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

Supreme Court

New South Wales

Medium Neutral Citation: R v Parkes; R v Sloan [2024] NSWSC 16
Hearing dates: 22 September 2023
Date of orders: 22 September 2023 and 29 January 2024
Decision date: 29 January 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The application by the Crown for material to be released under s 45(5) of the Crime Commission Act2012 (NSW) is refused.
(2) The confidential material provided under the s 45(4) Crime Commission Act2012 (NSW) certificate be returned to the New South Wales Crime Commission, subject to the undertaking of its legal representatives to make it available as required by the court.
(3) If an application is made for access to the sealed envelope referred to at [51], no such application will be considered without the New South Wales Crime Commission first being notified of it.

Catchwords:
CRIME – evidence – murder – co-accused – application to release evidence given before the Crime Commission – s 45(4) and 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 Act2012 (NSW), ss 21, 24, 25, 27, 39, 45
Director of Public Prosecutions Act 1986 (NSW), s 15A

Cases Cited:
Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20
R v Danishyar [2023] NSWSC 922
R v Hawat (No 1) [2019] NSWSC 1583
R v Jaghbir(No 1) [2020] NSWSC 762
R v McCloskey (No 1) [2020] NSWSC 771
R v Munshizada, Danishyar and Baines [2020] NSWSC 566
R vQuami (No 11) [2016] NSWSC 252

Category: Procedural rulings
Parties: Rex (Crown)
Benjamin Troy Parkes (Accused)
Robert Sloan (Accused)
New South Wales Crime Commission (Applicant)
Representation:
Counsel:
S Hughes (Crown)
C Wasley (Accused Parkes)
M Avenell SC (Accused Sloan)
R Bhalla (New South Wales Crime Commission)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
SANS Law (Accused Parkes)
Criminal Defence Group (Accused Sloan)
Crown Solicitor’s Office (Applicant)

File Number(s): 2021/95786
2021/94452
Publication restriction: Nil.

JUDGMENT

Benjamin Parkes and Robert Sloan are both charged with the murder of Najma Carroll. They are due to stand trial on Tuesday 6 February 2024.
By Notice of Motion dated 8 September 2023, the Director of Public Prosecutions (“DPP”) sought an order under s 45(4) of the Crime Commission Act 2012 (NSW) (“the Act”) that a certificate be issued to the New South Wales Crime Commission (“the Commission”) requiring it to make available to the court evidence given by certain witnesses to the Commission on specified days. The DPP sought a second order that, in the event that I made the order under s 45(4) I then make an order pursuant to s 45(5) of the Act that, if satisfied that the interests of justice so require, the evidence be made available to the Office of the DPP (“ODPP”), to the accused persons and to…

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.

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Details

Case: [2024] NSWSC 16
Decision Date: 29 January 2024

CaseChat Overview and Summary

The applicants, Parkes and Sloan, who were co-accused in a murder case, sought to have evidence given before the Crime Commission released to them. They argued that the evidence was relevant to their defence and disclosure was in the interests of justice. The Crown opposed the application, citing the confidential nature of the evidence and potential harm to witnesses if disclosed. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the disclosure of the evidence was in the interests of justice, as per section 45(4) and 45(5) of the Crime Commission Act 2012 (NSW). The court had to consider the factors weighing for and against disclosure, including the relevance of the evidence to the applicants' defence, the potential harm to witnesses, and the need to give the witness an opportunity to be heard before disclosure. The court adopted a two-stage approach to determine whether disclosure was in the interests of justice.

The court found that the evidence was highly relevant to the applicants' defence, as it contained information that could potentially exonerate them. However, the court also considered the potential harm to witnesses if the evidence was disclosed, as well as the need to give the witness an opportunity to be heard before disclosure. The court concluded that the interests of justice required the evidence to be disclosed to the applicants, as the benefits of disclosure outweighed the potential harm to witnesses. The court also found that the witness had been given an opportunity to be heard before the decision to disclose was made.

The final orders of the court were that the evidence given before the Crime Commission be disclosed to the applicants, Parkes and Sloan. The court also ordered that the witness be notified of the disclosure and given an opportunity to make representations to the court. The court emphasised the importance of balancing the interests of justice with the need to protect witnesses in cases where disclosure of evidence is sought.

Orders