R v White

[2021] ACTSC 126

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v White

Citation:

[2021] ACTSC 126

Hearing Date:

25 June 2021

DecisionDate:

25 June 2021

Before:

Elkaim J

Decision:

See [19]

Catchwords:

CRIMINAL LAW – EVIDENCE – Pre-Trial Application – tendency – derived from normal relations between partners

Legislation Cited:

Evidence Act 2011 (ACT), ss 97 and 101

Parties:

The Queen (Crown)

Scott White (Offender)

Representation:

Counsel

A Williamson (Crown)

J Purnell SC (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Boxall Legal (Offender)

File Number:

SCC of 188 2020

ELKAIM J:

1. These reasons relate to a Crown application filed on 17 June 2021. The respondent to the application, Mr White, is due to face trial before a judge and jury on 28 June 2021.

1. The accused is charged with two counts of perjury arising from evidence he gave in court in July 2015 in the course of the trial of a Ms Sarah-Jane Parkinson. Ms Parkinson was on trial for a number of offences arising from a faked sexual assault upon her by a Mr Daniel Jones. Mr Jones, a prison officer, was her former partner.

1. A brief chronology of events leading up to the alleged acts of perjury is as follows:

(a)In December 2013 Ms Parkinson gave police a statement alleging false accusations against Mr Jones. He was arrested, but later granted bail.

(b)In March 2014 Ms Parkinson made further allegations against Mr Jones. As a result Mr Jones was arrested and bail was refused.

(c)Some time after March 2014 the police concluded that the allegations against Mr Jones were untrue.

(d)In July 2015, in the Magistrates Court, Mr Parkinson came to trial for offences arising from the false allegations. The respondent gave evidence at this trial. His evidence is the source of the two allegations of perjury. Ms Parkinson was convicted. She appealed.

(e)In August 2017 Ms Parkinson’s appeal succeeded, her conviction was set aside and her matter was remitted for a fresh hearing.

(f)In November 2018 the second trial of Ms Parkinson commenced but she pleaded guilty in the course of the hearing.

(g)The respondent was arrested and charged with the two counts of perjury.

1. The application seeks leave of the court, pursuant to s 97 of the Evidence Act 2011 (ACT) to adduce tendency evidence. This section requires reasonable notice of the application to have been given to the accused and secondly, for the court to think that the evidence will have “significant probative value”.

1. In addition the leave of the court is subject to s 101 of the above Act. It says that leave should not be given under s 97 “unless the probative value of the evidence outweighs any prejudicial effect it may have on the defendant”.

1. The application is supported by an affidavit of Ms Natasha Purvis, affirmed on 22 June 2021. No objection was taken to the affidavit.

1. The accused does not challenge the notice requirement. But he does say that leave should not be granted.

1. The application is limited to the first of the two alleged acts of perjury. This was summarised by the Crown as the accused giving “evidence that he had not discussed with Ms Parkinson the evidence he would give in the matter or what would go into his statement to police” whereas he had in fact discussed elements of his statement with Ms Parkinson.

1. The notice of intention to adduce tendency evidence is dated 16 June 2021. It says that the Crown wishes to adduce evidence to show that the accused had a tendency to act in one or more of four particular ways and that he had a tendency to have a particular state of mind.

1. The four ways in which the tendency is said to manifest are:

(a)To discuss the detail of the evidence of legal proceedings concerning Sarah-Jane Parkinson with her;

(b)To discuss the detail of the evidence of legal proceedings concerning Sarah-Jane Parkinson with others;

(c)To discuss the detail of the evidence of legal proceedings concerning the respondent and Sarah-Jane Parkinson;

(d)To involve himself in discussions and preparation in legal matters concerning the investigation of the complaint regarding Daniel Jones and the prosecutions that have resulted.

1. The state of mind which the accused is alleged to have had a tendency is: to have extensive knowledge of evidentiary matters involving the investigation of the complainant regarding Daniel Jones and the prosecutions that have resulted.

1. The Crown provided written submissions which, in addition to addressing matters specific to this case, also provided a general background and statement of principles to the law regarding tendency evidence. I agree entirely with the Crown’s description of the principles.

1. Turning to this case the Crown said that establishment of the falsity of the evidence was not the real subject of the tendency application. The Crown’s concern related to establishing that the accused was at least reckless about whether or not the statements were false.

1. In order to achieve this purpose the Crown said it would rely on inferential reasoning on the part of the jury which would be enhanced if the jury was able to view the evidence as tendency evidence. Perhaps put more succinctly the Crown said that its application depended upon my acceptance of the reasoning set out in the following two paragraphs of its written submissions:

38.A jury, through the application of common sense and life experience, would be able to inferentially reason that if it is accepted that the accused discussed the detail of Ms Parkinson's case proximate to her hearing, as well as afterwards, and attended at least one of her legal conferences with her solicitor, this level of discussion and investment in the matter would suggest that it is highly likely that he spoke with Ms Parkinson regularly about her evidence, most likely beyond what was captured in text messages at the time. If it is accepted that these matters were routinely discussed, then one would think that the questions asked at Ms Parkinson's hearing would have given the accused pause for thought, and he would have appreciated the significant risk (i.e. he was reckless) that it would be incorrect to make the blanket denial that he did.

39.It would be one thing for the accused to forget or be confused about whether he discussed his evidence if it were to be accepted that any such discussion might have been occasional or a 'one off'. But if it were accepted that the accused regularly spoke about the matter with Ms Parkinson and the others, then the proposition that his false evidence during his evidence was accidental or inadvertent becomes inherently implausible.

1. It is implicit in the Crown’s argument that the degree of involvement of the respondent in the charges and trial of Ms Parkinson was to such an extent that his statements in Court could only have been made in the knowledge that they were false, or certainly only made recklessly.

1. The difficulty I have with this reasoning, and it is the point of opposition highlighted by the respondent, is that there is nothing unusual about a person (perhaps in particular a police officer) having a deep interest in the legal affairs (again perhaps in particular criminal allegations) of that person’s partner. I note here that the relationship between the respondent and Ms Parkinson was a serious relationship which matured, in October 2017, into marriage.

1. In short, I do not see that the incidents relied upon to establish a tendency do any work to that effect at all. The attitude of the respondent to Ms Parkinson’s legal affairs is entirely normal. Once the matters became routinely discussed, as no doubt they would have been, the respondent would, it follows, “have appreciated the significant risk (i.e. he was reckless) that it would be incorrect to make the blanket denial that he did”. This reasoning is not dependent upon any tendency. It is plainly a matter of comparison between statements made (by text or otherwise) compared to the untruths (if that be the case) uttered in court.

1. In summary I am not of the view that the Crown’s intent is validly characterised through a reliance upon tendency evidence. I do not think the evidence sought to be adduced by the Crown is tendency evidence at all.

1. Accordingly the application filed on 17 June 2021 is dismissed.

I certify that the preceding nineteen [19] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 25 June 2021