it bears repetition.
16. I am tolerably satisfied that the early statements of PHS were exculpatory of the accused but were also the product of conflation of a number of events caused by her underlying mental condition. The witness first described Ms Quinn being pushed out of the house with a man with no shirt on who was wearing boxers and had a white bedsheet around him. Mr Davis was shirtless and was later seen running back to his premises carrying a car cover with similar dimensions to a sheet. The witness clearly described Mr Davis as the victim but conflated the times she saw him leaving the premises with the time she later saw him running back to the premises with the car cover.
17. PHS then described how "another guy came out and was hitting the shirtless man with something which may have been a lamp". In the context of the first statement taken as a whole, this second man could only have been Mr McKee and is consistent with the defence case that Mr McKee was the aggressor inside the premises.
18. In her second statement she described both men as shirtless in circumstances where although Mr Davis was shirtless, the deceased was wearing dark pants, a dark hoodie, black gloves and, at one stage, a balaclava.
19. Despite the obvious need for the evidence of PHS to be clarified at committal proceedings, the Crown opposed the application to do so and instead conducted a lengthy conference with her which resulted in the making of her third statement. The witness now states that she was forced to change her statement by the Crown Prosecutor so that she would not have to give evidence. I do not propose to make any finding on this issue. As I indicated to counsel at the time, it is sufficient if I proceed on the basis that that is how the witness felt rather than that that is what actually happened. As a matter of procedural fairness, it would unfair to the Crown Prosecutor if I was to find otherwise nor is there any need to make an express finding for the purpose of this application.
20. A further difficulty is that even after her third statement, the evidence of PHS was still unreliable and internally inconsistent on its face. Had there been no opposition to PHS giving evidence at the committal that could have been clarified. Regrettably that did not happen.
21. Despite all of this, the Crown opened on a favourable interpretation of the last, non-contemporaneous version given by PHS. He did not, even in the face of objection by Ms Cunneen SC, refer in terms to her earlier exculpatory versions. Nor did he suggest the possibility that the assailant that he believed was Mr Davis could have been Mr McKee. Further, he failed to make any mention of the serious pre-existing mental illness from which PHS suffered. Nor did he explain that the version he opened on was not a recent one and that the versions he did not rely upon were in fact made on the day of and the day after the relevant events. Significantly, he opened in this way knowing that the week before the witness had squarely put to him "you made me change my freakin statement".
22. It does not appear that the Crown ever ascertained the position of the defence in the event that PHS was not called. When I first raised that issue in Court on 30 November 2020 (as extracted above at [109]]) counsel for both accused indicated that she was not required. As for the suggested reliance upon agreed facts, the problems with the evidence of PHS meant that there could never have been any agreed facts unless they fully set out all of the history including the role of the DPP in the change of her evidence, which was opposed and would have aborted the trial in any event.
23. It is against this factual background that the Crown relied upon the principles derived from cases such as Mordaunt in support of the proposition that where the Crown case relies upon issues of credibility, costs will not usually be awarded. That is not this case, as the above narrative makes clear. The "relevant facts" as they pertain to the witness PHS militate in favour of a finding of unreasonableness rather than against such a finding.
24. Turning to the second argument relied upon by the Crown, I do not accept that the Crown case was significantly weakened by the rulings I made on 13 November 2020. In particular, I do not accept the Crown submission that these rulings prevented the Crown from putting "retribution" as a motive for the murder. I have summarised the relevant rulings above at [111]. I admitted (over objection) evidence that the two accused were dealing in cannabis, that drugs and money were found at the premises and the evidence of Mr O'Connor. I subsequently ruled that Mr O'Connor could give evidence, inter alia, that his dealings with Ms Quinn and Mr Davis were in large amounts on more than one occasion and that Ms Quinn and Mr Davis' drug business started small "and they got big quickly".
25. The evidence I excluded was pressed by the Crown to show the extent of the drug dealing of Ms Quinn and Mr Davis. It included some indicia of minor cannabis supply at Ms Quinn's home (premises which were not the subject of the home invasion), photos of marijuana and references to "marijuana" in the Cellebrite downloads from the two phones found in the Uber Eats bag, admissions to drug dealing in general terms in the SDs placed in the home of Mr Davis and Ms Quinn whilst they were on bail, evidence of ongoing cannabis use whilst on bail and the evidence of Detective Wakeham. It is to be noted that I also excluded evidence of the good character of the deceased because the Crown submitted it was relevant for "balance".
26. This was a murder trial. It was not a trial concerned with the extent of drug dealing by Ms Quinn and Mr Davis. Despite this the Crown sought to run the trial in that way, which would have had the effect that significant amounts of prejudicial material would be before the Court, far removed from the circumstances of the death of Mr McKee. I summarised the Crown case theory put to me in pre-trial submissions at [55] of R v Davis and Quinn (No 1) as follows: "It is the Crown case that the accused were both so angry that they had been robbed that they engaged in a form of self-administered justice as retribution. It was submitted that the accused sought retribution because they were drug dealers. It was submitted that evidence of the extent of the drug dealing by both accused was relevant to 'overcome the defence'." (emphasis in original)
27. The "Crown case theory" that the two accused agreed to either kill or inflict grievous bodily harm on Mr McKee on an inner city street full of onlookers in broad daylight in order to send a message to anyone else who tried to rob their drug empire was fanciful to say the least. I am not only not satisfied that the Crown case was weakened by my rulings; to the extent that it is relevant to decide, I am also satisfied that it was a significant overreach on the part of the Crown to run the case in that way in the first place.
28. As Hamill J observed R v Moore at [28], although it is to be accepted that the hypothetical prosecutor is not to be attributed with the ability to predict what factual findings will be made nor how the trial judge's discretion will be exercised, there may still be cases where the hypothetical prosecutor ought not to have attempted to tender evidence and where to do so will constitute an unreasonable exercise of the prosecutorial discretion for the purposes of the application of s 3 of the Act. This is such a case.
29. The third submission opposing this application was a repeat of the submissions made on the no case application as to the strength of the Crown case against Ms Quinn, contrary to my findings in R v Davis and Quinn (No 4). I adhere to the findings I made therein.
30. The power to award costs is a discretionary one. The Crown submitted that a factor militating against me exercising my discretion to grant a certificate is the fact that a trial would have had to be conducted against Ms Quinn for being an accessory after the fact in any event. I have had regard to that submission but I am not satisfied that my discretion should be exercised in that way given the "relevant facts" I have found in this matter.
31. It seems to me that another relevant factor in this matter is that there was nothing put to Ms Quinn in her lengthy ERISP to suggest she had agreed to murder Mr McKee. There was insufficient evidence on 14 August 2018 when Ms Quinn gave her ERISP to charge with murder and the situation did not change at any later time.
32. The Crown's position from the outset of the trial is that it did not accept anything Ms Quinn stated in her ERISP. The jury verdict reflects that her explanation for fleeing was not accepted. There were other aspects of her ERISP which I found to be somewhat disingenuous. But there were many aspects of it which were supported by other evidence, as I found for the purposes of sentencing her. In addition, the first statements of PHS were supportive of Ms Quinn's version of Mr Davis being assaulted by Mr McKee.
33. The Crown Prosecutor was reluctant to accept any aspect of Ms Quinn's account. This can be demonstrated by the following example.
34. The Crown Case Statement filed on 26 October 2020 stated the following: "The deceased was wearing a dark coloured hooded jacket and dark trouser pants. The deceased walked towards 87A Hereford Street, a granny flat, at the back of number 87 Hereford Street and entered the unit." (emphasis added)
35. During pre-trial argument the Crown Prosecutor sought to distance himself from this (it was consistent with what Ms Quinn had told police in her ERISP). The following exchange then took place: "CROWN PROSECUTOR: All I'm saying is the Crown case is evident from the evidence that the Crown relies upon. HER HONOUR: Sorry, that's not responsive to my question. If in the Crown Case Statement you say the Crown case is he entered, is that the Crown case as set out in the Crown Case Statement? CROWN PROSECUTOR: I'm not conceding that. HER HONOUR: So why is it in the Crown Case Statement? CROWN PROSECUTOR: That's a question for the drafter of that ultimately…..."
36. The Crown case statement is an important document and is a requirement under s 141 of the Criminal Procedure Act. Judges will often be required to make pre-trial rulings based on such a document having not heard the relevant evidence at trial as yet. I was required to do so in the present case. It is the role of counsel appearing for the Crown to draft or at least settle such a document carefully. In the present matter, the Crown Case statement was filed only two weeks before the trial and at least some 18 months prior to the Crown Prosecutor's first involvement in the matter. I am unable to accept that the Crown Prosecutor was not aware of its contents. To suggest that I could not ask him questions about it reflects a misunderstanding as to the significance of the document as part of the pre-trial process.

Conclusion

1. People act under pressure in different ways. When confronted with the violent acts of Mr McKee, Ms Quinn's "fight or flight" instinct appears to have been triggered. She ran after Mr McKee. Had she not done so the day would have ended very differently for her, Mr McKee and Mr Davis. But the fact that she ran rather than staying with Mr Davis could never make her a murderer on the relevant facts available to the Crown.
2. To conclude, I am comfortably satisfied that if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings.
3. Although Ms Quinn was ultimately legally aided, a grant of Legal Aid is no impediment to an application for costs. [27]

Apportionment of costs

1. As for the question of whether I can apportion costs, I do not accept the Crown submission that I am unable to do so. Section 4(2) of the Act provides that the amount of the costs is a matter for the Director-General. But there is nothing in the Act which would preclude me from indicating on the certificate that, of the amount as assessed by the Director-General, a particular percentage of the costs incurred was attributable to the murder prosecution. This Court is often required to make such estimates and it is well settled that an impressionistic approach is to be taken. If I chose not to do so, a costs assessor would be required to go through the transcript to arrive at such a percentage. I consider it appropriate that I do so instead, given my knowledge of the relevant issues.
2. Counsel for Ms Quinn submitted that Ms Quinn should be granted a certificate for 90% of her costs. This was calculated on the basis of 32 hearing days in the Supreme Court (of which two were pre-trial hearing days and 30 were trial days).
3. It was further noted that Ms Quinn had two privately funded attendances at Newtown Police Station and Newtown Local Court on 14 and 15 August 2018 respectively in relation to her ERISP and bail application. Ms Quinn's solicitor then carried out pro bono work between her grant of bail and her grant of Legal Aid. Ms Quinn's preparation for trial, pre-trial hearings and appearances at trial were funded by the Legal Aid Commission.
4. It was submitted that, had the Crown accepted Mr Davis' plea of guilty to manslaughter, Ms Quinn's trial for accessory after the fact to manslaughter could have been completed in no more than three days. This was calculated on the basis that a separate trial, covering only the events after the sword strike, would have been confined to the following evidence: 1. Short evidence from Detective Sergeant Crimmins; 2. Short evidence, without cross-examination from Ms Angela Bollard; 3. Short evidence without cross-examination from Mr Patrick Reilly; 4. Short evidence from Mr Craig Blake; 5. Short evidence from Mr James Davis; 6. The playing of Ms Quinn's ERISP (Exhibit AAA); 7. The tender without objection of Exhibit P (master audio-visual chronology), and short evidence from Detective Senior Constable Kelly.
5. I have carefully considered these submissions. It is to be accepted that had the DPP accepted Mr Davis' offer to plead guilty to manslaughter then Ms Quinn's trial could have been short and would have largely turned on whether a jury accepted her explanation for remaining with Mr Davis until they both handed themselves into police. It seems to me that this was a joint trial and many of the forensic decisions appear to have been made jointly. Accordingly, I am satisfied that I am able to take this factor into account.
6. I am unable to accept the submission made on behalf of Ms Quinn that 90% of the costs are attributable to defending the murder charge but I am satisfied that had she not been charged with murder her legal costs would have been significantly reduced.
7. After an impressionistic analysis of all of this material I would indicate that 70% of the legal costs incurred by Ms Quinn was attributable to her being charged with murder.

ORDERS

1. Accordingly, 1. In relation to Ms Quinn's acquittal on the charge of murder, I grant the applicant a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) certifying: 1. If the prosecution had, before the proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and 2. That any act or omission of Ms Quinn that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 1. I assess the percentage of the total legal costs incurred attributable to the murder charge as 70%.

Endnotes

1. R v Davis and Quinn (No 4) [2020] NSWSC 1800.
2. R v Blake Davis [2021] NSWSC 235; R v Hannah Quinn (No 1) [2021] NSWSC 493.
3. T 72.
4. McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37.
5. T 71-73.
6. T 957.
7. T 958.
8. T 959.
9. T 960.
10. T 961.
11. T 962.
12. T 962.
13. T 963-964.
14. T 964.
15. T 966-967.
16. T 967.
17. T 969.
18. T 970-971.
19. T 972-973.
20. T 974-975.
21. T 975.
22. T 975.
23. R v Davis and Quinn (No 1) [2020] NSWSC 1615.
24. R v Davis and Quinn (No 4).
25. Chahal v DPP [2008] NSWCA 152.
26. Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 683 per Kirby P.
27. s 42 of the Legal Aid Commission Act 1979 (NSW); R v Stuart Carrick (2003) 57 NSWLR 606; [2003] NSWSC 313 at [6] per Buddin J.

Amendments 10 May 2021 - [88] -"2020" instead of "2021" Minor formatting changes 11 May 2021 - [52] line 1 - "answers" deleted 12 May 2021 - coversheet correction 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: 12 May 2021