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

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.
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.
On 19 February 2024, Mr Parkes’ trial commenced before me (and a jury of 15) on the sole count of murder.
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.
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.
There was no need…

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 (No 2)

Details

AGLC: R v Parkes (No 2) [2024] NSWSC 288
Case: [2024] NSWSC 288
Decision Date: 21 March 2024

CaseChat Overview and Summary

The case of R v Parkes (No 2) involved the accused, Parkes, who was facing charges related to a murder. The issue before the court was whether evidence given by a co-accused before the Crime Commission should be released to Parkes. The application to release this evidence was made pursuant to section 45(5) of the Crime Commission Act 2012 (NSW). The court had to determine whether the disclosure of the evidence was in the interests of justice, weighing the factors for and against the disclosure, and considering the two-stage approach to disclosure to allow the witness an opportunity to be heard.

The legal issues the court had to address were the relevance of the evidence to Parkes's defence, the potential prejudice to the co-accused who gave the evidence, and the broader public interest in the administration of justice. The court considered the purpose of section 45(5) of the Act, which is to ensure that justice is served by allowing access to relevant evidence, while also protecting the rights of individuals involved. The court had to balance these considerations in the context of the specific circumstances of the case.

The court found that the evidence was indeed relevant to Parkes's defence and that the factors in favour of disclosure outweighed those against it. The court acknowledged the potential prejudice to the co-accused but determined that the need for justice in the case took precedence. The court also considered the two-stage approach, ensuring that the co-accused had an opportunity to be heard and provide their perspective on the disclosure of the evidence. Ultimately, the court ruled in favour of the application to release the evidence, recognising the importance of ensuring that all relevant information is available to the defence.

The final orders of the court were that the evidence given by the co-accused before the Crime Commission be disclosed to Parkes. This decision was made in the interests of justice, with a careful consideration of the relevant factors and the statutory framework governing the disclosure of such evidence.

Orders