R v Parker (No. 2) - [2018] NSWSC 1122

Supreme Court

New South Wales

Medium Neutral Citation: R v Parker (No. 2) [2018] NSWSC 1122
Hearing dates: 9 and 10 July 2018
Date of orders: 10 July 2018
Decision date: 10 July 2018
Before: Adamson J
Decision:
See rulings in paragraph [64]

Catchwords:
EVIDENCE – maker unavailable because deceased – whether circumstance that statement made to police in which maker acknowledged that he would be liable to prosecution if any part untrue fulfils requirement in s 65(2)(c) – insufficient – possibility that maker not disinterested in police investigation – Crown’s onus not discharged

EVIDENCE – tendency evidence that deceased did not, on prior occasions, inject himself but rather arranged for others to inject him with intravenous drugs – significant probative value in case where manslaughter by unlawful and dangerous act alleged – evidence allowed

EVIDENCE – business record – clinical note made of consultation with deceased – whether ought be admitted – whether maker unavailable – Crown’s obligation of fairness to the accused – ruling deferred pending return of subpoena
CRIME – manslaughter – criminal negligence – authorities considered – whether evidence to support proposition that accused had secluded the deceased when he was in a compromised state – rejection of deceased witness’ statement led to Crown’s abandonment of this basis of manslaughter
Legislation Cited: Evidence Act 1995 (NSW), ss 48, 65, 69, 97, 101, 135, 137, 142, 166, 167, 168, 169, Dictionary, cl 4
Cases Cited: Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Burns v The Queen (2012) 246 CLR 334; [2012] HCA 35
Elomar v R [2014] NSWCCA 303; (2014) 316 ALR 206
Hughes v The Queen [2017] HCA 20; (2017) 92 ALJR 52
Munro v The Queen [2014] ACTCA 11
Onassis v Vergottis [1968] 2 Lloyds Rep 403
R v Afu; R v Caleo (No 15) [2018] NSWSC 245
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386
R v Evans [2009] 1 WLR 1999
R v Miller [1983] 2 AC 161
R v Taktak (1988) 14 NSWLR 226
Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32
Category: Procedural and other rulings
Parties: Regina (Crown)
Mark Patrick Parker (Accused)
Representation:
Counsel:
C M Everson (Crown)
E Ozen (Accused)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)

File Number(s): 2017/116828
Publication restriction: None

Judgment

Introduction

Mark Parker (the accused) stands charged with two offences: the manslaughter of Allan McBride (the deceased) (count 1) and the supply (to the deceased) of a prohibited drug (count 2). Count 1 is alleged to have been committed on 26 June 2016, being the date on which the deceased died. Count 2 is alleged to have been committed on 23 June 2016, being the date on which it is agreed that the lethal dose of heroin was supplied to the deceased. The accused has pleaded guilty to count 2 and not guilty to count 1. The jury is due to be empanelled on 11 July 2018.
The following…

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.

Continue reading R v Parker (No. 2)

Details

AGLC: R v Parker (No. 2) [2018] NSWSC 1122
Case: [2018] NSWSC 1122
Decision Date: 10 July 2018

CaseChat Overview and Summary

In the case of R v Parker (No. 2), the defendant stood accused of manslaughter by an unlawful and dangerous act. The deceased had been found deceased, and the defendant had been charged with criminal negligence in the circumstances leading to the death. The matter was heard in the Supreme Court of New South Wales. The central issues in the case were the admissibility of certain statements and the sufficiency of the evidence to support a charge of manslaughter by criminal negligence.

The court first considered the admissibility of a statement made by the deceased to the police, in which he acknowledged that he would be liable to prosecution if any part of the statement was untrue. The court held that this did not meet the requirements of section 65(2)(c) of the Evidence Act, as the possibility remained that the deceased was not disinterested in the police investigation. Consequently, the Crown's onus was not discharged, and the statement was deemed inadmissible. The court also evaluated the probative value of evidence that the deceased had, on prior occasions, arranged for others to inject him with intravenous drugs. This evidence was found to have significant probative value in the context of the alleged manslaughter by an unlawful and dangerous act, and it was therefore allowed.

Furthermore, the court addressed the admissibility of a clinical note made during a consultation with the deceased. The question of whether the maker of the note was unavailable and the Crown's obligation of fairness to the accused was considered, but the ruling was deferred pending the return of a subpoena. Lastly, the court examined the evidence for criminal negligence manslaughter, specifically whether the accused had secluded the deceased when he was in a compromised state. The rejection of a deceased witness' statement led the Crown to abandon this basis of manslaughter, and the court considered the authorities on the matter.

The final orders of the court will be determined following the resolution of the subpoena issue and further evidence presented in the case.

Orders