Prosecutor on the ropes … Court finds murder prosecution was unreasonable … Unstable witness the basis of “case theory” … Witness alleges mistreatment by DPP … Evidence withheld … Offender recovers legal fees … Janek Drevikovsky reports
Crown prosecutors withheld subpoenaed documents and, until the last minute, insisted on calling their star witness, even though she was a PTSD sufferer who had given three conflicting statements to police.
In December last year, a Supreme Court jury found the swordsman, Blake Davis, guilty of manslaughter and Ms Quinn guilty of being an accessory to manslaughter.
However, on Ms Quinn’s charge of murder, Justice Natalie Adams instructed the jury to return a not-guilty verdict, because the evidence simply was not there.
Ms Quinn then applied for the government to pay her legal costs, saying it had been unreasonable to bring a murder prosecution against her.
At trial, the court heard McKee’s death came after his bungled attempt to rob the young couple, who were small-time drug dealers.
Mr McKee, an ice addict, burst into the couple’s Forest Lodge home, brandishing a replica pistol and demanding cash.
After knocking Mr Davis unconscious, Mr McKee fled the scene, pursued by Ms Quinn.
According to most eye-witnesses, Mr Davis (dressed only in his boxers) followed at some distance, wielding a samurai sword.
Ms Quinn grabbed Mr McKee and brought him to the ground. Mr Davis then struck him over the head, delivering a fatal blow, while Ms Quinn exclaimed something like “no stop” or “what the fuck have you done”.
However, there was one witness, PHS, who, according to the Crown, would testify that Ms Quinn and Mr Davis emerged from their home at the same time.
The Crown’s “case theory” was that because the couple had run onto the street together, it was inferable they had agreed to either kill him or inflict grievous bodily harm. Ms Quinn was therefore guilty of murder by joint criminal enterprise.
Justice Adams was unimpressed:
“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.”
Not only was the murder case against Ms Quinn highly implausible; it also rested on suspect evidence.
PHS gave three statements to police. All of them were garbled. Her second statement went something like this:
After giving her first two statements, PHS complained to the DPP that she was traumatised. Her psychiatrist, psychologist and mother told the prosecutors PHS was suffering post traumatic stress and was at risk of taking her own life.
PHS felt she had been mistreated by the DPP and the police. She made serious allegations, including that in a meeting with crown prosecutor Christopher Taylor, she said “You made me change my freakin statement.”
She was also adamant that she could not testify, and threatened to kill herself if she had to. Mr Taylor replied that PHS had been subpoenaed, and so the matter was out of his hands.
This, Justice Adams later found, was incorrect. Under the DPP’s guidelines, the prosecutor retains full discretion over whether witnesses are called.
“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.”
At that point, Margaret Cunneen SC, for Davis, subpoenaed records of the DPP’s discussions with PHS and copies of her psychological reports.
Crown prosecutors did not fully comply, withholding minutes of meetings which, according to the judge, they knew were covered by the subpoena.
Only after Justice Adams intervened did the DPP hand over all the documents. Both the judge and Cunneen raised concerns about how the prosecution would deal with PHS’s evidence.
For instance, Justice Adams asked how the Crown would square the first statement with the third. The prosecutor did not have a ready answer:
The judge said:
“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.”
Despite the bench’s concerns, Taylor for the Crown opened his case with a “favourable” interpretation of PHS’s accounts. He relied on PHS’s third statement, did not mention she had given two others and omitted any detail of her mental health problems.
In the midst of the trial, after a heated voir dire, the Crown backed down from calling PHS.
Justice Adams found the DPP should have known, all along, that PHS was unlikely to give evidence.
Since the murder case against Ms Quinn relied almost entirely on PHS’s evidence, bringing that case was unreasonable.
Justice Adams rejected a suite of arguments from the DPP, including that matters of witness credibility did not go to the reasonableness of bringing a prosecution.
Her Honour issued a certificate to Ms Quinn, allowing her to recover 70 per cent of her legal fees from government coffers.