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R v Parkes

R v Parkes

Case [2024] NSWSC 269 21 March 2024

Admissibility of Evidence

Unfairness

Joint Criminal Enterprise

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Parkes [2024] NSWSC 269
Hearing dates: 8 March 2024; 14 March 2024
Date of orders: 14 March 2024
Decision date: 21 March 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The application to exclude portions of the ERISP and listening device material under s 90 of the Evidence Act 1995 (NSW) is refused.
(2) The application to exclude a portion of the listening device material under s 137 of the Evidence Act 1995 (NSW) is allowed.

Catchwords:
EVIDENCE — murder trial — joint criminal enterprise – explanation for accused’s presence at scene – where cellmate concocted story with the accused – Defence application to exclude on s 90 unfairness – cellmate acting individually not as agent of the state – no trickery involved in ERISP – evidence admitted.
EVIDENCE — murder trial —joint criminal enterprise – explanation for accused’s presence at scene – where cellmate concocted story with the accused – Defence application to exclude statement for s 137 unfair prejudice – complexity of required lies direction to the jury – unique circumstances of cellmate involvement in lies – risk of jury misuse of impugned statement – lack of credibility of cellmate – impugned statement excluded.

Legislation Cited:
Evidence Act1995 (NSW), ss 90, 137
Surveillance Devices Act2007 (NSW)

Cases Cited:
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335
R v Chase (a pseudonym) [2018] NSWCCA 71
R v Officer A [2023] NSWSC 1265
R v Rice & Ors (No 4) [2014] NSWSC 1525
R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141
R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1
R v Tortell (No 5) [2019] NSWSC 1665 at [33].
Regina v Cook [2004] NSWCCA 52
The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40
Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28

Category: Procedural rulings
Parties: Rex (Crown)
Benjamin Troy Parkes (Accused)
Representation:
Counsel:
D Robinson (Crown)
N Steel (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
SANS Law (Accused)

File Number(s): 2021/95786
Publication restriction: Nil.

JUDGMENT

Introduction

On 6 April 2020, Benjamin Troy Parkes was charged with the murder of Najma Carroll on 14 July 2020. A co-offender, Robert Sloan was also charged with Ms Carroll’s murder. The Crown case is that the two men formed an agreement that Ms Carroll should be killed, and she was killed by one or both of them pursuant to that agreement.
Although both men initially pleaded not guilty on the basis of “cut throat” defences, on 29 January 2024, Mr Sloan pleaded guilty to Ms Carroll’s murder…

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 Parkes

Details

AGLC: R v Parkes [2024] NSWSC 269
Case: [2024] NSWSC 269
Decision Date: 21 March 2024

CaseChat Overview and Summary

The case before the court involved an appeal against conviction for murder. The appellant, Parkes, had been charged alongside co-defendants in relation to a joint criminal enterprise resulting in the death of a victim. The appeal centred on the admissibility of certain statements made by a cellmate of the appellant, who had fabricated a story with the appellant in an effort to explain his presence at the scene of the crime. The appellant sought to exclude the statements under sections 90 and 137 of the Evidence Act 1995 (Cth).

The primary legal issues before the court were whether the statements were obtained unfairly under section 90, and whether their admission was unfairly prejudicial under section 137. The court had to consider whether the cellmate, who had acted independently and not as an agent of the state, was involved in trickery that would render the evidence obtained through him inadmissible. Furthermore, the court needed to assess whether the complexity of directing the jury on the reliability of the lies and the unique circumstances of the cellmate’s involvement would lead to an unfair prejudice to the appellant.

The court held that the statements were not obtained unfairly under section 90, as the cellmate was not acting as an agent of the state and there was no trickery involved in the exchange of information. However, the court determined that the statements were unfairly prejudicial under section 137. The complexity of the lies and the unique circumstances of the cellmate's involvement created a significant risk that the jury might misuse the impugned statements. Additionally, the lack of credibility of the cellmate further supported the exclusion of the statements. Consequently, the court excluded the impugned statements from evidence.

The court’s final orders upheld the conviction of the appellant, but with the exclusion of the impugned statements from the evidence presented at the trial. This decision highlights the delicate balance the courts must strike between ensuring the fairness of the trial and protecting the rights of the accused under the Evidence Act.

Orders