R v Parkes (No 2)

[2024] NSWSC 288

Supreme Court

New South Wales

Medium Neutral Citation:

R v Parkes (No 2) [2024] NSWSC 288

Hearing dates:

19 March 2024

Date of orders:

19 March 2024

Decision date:

21 March 2024

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Order that pursuant to s 45(5) of the Crime Commission Act 2012 (NSW) pages 46 from line 32 until page 77 of the transcript of evidence before the Commissioner Michael Barnes on XXXX be made available to the Director of Public Prosecutions and the legal representatives of Benjamin Troy Parkes.

Catchwords:

CRIME — Evidence — murder – co-accused – application to release evidence given before the Crime Commission – s 45(5) of the Crime Commission Act 2012 (NSW) – whether disclosure in the interests of justice – factors weighing for and against disclosure – two stage approach to disclosure to give witness opportunity to be heard

Legislation Cited:

Crime Commission Act 2012 (NSW), s 45

Cases Cited:

R v Munshizada, Danishyar and Baines [2020] NSWSC 566

R v Parkes; R v Sloan [2024] NSWSC 16

R v Quami & Ors (No 11) [2016] NSWSC 252

Category:

Procedural rulings

Parties:

Rex (Crown)
Benjamin Troy Parkes (Accused)
New South Wales Crime Commission

Representation:

Counsel:
D Robinson (Crown)
N Steel (Accused)
R Bhalla (New South Wales Crime Commission)
S Ramsden (Protected Witness)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
SANS Law (Accused)
Crown Solicitor’s Office (New South Wales Crime Commission)

File Number(s):

2021/95786

Publication restriction:

Nil.

JUDGMENT

1. On 19 March 2024, I ordered the release of a portion of certain material to the Director of Public Prosecutions (“DPP”) and the legal representatives of the accused, Mr Parkes, under s 45(5) of the Crime Commission Act 2012 (NSW) (“the Act”). I indicated at that time that I would provide my reasons at a later date. These are those reasons.

2. On 29 January 2024, I declined to release certain material on application made by the DPP under s 45(5) of the Act. The material concerned compelled testimony from certain persons whose identity remains suppressed. My reasons for declining to release the material and the relevant principles that apply are set out in R v Parkes; R v Sloan [2024] NSWSC 16 (“my previous judgment”). I do not propose to repeat the relevant statutory provisions and principles for the purposes of these reasons.

3. On 19 February 2024, Mr Parkes’ trial commenced before me (and a jury of 15) on the sole count of murder.

4. On 18 March 2024, the Crown case closed and Mr Parkes elected to give evidence. He was still in cross-examination at 4:00pm that day when the trial was adjourned until the following day.

5. At 10:00am on 19 March 2024, the Crown renewed its application under s 45(5) of the Act based on instructions from investigating police. Mr Bhalla of counsel, who appeared for the New South Wales Crime Commission (“the Commission”) on the application, was present in court instructed by the Crown Solicitor’s Office.

6. There was no need for any elaboration of the basis for the renewed application in open court by either Mr Bhalla or the Crown. Some of the answers provided by the accused for the first time in his evidence the previous day were not anticipated by me when I made the earlier order. It cast new light on the significance of the answers provided by one of the compelled witnesses to the Commission whose testimony I had declined to release. I requested that Mr Bhalla arrange for a lawyer for the relevant compelled witness to attend court, as a matter of procedural fairness, to be heard as to why I would not now release the material: Hamill J considered such an approach to be necessary in R v Quami & Ors (No 11) [2016] NSWSC 252 at [30]-[31] and at [35] of my earlier judgment I agreed with that approach.

7. Inadvertently, the name of the compelled witness was mentioned in court. Although I had that name struck from the transcript, Mr Parkes was made aware of the name of the witness.

8. Mr Parkes continued to be cross-examined on Tuesday until a particular line of questioning at which time he stated that he wished to raise a matter with me. I sent the jury out after which time Mr Parkes informed me that he did not wish to answer any more questions on that particular topic until he knew whether the compelled witness would be attending court. The Crown acceded to that request.

9. Cross-examination continued on other topics until 1:00pm at which time Mr Bhalla mentioned the s 45 issue again and informed the court that the compelled witness had a solicitor who could be at court at 2:00pm. I requested that he liaise with her and be in a position to respond to certain questions at that time.

10. At 2:00pm, Ms S Ramsden attended court and indicated that her client still maintained the objection to the material being released. I explained that I needed fuller particulars as to their fears or ongoing concerns in order to make my final decision on this issue. Following that exchange in open court, the accused’s counsel made an application to adjourn the trial until a decision had been made. The application was based on the fact that the accused was distracted by the prospect of the previously undisclosed material coming to light and unable to be cross examined in that state. The Crown accepted that it would be unfair to force the accused to be further cross-examined under the circumstances and I adjourned the trial until 10:00am the following day.

11. At 3:00pm, I conducted a closed court hearing with Mr Bhalla and Ms Ramsden present. At the conclusion of that hearing, I made the order releasing specified material under s 45(5) of the Crime Commission Act.

12. Given the terms of s 45(1) of the Act and the limited basis upon which the material was released it, is not possible for me to disclose the contents of the material for the purposes of these reasons. I propose to be as circumspect as possible whilst endeavouring to provide adequate reasons for the course I took.

13. At the time that I considered the material prior to the commencement of the trial, I knew that the trial was a “cut throat” defence as between Mr Sloan and Mr Parkes. I had been provided with a Crown case statement and some statements by Crown witnesses and some listening device material and the accused’s ERISP.

14. As I observed at [42] of my previous judgment, I was unable to be assisted by counsel for either the Crown or Mr Parkes as to the materiality of the material as neither of them knew the contents of the compelled material. I was required to envisage what possible issues may emerge at trial and weigh that up in the context of the discretionary factors I have referred to at [32]-[34] of my previous judgment. One of those relevant factors was that the particular compelled witness was not going to be called by the Crown as a witness and had not made a statement to police.

15. There was no foreshadowing that the accused would give evidence at his trial. Nor was I to know what evidence the accused would give. As he gave his evidence on Monday 18 March, I became aware that matters he was raising for the first time were relevant to the test of “necessity” in disclosing the material I had previously declined to disclose under s 45(5) of the Act.

16. When the Crown foreshadowed revisiting the topic, I had already formed the view that I may need to re-visit the application. As further evidence was given by the accused on the morning of Tuesday 19 March that realisation solidified and at 1:00pm I had reached a state of mind that, as I stated on the record at that time, “if I had known then what I know now I would have ordered the disclosure of the material”.

17. As Fagan J observed in R v Munshizada, Danishyar and Baines [2020] NSWSC 566 at [10], before dissemination is “required” in the interests of justice I must be satisfied that the interests of justice would be impeded or frustrated if I was not to disseminate the material. I was satisfied that the testimony would have a material bearing upon the trial. I was also concerned that I was aware of the contents of the material in circumstances where neither counsel for the Crown nor Mr Parkes were and that was an additional factor which militated in favour of disclosure.

18. A further factor I considered was the timing of the renewed application. As Fagan J observed in R v Munshizada, Danishyar and Baines at [24], a relevant factor when considering s 45(5) of the Act is whether dissemination of the material could “delay or disrupt” a trial. In that case, his Honour declined to order the release of that material because the application had been brought too close to the trial date. That is not this case. This application was initially brought many months prior to the allocated trial date. The renewed application was made promptly following the evidence given by the accused which cast the significance of the compelled testimony in a new light. Further, whereas in R v Munshizada, Danishyar and Baines there was a large amount of material to be considered, I was satisfied that only approximately 30 pages needed to be released in the present matter.

19. Finally, I considered the impact of the timing of the disclosure on the trial but was ultimately satisfied that it was a matter for the Crown what course it wished to take following release of the material.

20. I reached that level of satisfaction by 3:30pm yesterday. I have explained why in my confidential reasons attached to this judgment. I have also explained why at least one of the other discretionary features militating against disclosure had less force now than when I made the decision.

Decision last updated: 30 July 2024