Conduct Suggesting Consciousness of Guilt Insufficient to Convict, Appeal Court Finds

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By Paul Gregoire and Ugur Nedim

Just after noon on 10 August 2018, Jeff McKee burst into the Hereford Street home of Blake Davis in Sydney’s Glebe. Davis was eating breakfast with his girlfriend Hannah Quinn, when the intruder, armed with a set of knuckledusters and a handgun, appeared inside the house.

McKee screamed at Blake and Quinn, who dealt cannabis on the side, to hand over their cash or he’d kill them. McKee pointed the gun at Quinn’s head, before turning and punching Davis with his knuckledusters. And the thief then grabbed the woman’s bag and took off.

However, Quinn pursued the attacker, catching up with him 160 metres down the street. They scuffled, he fell over and, she alleges, he pointed his gun at her. And after arming himself with an ornamental samurai sword, Davis followed and as he caught up, he fatally struck McKee in the head.

Davis later told a court he didn’t see McKee’s gun on approach, but he did note that Quinn was backing away from the assailant. And Quinn’s version of events on Hereford Street aligns with several eyewitnesses, who, like Davis, also were unaware McKee was pointing his pistol.

Davis and Quinn then fled, but not before hiding the sword and removing evidence of their drug dealing. The pair then checked in and out of hotels under Quinn’s name for three days and meet with friends and family, prior to turning themselves in to Newtown police station on 13 August.

Trial by jury

The pair were charged with the crime of murder on 14 August 2018. Contained in section 18(1)(a) of the Crimes Act 1900 (NSW), this offence consists of an act or omission done with the intention to kill or with reckless indifference to whether death occurs, and it carries a maximum penalty of life imprisonment.

On 22 December 2020, Davis was acquitted of murder but convicted of using excessive force self-defence that inflicted death, contrary to section 421 of the Crimes Act of the Crimes Act. This means that Davis didn’t think his use of force was reasonable, but rather necessary to defend the liberty of Quinn.

Excessive self-defence causing death is a form of manslaughter, which is a crime under section 18(1)(b) of the Crimes Act. Manslaughter is the unintentional killing of another by act or omission. Both the section 18(1)(b) and section 421 offences carry a maximum penalty of 25 years behind bars.

On that same day, the jury found Quinn guilty of one count of being an accessory after the fact to an unlawful killing, contrary to section 347 of the Crimes Act, due to the actions she’d partaken in over the three days after the manslaughter incident.

An accessory after the fact to a serious indictable offence, like a manslaughter, carries a maximum of 5 years imprisonment, under section 50 of the Crimes Act.

NSW Supreme Court Justice Natalie Adams sentenced Quinn to a two-year community corrections order (CCO), which is a punishment that sees a subject living under conditional liberty in the community.

Appealing accessory after the fact

Quinn appealed her conviction last June to the NSW Court of Criminal Appeal (NSWCCA). She did so based on two grounds. The first was that a miscarriage occurred as the judge relied on consciousness of guilt reasoning, while the second was that the verdict was unreasonable.

The NSWCCA Justices considered the evidence from trial which included that McKee was short on money, so he and a friend, Mr O’Connor, decided to rob a number of drug dealers, who were less likely to go to police. O’Connor knew Quinn and Davis and drove McKee to the house and waited.

NSW Chief Justice Andrew Bell noted that the trial judge had observed that the jury had obviously not accepted that McKee had pointed a gun at Quinn just prior to the killing as, if it had, the accused could not have been found as an accessory to what she believed to have been a justified act.

Eyewitness accounts to the Hereford Road incident vary, with most stating that they hadn’t seen McKee holding a gun in his hand, as he fled the scene or was upon the ground.

In terms of ground one of the appeal, the Crown considered that the pair having fled, hidden incriminating evidence and not surrendering for three days tends towards an interpretation that Davis was aware that his actions weren’t warranted for defensive purposes.

In fact, the Crown listed 17 acts carried out by Quinn prior to the pair handing themselves in, which it submitted support the conclusion that she attempted to assist Davis evade arrest. These acts included assisting in fleeing, checking into numerous hotels, sourcing clothes for Davis and withdrawing cash.

Consciousness of guilt

Despite being aware that McKee was seriously injured, Quinn didn’t realise he had died until 11 August. Davis and Quinn arranged to surrender to police by way of a phone call on 12 August, and from this point, the prosecution considered it was no longer clear whether Quinn was assisting Davis.

It was put to the court that the the accused’s post-offence conduct revealed an awareness of guilt, which is also known as consciousness of guilt. In Quinns’ case, the Crown submitted her conduct in fleeing and trying to hide were evidence she actively sought to assist an alleged murderer from the killer to hide from authorities.

Quinn’s legal team argued on appeal that consciousness of guilt was put to the jury at trial in relation to Davis’ actions post-killing, which had a flow on effect of incriminating their client’s behaviour. But when this was raised, it was in relation to Davis allegedly committing murder, not manslaughter.

In the 2015 NSWCCA case of Gall versus R, then Chief Judge at Common Law Clifton Hoeben affirmed that “post-offence conduct can be relied upon in proof of the critical elements of an offence, rather than as evidencing a consciousness of guilt”. This was recently reaffirmed in 2023’s Cavanagh versus R.

Chief Justice Bell added that many of the points highlighted as consciousness of guilt by Quinn did not reflect any such reasoning, so the suggestion that a miscarriage of justice had taken place as the trial judge failed to give the jury a consciousness of guilt direction was misplaced.

Evidence does not support verdict

The NSW chief justice then turned his attention to the questions as to whether Quinn’s conviction was unreasonable given the evidence. And Quinn’s legal team gave two reasons as to why the verdict was.

The first was that whilst Davis couldn’t recall seeing a gun at the time of the killing in these circumstances it cannot be proven beyond reasonable doubt that he didn’t see the gun pointed earlier and had since forgotten due to the extreme circumstances. 

And as Quinn’s guilt was derived from Davis’, her conviction would be unreasonable in this scenario.

The second point was that while Quinn having a gun pulled on her at the time may not have been noticeable to Davis prior to his wielding of the sword, it’s still conceivable that Quinn continued to believe her boyfriend had seen the pointed pistol and, therefore, acted in that manner.

Justice Bell also explained that while Davis may have acted unreasonably as he hadn’t seen the gun, this doesn’t mean Quinn hadn’t seen it and further believed that her boyfriend did as well, and in considering this a reasonable inference to make, it’s consistent with a finding of innocence.

Certain circumstantial evidence further supported Quinn’s claim, which included the close proximity of the gun to the assailant, a witness having heard Quinn say, “No, don’t”, which is consistent with the gun pointing scenario, and the fact that another witness saw Quinn backing away from McKee.

Acquittal in order

“Having carefully reviewed the record of the trial in accordance with the authorities… I have concluded that the jury ought… to have entertained a reasonable doubt as to proof of the applicant’s guilt, and that the jury’s verdict… was unreasonable,” ruled NSW Chief Justice Bell.

So, on 8 September this year, his Honour set aside the jury’s verdict and acquitted Quinn in what he described as this “most unusual of cases”.

The Chief Justice’s colleague NSWCCA Justice Deborah Sweeney agreed with the top judge’s findings, however Justice Helen Wilson did not, as her Honour held that given the jury’s advantage of having seen witnesses give evidence, it was open for it to have found Quinn guilty to the criminal standard.

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