R v Parkes

[2024] NSWSC 269

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

1. 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.

2. 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 on a joint criminal enterprise basis. He is awaiting sentence. On 19 February 2024, Mr Parkes’ trial commenced before me (and a jury of 15) on the sole count of murder. Mr Sloan denies being part of any agreement to kill the deceased and asserts that Mr Sloan acted alone in killing her.

3. On 7 March 2024, (day 13 of the trial), counsel for Mr Parkes sought the exclusion of portions of surveillance device recordings of conversations between Mr Parkes and his cellmate and portions of Mr Parkes’ subsequent electronically recorded interview (ERISP) under ss 90 and 137 of the Evidence Act1995 (NSW). Although the recordings were made subject to a valid warrant issued under the Surveillance Devices Act2007 (NSW), I propose to refer to the material as “listening device” material.

4. A voir dire was conducted at 2:00pm on Friday 8 March 2024. The argument for exclusion was put in the alternative:

1. Exclusion under s 90 of the Evidence Act of portions of the listening device material where Mr Parkes and his cellmate (Witness I) can be heard concocting a false story to tell police and exclusion of the related portions of the ERISP when that false story is repeated by Mr Parkes to police; or

2. In the alternative, exclusion under s 137 of the Evidence Act of a discrete portion of the listening device material on 10 December 2020 (“The impugned statement”).

5. At the time of the legal argument on 8 March, counsel had still not agreed upon which portions of the listening device material would be tendered (putting to one side the portions the subject of these objections). Police had obtained nearly three months of conversations between Mr Parkes and Witness I between 1 October and 10 December 2020 and it was proposed that that could be reduced to one or two days. I was provided with an unedited portion of the recording for 10 December 2020 which included the impugned statement but not the full context in which those words were said. I formed the view at that time this would not preclude me from determining the objections. At the end of the hearing, I indicated that I would not be excluding any portions of the ERISP/recordings under s 90 and I reserved my decision regarding the s 137 application until 10:00am on Monday 11 March.

6. On 11 March, I indicated to the parties that, having reflected on the matter over the weekend, I had formed the view that I did need to know the context of the impugned statement on 10 December 2020 in order to rule on the s 137 argument. I was informed that negotiations were still underway and it was unlikely they would be finalised until Wednesday 13 March. Given that the impugned statement was in the last recording to be (chronologically) played, I suggested that a way forward would be for me to rule on it after all but that recording was played to the jury as an exhibit. The parties agreed that I could give my ruling after the agreed upon recordings were played to the jury.

7. The listening device material was tendered on Wednesday 13 March and played (except for the last recording on 10 December 2020) until just before lunchtime on Thursday 14 March. I made my ruling at that time that I would exclude the impugned statement and I reserved my reasons. These are my reasons for admitting the material the subject of the first objection and excluding the material the subject of the second objection.

Facts

8. At the time of her death, Ms Carroll was residing at the Hunts Hotel in Casula. Mr Parkes and Mr Sloan were also residing there. They all met due to their shared interest in illegal drugs; both the use and supply thereof. It seems that the three of them only met each other a few weeks or so before Ms Carroll’s death.

9. The events the subject of the trial took place in the early months of the COVID-19 pandemic at which time Government policy permitted persons to access their superannuation. Ms Carroll accessed her superannuation and gave $8,000 to either Mr Sloan or Mr Parkes (the recipient of the funds is a fact in issue at the trial) to invest in, on the Crown case, Mr Parkes’ drug business in which Mr Sloan was also involved (or on the defence case, Mr Sloan’s drug business).

10. The Crown case is that the two accused subsequently agreed to kill the deceased for two reasons: because they did not wish to pay her back the money and because they had concerns that she would go to police about their drug dealing (given that she had recently reported a stolen hire car to police). Ms Carroll was killed in remote bushland near Menai (known as “White Rock”) in the early hours of 14 July 2020. Her body was not found until 28 July 2020. Her body was burned as was her motor vehicle located nearby. The post-mortem report revealed head injuries.

11. Mr Parkes’ case is that Mr Sloan acted alone when he killed Ms Carroll. The factual dispute is narrow but significant. It is common ground that the only two people present at Ms Carroll’s death at White Rock were Mr Sloan and Mr Parkes. The area of dispute concerns the reason why Mr Parkes met with Mr Sloan in remote bushland at that time.

12. The Crown case comprises evidence from witnesses who spoke to Mr Parkes in the days before and after the murder, including his upline supplier Witness H, Witness H’s flatmate (Witness K), and a young man present in Mr Sloan’s room at the Hunts Hotel in the morning of 14 July 2020 (Witness A). The Crown case also comprises CCTV footage, telephone records, GPS evidence, bank records, photographs, the ERISP and the listening device material. (I note that although there are non-publication orders on the names of some of the civilian witnesses, they have been referred to by their real names before the jury by the witnesses at trial; the somewhat unoriginal pseudonyms are only for publication purposes).

13. The evidence in support of the Crown case that Mr Parkes was present at the scene as part of a pre-arrangement to kill Ms Carroll includes CCTV footage of Mr Parkes hurriedly escorting Ms Carroll from the Hunts Hotel on 11 July 2020 with an overnight bag and evidence from Witness H and Witness K that Mr Parkes took her to stay in the garage at Witness H’s place instead. Witness H and Witness K have given evidence that she stayed in the garage (which was set up as a living room) until the early hours of 14 July at which time Mr Sloan collected her and drove her away.

14. There is further evidence (from Witness H, Witness K, CCTV, GPS and telephone records) that Mr Parkes was in Kings Cross with Witness H on the night of the murder. Witness K has given evidence that Mr Parkes called him and asked him to make sure Ms Carroll did not leave Witness H’s house. Mr Sloan collected her shortly thereafter in her Mercedes. Mr Parkes left Kings Cross after that and drove to White Rock. He was recorded by CCTV stopping at the Moorebank 7-Eleven petrol station at which time he purchased some items including $12 worth of unleaded petrol (his Hilux took diesel). He arrived at White Rock at 3:57:44 am. The GPS evidence puts him in that area from 3:41:39 am to 4:38:18am. CCTV footage from the Hunts Hotel records him arriving back there shortly thereafter in his Hilux with Mr Sloan back. Witness A gave evidence that the following day he arranged for his car and some clothing to be washed and other clothing worn that night to be thrown away.

15. Other evidence relevant to establishing that Mr Parkes was part of the agreement to kill Ms Carroll is that he can be seen on the CCTV footage at the Hunts Hotel on 12 July 2020 (after he had already taken Ms Carroll from the Hunts Hotel to stay at Witness H’s) entering Ms Carroll’s room with a swipe card with his ex-wife and, inferentially, giving his ex-wife a pink speaker from that room as she is seen to leave the room with it shortly thereafter.

16. The Crown case is that it does not have to prove which of the two men physically killed the deceased; both had agreed to do so beforehand, and both were present at the scene doing acts in furtherance of the joint criminal enterprise.

17. Mr Parkes’ version of events to police in his ERISP is that he did not know that Ms Carroll would be at White Rock that night and he only went there to burn her car. He told police that when he got there, he remained in his vehicle and saw Ms Sloan kill Ms Carroll with a baseball bat and burn her body from where he was seated in his car. The two men then drove their respective cars a short distance away where Ms Sloan burned Ms Carroll’s car and then Mr Parkes drove Mr Sloan home (back to the Hunts Hotel). On Mr Parkes’ account he did not get out of the car except to ignite Ms Carroll’s car.

18. Mr Parkes provided an explanation to police in his ERISP as to why he needed to burn Ms Carroll’s car in bushland at 3:40am that morning as follows. He told police that a few days earlier (10 July 2020) Mr Parkes and Witness H set out to drive to Perth to conduct a significant drug deal. Mr Parkes borrowed Ms Carroll’s blue Mercedes SUV to do so. They were stopped by police at the South Australian border due to travel restrictions. Although police did not locate the concealed drugs, they seized over $17,000. This aspect of the account given by Mr Parkes in his ERISP is confirmed by Witness H and the Crown has tendered stills from police body worn cameras confirming that this aspect is truthful. Witness H disputes the rest of Mr Parkes’ explanation to police which is that he and Witness H agreed that the deceased’s car had to be burned because they were in it when pulled over by police.

Involvement of Witness I

19. Mr Parkes was arrested on an unrelated matter on 14 August 2020. He started speaking to his cellmate about the murder, suggesting that he was a witness to it. His cellmate (Witness I) contacted police and offered to assist them. He spoke to them on 29 September 2020. Police did not take Witness I up on this offer as they were not satisfied of his credibility but, unbeknownst to Witness I, after they spoke with him police obtained a warrant to place surveillance devices in the cell. The conversations which subsequently took place between Mr Parkes and Witness I were recorded from 1 October 2020 until at least 10 December 2020. Neither man knew they were being recorded.

20. I pause to note that by the time Witness I approached police Mr Parkes and Mr Sloan were already suspects in Ms Carroll’s murder. Police were intercepting their phones, going through the Hunts Hotel CCTV footage and making other inquiries based on material they had already uncovered.

21. I further note that Witness I was not called as a witness in this trial. After Mr Parkes was arrested, police obtained a statement from Witness I and he agreed to give evidence at the trial of Mr Parkes and Mr Sloan. He pleaded guilty to his fraud charges and received a 25% discount for his assistance to authorities past and future.

22. After that time, police learned that Witness I had in fact tendered false medical certificates at his sentence proceedings. The subsequent decision by the Crown not to call Witness I at trial was based on his credibility issues. Defence counsel agreed that he did not need to be called. Thus, the “evidence” of Witness I is confined to the recorded conversations between the two men in the cell.

23. Although the Crown relies upon discrete portions of the recordings as admissions and others as lies, for the purposes of these reasons, the relevant portions of the recordings are as follows (although I have summarised them as far as possible, I have extracted some in full).

24. From early on in the recordings it is apparent that Witness I and Mr Parkes have concocted a story to tell police to help both of them. The concocted story is that Witness I and Mr Parkes had known each other for a while and that Witness I was staying at the Hunts Hotel at the time of the murder. (By sheer coincidence the two men, who had never met before but had mutual friends, realised that Witness I had in fact been staying at the Hunts Hotel at around that time. Unfortunately for the two men, CCTV footage and hotel records show that that was for one night on 11 July 2020 and the murder took place on 14 July 2020).

25. The concocted story is that when Mr Parkes drove Mr Sloan back to the hotel after the murder in the early hours of 14 July 2020, Witness I was in the carpark. Mr Parkes waved him away when he tried to approach him, and he heard Mr Sloan threaten Mr Parkes and his family if he told anyone about what happened. Mr Parkes then took Witness I to near the scene and told him what Mr Sloan had done. It is now accepted by Mr Parkes that this account is untruthful. It is completely contradicted by the CCTV footage at the Hunts Hotel.

26. As I understand it, the perceived benefit to Witness I of this fabricated story was that the value of Witness I’s assistance (implicating Mr Sloan) was greater if he was present and saw Mr Sloan’s reaction and Mr Parkes’ contemporaneous account than if Mr Parkes had just told him about it in the cell. The perceived benefit to Mr Parkes was corroboration of his own exculpatory account that Mr Sloan acted alone in killing the deceased.

27. At some stage prior to the commencement of the recordings, Witness I told Mr Parkes that he had spoken with police, provided them with the concocted story involving him and told them they should speak with Mr Parkes about the assistance he could give. Despite the fact that police did not contact Witness I again until well after the recordings had concluded, Witness I repeatedly lied to Mr Parkes and pretended that he was in regular contact with police through his solicitor and a (non-existent) relative of Witness I in the police force. When police did not immediately speak to Mr Parkes, he and Witness I mused at length over the next few months about why this was the case including whether it was because police had evidence inconsistent with the concocted account.

28. On 22 October 2020, Mr Parkes’ mother telephoned him (the recorded call has been played to the jury) to tell him that police had seized the blue Hilux he was driving at the time. This is the vehicle Parkes drove to and from White Rock. It was registered to his mother. There is a brief discussion between them as to whether the deceased was ever in that car whereupon his mother informs him that the police have questioned her regarding sightings of the car at the 7-Eleven in Moorebank at some time in July. That leads Mr Parkes to discuss at length what other CCTV evidence police might have which might implicate him.

29. Throughout all of the recordings a consistent theme discussed between the two men is whether police will consider Mr Parkes to be a witness or a suspect. On occasions, Witness I reassures Mr Parkes that he is not a suspect. As time passes, Witness I becomes increasingly worried that Mr Parkes is not going to tell police the concocted story involving him. Some examples are as follows:

1. On 22 October 2020:

“GM: …IND the pressure on you, is she gonna stick solid and back me up, or cut it.. on your own. I’ll be straight with ya, cos of what’s happened the other day I need to, and you can’t blame me for it, like I’m not, like I said to ya, And that’s no disrespect for you like I said, I hope it works out for both of us and more so for you more than me.

BP: I wasn’t going to change the story

GM: Nah, I’m just saying to you, if you did IND

BP: I’m not going to change the story.

…

GM: I’m trying to protect you more than anyone else, yeah and protect myself too. Cause the last thing IND to her, she says oh fuck this cunt’s being a dog IND it gets to the wrong people we’re both fucked. Not going to cop that shit. IND I’ve never done this, I’m helping you bro, and it looks like I started it which from my point of view is IND brushed under the carpet IND.

BP: By me?

GM: IND

BP: Not going to be by me IND

BP: Not going to change the story mate, the story is IND The truth is what the truth is and it’s what we spoke about.” [1]

1. SD Transcription pp 32-33.

2. On 25 October 2020:

“BP: I’m not gonna change the story.

GM: Why not?

BP: I don’t know why you keep thinking I am

GM: I’m just saying” [2]

2. SD Transcription p 54.

3. On 29 October 2020:

“GM: If you think that I haven’t been sold out well then write me back into it. I’ve been told I’ve been sold out bro.

BP: I don’t know how mate, I’m the only one that could sell you out. Not some prostitute I’ve known for five minutes as you’ve said. So maybe they need to speak to me mate.” [3]

3. SD Transcription p 72.

4. On 19 November 2020:

“GM: …According to the paperwork I’m gonna get fucking probably charged for it, for obstructing fucking police investigation.

…

BP: I don’t think they can charge you with pervert the course of justice, you didn’t pervert the course of justice neither did I.

GM: I’m, I’m, what do you call it? Interfering with a police investigation.

BP: What, so it’s gone past the point I can’t even put you there?

GM: I don’t know mate.” [4]

4. SD Transcription pp 128-132.

5. On 24 November 2020:

“GM: As I said to ya, the only one that can try and save me is you, and at the end of the day it’s got to be you. And I’ll defend ya but IND… then they’ll determine, which I know you’re not, that will determine how true your word is. I know you won’t back down.

BP: Nup

GM: That’s something you and between you and god…IND brother. Does that make sense?

…

GM: I look at you in the eye and I say this. If you’re a brother, and a mate. And I’ve done whatever I can for ya…IND…

BP: I know you have.

GM: And you don’t wanna put me there, I have all respect if you tell me I can’t do it brother for ya.

BP: Yeah.

GM: And say, yes, then come to the crunch, and I’m gunna be left with my dick in my hands.

BP: Yeah, I know

GM: Cos I just, I just, there’ll be no us. That make sense?” [5]

5. SD Transcription pp 137-138.

30. On 7 December 2020, police interviewed Mr Parkes. In that ERISP, Mr Parkes indicates that he knows that they have spoken with Witness I and repeats the concocted story concerning Witness I. He provides his version of events, including that he went to White Rock to burn the deceased’s car as that had been pre-arranged with Mr Sloan having been suggested by Witness H. He describes witnessing the murder whilst seated in his vehicle and being shocked. He tells police he did not know the deceased would be there. He tells police that Mr Sloan took the petrol from him and used some of it to burn the deceased’s body and then they drove the car away and used the rest of the petrol to burn it and then they drove home in his blue Hilux.

31. After he returns to his cell from the ERISP, there is a discussion with Witness I about what Mr Parkes told police:

“GM: Was it good or bad?

BP: I put you there but might be better for me, I dunno, I don’t know what to tell you yet

…

GM: Well what did you say?

BP: I didn’t say much, IND

…

BP: … I’m a suspect 100 per cent. He told me that.

…

BP: …He said, “I know you were there. Now I’m giving you your chance to offer your version of events before I put certain things to you, certain allegations.”

GM: So, IND what did you say?

BP: I told him pretty much what we’ve chatted about. IND

…

BP: …But I put you there as I said I would.

GM: I thought you weren’t going to IND

BP: But, you do know, I just told you. What you calling me a liar?

GM: Just saying saying, stop assuming bra

BP: I’m telling you. I put you there. Exactly like I said I would. Exactly the way I said I would. I said you were in the car park I said wait, wait, wait. Pockets got out and stormed off with the shits you got in the car, I took you for a drive and I told you everything.

…

GM: Did you say anything about our relationship?

BP: IND I just said mate, I know him through truck driving and shit like that… I put you there exactly as I said I would put you there. Nothing else, I don’t want you getting charged with fucking IND but I put you there

BP: IND but I put you there

GM: Nah I appreciate it thank you. I take your word for it

BP: Like I said. Absolutely solid

GM: IND

BP: My balls on the line, and I’ve given you my word that I put you there. But I get the impression, he had a lot of, he was going to try and poke holes in my story bro. You know what I mean? That’s the impression I got.” [6]

(Emphasis added.)

6. SD Transcription pp 158-161.

32. On 10 December 2020, Mr Parkes is again taken to speak with police but on this occasion, he receives legal advice and declines to be electronically interviewed a second time. On his return to the cell, he is again grilled by Witness I about whether he stuck to the concocted story about him. Finally, the following exchange occurs:

“GM: No, I’m just saying to you. Fucking if you were in my boat you would be pissed off that you put yourself out there and they say A, B, C, 1, 2, 3.

BP: I didn’t say anything to them

GM: Alright. But you don’t give up, when a person does it you don’t give up straight away. As I said to you from the start straight away brother you can’t just give them IND evidence. I’m not saying you didn’t get bamboozled you still IND it thanks, appreciate it.

BP: I lied through my teeth and they fucking know it. Well, they’re saying they know it. And I didn’t say ‘yeah you’re right I lied’, I didn’t say that. I didn’t even talk much so they said to me today. I just told you, I IND like I should know this stuff.

GM: No if you don’t tell me I’ll find out anyway, I don’t give a fuck. You know I mean, I’ll find out, I’ll put my hand in my pocket and I’ll find out brother. IND.” [7]

(Emphasis added.)

7. SD Transcription pp 177-178.

33. The italicised portion above is the subject of the application for exclusion under s 137 of the Evidence Act.

Lies

34. In both the ERISP and listening device recordings Mr Parkes says a number of things which the Crown relies upon as lies, some more significant than others. The Crown tendered a document during the legal argument indicating which lies are relied upon as consciousness of guilt (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) and which are relied upon as going to his credibility (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28). That document remains subject to legal argument prior to closing addresses.

35. It is not necessary to set out the alleged lies in these reasons. Although Mr Parkes now accepts that the concocted story with Witness I is a lie, he does not accept that other aspects of his account to police are lies, including the reason why he went to White Rock with Mr Sloan on the morning of 14 July 2020. In that regard, I note that during the listening device recordings, Mr Parkes discussed what he should tell police as to how he knew to be at White Rock that night. Some examples are:

1. On 29 October 2020:

“As far as they know, as far as I tell them, I was fucking going there to torch a fucking car mate, to get rid of some evidence for some trafficking.” [8]

8. SD Transcription p 76.

2. On 29 October 2020:

“I been sitting here thinking, how do I explain...” [9]

9. SD Transcription p 80.

3. On 29 October 2020:

“For me to come up with an explanation as to what the whole thing was about…” [10]

10. SD Transcription p 82.

4. On 29 October 2020:

“I can say he wanted to scare her but we got rid of the car, He told me to pick him up from there. So I was in the city and he goes, you see this doesn’t jive I’ve got a bad, bad feeling. So, I told T [Ho], fuck it you get an Uber home I’m going out to the quarry [White Rock]. I flew out there and I was shocked to find her there. I didn’t think she was gonna be there. At the actual quarry. I thought we were just burning the car mate…” [11]

11. SD Transcription p 82.

5. On 30 October 2020:

“I’ll pretend I’m not full of shit and hopefully I’ll hear from you in the near future with some kind of fucking assistance mate, with sentencing for my current charges, bail or some shit…” [12]

12. SD Transcription p 92.

6. On 31 October 2020:

“BP: Yeah. Yeah Well being involved is not getting involved like I thought we were gonna torch the car and teach her a lesson, I told you this. But I had a sinking suspicion, that…

Witness I: Not you thought you were gonna teach her a lesson, that he was gonna teach her a lesson

BP: Nah, what, not me personally…” [13]

(Emphasis added.)

13. SD Transcription p 108.

36. Other alleged lies relied upon by the Crown in the ERISP include matters not discussed with Witness I, including the nature of the drug supply business, that Mr Parkes never paid for the deceased’s hotel room, that the deceased was still residing at the Hunts Hotel at the time of her death and that he did not know where the deceased was collected from by Mr Sloan that morning.

Defence submissions

Section 90 argument

37. As in any trial, the admissibility argument was somewhat organic.

38. On 29 February 2024, Mr Steel foreshadowed that he would be seeking the exclusion of admissions (recently relayed to police) said to have been made by another witness (Witness J) under s 90 of the Evidence Act. After a brief discussion of the relevant principles concerning s 90, the argument was re-framed in reliance upon s 137 of the Evidence Act and deferred until that witness was to be called as a witness.

39. That application was renewed on 4 March 2024. At that time, I drew counsels’ attention to the following four decisions: R v Rice & Ors (No 4) [2014] NSWSC 1525; R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141; R v Officer A [2023] NSWSC 1265; and R v Chase (a pseudonym) [2018] NSWCCA 71. Later that day, the Crown indicated that it would not be adducing the evidence the subject of the objection.

40. On 5 March 2024, Mr Steel foreshadowed a s 90 application with respect to Witness I. A short legal discussion ensued in which I inquired whether it was contended that Witness I was acting as an agent of the State at the time and directed attention to the observations of the High Court in R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1 and Em v The Queen (2007) 232 CLR 67; [2007] HCA 46.

41. On 7 March 2024, Mr Steel indicated that it “would be hard to engage section 90” in the circumstances where Witness I was not acting as a police agent but “as a double agent in his own mind”. Later that day, Mr Steel submitted that he did feel obliged to press the objection, particularly given the reference in the recordings to Mr Parkes admitting that he had lied “through his teeth”. The argument was stood over until the afternoon of Friday 8 March after I had sent the jury home.

42. In written submissions filed on behalf of Mr Parkes dated 8 March 2024 there was no reference to any authorities concerning s 90 of the Evidence Act but reliance upon that section was not disavowed.

43. It was submitted that police took advantage of the listening device material and delayed interviewing Mr Parkes even though they knew that he was waiting to speak to them. By the time they interviewed him, Mr Parkes had been sharing a cell for some months. It was submitted that the accused’s right to choose to speak to police and give his account was not afforded to him for investigative purposes.

44. Although it was initially submitted that police may have deliberately sought to elicit lies from Mr Parkes because of knowledge they had of the listening device material (ERISP Q101), it was accepted during oral argument that it was in fact Mr Parkes who introduced the topic of Witness I first.

45. Reliance was placed on the fact that although Witness I was not engaged by police to adduce any admissions from Mr Parkes, they did ultimately take a statement from him after the fact which makes him “a kind of agent for police”. Further, Witness I pretended to be an agent of police.

46. It was submitted that the appropriate remedy would be for any reference to Witness I to be excluded from the ERISP pursuant to s 90 of the Evidence Act in conjunction with all aspects of the listening device material where the false story concerning Witness I is discussed.

Section 137 argument

47. The alternate position was that the comment in the listening device material that Mr Parkes lied through his teeth be excluded under s 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of its unfair prejudice.

48. It was submitted that Witness I urged Mr Parkes to lie to police to benefit himself. When Mr Parkes finally says to him on 10 December 2020 that “I lied through my teeth and they fucking know it”, he says this in the context of having previously said to him “I tried to put you there right up until the end of the day”. The difficulty with this, it was submitted, is that the reference to Mr Parkes telling lies in his ERISP may only relate to the lies Witness I concocted with him whilst acting as a “double agent”.

49. It was submitted that the impugned statement is ambiguous, with the only safe inference being that the accused lied about the presence of Witness I during his ERISP. Counsel for the accused submitted that there was a significant degree of prejudice attendant to the statement on the basis that the jury may interpret the language as suggesting that the whole of the accused’s ERISP is comprised of lies. It was submitted that the probative value of the evidence regarding his lies about Witness I arises not from its truthfulness, but rather from the fact that the ERISP contains lies, which may be relied upon by the Crown as going to the accused’s credit or as consciousness of guilt or both.

50. It was submitted that the statement was ambiguous, in reliance on R v Rogerson; R v McNamara (No 26).. It was submitted that the ambiguity of the impugned statement arises because it could lead the jury to reject the entirety of the ERISP where the statement is in fact ambiguous as to which statements are lies.

51. It was also submitted that the conduct of Witness I renders the impugned statement unfairly prejudicial by procedural unfairness in the circumstance that Witness I will not be called as a witness in the trial: R v Rice & Ors (No 4). Counsel for the accused submitted that it was likely at Witness I’s suggestion that the accused gave an account to the police placing Witness I at the Hunts Hotel at the relevant time. It was submitted that Witness I’s criminal history demonstrates that he is a “confidence man” capable of persuading people to unknowingly act to their detriment and to his benefit.

52. Although the accused consented to the Crown’s proposed course of not calling Witness I as a witness, it was submitted that he suffered some forensic disadvantage from not being able to cross-examine him.

Crown submissions

53. The Crown focussed its submissions on s 137 rather than s 90 of the Evidence Act. It was submitted that the probative value of the references in the ERISP to Witness I were high and relevant to the assessment of the credibility of the accused. The Crown further submitted that the probative value of the admission made by the accused that he lied in his ERISP is high. It was submitted that, consistent with my decision in R v Officer A, I would not have regard to the existence of competing inferences in my assessment of the probative value of the impugned statement for the purposes of s 137.

54. The Crown submitted that no unfair prejudice arises in the impugned statement as the accused himself made the decision to lie to the police likely with the belief that it would increase the credibility of his version of events.

55. It was also submitted that no unfair prejudice arises from the involvement of Witness I given that he was not acting under any instruction by police nor informed of the existence of the listening device in the cell.

Consideration

56. This application concerns the application of ss 90 and 137 of the Evidence Act to a fabricated exculpatory story provided to police by the accused in his ERISP, concocted in his prison cell at a time he was unknowingly being recorded pursuant to a valid warrant.

57. Section 90 of the Evidence Act reflects the common law unfairness discretion and is in these terms:

90 Discretion to exclude admissions.

In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—

(a) the evidence is adduced by the prosecution, and

(b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

58. An “admission” is defined in the Dictionary to the Evidence Act as a previous representation that is:

(a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and

(b) adverse to the person’s interest in the outcome of the proceeding.

59. Although the material the subject of the primary objection is, on its face, exculpatory, the Crown relies upon it as a lie. In this way it is a previous representation adverse to Mr Parkes’ interest. The onus is on the accused to establish that it would be unfair to admit the evidence. The focus is on the circumstances in which the admission has been made and on ensuring that the accused has a fair trial. The relevant principles concerning s 90 most pertinent to this application are derived from two High Court decisions.

60. In R v Swaffield; Pavic v The Queen, the High Court considered the unfairness discretion in two separate appeals heard together, one from Queensland and the other from Victoria, neither of which jurisdictions had enacted s 90. In Mr Pavic’s case, police had interviewed a friend of his (Clancy) who provided a statement implicating Pavic. They considered they had enough to charge Mr Pavic but they asked Clancy to speak to Mr Pavic wearing a listening device. He consented and admissions were made. In that context Brennan CJ observed the following at [35] (footnote omitted):

“There was no impropriety in the police obtaining Clancy's consent to the recording by Clancy of his intended conversation with Pavic. A serious crime had been committed and the means adopted for its solution and for the securing of evidence against the prime suspect were quite legitimate. The investigation of crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity ‘to invent plausible falsehoods’.”

61. Similarly, Kirby J observed the following at [155]:

“Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in an endeavour to investigate crime so as to bring the guilty to justice. Nor is there anything wrong in the use of technology, such as telephonic interception and listening devices although this will commonly require statutory authority. Such facilities must be employed by any modern police service. The critical question is not whether the accused has been tricked and secretly recorded. It is not even whether the trick has resulted in self-incrimination, electronically preserved to do great damage to the accused at the trial. It is whether the trick may be thought to involve such unfairness to the accused … that a court should exercise its discretion to exclude the evidence notwithstanding its high probative value. In the case of covertly obtained confessions, the line of forbidden conduct will be crossed if the confession may be said to have been elicited by police … in unfair derogation of the suspect's right to exercise a free choice to speak or to be silent'.”

(Emphasis added.)

62. Toohey, Gaudron and Gummow J observed at [67] that the concept of unfairness has been expressed in the widest possible form in s 90 and at [69] that a court’s consideration of s 90 should concentrate on the following matters:

“… [T]urning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.”

63. Their Honours observed the following at [91]:

“… [T]he notion of compulsion is not an integral part of the fairness discretion and it plays no part in the policy discretion. In the light of recent decisions of this Court, it is no great step to recognise, as the Canadian Supreme Court has done, an approach which looks to the accused's freedom to choose to speak to the police and the extent to which that freedom has been impugned. Where the freedom has been impugned the court has a discretion to reject the evidence. In deciding whether to exercise that discretion, which is a discretion to exclude not to admit, the court will look at all the circumstances. Those circumstances may point to unfairness to the accused if the confession is admitted. There may be no unfairness involved but the court may consider that, having regard to the means by which the confession was elicited, the evidence has been obtained at a price which is unacceptable having regard to prevailing community standards. This invests a broad discretion in the court but it does not prevent the development of rules to meet particular situations.”

64. Section 90 of the Evidence Act was considered by the High Court in Em v The Queen. In that case, the question of unfairness arose when police implied to a suspect that he was not being recorded when he was, knowing that he would not speak to them if he knew that he was being recorded. At various times, the police assured the accused that they were not “tricking” him.

65. The High Court held that there is no relevant unfairness in police recording a conversation covertly in circumstances where an accused person has otherwise exercised their right not to be subject to an electronically recorded interview or to provide a version of events “on the record”: at [78] (Gleeson CJ and Heydon J) and [107]-[116] (Gummow and Hayne JJ).

66. In Em v The Queen Gleeson CJ and Heydon J observed that the operation of s 90 cannot be described exhaustively (at [56]). Their Honours went on at [67]-[69] to consider the unfairness of secretly recording a suspect and concluded that if courts adopted a rule that a covert recording is unfair per se that would substitute their rule about the merits of statutory schemes such as the Surveillance Devices Act for that which the legislature has adopted. Gummow and Hayne JJ further confirmed at [107] that:

“… the focus of s 90 falls upon the fairness of using the evidence at trial, not directly upon characterising the circumstances in which the admissions were made, including the means by which the admissions were elicited, as ‘fair’ or ‘unfair’.”

67. Their Honours went on at [116] to observe:

“The appellant's argument, shorn of expressions like ‘trick’ and ‘trickery’, amounted to the propositions that what the police did, by interviewing the appellant as they did, was to be condemned, and that he had been misled into saying something that could be used in evidence against him. Neither of these propositions, whether taken separately or together, established that use at his trial of the evidence of what he said to police would be unfair.”

68. Having regard to the principles in these decisions as well as the assistance afforded by the factual scenarios upon which they are based, I am not satisfied that the accused has established that it would be unfair to admit into evidence the portions of the ERISP where Mr Parkes repeats the concocted account concerning Witness I (and the corresponding portions of the listening device recordings).

69. Witness I was acting alone and not as an agent of the State. The listening devices were lawfully obtained and installed. Police monitored them whilst investigating the murder further. When they interviewed Mr Parkes, they cautioned him. Mr Parkes did nearly all of the talking. Early on, he told police that he was aware that they had already spoken with Witness I (which they had). No answer in the ERISP was elicited by the use of any trickery. Mr Parkes spoke freely. It could not be said that his right to exercise a free choice to speak or to be silent was unfairly derogated in any way. Although the facts are somewhat unusual, they do not render the admission of this evidence unfair.

70. It was for these reasons that I admitted the evidence the subject of the objection under s 90 of the Evidence Act.

71. Turning to the argument under s 137 of the Evidence Act, it was confined to the exclusion of the following comment by Mr Parkes in the extract of the recording on 10 December 2020:

“I lied through my teeth and they fucking know it. Well, they’re saying they know it.”

72. Section 137 of the Evidence Act is in these terms:

137 Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

73. “Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority held that the assessment of probative value for the purposes of s 137 of the Evidence Act requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). Nor can the existence of available competing inferences from the evidence play any part in the assessment of probative value for the purpose of s 137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196]; R v Tortell (No 5) [2019] NSWSC 1665 at [33].

74. Although the term “unfair prejudice” is not defined in the Dictionary, it has been held that the danger is of prejudice that is unfair in the context of an accused person’s right to a fair trial, meaning the risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [73].

75. In R v Rogerson; R v McNamara (No 26) Bellew J upheld an objection to an admission by the accused that he had been “a goose” on the basis that the equivocal and ambiguous terms of the impugned evidence engendered a level of danger of misuse or improper attribution of weight by the jury that outweighed its probative value. His Honour held that it was not a matter of weight but of the possible attribution of an adverse meaning where they are open to a number of interpretations. Although the notion of “unfair prejudice” in the Evidence Act has generally been taken to mean the risk that the jury will misuse the evidence in some way, there is authority for the proposition that it is not confined to that risk. In R v Rice & ors (No 4), Bellew J observed the following at [31]-[32]:

“It would be fair to say that in many, if not the majority, of cases where s.137 is engaged, the danger of unfair prejudice stems from the nature of the evidence and its possible misuse by a jury. In the present case the situation is slightly different. Here, the danger of unfair prejudice is said to arise, to a large extent, from what be described as procedural unfairness.

I am satisfied that unfair prejudice for the purposes of s137 can be constituted by unfairness of that kind. In Haoui v R (2008), 188 A Crim R 331; (2008) NSW CCA 209, the Court of Criminal Appeal ordered a re-trial in which late service of the evidence of an expert had been given by the Crown. Although that case did not deal with the provisions of s 137, the approach taken by the Court, and the conclusion reached, provides some support for the proposition that procedural considerations of the kind which arise in the present case are capable, in a given set of circumstances, of giving rise to the kind of unfairness to which s 137 is directed.”

76. Similarly, in R v Chase (a pseudonym) at [32], Basten JA (with whom Johnson and Campbell JJ agreed) observed the following with respect to the meaning of “unfair prejudice” in s 101 of the Evidence Act (footnotes omitted):

“The Director submitted that the Court should not entertain this point because the ‘prejudicial effect’ referred to in s 101(2) was limited to the possible misuse of evidence in the trial in which it was proposed to be tendered, unfairly to the accused. Reliance was placed on statements in DAO v The Queen and R v MM. However, those authorities do not purport to limit relevant prejudice, but rather describe common forms of prejudice. A common prejudicial effect arises where the evidence is of a kind likely to inflame the jury, who may, consciously or subconsciously, determine the case adversely to the accused on the basis of extraneous factors. While that is certainly the most common circumstance, it is not to be assumed as a matter of principle that no other form of forensic unfairness can be taken into account under s 101(2). For example, there may be a concern that tendency evidence will distract the jury by placing overwhelming emphasis upon, and devoting much of the trial time to, matters other than the conduct charged.”

77. It has long been held that in considering whether there is a risk that the jury may misuse the evidence in some way, the court should consider whether the prejudice could be cured by directions: Regina v Cook [2004] NSWCCA 52 at [37] per Simpson J.

78. On the face of it, the probative value of the comment by Mr Parkes to Witness I is high in that it is an admission by Mr Parkes that he has lied to police. It loses some of its probative value in the context of the other evidence at trial in that Mr Parkes accepts that he has lied to police, particularly in the concocted story involving Witness I. To put this another way, the Crown is in a position to prove by other evidence that Mr Parkes has told lies to police. Questions of whether the jury accepts that the words were said do not arise as they were recorded.

79. Turning to the question of unfair prejudice, I am satisfied that there is a risk that the jury will use the evidence in an unfair way for the following reasons.

80. First, I have considered the impugned statement in the context of all of the conversations that preceded it, and I am satisfied that the accused’s response to Witness I (that he had lied to police) was to reassure him that he had maintained the concocted story to assist Witness I. Although that is ultimately a question for the jury, the issue has to be considered in the context of how lies will be relied upon by the Crown in his closing address.

81. Secondly, I am satisfied that the lack of credibility of Witness I (such that it was agreed he should not be called at trial) has resulted in some procedural unfairness in this matter to the accused relevant to the consideration of the impugned statement under s 137.

82. Thirdly, the Crown relies upon a large number of alleged lies by the accused in his ERISP. As stated above, some are relied upon as consciousness of guilt and others as relevant to credibility. Some of the lies are admitted by Mr Parkes whilst others are not. The Crown foreshadowed that it proposes to rely on the impugned statement as relevant to every lie in the ERISP. The problem with that position is that some of the lies relied upon in the ERISP were not matters discussed between Witness I and Mr Parkes and would thus not be capable of extending to them. There would be a real risk that the jury would use the impugned comment to extend to such matters in a way that is not open on the evidence.

83. For these reasons I am satisfied there is a risk of unfair prejudice but that is not the end of the matter.

84. The final question is whether I am satisfied that the danger of unfair prejudice can be cured by direction. The lies direction in this trial will already be somewhat complex given the number of lies and different ways in which they will be relied upon by the Crown. The Crown relies on lies in the ERISP and the listening device material (and in his evidence in court). Although it may be possible to craft a direction to avoid the potential for unfair prejudice in this matter, I am satisfied that it would add another layer of complexity to an already complex direction. It was on that basis that I excluded the impugned statement. Caution is always required in this area. I was not ultimately satisfied that the unfair prejudice could be cured by direction. But for the complexity of the issue of lies in this matter I may have reached a different conclusion.

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Endnotes

Decision last updated: 30 July 2024