Parkinson v Alexander
[2017] ACTSC 201
•4 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Parkinson v Alexander |
Citation: | [2017] ACTSC 201 |
Hearing Date: | 29 July 2016 |
DecisionDate: | 4 August 2017 |
Before: | Refshauge J |
Decision: | 1. The conviction of Sarah Jane Parkinson for making a false accusation on 20 December 2012 be set aside. 2. Sarah Jane Parkinson be acquitted of making a false accusation on 20 December 2012. 3. The conviction of Sarah Jane Parkinson for making a false accusation on 21 March 2014 be set aside. 4. The appeal be otherwise dismissed. 5. The convictions for public mischief on 1 June 2014, 2 July 2014 and 13 July 2014 be confirmed. 6. The parties be invited to make submissions on any consequential orders to be made. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – tendency evidence – trial directions – reverse Liberato – Crown’s oral submissions inconsistent with written submissions at first instance – latent ambiguity – miscarriage of justice – appeal upheld in part CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – accused convicted but not yet sentenced – making a false allegation – public mischief EVIDENCE – TENDENCY EVIDENCE – False allegations of criminal conduct against people – providing police with false, misleading or inaccurate information – tendency not formulated as per notice – no opportunity for accused to challenge the evidence – evidence inadmissible |
Legislation Cited: | Crimes Act 1900 (ACT), ss 52, 52(1), 396 Crimes Act 1900 (NSW), s 314 Criminal Code 2002 (ACT), ss 44, 713, 715, 715(1), 715(1)(b)(ii) |
Cases Cited: | AE v The Queen [2011] VSCA 168 Anderson [2001] NSWCCA 448; 127 A Crim R 116 |
Texts Cited: | Model Criminal Code Officers Committee, Report: Model Criminal Code; Chapter 7; Administration of Justice Offence (MCCOC, Canberra, July 1998) J Fitzgerald, The attrition of sexual offences from the New South Wales criminal justice system (Bureau of Crime Statistics and Research, Sydney, 2006) |
Parties: | Sarah Jane Parkinson (Appellant) Leesa Alexander (Respondent) |
Representation: | Counsel Mr K Archer (Appellant) Mr A Williamson (Respondent) |
| Solicitors Kamy Saeedi Law (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 80 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 August 2015 Case Title: Alexander v Parkinson Court File Numbers: CC 7497 of 2014 CC 5647 of 2015 CC 5648 of 2015 CC 1910 of 2015 CC 1911 of 2015 CC 1912 of 2015 |
REFSHAUGE J:
The credibility and value of the criminal justice system depends in a large part upon convicting the guilty and acquitting the innocent. The system, however, being a human system after all, does not always work perfectly to deliver this objective, though the opportunity to appeal a conviction helps reduce its fallibility. The courts continue to strive to meet the objective with fairness and, with the legislature, fashion procedures and laws to maximise the likelihood of achieving the desired outcomes.
Some of those laws designed to help achieve the desired outcomes are those that create offences which prohibit such interference with the system as is likely to distort its objective. Conviction for such offences allows courts to punish those who try to subvert the proper outcomes. Those offences are commonly termed, as in the Criminal Code 2002 (ACT), Administration of Justice offences, and include lying to the court (perjury), falsifying or concocting evidence, perverting the course of justice, making false allegations either to waste police investigative time (public mischief), or trying to and having people wrongly prosecuted.
Over all these concerns, however, lies the overriding consideration that hearings to determine guilt of a person accused of a crime must be fair as the credibility of the criminal justice system also depends essentially on the process, including the trial, being fair, for without that no conviction can provide that credibility on which community confidence in the criminal justice system depends.
The appellant, Sarah Jane Parkinson, was charged with nine Administration of Justice offences, three of making a false accusation contrary to s 715 of the Criminal Code (for some reason erroneously referred to as s 725 in the respondent’s submissions), committed with a view to having a person prosecuted for an offence that was not committed, and six offences of public mischief under s 396 of the Crimes Act 1900 (ACT) (for some reason erroneously referred to as s 296 in the respondent’s submissions), these latter offences being committed by making a false representation intending to make it appear that an event had occurred that calls for investigation by a police officer where the representation came to the knowledge of the police officer.
Background
Ms Parkinson, commenced a romantic relationship with a male, EK, in 2011 and eventually they lived together. The relationship, however, ended on 9 November 2013.
About a month later, Ms Parkinson, commenced a relationship with TV, whom she had met at work.
On 7 December 2013, Ms Parkinson made a complaint to NSW police about EK. She gave a statement on three occasions over about 20 hours in total. The complaint made included an allegation of non-consensual sexual intercourse between Ms Parkinson and EK where he was said to have assaulted her and later had forcible sexual intercourse with her in December 2012.
EK was arrested and charged on 24 December 2013. He was released on bail.
On 21 March 2014, a police officer attended at Ms Parkinson’s home and found her lying on the floor of the open plan kitchen/dining area. She complained that EK had come to the house and assaulted her and she made a statement to police about it. EK was later charged and remanded in custody. On 26 March 2014, she made a further statement in which she complained that, in the 21 March incident, EK had again forcibly had non-consensual sexual intercourse with her.
On 1 June 2014, Ms Parkinson attended at Gungahlin Police Station and complained to police that someone driving a black Ford hatchback car had forced her car off the road on Horse Park Drive, Gungahlin, and had threatened her and attacked her with a knife. She said the car was similar to one driven by EK’s father.
Ms Parkinson later complained to police on 2 July 2014 that her iPad had been stolen during a break-in of her home a week previously and that it was “showing up” as being located near the house in which EK and his family were living.
Finally, on 13 July 2014, Ms Parkinson complained to police that, while parked at The Canberra Hospital, her car had been entered without her consent by someone who had a key, stating that the family of EK had a spare key to the car.
It appears that her making these allegations caused police to re-consider complaints that Ms Parkinson had made on 10 May 2008 that a male neighbour, the father of a friend, had, uninvited, kissed her while walking her home one night in December 2007. She told police that he had kissed her on her lips and tongue, down her neck and chest, fondled her breasts, both inside and outside her brassiere, fondled her buttocks and placed his hand inside her underwear, touched her vagina and placed his fingers inside and moved them around. These had not, at the time, led to any prosecution being commenced.
As investigations progressed, however, police became concerned about the truth of the accusations she had made and finally came to the view that her accusations were false and had been concocted by her.
The making of what police now considered were false accusations were the facts that were said to form the basis for the charges laid against Ms Parkinson as referred to above (at [4]).
Following being charged with the offences, Ms Parkinson appeared in the ACT Magistrates Court and, after a hearing before the learned Chief Magistrate, commencing on 20 July 2015 and ending on 28 July 2015, Ms Parkinson was, on 26 August 2015, found guilty of two of the offences of making a false accusation and three of the offences of public mischief. She was, at the same time, acquitted of a further four similar offences; the learned Chief Magistrate had found one offence not proved and the prosecution conceded that the three others could not be proved, so her Honour dismissed them.
She has now appealed against the convictions. A Notice of Appeal was filed on 23 September 2015, although Ms Parkinson had not then been sentenced. A challenge to the competence of the appeal was dismissed by the Full Court: Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190. There, it was held that a finding of guilt, as had been made by the learned Chief Magistrate, was a conviction for the purposes of an appeal.
Jurisdiction
This Court has jurisdiction to hear and determine appeals against convictions entered by the Magistrates Court. I explained that jurisdiction in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; [3]-[6], as follows:
Jurisdiction
3.This Court has jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT). An appeal against a conviction for a summary offence may be brought to this Court under s 208(1)(b) of that Act and Div 3.10.2 regulates the conduct of the appeal.
4.An appeal under this provision is a rehearing on the evidence before the Magistrate with any other evidence that this Court permits to be adduced: Lukatela v Birch (2008) 164 ACTR 24 at 28-9; [17]-[24].
5.I summarised the position in Peverill v Crampton [2010] ACTSC 79 at [24] where I said:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3.The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4.The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
6.Further, under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the execution or the enforcement of the order or decision that is the subject of the appeal. That may, in appropriate cases, need to be considered in the disposition of the appeal.
These are the principles that I shall apply in this case. Because Ms Parkinson has not been sentenced, however, it is not necessary for me to consider any issue under s 216 of the Magistrates Court Act 1930 (ACT).
The Appeal
The Notice of Appeal, filed on 23 September 2015, challenged each of the findings of guilt against Ms Parkinson. There was no application for further evidence to be adduced.
The grounds of the appeal were as follows:
(a)The findings of guilt are unreasonable having regard to all of the evidence.
(b)
The learned Magistrate erred in ruling that evidence sought to be relied upon by the prosecution is tendency evidence (hereafter “the tendency evidence”) was
cross-admissible as between the various charges.
(c)The learned Magistrate erred in the use of, or in the alternative the weight given to, the tendency evidence.
(d)In respect of charge 5647/2015 [CC2015/5647] the learned Magistrate inverted the burden of proof.
Particulars
The learned Magistrate improperly concluded the appellant intended [EK] be charged with sexual assault (“the report”) because no other explanation for the report was given by the appellant.
(e)In the alternative to (d) the learned Magistrate failed to have regard to the evidence before her in relation to the reason for the report.
(f)The learned Magistrate made findings of fact not available on the evidence.
(g)In respect of charge 5648/2015 [CC2015/5648] the learned Magistrate erred by misconstruing the significance of the fact that the charge was laid prior to the appellant making a report of sexual assault.
As the appeal was actually conducted, the challenge was in reality only to the convictions for the two offences under s 715 of the Criminal Code.
Grounds (b) and (c)
It is convenient to consider grounds (b) and (c) together and first.
As so often happens in criminal proceedings now, the prosecution sought to rely on certain evidence as tendency evidence. Under ss 97 and 101 of the Evidence Act 2011 (ACT), there are pre-conditions for the use of such evidence. Those
pre-conditions in criminal proceedings are:
(a) that notice be given of the party’s intention to adduce the evidence (s 97(1)(a));
(b) that the court thinks that the evidence will, by itself or in combination with other evidence, have significant probative value (s 97(1)(b)); and
(c) that the probative value of the evidence substantially outweighs any prejudicial effect the evidence may have on the accused person (s 101).
Because of the requirement for these matters to be determined before evidence that is to be used as tendency evidence is admitted, it has become usual for such applications to be made before trial. That is not essential, but often convenient and sometimes necessary to permit the relevant evidence to be admitted.
In this case, however, while evidence additional to that already to be led was sought in the prosecution’s tendency notice to be adduced as tendency evidence, it was not actually led. That is to say, the evidence of the other offences themselves was a large part of the evidence on which the prosecution actually relied as tendency evidence. This is a form of cross-admissibility of the evidence of other offences which otherwise may not be permitted to be considered by the judge of the facts in considering whether the prosecution has proved another offence beyond reasonable doubt.
Thus, the evidence was admissible for a non-tendency purpose in any event as the evidence of the other particular offences and pre-trial consideration was not therefore strictly necessary for the determination of admissibility, other than as tendency evidence. Whether the evidence of the other offences was admissible in consideration of any one offence to show a tendency had still to await a determination of the Court under s 97(1)(b) of the Evidence Act.
This occurred during the delivery of the reasons by the learned Chief Magistrate at the conclusion of the trial. Her Honour described the offences and the evidence for them and then considered the tendency application. In principle, there can be no legitimate complaint about that process. In this case, however, I consider, for the reasons set out below, that it miscarried.
As noted above (at [26]), the evidence on which the prosecution ultimately relied as tendency evidence was the evidence of each of the offences, that is the offence involving the accusations of sexual assault against Ms Parkinson’s neighbour, the two accusations of sexual assault against EK, and the three other accusations of offending which Ms Parkinson’s complaint to police suggested may have involved EK’s family.
A form has been prescribed as the notice required to be given under s 97(1)(a) of the Evidence Act of an intention to adduce tendency evidence: Form 6.18 (AF2007-76). Section 99 requires any prescribed form to be used to give notice.
That form requires the party seeking to adduce the evidence to set out the tendency on which the party seeks to rely which is, of course, sought to be adduced for the purpose of assisting in proving an element of the offence (in a criminal case). See Hughes v The Queen [2017] HCA 20 at [16]. It also requires particulars of the date, time, place and circumstances at or in which the conduct (if the evidence consists of or include evidence of the conduct of a person) occurred and the names of persons who were witnesses to the conduct.
In the notice, the prosecution asserted that the tendency it sought to prove was that Ms Parkinson:
has a tendency to act in a particular way and exhibit a particular state of mind, namely, to:
a)Make false allegations of criminal conduct against people; and
b)Provide police with false, misleading, or inaccurate information.
It then set out 11 events which were said to relate to the tendency. These included the conduct and circumstances out of which the nine charges had been laid against Ms Parkinson but also two other events when Ms Parkinson was said to have falsely alleged that someone had broken into her house and stolen documents relating to Family Court proceedings between herself and EK, and when Ms Parkinson was said to have falsely alleged that she was subject to covert surveillance when she found adhesive tape behind a canvas print in her lounge room. These were not the subject of any charges against Ms Parkinson.
Thus, the events in the tendency notice were not limited to the other counts nor to allegations made by Ms Parkinson against even members of EK’s family.
Apart from the accusation against the neighbour, however, the only evidence given at trial were of events involving EK and his family, so that no issue arose as to the admissibility of the other two events not involving them and which could only have been admissible as tendency evidence and not otherwise admissible. No evidence was adduced about those two matters.
In making her findings on the trial, the learned Chief Magistrate first described the accusations that founded the charges and evaluated the direct evidence for them.
Her Honour made what might be called provisional findings as to the falsity of some of the allegations without reference to the tendency evidence. On two of the charges, her Honour provisionally found that the prosecution had not made out its case. In his submissions before me, Mr K Archer, who appeared for Ms Parkinson, submitted that in the case of the accusation against Ms Parkinson’s neighbour and the first accusation against EK, this was an acquittal. I do not agree; they were clearly provisional findings.
In the rather curious way the proceedings were conducted, the learned Chief Magistrate then considered the tendency application and, having found evidence of some of the other offences was admissible as tendency evidence, proceeded to apply to the consideration of those two offences the tendency that she found that other evidence proved.
Her Honour considered that this did not affect her provisional finding that she could not be satisfied beyond reasonable doubt of the falsity of the accusation against Ms Parkinson’s neighbour and acquitted her of the count involving that accusation. Her Honour, however, held that the tendency did strengthen the prosecution case in relation to the first accusation against EK and convicted Ms Parkinson of that count.
Her Honour’s consideration of the tendency application was, however, problematic. Her Honour noted:
Turning to the particular conduct the prosecution seeks to rely upon, I note that a number of paragraphs in the notice [that is the Tendency Notice of the prosecution] are no longer applicable in light of the facts as found.
This left the accusation against the neighbour, the two accusations against EK, the accusation that her car was run off the road and that she was threatened, the accusation that her iPad had been stolen, and the accusation that her car had been illegally entered.
Her Honour pointed out that she had found that the latter three accusations had been made falsely and that the accusation of the second of sexual assault made against EK had been found by her to be false. Thus, her Honour could rely on the facts of those offences to prove the tendency that she said Ms Parkinson showed.
Her Honour, however, reasoned as follows:
However, with the exception of the allegations in respect to [Ms Parkinson’s neighbour] the tendency relied on actually reflects a coherent pattern of behaviour direct [sic] toward [EK’s] family. It would be artificial to ignore the tendency which emerges from the facts as found. For that reason, I am satisfied that the probative value of the tendency evidence relied on by the prosecution significantly outweighs its prejudicial effect.
Indeed, later the learned Chief Magistrate further reformulated as follows the tendency originally articulated by the prosecution:
In the context of what followed, however, the tendency identified for the defendant to make false allegations involving [EK’s] family has particular resonance. The defendant’s conduct could properly be characterised as a vendetta against the family.
The difficulty, however, is that what her Honour described as the tendency was “a coherent pattern of behaviour [directed] towards [EK’s] family” and “a vendetta against the family”. That is not the tendency alleged by the prosecution. It is a reformulation made by her Honour without any opportunity for Ms Parkinson to be heard about it. Indeed, the prosecution itself was not given an opportunity to make submissions on this reformulation.
A criminal trial is accusatorial and adversarial; it is not inquisitorial. See Eastman v The Queen [2000] HCA 29; 203 CLR 1 at 98; [293]. It is not for the judge to decide what evidence should be adduced, save for the proper power to exclude that which is not admissible. It is for the prosecution to decide how the case should be presented. The fairness of a trial is underpinned by the opportunity given to the person charged with an offence or offences to be fully informed in good time about the way the prosecution puts its case and to be given a proper opportunity to meet the case so put.
For the Court to reformulate the prosecution case is to intrude into the trial process and, even if the prosecution chooses to adopt the reformulation, to fail to give the charged person an opportunity to meet the reformulated case is fundamentally unfair.
It seems to me that the tendency formulated by the prosecution originally was unlikely to have passed the second test of admissibility as tendency evidence, namely to have had “significant probative value” (s 97(1)(b) of the Evidence Act). It is a tendency expressed at a relatively high level of generality which would justify the conduct being admitted, but establishing little more than relevance. See Hughes v The Queen at [64]; Vojneski v The Queen [2016] ACTCA 57 at [36], [151].
The prosecution argued that what her Honour had done was not to re-define the tendency but that it was “a conclusion or finding that flowed from the already established tendency”.
The difficulty I have with that is that this was not the case put by the prosecution. It relied, not on a limited basis of events involving the family of EK, but on three other matters as well which did not involve them.
In order, however, for the tendency to possess significant probative value at least a narrower tendency was required. This was clear from her Honour’s application of the tendency to the offence involving accusations against Ms Parkinson’s neighbour where her Honour, on that application, made it clear that she was applying the narrower version of the tendency for she referred to “a tendency to make false allegations, or at least displayed such a tendency in certain circumstances in 2013 and [20]14”. This latter reference, can only refer to what her Honour had earlier described as “a coherent pattern of behaviour [directed] toward [EK’s] family”. It was, thus, this tendency, not the more general one, which, in my view, had no significant probative value that her Honour applied and which led to the decision that her Honour’s provisional view of the charge involving the accusation against Ms Parkinson’s neighbour did not need to be changed.
There is a further problem with the application of the tendency evidence. In this case, her Honour found accusations made in June and July 2014 were false. Her Honour then used the fact of making such false allegations involving EK’s family the basis for finding the tendency perhaps most succinctly described by her Honour as “a vendetta against the family”.
Her Honour then applied this to assess the evidence of an event said to have happened in December 2013.
Ordinarily, courts proceed on the basis that “past behaviour is the best predictor of future conduct”: R v Nona [2015] ACTSC 136 at [44].
That does not mean that the opposite cannot apply, that more recent conduct cannot be used to explain past behaviour, but clearly it can be problematic, compared, for example, to mental tendencies. It certainly cannot be applied in the same way as is the predictive capacity of past conduct.
This can be seen in this case. The first accusation against Ms Parkinson’s neighbour was not found to be false. The police, however, did not act upon it, as so often such complaints do not result in prosecutions. That might deter a complainant from making further complaints.
Ms Parkinson’s next complaint, however, the first accusation against EK, was made some years later where no further accusations have been alleged to have been made by her in the meantime. This might suggest, where the first accusation was not found to have been false, that the second accusation was as equally likely to have been as true as false.
It, however, was taken seriously, even to the extent of EK being arrested. There was some independent evidence to support the accusation. The breakdown of the relationship between Ms Parkinson and EK was clearly acrimonious. The fact that this accusation, unlike the earlier one, was taken seriously may have encouraged her to make further accusations. That, of itself, however, does not suggest that either the further or earlier accusations were false or true; it seems to me to be neutral. If the later accusation was false, that does not add much, if anything, to an assessment of whether the first accusation was false for whichever it was would have been equally as likely to have encouraged her to make the second one. For example, that EK was granted bail may have inflamed Ms Parkinson to make a further accusation to ensure that EK was denied bail. That could be a motivation to make a false accusation after a true one.
Similarly, after the second accusation against EK, some event may have happened involving EK’s family which caused Ms Parkinson to consider complaints about them. Indeed, her continued interaction with and possible confidence in the investigating police may have emboldened her to do so. This would have no bearing on the truth or falsity of earlier accusations.
These show the difficulty of arguing tendency retrospectively. Indeed, this also shows the problem of not formulating the tendency clearly so that Ms Parkinson was able to address it directly with whatever evidence she wished, such as matters that occurred between events that may reduce the significance of its probative value or, indeed, make the possible prejudice of it substantially outweigh its probative value.
The respondent submitted that the learned Chief Magistrate had applied the correct tests and certainly she so expressed herself.
In oral submissions, the respondent submitted that the “reformulated” tendency was simply a manifestation of the tendency on which the prosecution sought to rely. That, however, cannot be accepted. In the first place, it was not so formulated. While the learned Chief Magistrate did refer to the tendency as described by the prosecution, it was not that tendency that she actually applied when evaluating the evidence.
The respondent submitted that her Honour found the pattern of behaviour “was a conclusion or finding that flowed from the already established tendency” or, in oral submissions, a “manifestation of it”, but that is not how her Honour used it. This is clear from her explanation of why the tendency did not tip the balance in favour of a finding of guilt in relation to the offence of making a false accusation about Ms Parkinson’s neighbour.
Thus, her Honour, when reconsidering her provisional finding turned to the tendency evidence and said:
On one side of the ledger the court has the evidence of a then 17-year-old girl, given with appropriate warning as to its potential use, but otherwise untested in the context of a finding that she has a tendency to make false allegations, or at least displayed such a tendency in certain circumstances in 2013 and 14 against the persuasive and challenged but unshaken evidence of [Ms Parkinson’s neighbour].
This can only refer to the tendency to behave in a particular way towards EK’s family which was what was not sufficient in relation to that charge, for obvious reasons, although it was found to be sufficient in the case of the first accusation of sexual assault against EK which was otherwise, on her Honour’s findings, in an identical evidentiary situation prior to the evaluation of the evidence in the light of the tendency her Honour had found.
That the tendency was not formulated in the way it was in the tendency notice of the prosecution meant, also, that no notice had been given of the tendency. That is another ground for refusing to permit the tendency to be admitted in evidence.
A failure to give notice is, however, excusable under s 100 of the Evidence Act. In these particular circumstances, there was no basis for excusing the lack of notice, since that deprived Ms Parkinson of the opportunity properly to challenge the tendency finding.
For both these reasons, the failure to provide Ms Parkinson with an opportunity to make submissions on the tendency that the learned Chief Magistrate actually used to find the first accusation of sexual assault by EK and the failure of due notice, the evidence was inadmissible.
Given that, without that evidence, her Honour found the evidence in respect of that offence and the offence involving the accusation against Ms Parkinson’s neighbour relevantly undistinguishable and acquitted her of the latter, she must, in the circumstances, also be acquitted of the offence involving the first accusation of sexual assault by EK.
These grounds of appeal are, to that extent, upheld.
Grounds (d) and (e)
It is also convenient to consider grounds (d) and (e) together. It is also convenient to consider them next. These grounds raised a number of matters.
General Principles of Law
In his written submissions, counsel for Ms Parkinson first observed:
The Magistrate in her reasons for decision made no reference to general principles concerning the onus and standard of proof or to the presumption of innocence. This may of itself involve error infecting the proceedings as a whole.
It is true that her Honour did not set out the general principles of law on which the judge of the facts, whether judge, magistrate or jury, are to decide each criminal case. These include the presumption of innocence, the onus of proof, the standard of proof, the capacity to accept or reject the whole or part of the evidence of a witness, the need to decide objectively and free of prejudice or bias and so on. See R v DM [2010] ACTSC 137 at [8].
While, as I noted in Glanville v Harris [2017] ACTSC 110 at [157], this is sometimes set out in reasons for decisions after criminal trials in the Magistrates Court, it does not seem to be a universal practice. It seems to me that it is generally desirable, however, to state those matters and it can be done shortly. It does not need to be extensive, but constitutes a reminder of those principles and a clear statement to show they have been applied.
Counsel for Ms Parkinson made no further submission on the issue than as set out above (at [72]). That is not helpful. In the first place, it was not even clear whether counsel was submitting that the failure was an error. Secondly, there was no principle or authority cited to support the submission, leaving it to the Court to do any research needed to identify any basis for the challenge. Counsel cannot assume that the mere mention of an issue is sufficient to justify the Court spending its precious time, when other cases are awaiting determination, to research an issue raised but not supported by reasoned argument and, in particular, principle or authority or both.
Counsel for the respondent submitted that the ground was “spurious” and that the assertion was “simply untrue”. The apparent proof of this was said to lie in the fact that her Honour said, but in relation to one only of the charges, that:
[i]n order to make out charge 5647 of 2015, the prosecution must establish beyond reasonable doubt that the allegation of sexual assault made by the defendant against [EK] in her statement to police on 21 December 2013, was false.
That is hardly a statement of the relevant general principles, though, in respect of the one charge it certainly addresses the central ones of burden and standard of proof.
The question, however, is whether such an absence is an error of law. In Rowland v Police [2001] SASC 179; 79 SASR 569, Perry J considered the adequacy of the reasons delivered by a Magistrate, deciding in that case that the reasons were so inadequate that there was an error of law and the convictions be quashed and the complaints remitted to the Magistrates Court for re-hearing.
His Honour, however, noted that the Court was a court of summary jurisdiction, with a substantial workload, requiring disposal of the highest number of criminal cases of any court and that the workload was increasing. This meant that the obligation to give reasons should not be pitched at “an unrealistically demanding level”, though, as his Honour’s decision shows at 573; [35], there is an obligation to give at least a “short succinct statement of the essential process by which a magistrate has reached his or her decision”.
His Honour noted at 573; [33]:
As for matters of law, it will be assumed, without reasons necessarily being given, that the magistrate is familiar with and has correctly applied elementary matters such as an understanding of the onus of proof.
This may be contrasted with the statutory requirements of a judge who presides over a trial on indictment without a jury and who has the following obligation under s 68C(2) of the Supreme Court Act 1933 (ACT):
(2)The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
The equivalent, and identical, NSW provision was considered by the High Court in Fleming v The Queen [1998] HCA 68; 197 CLR 250 and the reasoning in that case applied to this provision by Einfeld J in R v Massey [2000] ACTSC 107 at [47], where his Honour stated:
Therefore, although differently expressed, both subs (2) and (3) of s 68C are put in terms of legal imperatives such that a failure to observe either or both of them will be to commit an error of law. The effect of this requirement is that a judge trying an indictable offence without a jury must not only respond to and address the parties' submissions on the proper legal principles to be applied, and on the warnings and directions to be considered, but must look beyond the submissions to see whether any further legal principles, warnings or directions are relevant. The combination of these requirements apparently includes not merely the enunciation of the matters more particularly applicable to the case in question but even the fundamental underpinnings of all criminal trials that a judge must give a jury which the judge is presumed to know but of which the jury is presumed to be ignorant.
This approach has been thereafter adopted in this jurisdiction: R v Tran [2003] ACTSC 53 at [4]-[5], R v Collins [2004] ACTSC 48 at [5], R v Goonerage [2005] ACTSC 96 at [7]-[10], R v Evans [2007] ACTSC 11 at [5], R v Parkes [2010] ACTSC 44; 243 FLR 252 at [5], R v McLaughlan [2008] ACTSC 49; 218 FLR 158 at 169-70; [82]-[85]; and R v Jacka [2011] ACTSC 63; 249 FLR 111 at 112-13; [6]-[7].
It may be thought odd that a judge should be required to give such directions to himself or herself when that is not required of a magistrate. That may have its origin in the fact that, at least for many years, an appeal from a decision of a magistrate was conducted as a hearing de novo and still is in some jurisdictions. Whatever the reason, that appears to be the law. Given that appeals in this jurisdiction are no longer appeals de novo (and have not been so for a very long time), that reasoning may no longer apply, but I am not prepared to say that the requirements on a judge in a trial without a jury are yet imposed on a magistrate as a matter of law such that a failure may amount to an error of law. That day, however, may not be far off. In any event, stating such principles would be highly desirable and I commend to the Magistrates Court to do so and avoid an appellate court finding that failure to do so resulted in an error of law.
What the learned Chief Magistrate did in this case, despite the respondent’s counsel’s strident comment, would not have complied to any reasonable degree with what Fleming v The Queen required, but it does not seem to me that her Honour committed an error of law.
There is, however, another issue under these grounds of appeal that may in part have arisen by the absence of a direct advertence by her Honour to these principles.
The challenge to the second accusation against EK had a number of aspects which need to be dealt with separately. First, however, it is necessary to give some further factual background.
Factual background
Apparently, as a result of a blank text sent on 21 March 2014 by Ms Parkinson to TV, a sign between them that she needed help, TV arranged for a police officer, Sergeant Simone Wilson, to attend at her residence where she found her lying on the floor of the open plan kitchen/dining area of the house. On the way into the house, Sergeant Wilson noticed that there was washing on the line and a peg basket knocked over with some pegs fallen from it onto the ground. She heard someone say “help” and went inside where she found Ms Parkinson.
Ms Parkinson had a bump on the left side of her head. She complained of being sore there as well as having sore shoulders and stomach, and was nauseous. An ambulance was called.
Ms Parkinson was wearing “skin tight blue jeans” and her hair was tied in a bun at the top of her head. Her hair did not, according to Sergeant Wilson, look “messy”. The top button of the jeans was undone and “the flaps” were folded inwards. She was wearing a brown belt which was also “undone ... loose, but done up right at the last hole”.
Ms Parkinson told Sergeant Wilson that EK had come over, made her kneel on the ground, then hit her head on the retaining wall in the yard. She said that she was not sure how she got inside. She did not say anything about an attack of a sexual nature.
One of the ambulance paramedics assessed Ms Parkinson and noticed bruising and swelling of her left eye and a lump, bruising, and an abrasion to her left forehead. She complained of headache, nausea and pain, and that her left eye was “really blurry”. She could not recall what had happened to her. She could not recall her birth date, her address or the day of the week. She said to the paramedic that she did not know why her jeans were undone.
Later that afternoon, Station Sergeant Dora Hofmeier took a formal statement from Ms Parkinson, written by Station Sergeant Hofmeier in a police notebook, which Ms Parkinson signed after it had been read over to her. That statement was more detailed, describing EK, what he was wearing and how he was clothed. He was said to have held the back of her head and “dug his fingers” into her bun. She stated that he forced her head into the retaining wall twice and that she did not remember anything after that. Again, there was no accusation of any sexual assault.
That day, EK was arrested and despite no reference by Ms Parkinson to sexual assault, he was charged with sexual assault in the second degree (s 52 of the Crimes Act), as well as assault occasioning actual bodily harm and contravening a protection order. Police issued a media statement to the effect at 8:36am on 22 March 2014. There was evidence that the release was read to Ms Parkinson by TV.
On 26 March 2014, Station Sergeant Hofmeier took a further statement from Ms Parkinson, in which she gave further details of the incident on 21 March 2014. She added that EK had, when he first arrived, grabbed her by the throat before he forced her head into the retaining wall twice.
She then said that EK pulled her jeans down past her knees but was unable to get her underwear down because she was struggling. He pulled them to the side and gave her a packet of condoms, telling her to open it. She did so but threw it away, and when EK got up to get it, she rolled away. EK came back and lay on top of her, put the condom on and put his penis in her vagina. She spat at EK, who then punched her. EK then hit her with the brick, slammed her head into the ground and left.
When police investigated the incident, they seized some t-shirts from EK’s house and they were subject to DNA analysis. A tape-lift from the outer centre of one of the t-shirts provided a profile which provided extremely strong support for the proposition that the profile originated from Ms Parkinson.
In evidence, the forensic biologist who analysed the profile explained that, if Ms Parkinson and EK were “cohabiting and sharing a washing basket ... you would expect to see the DNA profile of both on the other’s personal belongings”.
In his evidence, EK stated that he ended the relationship with Ms Parkinson in November 2013 and, within a week, had moved out of the home they had bought together and in which they were living. He moved into a “granny flat” associated with his parents’ house.
EK was not asked in his examination-in-chief about the t-shirt, the washing arrangements, such as a communal washing basket when he lived with Ms Parkinson, nor about whether and how often the t-shirt had since been washed. In
cross-examination, however, he did say that Ms Parkinson did the washing when they lived together.
The condom packet was also subject to DNA analysis and the forensic biologist reported that a profile of Ms Parkinson was obtained as well as another unknown individual, that was not EK, whose profile was known.
EK also said that, on the day in question, 21 March 2014, he had been home all day in the granny flat. He asserted that this was able to be corroborated by members of his extended family who had seen him there. The evidence of this, however, was not clear cut. His mother said that she had gone to a medical appointment that morning at 9:45am some distance away. As she left, she knocked on EK’s door and he responded “[w]ith a grunt”. She returned home, with a friend, at about 11:00am and she said that EK appeared about 10 to 15 minutes after they arrived home. He was wearing pyjama bottoms and a dark t-shirt and was “dishevelled, rubbing his eyes, yawning, and stretching”.
The friend, however, put the time of their arrival at EK’s mother’s home at between 11:40am and 11:45am. He said that EK appeared, as described by his mother, but about half-an-hour later.
EK’s sister-in-law also came over to the house that day. She said that she arrived at about midday, by which time her mother-in-law and the friend were already there. She said that EK left the granny flat at about 12:45pm dressed as earlier described and “messy”.
The prosecutor also sought to tender an affidavit filed in proceedings between Ms Parkinson and EK. It was unclear whether the affidavit had been read in those proceedings.
I note in passing and with concern that the affidavit appears to be one that Ms Parkinson had made and which was filed in proceedings in the Federal Circuit Court. Although objected to, it was admitted. Neither counsel nor the learned Chief Magistrate seemed to know the conditions under which such an affidavit was admissible. I have set them out clearly in Glanville v Harris at [16]. Given that the use of such a document without the proper conditions being met is contempt (Harman v Secretary of State for the Home Department [1983] 1 AC 280), it is important that counsel and courts understand the pre-conditions and see that they are met before such documents are used. They did not seem to have been met here.
Ultimately, Ms Parkinson’s counsel at trial objected to the admission of the affidavit on the ground that the probative value of the evidence constituted by the affidavit would be outweighed by the danger of unfair prejudice to Ms Parkinson (s 137 of the Evidence Act) and its admission was delayed. I could not find where it was actually admitted, though the learned Magistrate did refer to it in her reasons. A copy was not included in the Appeal Book and the numerical sequence of exhibits did not suggest it had been admitted as an exhibit.
Nevertheless, a pleading from those same proceedings was admitted. It was a response by Ms Parkinson as Respondent to an application made by EK as Applicant. In the Response, Ms Parkinson sought payment by EK of “damages for personal injury” arising from alleged assaults, including the following which appears to be the incident the subject of this offence. It was relevantly as follows:
That on 21 March 2014 [Ms Parkinson’s home] in the Australian Capital Territory the Applicant entered the rear yard of the property contrary to a bail undertaking not to enter the property and contrary to a Domestic Violence Order not to approach the property made on 17 March 2014. When in the yard the Applicant approached the Respondent and the Applicant then:
i.Struck or pushed the Respondent, causing her to fall over;
ii.Held the Respondent by her hair and hit her head against a stone wall several times;
iii.Removed part of her clothing and had sexual intercourse with her without her consent, knowing that she did not consent;
iv.Held a brick above her head and dropped the brick near head;
v.Hit her head against the ground several times; and
vi.Sprayed her with a garden hose.
Being sprayed with the garden hose was not mentioned in any of the oral or written statements made by Ms Parkinson to police.
Onus of Proof
The first aspect to be considered is the submission that the learned Chief Magistrate reversed the onus of proof. This, in such a charge, is not difficult to do because of what is required to be proved.
The charge against Ms Parkinson was laid under s 715(1) of the Criminal Code. Section 715 of the Criminal Code is in the following terms:
715False accusation of offence
(1) A person commits an offence if the person makes an accusation to a law enforcement officer that someone else has committed an offence –
(a)knowing or believing that the other person did not commit the offence; and
(b)intending that –
(i)the other person will be charged with committing the offence; or
(ii)law enforcement officers will be deflected from prosecuting the offender.
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
(2) Subsection (1) (b) (i) does not apply to a law enforcement officer exercising his or her functions as a law enforcement officer if the officer –
(a)does not know that the other person did not commit the offence; and
(b)believes that there are reasonable grounds for charging the other person with the offence.
(3) A law enforcement officer commits an offence if the officer charges someone with an offence knowing that the person did not commit the offence.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
This provision is a new one, recommended by the Model Criminal Code Officers Committee, Report: Model Criminal Code; Chapter 7; Administration of Justice Offence (MCCOC, Canberra, July 1998) at 132-9 (“MCCOC Report”). There are similar offences in other jurisdictions, but in Queensland, Western Australia and the Commonwealth they require that there be a conspiracy to make the false accusation.
Section 314 of the Crimes Act 1900 (NSW) is closer to the ACT provision but the intent is different, that is requiring that the other person “be the subject of investigation of an offence”.
The MCCOC Report is not helpful as to the specific detail of the offence. It pointed out that the offence would likely also amount to an attempt to pervert the course of justice in the light of R v Rogerson (1992) 174 CLR 268. That, perhaps, gives a flavour of the offence for the purposes of sentencing, though the maximum penalty for the offence is less than that for the offence of attempting to pervert the course of justice (s 713, in conjunction with s 44 of the Criminal Code) which is a maximum of 700 penalty units and seven years imprisonment.
While the MCCOC Report noted that it sought to answer the submissions made to the Committee, it also noted that a magistrate, in a submission to it, had raised the evidentiary problem in proving that someone intended that a person be charged as opposed to being investigated, and this did not seem to have been addressed. It remains an issue and needs to be confronted.
The elements of the offence under s 715(1) of the Criminal Code are:
(a) a person (the accused) had made an accusation;
(b) the accusation was made to a law enforcement officer;
(c) the accusation was that someone else had committed an offence;
(d) the accused knew or believed that the other person did not commit the offence; and
(e) the accused intended that the other person would be charged with committing the offence (it not being necessary for this case to consider the alternative intention under s 715(1)(b)(ii)).
While the short description of the offence in the title to the section is “False accusation of offence”, it is not, in fact, an element of the offence that the accusation be false. If, of course, the accused knows that the other person did not commit the offence, then it must be a false accusation, but a person can genuinely, but mistakenly, believe that a person has not committed an offence even though it may turn out that the person actually did so.
Similarly, and perhaps more importantly, an accused may believe honestly that a person has committed an offence when, in fact, the offence has not been committed. Thus, the accusation would be false in the sense of not being a true accusation but the offence would not be made out.
In a case such as this, where the offence is constituted by physical acts that would have to be inflicted on the accused (that is the person making the allegedly false accusation), the absence of such acts would be powerful evidence that the accused at least believed, if not knew, that the offence had not been committed.
The question of intention is, as recorded in the MCCOC Report, a difficult one. As provisions such as s 314 of the Crimes Act (NSW) make clear, an accusation may be made with no greater intention than that the offence and alleged offender be investigated. There is a very low rate in which complaints of sexual assault actually become charges laid before courts: J Fitzgerald, The attrition of sexual offences from the New South Wales criminal justice system (Bureau of Crime Statistics and Research, Sydney, 2006) at 5, showed that of the incidents of sexual assault and indecent assault reported to NSW Police in 2004, 16.8 per cent resulted in criminal proceedings being commenced. It may be that, as the media often reports, women do not report sexual assaults because, inter alia, they know charges are unlikely to follow. It may also be that sexual assaults are reported, but that complainants know that charges are quite unlikely to follow.
Of course, in this case, there was no such evidence nor any suggestion that Ms Parkinson knew, even anecdotally, of this information. Nevertheless, it shows that it is necessary to be careful about assumptions made as to the knowledge, beliefs or intentions of people.
In this context, the submission for Ms Parkinson was that, in order to find the fourth element, Ms Parkinson had to know or believe that EK did not commit the offence because it did not happen. Which offence it was goes to the second aspect of this ground which I will deal with later, but for these purposes, I will assume that it was both the offence of assault occasioning actual bodily harm and sexual assault in the second degree.
Her Honour identified, with respect quite correctly, the other elements of the offences. Her Honour found them proved. There was no challenge to those findings.
In relation to the element of Ms Parkinson’s intention that EK be charged, her Honour, however, said:
Formal statements made to the police would, in the ordinary course if relied upon, be expected to result in the alleged offender being charged ...
It is not clear that this follows, for the reasons set out above. Further, her Honour seems to me also to be relying not on evidence given before her, but rather on what is customarily called “judicial notice”. Her Honour, however, was obliged, under s 144(4) of the Evidence Act to give the parties an opportunity to make submissions on such a matter and did not do so. It is not clear what the consequence of failing to comply with that provision is; presumably the matter should not then be taken into account.
In any event, Ms Parkinson did not rely on this argument to challenge the decision and I do not consider it further.
In order to address the issue of Ms Parkinson’s knowledge or belief, her Honour said:
The prosecution must also establish that the defendant made the accusation knowing or believing that the offence was not committed. Determination of this issue requires the court to be satisfied beyond reasonable doubt that [EK] did not commit the acts alleged.
While, for the reasons set out above, that is not strictly correct, in the circumstances of this case, proof that EK did not commit the alleged physical acts on Ms Parkinson would satisfactorily show that she must have known or believed that he did not commit the offence or offences.
The learned Chief Magistrate then evaluated the evidence which I have summarised above. Her Honour referred to:
(1) “the changing nature of the allegations made and the unexplained memory fluctuations of [Ms Parkinson]”; the accusations becoming “more fluid” overtime;
(2) that she could recall her attacker but not that he had sexually assaulted her when police first arrived; and
(3) the fact that she could subsequently recall greater detail even to the extent of adding to the events in the pleading in the Federal Circuit Court proceedings.
As to the latter, her Honour mentioned that the element of being sprayed with a hose was referred to in “the family law affidavit” even though that does not seem to have been admitted as I noted above (at [107]). It was, however, referred to in the pleading which was admitted, so there is no error in her Honour’s reference to the fact.
Her Honour referred to other “inconsistencies”, namely that Ms Parkinson’s hair bun had been grabbed, yet her hair was observed to be quite tidy. Her Honour then said that a further inconsistency was that she had “said that she had been hosed down and yet was not wet”. That was not quite accurate. Sergeant Wilson, who attended first, was not asked about whether she noticed whether Ms Parkinson or her clothes were wet and there was no mention of her clothes not being wet by the paramedic. There was simply no direct evidence of this at all and no questions asked about it specifically.
On the other hand, Sergeant Wilson was asked about Ms Parkinson’s state of dress and made no mention of her clothes being wet so it may be that a reasonable inference could be drawn that they were not wet, but there was certainly no direct evidence of this.
Her Honour also relied on “the implausibility of having skin tight jeans removed, even partially, and then replaced with no co-operation from her”, though her Honour had, in argument, expressed some scepticism as to whether there would be a difficulty in reality in removing them. Replacing them would, of course, be quite different.
Her Honour also referred to the extent of physical assault alleged by Ms Parkinson – two “slams” to the stone retaining wall, a punch to the face, a kick to the body, and being hit with a brick, as compared to the injuries observed: a black eye, abrasions to the left eye and forehead. Her Honour acknowledged that these were not trivial injuries but, nevertheless, seemed inconsistent with the alleged assaults. Her Honour also considered that it was plausible that they were self-inflicted though there was no evidence to support that. No questions were asked of anyone competent to give an opinion about that.
Her Honour further considered that Ms Parkinson’s claimed loss of consciousness and loss of memory was inconsistent with her ability to make four calls within 25 minutes of the alleged attack. Also said to be inconsistent was Ms Parkinson’s inability to walk yet she was able to reach her phone on the bench which would have required her to stand.
Finally, the absence of any DNA of EK on the condom wrapper added, her Honour considered, to support the unreliability of her accusation.
Thus, her Honour found, the prosecution had proved beyond reasonable doubt that the accusation was false. None of these findings by her Honour were challenged by Ms Parkinson.
The challenge by Ms Parkinson in this aspect of these grounds of appeal, however, was that her Honour had failed to consider the matters that was said to support the accusation, in particular the DNA of Ms Parkinson on EK’s t-shirt and the weakness of his alibi.
Mr Archer described this as a “reverse Liberato” issue, referring to the principle set out in Liberato v The Queen (1985) 159 CLR 507.
In that case, in one of the curiosities of the law, the majority refused special leave to appeal because it was considered that there was no matter of general law in the defects accepted in the trial judge’s summary up to the jury. On the other hand, Brennan J, with whom Deane J agreed, both of whom were in dissent as they would have granted special leave, then gave a ruling that has become a standard direction to juries in cases particularly where the evidence is effectively an assertion by a witness for the prosecution and a direct denial by the defence, usually the accused, often referred to as an “oath upon oath” case.
In Liberato v The Queen at 515, Brennan J, said:
When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.
The direction has not been specifically endorsed by the High Court. It had been held that it is not a direction required by law (Salmon v The Queen [2001] WASCA 270 at [3], [11] and [101]), but it has been accepted that it should be given if, in the circumstances of a particular case, there is a real risk that the jury may be left with the impression that disbelief of an accused’s evidence, or preference for a complainant’s evidence means that the prosecution has proved its case.
The direction has been accepted or endorsed by intermediate courts of appeal in all the State and Territory jurisdictions: R v E (1995) 89 A Crim R 325 at 330; AE v The Queen [2011] VSCA 168 at [22]-[33]; Neill-Fraser v Tasmania [2012] TASCCA 2 at [165]-[166]; R v Johnson [2013] QCA 91 at [17]-[19]; Hussain v The Queen [2013] ACTCA 42 at [6]-[7]; Seriban v The Queen [2014] NTCCA 12 at [28]; R v Helps [2016] SASCFC 154 at [212]; and RMP v Western Australia [2017] WASCA 70 at [165].
A standard direction was suggested in Anderson [2001] NSWCCA 448; 127 A Crim R 116 at 121; [26], by Kirby J as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit.
Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?
Mr Archer submitted that what her Honour should have done, accepting that she could not accept Ms Parkinson’s evidence, was to put “[her] evidence to one side” (in the words of Anderson) and then evaluate whether the prosecution, on the basis of that of its evidence which was accepted, had proved her guilt beyond reasonable doubt.
He pointed out that, while there was, in the prosecution case, elements of support for its case – EK’s alibi, the secondary transfer theory applied to the DNA on his t-shirt – these elements were not enough to show that the events the subject of the accusation could not have happened; there were gaps in that evidence which showed consistency with the accusation and would prevent a court being satisfied on the basis of this evidence that the falsity of the accusation was proved beyond reasonable doubt.
This is a seductive argument, but it cannot be accepted. There is no doubt that these matters by themselves would not be sufficient to prove without a reasonable doubt that EK did not assault Ms Parkinson.
The fallacy is that in order to apply these evidentiary matters, there must first be a basis for the complaint of assault. If, as her Honour accepted and Mr Archer did not challenge, Ms Parkinson could not be believed, then there was no sexual assault, proof of which to be then either strengthened or weakened by this other evidence. Once Ms Parkinson is disbelieved and her evidence rejected, there is no event, the existence of which is to be supported or undermined by the other prosecution evidence.
Because of the nature of the charge, a court cannot simply “put aside” Ms Parkinson’s evidence, for once her complaint is rejected there is no event about which the other prosecution evidence can rationally affect the probability of the existence of that
(non-existent) event. The other evidence cannot prove the occurrence of the event; it is entirely neutral as to that.
Had her Honour been unsure whether Ms Parkinson’s accusation was false, then the other evidence may have assisted and supported such a doubt about its falsity, or reinforced that doubt. It is likely that it would have showed that there was a reasonable doubt about whether the event occurred because the evidence was not absolutely or even strongly suggestive that it did not occur. It would have justified a reasonable doubt about whether it occurred or not. That was, however, not necessary to consider once, as indeed, the argument in reliance of the principles in Liberato v The Queen applied, Ms Parkinson’s evidence that the event occurred was rejected.
Then the evidence of the alibi and the DNA were neutral; they were then consistent with both the event occurring and it not occurring. Thus, they could not resuscitate a finding that the event did occur because Ms Parkinson, whose evidence was the only evidence that it did, was so comprehensively and independently rejected.
This aspect of these grounds of appeal accordingly fail.
Offence charged
The second aspect, which appears to be in reality ground (g) in the Notice of Appeal, addressed what I have set out above (at [116]) as the final element of the offence, element (e). It relies on the sequence of events.
The argument is that EK was charged with sexual assault in the second degree on 21 March 2014, by which time, Ms Parkinson had not made any such complaint. She had only complained of a physical, non-sexual assault.
The complaint of a sexual assault was made by her on 26 March 2014, by which time EK had already been charged with that offence, and Ms Parkinson knew that, for TV had drawn her attention to the police media release. Accordingly, Ms Parkinson could not have made her complaint that day “intending that ... [EK] will be charged with committing the offence” for he had already been charged with it.
It seems to me that this is correct. Section 715 of the Criminal Code does not apply to accusations made after a person has been charged with the offence to which the accusation relates. If the accusation is false, it may well justify a charge of public mischief under s 396 of the Crimes Act, but that is not directly relevant here.
The question, however, is whether that actually happened here. As noted above (at [94]), EK was charged with three offences, on 21 March 2014, two of which would have been committed had he done what Ms Parkinson accused him of doing when she spoke to Sergeant Wilson and, indeed, in the statement made later that day to Station Sergeant Hofmeier. These were an assault occasioning actual bodily harm and contravening a protection order.
Mr Archer, however, submitted that no accusation at this time had been made of sexual assault. That accusation was not made until 26 March 2014, after EK had been charged with the sexual assault. His submission was that the conviction cannot be maintained because the accusation was made after the charge had been laid. If that is what happened, then that submission is correct.
In order to assess this ground, the course of the proceedings must be considered. The charge as laid was in the following terms:
That on 21 March, 2014 in the Australian Capital Territory she made an accusation to a law enforcement officer that someone committed an offence knowing or believing that the other person did not commit the offence and intending that the other person will be charged with committing the offence.
Unsurprisingly, given the generality of the charge, Ms Parkinson’s lawyers sought particulars. Those particulars were provided in the following terms:
This charge relates to the allegations the defendant made to police between 20 March and 27 March 2014 that [EK] raped and bashed the defendant in the back yard of her home ... In particular, the prosecution relies on the totality of:
oWhat the defendant said to Sergeant Symone [sic] Wilson, the first attending officer (see paragraphs 17 and 18 of her statement dated 29 March 2014); and
oEverything that was said in the statement the defendant provided to Station Sergeant Donna Hofmier [sic] on 21 March 2014; and
oEverything that was said in the supplementary statement made by the defendant to Station Sergeant Donna Hofmier [sic] on 26 March 2014.
We say she knew it was not true because none of what was alleged ever happened. It can be inferred that she intended that [EK] would be charged given the deliberate way in which she provided two statements to police, one of which after she would have known he had already been arrested and denied bail, and the commonsense inference that she must have realised he would be charged if police accepted her allegations to be genuine. It can also be inferred she wanted him to be charged if it is accepted that she wanted to maximise her payout from the Family Court proceedings.
It is worth noting a number of matters that arise from these particulars:
1. They particularised the making of the accusation as being between 20 and 27 March 2014 which was inconsistent with the charge itself. No application was made to amend the charge.
2. The accusations were particularised as contained, inter alia, in what was “said” by Ms Parkinson, to Sergeant Wilson. This did not include any other representation by conduct.
3. The offences were particularised that Ms Parkinson made the accusation that EK had “raped and bashed” her. There was no particular of an offence of contravening a protection order.
4. The description in the particulars of “raped and bashed” is apt to describe the offences of sexual assault in the second degree under s 52(1) of the Crimes Act:
A person who inflicts actual bodily harm on another person with intent to engage in sexual intercourse with that other person, or with a third person who is present or nearby, is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
5. The description chose to use colloquial terms rather than a clear legal terminology or reference to statutory provisions.
Despite the absence of amendment to the charge, no objection was taken at trial by Ms Parkinson’s counsel to the admission of the statement of 26 March 2014. It was certainly not admissible as evidence of the offence with which Ms Parkinson had been charged, despite the particulars. It may have been inadmissible as only relevant to Ms Parkinson’s credibility: ss 102 and 108B of the Evidence Act.
When it came to submissions, the prosecution submissions to the learned Chief Magistrate did not identify the accusation with precision, what it was or how it was made. Reference was made to what Sergeant Wilson was told and then, as if there was a continuity, it was submitted, that “[Ms Parkinson’s] version changed very quickly”. Reference was made to her inability to recall anything for the paramedic, suggested to be “feigning amnesia”, and then that, later, when Station Sergeant Hofmeier interviewed her, “her memory is [sic] returned”.
Notably, it was submitted that, when Ms Parkinson “was talking to Sergeant Wilson, nothing at all [was] uttered about her being raped or sexually assaulted”, a relevant comment in the light of a submission to me in these proceedings mentioned below (at [188]). Similarly, the submission was that there was “nothing at all about being raped or sexually assaulted” to the ambulance paramedic. When she first spoke to Station Sergeant Hofmeier, Ms Parkinson, it was submitted, said “nothing about ... being raped or sexually assaulted”.
Then, on 26 March 2014, the submission continued, “her memory has miraculously returned” and the events of the sexual assault remembered, including the punch to the face and a loss of consciousness.
There was no mention of the charges laid against EK on 21 March 2014 in those submissions.
It is also significant that the actual words of the particulars were used in the submissions of the prosecution at the trial in reference to the events only described in the 26 March 2014 statement as follows:
... if he raped her and bashed her so brutally, tried to throw a brick at her, punched her unconscious, does it make any sense that he would then be considerate enough to pull up her jeans when he is done?
The reference re-inforces that the meaning of “raped ... and bashed” is to the offence under s 52(1) of the Crimes Act, particularly as then follows other references to assaults.
Later, the issue of the earlier charging was addressed in submissions at the trial and the prosecution made the following submission:
Now, my friend made a point during cross-examination of [EK’s] family, that when the police came on 21 March to arrest [EK], that by that time already they were talking about – or making reference to an alleged sexual assault. I would make a few observations about this, your Honour. One, no doubt the police might have inferred to begin with that a sexual assault had been committed by the observations they made of the defendant, particularly the fact that her fly was down, but two, in any event, it is of no moment because she has not been charged with just making up a rape, that charge relates to the entirety of the allegations that the defendant made to police and those include the assault. So whether or not the police knew, or whether or not the defendant had disclosed from an early stage that the defendant – that she had been assaulted is no moment if you accept that the assault itself, the bashing of the head in to the retaining wall and the punching unconscious never occurred.
It should be noted that the evidence of Sergeant Wilson was not that Ms Parkinson’s “fly was down” but that “the top button was undone and the flaps were folded inwards”.
There were now, from the prosecutor’s submissions, two strands of argument, neither consistent with the particulars. In the first place, the accusation was, inconsistently with the particulars, said to have been made by the open fly of Ms Parkinson’s jeans. No such representation by conduct was particularised, giving Ms Parkinson no opportunity to meet it, say by cross-examination of Sergeant Wilson or the ambulance paramedic.
Certainly, Sergeant Wilson was not asked whether she considered this was a representation of sexual assault, so the evidentiary basis for the submission was entirely absent.
Secondly, there is a “disaggregation” of the accusations, so that the accusation now was able to be made of “bashed”, taken away from its connection to “raped” and standing on its own.
This, however, created a further problem, for the allegation against Ms Parkinson became unclear: either it was somehow being alleged that Ms Parkinson had, through her statement of being assaulted and her conduct of undoing the top button of her jeans, accused EK of raping and bashing her, or the accusation is only one of being assaulted. The prosecutor never identified which of these two was the prosecution case.
Unsurprisingly, Ms Parkinson’s counsel assumed that the particulars had identified an accusation of sexual assault in the second degree, which, as noted above (at [161]), was appropriately described colloquially in the particulars as “raped and bashed”. His submissions were that there could be no intent proved because at the time of the statement of 26 March 2014, when, on the basis of the particulars, the accusation had been made, EK had already been charged, as Ms Parkinson knew, because she had seen a statement to that effect published by the police, and so the intent required could not be proved. He further pointed out that there was no “statement” made of sexual assault until 26 March 2014.
The prosecutor made a brief reply. It is by no means clear whether that is permitted when there is a trial before a magistrate; there is no such opportunity in a jury trial. See Di Corrado v His Honour Judge Gebhardt [1999] VSC 35 at [26]. Leave in an appropriate case may be given for a prosecutor to reply to the address of defence counsel where relevant facts are asserted which are not supported by any evidence: O’Donoghue (1988) 34 A Crim R 397 at 404. Ordinarily, the defendant has the last word in a trial conducted on an accusatorial basis. See, for example, Russell v Western Australia [2011] WASCA 246 at [164]-[169].
In any event, in his reply, the prosecutor submitted that an accusation for an offence against s 715 of the Criminal Code does not have to be in a formal, written statement; an oral statement is sufficient. That, in my view, is correct. Indeed, even representational conduct, say pointing to someone without saying anything, could constitute an accusation.
Her Honour, considered this matter briefly, saying:
Formal statements made to the police would, in the ordinary course if relied upon, be expected to result in the alleged offender being charged, however, the defendant points out that the AFP press release stated that [EK] was charged with sexual assault on his arrest, thus before she had made that accusation he had been charged, so it could not have been her intention to have him so charged. However, the prosecution points out that the charge is not limited solely to the sexual assault for the purpose of the offence but to the entirety of the allegations made to the police consisting of numerous physical assaults also.
The first sentence raises the issue of judicial notice referred to above (at [125]). Certainly, such statements would be reasonably expected to lead to an investigation, but as to whether charges would be laid is far more problematic. This may well require some further evidence, particularly where, as here, Ms Parkinson’s statements to police about the conduct of her neighbour did not, as she knew, lead to any charges being laid.
In any event, her Honour did not address the offence to which she was finding that Ms Parkinson had accused EK of committing. The “numerous physical assaults” could have encompassed those said to have been committed at the time of the sexual assault since there was, in the initial statement to Station Sergeant Hofmeier, only an accusation of EK forcing Ms Parkinson’s head into the retaining wall, hardly “numerous physical assaults”. A number of others, perhaps “numerous physical assaults” were, however, referred to in the statement of 26 March 2014.
This was unsatisfactory.
Before me, Mr Archer submitted that the charge could not be made out because the charge laid, as particularised, was one of sexual assault in the second degree and that no accusation of this offence was made prior to that charge being laid.
He submitted that, if that was not the case, then the prosecution case was duplicitous and thus a miscarriage of justice. This, he submitted would be the consequence of the “disaggregation” of the particulars supplied.
He further submitted that the “disaggregation” way the prosecution put its case only became apparent in the final address and that this caused irremediable prejudice to Ms Parkinson who was denied the opportunity to test the prosecution case which she had assumed was in accordance with the particulars, namely an accusation of sexual assault in the second degree.
Mr A Williamson, who appeared for the respondent, submitted that the prosecution case was that there was only ever one accusation, namely that Ms Parkinson had been attacked while hanging out the washing. He submitted, however, that there were “multiple accounts” of what had happened: the one accusation was repeated three times. He denied that the prosecutor had ever narrowed the particulars; reliance was placed on all the allegations Ms Parkinson had made.
Mr Williamson said that the charges of assault occasioning actual bodily harm and of contravening a protection order were supported by what Ms Parkinson had said to Station Sergeant Hofmeier.
He submitted that, for an offence under s 715 of the Criminal Code to be made out, it was not necessary for the defendant to have made a formal or even written statement. That is correct.
He further relied on the alternative argument that it was “arguable” that an accusation of sexual assault had been made because the top button of Ms Parkinson’s jeans had been undone.
Regrettably, the prosecution case was marred by a lack of attention to the need for a careful formulation of the case to be presented so that it complied with the relevant procedural obligations. In particular, a clear unambiguous articulation of the allegation was not forthcoming. This led to Mr Archer’s challenge that the case was duplicitous.
It was also unfortunate that I was not assisted by appropriately targeted submissions on the legal issues, nor, apart from helpful transcript references, to analysis of the factual and evidentiary issues. Thus, I have had to spent some time researching these matters.
It seems to me that the prosecution case as presented and, indeed, as argued by Mr Williamson, suffers from what was described by Dixon J in Johnson v Miller (1937) 59 CLR 467 at 486, as a latent ambiguity.
This is to be distinguished from duplicity which is a defect in the charge laid against the defendant; rather it refers to the evidence led on the charge: R v Whittington [2006] NTCCA 4 at [49]. Thus, contrary to Mr Archer’s submission, I do not think an issue of duplicity arises. Latent ambiguity, however, is also a problem for the prosecution in this case.
As Kirby J said in Walsh v Tattersall (1996) 188 CLR 77 at 112:
This Court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.
This matter was not raised at trial, partly because of the point in time, namely in the final submissions, that the issue emerged. In any event, in such a matter, the failure to raise the issue is not a waiver: R v Molloy [1921] 2 KB 364. There is plenty of authority that such a matter can be raised on appeal even if it has not been raised at trial: Hoessinger v The Queen (1992) 107 FLR 99 at 102-3; Hamzy (1994) 74 A Crim R 341 at 344, and the cases cited in those decisions.
It seems to me likely that a charge under s 715 of the Criminal Code should be laid in respect of only one offence of which a person other than the defendant has been accused by the defendant of committing. I am strengthened in my view by a similar approach, though for a different offence, by the decision and reasoning of the New South Wales Court of Criminal Appeal in Giam [1999] NSWCCA 53; 104 A Crim R 416 at 419. I do not so find definitively as I did not hear submissions on this issue. While it supports my finding in this case, it is not necessary for it.
The particulars supplied and the case for the prosecution disclosed the latent ambiguity. As in Johnson v Miller and S v The Queen (1989) 168 CLR 266, the prosecution sought to rely on an act but declined to say which one it was on which it relied. Thus, the prosecution submitted that the accusation of physical assault was sufficient for what it alleged was the false charge of assault occasioning actual bodily harm but it also submitted that the charge of sexual assault in the second degree was supported by the accusation of the conduct (unparticularised) of the top button of Ms Parkinson’s jeans being undone together with allegations of physical assault.
As to the latter, there are major evidentiary hurdles that the prosecution would have faced, namely that there was no evidence that this was understood by Sergeant Wilson as such. Not only was Sergeant Wilson not questioned about that, what she told Station Sergeant Hofmeier, reported by the latter in arguably inadmissible hearsay, to which, however, no objection was taken, does not include any reference to sexual assault and that absence was directly raised.
Nevertheless, this was how the prosecution left the issue: there may have been some conduct of Ms Parkinson that constituted an accusation of sexual assault but the whole of what she told the police officers on 21 and 26 March 2014 constituted the accusation.
This, in my view, constituted a latent ambiguity. The prosecution should have been required to elect at a time when it was possible for Ms Parkinson to address the issue by cross-examination of relevant witnesses or by adducing relevant evidence.
Accordingly, I consider that there has been a miscarriage of justice in the entry of a conviction on this count and the conviction must be set aside. The authorities, however, are by no means clear as to the consequences of such a finding; some enter a verdict of acquittal (Hoessinger v The Queen, Carcosa Pty Ltd v Czerwaniw (Department of Health) (1997) 93 A Crim R 287), some order a retrial (Tyson v The Queen [2005] NTCCA 9; 16 NTLR 161). In F (1996) 90 A Crim R 356, the Court did not order a retrial but there were special circumstances.
I shall hear the parties as to the consequential orders to be made in this case.
Ground (a)
In his written submissions, Mr Archer made it clear that this ground only related to the two offences which I have already considered. On the first, Ms Parkinson has been acquitted because of the admission of inadmissible evidence.
On the second, the only issues raised under this ground have already been dealt with in these reasons.
There was an oblique reference to the role of tendency evidence and it was submitted that on the remaining charges it was said that her Honour’s reasons were unclear as to the extent that tendency reasoning affected the findings on those charges.
I consider, however, that it seemed to play little part: her Honour found these other charges made out because the events about which the accusations were made could, on the evidence, be said not to have happened and that this finding was able to be made without any or any significant reliance on the tendency. Indeed, it seemed to me that the finding that false accusations were made in respect of these matters was the basis on which her Honour could find that Ms Parkinson had the tendency to engage in a vendetta against EK’s family which tendency was then used in the assessment of the other offences.
This ground cannot be upheld.
Ground (f)
This ground was neither particularised nor argued.
Insofar as the grounds of appeal complained about or, perhaps more accurately the basis for some of the grounds relied on, the failure of her Honour to uphold certain objections to some of the evidence adduced, these are no longer pressed.
Accordingly, this ground cannot be upheld.
Conclusion
I have upheld the challenge of the conviction for what I have described as the charge relating to the accusation of the first alleged sexual assault of Ms Parkinson by EK for which an acquittal must be entered, namely charge number CC 2015/5647.
I will set aside the conviction for the charge relating to the accusation of the second alleged sexual assault of Ms Parkinson by EK, namely charge number CC 2015/5648, but will seek submissions on the consequential order or orders to be made.
The other grounds of appeal have either not been pressed or not been made out and so the appeal must otherwise be dismissed.
I shall make orders accordingly.
| I certify that the preceding two hundred and thirteen [213] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 4 August 2017 |
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