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

1. 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.

2. 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 their legal representatives.

3. The background to the motion is that the Commission had earlier served disclosure certificates on the ODPP in relation to this trial pertaining to material held by the Commission in relation to Ms Carroll’s murder. The material is disclosable under s 142 of the Criminal Procedure Act 1986 but subject to a non publication direction under s 45(1) of the Act.

4. The motion came before me for hearing on 22 September 2023. On that day, I made an order under s 45(4) of the Act and indicated that I would provide my reasons for doing so at the same time as I published my reasons on the s 45(5) application. Whilst I was considering whether to make an order under s 45(5) of the Act, one of the two accused, Mr Sloan, made application for a separate trial. A considerable amount of material was filed in relation to that separate trial application. I subsequently indicated to the parties that I proposed to consider that material on both applications and deliver judgment on both applications on 29 January 2024.

5. On 23 January 2024, Mr Sloan communicated to the court his intention to plead guilty to the charge of murder. That obviated the need for me to publish my judgment on the separate trial application.

6. Having considered the application by the DPP, I do not propose to make an order under s 45(5) of the Act. What follows are my reasons for making the order under s 45(4) on 22 September 2023 but declining to make an order under s 45(5) of the Act. As I will explain below, I have provided confidential reasons addressing the subject matter of the relevant material as a confidential annexure to this judgment.

The hearing of the motion

7. The motion was listed for hearing on 19 September 2023 but on 18 September 2023 it had to be re-listed due to a major flooding event affecting the Law Courts Building. The motion was subsequently heard on 22 September 2023. Mr Sean Hughes appeared as Crown Prosecutor (hereinafter the Crown), Mr Rob Bhalla appeared for the Crime Commission, Ms Madeline Avenell SC appeared for Mr Sloan and Ms Claire Wasley appeared for Mr Parkes. The Crown relied on the affidavit of Raffi Bianchino affirmed on 7 September 2023 and a detailed Crown Case Statement. Written submissions were filed on behalf of the Crime Commission and the ODPP and short oral submissions made.

8. Following the issuing of the Certificate under s 45(4) of the Act, the confidential material was subsequently provided to the court on 25 September. In addition, and with the consent of the parties, some further material to assist in understanding the Crown case was provided to my chambers by the Crown on 31 October 2023. I have itemised that material in my confidential reasons.

9. On or about 1 December 2023, I was provided with a folder of witness statements, Mr Parkes’ ERISP and some intercept transcripts in relation to the separate trial application. As stated above, I have read that material in connection with this application.

10. I was further assisted by oral submissions from Mr Bhalla in a closed court mention on 4 December 2023. That mention came about after I read the above material and realised that I needed answers to some discrete questions in order to understand the relevant material. I arranged for my Associate to contact the parties to ascertain whether any of them opposed Mr Bhalla attending court for a closed court mention so that I could ask some questions in the absence of the other parties. Although this was an unusual step, there was precedent for it: Hamill J took a similar approach in R v Quami (No 11) [2016] NSWSC 211 (see at [12]). None of the parties objected to that course and I was assisted by Mr Bhalla on that date.

The Crown case

11. The Crown case statement is very detailed and I have also read a number of statements from the brief of evidence. I do not consider it necessary to recount the Crown case in any detail but briefly, it can be outlined as follows.

12. The Crown case is that both accused knew the deceased for about three weeks before her death as they were all residing at the same hotel in Casula and were all drug users. The two accused were also involved in the sale of prohibited drugs. Mr Parkes was involved first then invited Mr Sloan to sell for him.

13. At the time of her death, Ms Carroll had recently provided $8,000 to Mr Parkes to be used in his drug dealing business (Mr Parkes claims he then gave it to Mr Sloan, but nothing turns on that for the purpose of this application). The Crown case is that the two accused subsequently agreed to kill the deceased because they did not wish to pay her back and they had concerns she would go to police.

14. The Crown case is that she was killed in remote bushland near Menai on or about 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.

15. In addition to the evidence of motive, there is a significant body of circumstantial evidence capable of establishing beyond reasonable doubt that two days before her death the two accused moved the deceased from the hotel where she had been staying and took her to stay at the home of Mr Parkes’ upline supplier. They is also evidence that both men then cleaned out her room, that they were the last two people to see Ms Carroll alive, that they were both present in the bushland in Menai at the time she was killed, that they both returned to the hotel where they were living early that morning in Mr Parkes’ muddy vehicle and that Mr Parkes acted to cover their steps that day by causing their clothes to be washed, the muddy vehicle to be washed and some other items disposed of.

16. In addition, there is evidence of what the two men said to other people they knew about the murder both before and after they were arrested.

17. In general terms, Mr Parkes spoke to his girlfriend on the morning after the murder and emotionally gave her an exculpatory account of being present for the murder of Mr Carroll by the applicant. His accounts to others thereafter are somewhat inconsistent. For example, to his upline supplier he suggested that they both killed the deceased to protect him. Over the next month or so, Mr Parkes became increasingly antagonistic to Mr Sloan and placed all the blame for the murder on him, describing himself as a witness to the acts of Mr Sloan. When he was arrested on an unrelated charge, Mr Parkes spoke to his cellmate about the murder. Unbeknownst to Mr Parkes, his cellmate contacted police and a listening device was placed in the cell. Through a combination of those recordings and the evidence of the cellmate Mr Parkes is heard to fabricate an alibi. By the time he participated in his ERISP – in which he tells police he was a witness to the murder by the applicant - he was recorded admitting on his return that he twisted the evidence and that the police knew he was lying.

18. Mr Parkes’ case at trial will presumably be that advanced in his ERISP; that although he was present at the scene, he played no part in the murder. The Crown seeks to challenge that defence case by relying on the inconsistencies between what Mr Parkes told police in his ERISP and other evidence in the Crown case. The Crown case is that Mr Parkes took the pre-emptive move of spreading a false account to protect himself and it can disprove this version of events.

19. In assessing the material produced by the Commission, I have had regard both to how the Crown puts its case and Mr Parkes’ anticipated defence.

The Crime Commission Act 2012 (NSW)

20. As I observed in R v Hawat (No 1) [2019] NSWSC 1583 at [25] and [26], the Commission has investigative powers not available to regular New South Wales police officers. By virtue of ss 24, 25, 27 and 39 of the Act, the Commissioner can summon a person secretly, examine them in circumstances where their right to silence has been expressly abrogated and prosecute them should they give misleading information to the Commission. Such hearings are held in private although an order can be made that police officers be permitted to view the proceedings from a separate room (s 21).

21. In exchange for the abrogation of a witness’s right to silence, the Act provides that the Commission cannot use any material given by such a witness in proceedings against them (see s 39) and a non-publication order is usually made over the compelled testimony. This is something that is explained to each witness before an examination commences.

22. Section 45 of the Act is headed “Publication or disclosure of evidence” and is in these terms:

45   Publication or disclosure of evidence

(1)  The Commission may direct that:

(a)  any evidence given before it, or

(b)  the contents of any document, or a description of any thing, produced to the Commission or seized under a search warrant, or

(c)  any information that might enable a person who has given or may be about to give evidence before the Commission to be identified or located, or

(d)  the fact that any person has given or may be about to give evidence at a hearing,

must not be published, or must not be published except in such manner, and to such persons, as the Commission specifies.

(2)  The Commission must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been or may be charged with an offence.

(3)  A person must not make a publication in contravention of a direction given under this section.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(4)  If:

(a)  a person has been charged with an offence before a court of the State, and

(b)  the court considers that it may be desirable in the interests of justice that particular evidence given before the Commission in relation to which the Commission has given a direction under this section be made available to the person or to a legal practitioner representing the person and to the prosecutor,

the court may give to the Commission a certificate to that effect and, if the court does so, the Commission must make the evidence available to the court.

(5)  If:

(a)  the Commission makes evidence available to a court in accordance with subsection (4), and

(b)  the court, after examining the evidence, is satisfied that the interests of justice so require,

the court may make the evidence available to the person charged with the offence concerned or to an Australian legal practitioner representing the person and to the prosecutor.

(6) This section has effect subject to section 45A.

(7)  In this section:

publish includes:

(a)  disclose to a person, and

(b)  in relation to evidence or a record of evidence—disclose any information directly contained in or implied from that evidence or record, except where the information could be obtained elsewhere.

23. As the terms of s 45 make clear, despite the fact that a non-publication order is usually made at the time that a witness gives evidence before the Commission, this Court can nonetheless order that the material be disclosed in certain specified circumstances concerning the “interests of justice”. Under s 45 of the Act, there are two stages to the potential disclosure of this material.

24. First, under s 45(4) of the Act, the court can provide the Commission with a certificate, if it considers that it “may be desirable in the interests of justice” that the particular evidence be provided to the court. That is the course I took on 22 September 2023.

25. Secondly, if such a certificate is granted, s 45(5) of the Act requires the court to examine all of the material and then consider whether it is “satisfied that the interests of justice” require that it be made available to, in this case, the ODPP and the accused.

26. Section 45 of the Act was enacted on 28 November 2014 following the decision in Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20. Its operation was first considered by Hamill J in R v Quami (No 11). It has since been considered, inter alia, by me in R v Hawat (No 1) [2019] NSWSC 1583 and R v Danishyar [2023] NSWSC 922, by Davies J in R v Jaghbir (No 1) [2020] NSWSC 762 and R v McCloskey (No 1) [2020] NSWSC 771 and by Fagan J in R v Munshizada, Danishyar and Baines [2020] NSWSC 566.

27. The phrase “the interests of justice” appears in both tests but in different statutory contexts. As Hamill J observed in R v Quami (No 11) at [19]:

“The expression ‘interests of justice’ is a phrase of very wide import which allows a wide number of considerations to be taken into account. In O'Hare v DPP [2000] NSWSC 430 in which O'Keefe J said at [47] - [49]:

‘…the phrase in the “interests of justice”, has been construed in many contexts. Furthermore, it too is a phrase of wide impact which comprehends many factors. It is therefore undesirable, possibly impossible, to define it.

…

Since there will be a myriad of factual circumstances to which the phrase may be applied it is undesirable to limit by reference to a rigid definition what the interests of justice are.’”

28. Having regard to the statutory language, the first test is clearly a less stringent test than the second one; it simply requires a satisfaction that it “may be desirable in the interests of justice” that the particular material be provided to the court. Under the second test production is not to be ordered unless “the interests of justice require” its production. Although the first test is to be considered without access to the relevant material, as I observed in R v Hawat (No 1) at [49] and [97], the second stage requires the court to examine the material and form a preliminary view as to the probative value of the material and whether any relevant factors militate in favour of disclosure or non-disclosure.

29. Fagan J observed the following in regards to the test under s 45(5) in R v Munshizada, Danishyar and Baines at [10]:

“In my view, before s 45(5) will be engaged, the Court must be satisfied that dissemination is ‘required’ in the sense that the interests of justice would otherwise be impeded or frustrated. It would not be sufficient that, upon reading the material, the Court should be left with no more than speculation that either the Crown or the defence could find it useful. A determination that the Commission’s evidence should be disseminated to the parties would depend upon the Court finding within it something that would have a material bearing upon the trial – and also that the Court should be satisfied that dissemination would not run counter to collateral aspects of the interests of justice, concerning persons who are not involved in the trial, such as the matters considered in the following paragraphs.”

30. Turning to the relevant factors militating for and against an order being made under s 45(5), In R v Quami (No 11), Hamill J suggested a non-exhaustive catalogue of matters which might arise for consideration when assessing what the interests of justice require in an application of this nature: at [22].

31. The starting point is that the evidence was given in private and is subject to a direction that it must not be published. A witness who has been informed that the material cannot be published will have a reasonable expectation that the evidence will remain private and will not be published.^: R v Quami (No 11) at [23]; R v Hawat (No 1) at [88]; R v Munshizada, Danishyar and Baines at [8].

32. I have considered this application on the basis that the following factors would militate in favour of releasing the material in the interests of justice, although none of them are determinative:

1. If the person examined is a witness to be called by the Crown in the trial: R v Hawat (No 1) at [90];

2. If the person examined could potentially give important evidence or provide important information;

3. If one or more of the answers given to the Commission is patently inconsistent with what that witness is expected to give evidence about at trial: R v Quami (No 11) at [24]; R v Hawat (No 1) at [90];

4. If the person examined is not expected to be a witness at the trial but their evidence may contain important exculpatory information or give rise to theories of the case that may not be readily apparent to the defence or the prosecution: R v Quami (No 11) at [25]; R v Hawat (No 1) at [90(3)].

33. I am satisfied that the following factors militate against releasing the material in the interests of justice but, again, they are not determinative:

1. If the person examined may be placed in physical danger, may be seen as an informant, or has provided information inculpating known or suspected criminals: R v Quami (No 11) at [26]; R v Hawat (No 1) at [91(1)];

2. If the witness has expressed fear during their Commission testimony: R v Quami (No 11) at [26]; R v Hawat (No 1) at [91(1)];

3. If the witness refused to answer questions and was prosecuted under s 25(2) of the Act: R v Hawat (No 1) at [91(2)];

4. If the answers given to the Commission are fanciful or lack credit. It is to be accepted that such an assessment must be made with caution when based on the transcript alone. R v Quami (No 11) at [28]; R v Hawat (No 1) at [91(4)];

1. If the ODPP application is not made in a timely manner and the release would lead to the trial being vacated: R v Hawat (No 1) at [91(5); R v McCloskey (No 1) [2020] NSWSC 771 at [23].

34. The following matters will also be considered by the court:

1. If the witness was compelled to give evidence before the Commission despite objecting. Again, while this may contribute to reluctance to release the material, it is not determinative: R v Quami (No 11) at [27].

2. If the witness consents to the release of the material. But this may depend upon the views of the Commission who are aware of other evidence: R v Quami (No 11) at [30]; R v Hawat (No 1) at [90(4)].

35. If the court determines that the relevant factors militate in favour of disclosure, it is then appropriate to consider and determine any public interest immunity claim made in relation to the transcripts by the Commission. Although the Act makes no express reference to the right of any affected witness to be heard on a s 45(5) application, Hamill J considered this question in R v Quami (No 11) at [30]-[31] when he observed the following:

“Another relevant factor is whether a witness who gave evidence before the Crime Commission consents to the release of their evidence. Such consent is not determinative as the Crime Commission may oppose the release of the material for reasons beyond the knowledge or care of the witness. Similarly, an objection by the witness to the release of the evidence is a relevant consideration but not a determinative one.

The factor referred to in the preceding paragraph raises a practical consideration when an application under s 45(4) and s 45(5) is brought. A witness whose evidence is subject to such an application has a right to be heard, at least in opposition to an order under s 45(5). This raises practical problems because the accused may not be aware of the identities of witnesses who gave evidence before the Crime Commission. As I suggested in argument, one possible approach is for the Judge to consider the application on a preliminary or provisional basis and, if a view is formed that the material may be released, call on submissions from the witness.”

36. Fagan J adopted a similar approach in R v Munshizada, Danishyar and Baines when he observed the following at [11]:

“‘[T]he interests of justice’ is a broad concept, as has been observed in other contexts such as those referred to by Hamill J in R v Quami (No 11) at [19]-[21]. Having regard to the potential for examinees to be affected by a decision under s 45(5), the interests of justice must be taken here to embrace not only the fairness of the trial but also the need to protect examinees from physical threat and the reasonable expectations of examinees that non-publication directions will be enforced.”

Crown submissions

37. The Crown noted that the test under s 45(4) is a relatively undemanding and it was appropriate to make the order so that the Crown could comply with its disclosure obligations. It was further submitted that the amount of information that could be provided to the court in relation to any s 45(5) order was limited given the non-publication order. Despite this, the relevant factors in such a determination (referred to above at [32]-[33]) were highlighted in the abstract.

38. The Commission took a neutral position with respect to whether or not a certificate should be issued under s 45(4) of the Act and with respect to whether or not the evidence ought to be released if the test in s 45(5) of the Act is satisfied. The accused also took a neutral position on the application.

39. After considering these submissions and the Crown Case Statement, I indicated to the parties in court on 22 September 2023 that I was satisfied that the evidence should be made available to me under s 45(4) of the Act. I indicated at the time that I would provide reasons for making that order when I gave my reasons in relation to the s 45(5) application. What follows are my reasons for taking this approach.

Reasons for making the s 45(4) order on 22 September 2023

40. The test in s 45(4) is not a stringent one. The court will issue a certificate if satisfied that it may be desirable in the interests of justice that the requested material be made available to, in this case, the ODPP who makes the application and the accused.

41. I am satisfied that the fact that there was no objection to the material being produced to the court under s 45(4) is a relevant consideration.

42. Regrettably, given the nature of the application, only limited assistance could be given to the court in determining whether the s 45(4) test was met. Neither the ODPP nor the accused knows what is in the material. Although the Commission knows what is in the material, none of its contents could be disclosed in submissions as that would breach the non-publication orders made at the time of the examinations.

43. It seems to me that if the Commission gives notice to the ODPP that there may be relevant material and there is no objection to that material being produced to the court in order for the court to determine whether it should be released, that will ordinarily be sufficient to meet the low test in s 45(4) of the Act.

44. It is not uncommon for applications such as these to be made close to the trial date. That occurred in R v Hawat(No 1) and the accused opposed the s 45(4) application on the basis of the potential delay to the trial date should the material subsequently be made available to the parties under s 45(5). In R v Hawat (No 1), I was satisfied that the prospect of delay was a discretionary factor more pertinent at the s 45(5) stage of the inquiry. I note that a similar approach was taken by Davies J in R v McCloskey (No 1) [2020] NSWSC 771. As stated above, that is not this case.

45. It was for these reasons that I was satisfied on 22 September 2023 that the statutory test in s 45(4) of the Act was met.

Consideration: Section 45(5) application

46. Given that the parties were not aware of the contents of the material, only limited submissions could be made as to whether the s 45(5) test was met. As stated above, the Commission took a neutral position, and the Crown made it clear that it was mainly seeking to discharge itself of its disclosure requirements under s 15A of the Director of Public Prosecutions Act 1986 (NSW).

47. As stated above, subsequent to the hearing and with the consent of all of the parties, I was provided with further limited information as to whether or not the persons examined by the Commission were or were not expected to be witnesses at the trial. That material was of assistance, and I have addressed it in the confidential annexure to this judgment.

48. As I observed in R v Danishyar [2023] NSWSC 922 at [47], the court’s statutory role in such applications is a difficult one because, unlike the Crown and the accused, the court does not have a copy of the full brief of evidence, nor should it. But this raises the practical difficulty that the person examined by the Commission may not be expressly referred to in the Crown Case Statement but may be referred to in the evidence of witnesses to be called at the trial or, for example, surveillance device material or intercepted telephone calls. Any judge considering an application under s 45(5) of the Act only has a limited knowledge of what can often be a complex brief.

49. In considering the present application, I had the advantage of considering a significant amount of material from the Crown brief which was tendered to the court in the separate trial application. I was required to have a detailed knowledge of the cases against both accused in order to consider that application (despite the fact that I was not ultimately required to rule on it). Having the benefit of that material has assisted me in ascertaining what the interests of justice require under s 45(5).

50. I have had regard to the observation of Fagan J in R v Munshizada, Danishyar and Baines at [10] that a determination that the Commission’s evidence should be disseminated to the parties would depend upon the court finding within it something that would have a material bearing upon the trial. Applying that test and having regard to the relevant factors militating for and against production of the material, I propose to refuse this application.

51. I have set out brief confidential reasons detailing the content of the compelled testimony in a separate and unpublished annexure to this judgment. I took the same approach in R v Hawat (No 1) and Hamill J took the same approach in R vQuami (No 11) at [7]. I propose to order that this annexure be placed in a sealed envelope marked “Not to be opened except by order of a judge of this Court or a judge of a higher Court” and kept with the file copy of this judgment.

52. Accordingly, I make the following orders:

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] above, no such application will be considered without the New South Wales Crime Commission first being notified of it.

*******

Decision last updated: 30 July 2024