CITATION: Regina v Parkes [2003] NSWCCA 12

HEARING DATE(S): 06/12/02

JUDGMENT DATE:
17 February 2003

JUDGMENT OF: Ipp JA at 1; Hulme J at 133; Bell J at 141

DECISION: (1) Appeal against convictions dismissed (2) Application for leave to appeal against sentence dismissed.

CATCHWORDS: CRIMINAL LAW - evidence - claim of right - whether judge erred in striking out as irrelevant part of Crown witness' testimony favourable to defendant's claim - whether judge erred in not allowing defendant to cross-examine on evidence that was struck out - EVIDENCE - hearsay - whether evidence admissible at common law as a prior consistent statement - whether admissible under s 65 or s 66 of the Evidence Act 1995 - where evidence admissible under s 66 of the Evidence Act - where evidence not significant - whether exclusion gave rise to a miscarriage of justice - EVIDENCE ACT - whether trial judge erred in making appellant aware in the presence of a jury the effects of s 128 of the Act - whether trial judge contravened s 132 of the Act - CRIMINAL TRIAL - forensic tactics - where Crown used s 38 of the Evidence Act as a forensic device - whether unfair or improper advantage - whether abuse of section - whether judge's failure to refer to s 192 of the Evidence Act an error of law - where Crown case is strong - whether cumulative effect of errors result in a lost chance of defendant being acquitted - Criminal Appeal Act 1912 s 6(1) - appeal dismissed.

LEGISLATION CITED: Corporations Law, s 596(b)
Evidence Act 1995, ss 38, 65, 66, 128, 132, 192(2)
Criminal Appeal Act 1912, s 6(1)

CASES CITED: Glennon v The Queen (1994) 179 CLR 1
Graham v The Queen (1998) 195 CLR 606
Mraz (1955) 93 CLR 493
Nominal Defendant v Clements (1960) 104 CLR 476
R v Esho [2001] NSWCCA 415
R v Fowler [2000] NSWCCA 142
R v Hogan [2001] NSWCCA 292
R v Kingswell (unreported, NSWCCA, 2 September 1998)
R v Mansour (unreported, NSWSC, 19 November 1996)
R v Milat (unreported, NSWSC, 23 April 1996)
R v Pantoja (unreported, NSWCCA, 5 November 1998)
R v Nguyen [2002] NSWSC 59
R v Reardon [2002] NSWCCA 203
R v Van Le [2002] NSWCCA 186
Stanoevski v The Queen (2001) 202 CLR 115

PARTIES :
Regina v Damien Parkes

FILE NUMBER(S): CCA 60506/01

COUNSEL: B T Stratton QC (Appellant)
R Sutherland SC (Respondent)

SOLICITORS: Ross Hill & Associates (Appellant)
Commonwealth DPP (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 00/11/0291

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

60506/01

IPP JA
HULME J
BELL J
Monday 17 February 2003

REGINA v Damien PARKES

FACTS

The appellant appealed against convictions on seven counts of committing offences under s 596(b) of the Corporations Law as it was prior to 15 July 2001. The offences related to defrauding separate nominated companies. In…

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 [2003] NSWCCA 12
Case: [2003] NSWCCA 12
Decision Date: 17 February 2003

CaseChat Overview and Summary

The appellant was convicted of three charges of armed robbery and two charges of deprivation of liberty by means of a threat of force. The appeal was against the conviction and sentence. The key issues for the court were whether the judge erred in striking out certain evidence, whether the judge erred in not allowing the defendant to cross-examine on evidence that was struck out, whether the evidence was admissible as a prior consistent statement, and whether the exclusion of the evidence gave rise to a miscarriage of justice. The court also considered whether the judge properly applied the Evidence Act and whether there was an abuse of the provisions of the Act.

The court held that the judge did not err in striking out the evidence as irrelevant. The court also held that the judge did not err in not allowing the defendant to cross-examine on the evidence that was struck out. The court held that the evidence was not admissible as a prior consistent statement, nor under s 65 or s 66 of the Evidence Act. The court held that the exclusion of the evidence did not give rise to a miscarriage of justice as the Crown's case was strong. The court held that the judge did not err in making the appellant aware in the presence of a jury the effects of s 128 of the Act, nor did the judge contravene s 132 of the Act. The court held that the Crown did not use s 38 of the Evidence Act as a forensic device and that there was no unfair or improper advantage gained. The court held that the judge's failure to refer to s 192 of the Evidence Act was not an error of law.

The court held that there was no lost chance of the defendant being acquitted due to the cumulative effect of the errors. The court dismissed the appeal, holding that the appeal did not disclose a error of law or a miscarriage of justice. The court noted that the Crown's case was strong and that the appellant's conviction was safe.

Orders