PARKER - [2007] NSWSC 753

CITATION: PARKER [2007] NSWSC 753

HEARING DATE(S): On written submissions

JUDGMENT DATE :
12 July 2007

JURISDICTION: Common Law Division
Criminal List

JUDGMENT OF: Kirby J

DECISION: Application for an inquiry under s474D Crimes Act 1900 dismissed.

CATCHWORDS: CRIMINAL LAW - application for an order under s474D Crimes Act 1900 - Special Hearing "conviction" for manslaughter 1988 - appeal to CCA refused - earlier appn under s474D dismissed - whether grounds already determined at trial, or appeal or in reasons for refusing previous application - whether DNA tests now available - whether grounds raise a question of doubt as to guilt.

LEGISLATION CITED: Crimes Act 1900

CASES CITED: R v Parker (1990) 19 NSWLR 177
Sinclair v The King (1946) 73 CLR 316
Varley v AG (1987-8) NSWLR 30

PARTIES: Michael John PARKER (Applicant)

FILE NUMBER(S): SC 2006/72008

SOLICITORS: G Leeson -Villamanta Legal Service (Appl)
W Abadee -Crown Solicitor's Office (Crown)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

JUSTICE DAVID KIRBY

Thursday 12 July 2007

2006/72008 APPLICATION OF Michael John PARKER [No 2]

DETERMINATION

1 KIRBY J: In May 2006, a number of documents were received by the Criminal Registry of the Supreme Court of New South Wales. The documents included an unsigned handwritten letter, a handwritten statement signed by "T Charlton" and a number of newspaper clippings. They related to the "conviction" for manslaughter in 1988 of Michael John Parker ("the applicant"). The victim was Faye Louise Charlton, who died in November 1983. The unsigned letter was apparently written by Mr Parker's mother although he, at the time, had no knowledge of it.

2 The purpose of the unsigned letter was to seek an inquiry under s474D of the Crimes Act 1900 into the "conviction". There had been a previous application for an inquiry, made under the same section, in 1994. It was referred to the Chief Judge at Common Law, Mr Justice David Hunt. Mr Justice Hunt, however, dismissed the application. A person who has been convicted of an offence (or someone on his or her behalf) may make a further application, pointing to fresh evidence which gives rise to a doubt concerning that conviction. Here, it seemed to me appropriate to view the documents submitted by the applicant's mother as an application made on his behalf. The issue is whether the matters identified in these documents give rise to a doubt concerning the conviction, justifying an inquiry.

3 Before examining this material, I should describe the background to this application.

Background.

4 Michael John Parker is a mentally retarded man born in 1956 or thereabouts. In 1983 he was employed in a Sheltered Workshop at Albury. On Thursday 3 November 1983, the body of Faye Louise Charlton was found in the bed of the Bungambrawatha Creek near Albury. She was aged 13 years. The discovery was made by two schoolgirls. The police determined that she had left home on Saturday 29 October 1983 and had later worked at the Albury Show.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 753
Decision Date: 12 July 2007

CaseChat Overview and Summary

The case involves Parker, who was convicted of manslaughter in 1988 and has since sought an order under section 474D of the Crimes Act 1900, which pertains to special hearings for convictions that may be unsafe or unsatisfactory. Parker's appeal to the Court of Criminal Appeal was dismissed, and a previous application under section 474D was also refused. The central issue before the court was whether the grounds for the current application had already been determined during the trial, on appeal, or in the reasons for refusing the earlier application. Additionally, the court had to consider whether the availability of new DNA tests provided a basis to question Parker's guilt.

The court examined the grounds for the application, noting that they needed to be assessed in the context of whether they had already been determined at an earlier stage. The court acknowledged the importance of new evidence, particularly DNA evidence, in potentially casting doubt on Parker's conviction. However, the court held that the grounds for the application had indeed been considered and rejected at previous stages, including the trial and the earlier application under section 474D. Furthermore, the court found that the new DNA evidence, while significant, did not sufficiently raise a question of doubt about Parker's guilt to warrant a special hearing.

Consequently, the court dismissed Parker's application for an order under section 474D of the Crimes Act 1900. The court's decision was based on the grounds already being determined in previous proceedings and the conclusion that the new DNA evidence did not sufficiently challenge Parker's conviction.

Orders