R v White (No 2)
[2021] ACTSC 302
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v White (No 2) |
Citation: | [2021] ACTSC 302 |
Hearing Date: | 24 November 2021 |
DecisionDate: | 26 November 2021 |
Before: | Elkaim ACJ |
Decision: | See [25] |
Catchwords: | CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application to adduce evidence – perjury – telephone calls four years after events – relevance – prejudice |
Legislation Cited: | Evidence Act 2011 (ACT) ss 135, 136, 147, 192A |
Cases Cited: | R v White [2021] ACTSC 126 |
Parties: | The Queen ( Crown) Scott John White ( Accused) |
Representation: | Counsel A Williamson ( Crown) J Purnell SC ( Accused) |
| Solicitors ACT DPP ( Crown) Boxall Legal ( Accused) | |
File Number: | SCC 188 of 2020 |
ELKAIM ACJ:
The accused’s trial is due to commence on 29 November 2021 before a judge and jury. On 24 November 2021 the Crown made an oral application, pursuant to s 192A of the Evidence Act 2011 (ACT), for leave to adduce certain evidence at the forthcoming trial. The application was opposed by the accused.
The background to the matter, including a chronology, is included in the decision I gave on a tendency application on 25 June 2021 (R v White [2021] ACTSC 126).
By way of summary the accused is alleged to have committed two acts of perjury during evidence that he gave before a magistrate on 23 July 2015. As I noted in my earlier decision, the first act of perjury was described 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” when he had actually discussed parts of his statement with Ms Parkinson.
The second act of perjury concerns the use of a condom in sexual relations that had occurred between the accused and Ms Parkinson. The transcript of the court proceedings indicate that the accused said that condoms were not used during the relationship. The Crown alleges this assertion was false.
The evidence that is the subject of this application is made up of five telephone calls between the accused and Ms Parkinson which took place, respectively, on 18, 19, 20, 21 and 23 November 2019. It is immediately apparent that these calls took place more than four years after the alleged acts of perjury.
It is also relevant that the telephone calls occurred while Ms Parkinson was in custody. This is why each call commences with an automated message which states, inter alia, that “this call may be monitored and recorded”.
The purpose, or relevance, of the calls is said to relate to the Crown’s anticipation of a defence based on the allegedly false statements having been made without the necessary intent or absent any recklessness on the accused’s part. The ingredients for a charge of perjury, taken from the Crown Case Statement, are:
(i)the accused made a sworn statement in a legal proceeding;
(ii)the accused intended to make the sworn statement in a legal proceeding;
(iii)the statement is false; and
(iv)the accused is reckless about whether the statement is false.
The Crown said that the evidence that the accused made a sworn statement and that it was false was easily established. Therefore, said the Crown, if the accused was persisting in his pleas of ‘Not Guilty’, the Crown was entitled to anticipate that issues of his intention or recklessness might be pursued.
The Crown said that the content of the phone calls was relevant in two ways:
(a)In the telephone call on 21 November 2019 there is a direct reference by the accused to the use of condoms. This reference contradicts his evidence before the magistrate.
(b)The balance of the telephone calls display a familiarity with Ms Parkinson’s legal travails, such that it would be most unlikely that anything said by the accused in his evidence could have been said other than intentionally or recklessly.
The accused submitted that:
(a)The evidence was not relevant.
(b)If it was relevant, it should be excluded or limited under any one or more of ss 135, 136 and 137 of the Evidence Act.
In support of his submissions, the accused said:
(a)While the accused may have known the calls were being recorded he was not aware that their content might be used against him.
(b)The calls were replete with unseemly language.
(c)The subject of the calls was very wide-ranging and discussed subjects which, while perhaps indirectly related to the proceedings against Ms Parkinson, covered issues, such as the possession of a capsicum spray can and personal attacks on the accused, which would give rise to unfair prejudice against the accused. Part of this submission was that the calls took place a very long time after the alleged acts of perjury.
I think the matters raised in (a) and (b) of the preceding paragraph are without substance. The accused was on the clearest of notice that the calls were being recorded and there is no suggestion that the recordings might be limited only against the interests of one of the participants.
Regrettably, language of the type found in the telephone calls is no longer seen as an abnormal constituent of a private phone call, or even part of a discussion at large. Juries are frequently asked to listen to references to the sexual act disguised as adjectives or as a verb of assistance in encouraging a person’s departure.
There is substance in the third point. However before dealing with that substance, it is necessary to decide if the evidence is relevant at all.
The conversation about the condom is definitely relevant. It plainly contradicts the evidence given before the magistrate.
As to the balance of the conversations the Crown submitted that, considered alone, they would barely be relevant, if relevant at all. However taken as part of a circumstantial evidence approach to the offences, that is together with other evidence about the accused’s knowledge of Ms Parkinson’s legal affairs, they assumed a relevance to the question of the accused’s state of mind in giving his answers in court. If he regularly spoke to Ms Parkinson about the legal matters, said the Crown, “then the proposition that his false evidence during his evidence was accidental or inadvertent becomes inherently implausible” (Crown written submissions at [18]).
The Crown accepted that, other than in relation to the condom, the conversations contained no admissions or direct evidence of the accused having been untruthful in 2015.
At the request of Senior Counsel for the accused I read the transcript of the conversations closely. They certainly have a broad compass. Besides mundane and medical matters they refer to:
(a)The suggestion that Ms Parkinson had been sexually assaulted by her former partner.
(b)The possibility that the prosecution of Ms Parkinson could have been defeated.
(c)Fabrication of evidence by the police.
(d)Observations made by Refshauge J in dealing with the appeal from Ms Parkinson’s first hearing in the ACT Magistrates Court.
(e)The leaking of information to the media.
(f)The location of a can of capsicum spray in a handbag owned by Ms Parkinson but in the possession of the accused.
(g)Avoiding the service of a summons.
(h)The accused’s service in a surveillance unit.
(i)Preparation for legal hearings including fees and medical reports.
(j)Sexual escapades between the accused and Ms Parkinson.
(k)The unlawful use of DNA and fingerprints.
The request to read the transcripts was well made. Having done so I have come to the view that, other than in relation to the use of condoms, they are not relevant. They do talk about Ms Parkinson’s legal affairs, but not in the detail to support a submission that they create an inference to defeat an argument that the acts of perjury had been committed without intention or recklessness.
Even considered with other evidence I do not see that they add any detail or overall perception that the accused knew he was lying in 2015 or was reckless as to that fact. The references to the legal proceedings are so intermittent or interspersed with other subjects that they do not paint the picture of involvement that the Crown seeks to rely upon.
If I had found some relevance, and I note the bar is not high, I would have rejected the evidence under s 135 of the Evidence Act as being all of unfairly prejudicial, confusing and an undue waste of time.
I do not think the Crown’s offer to tell the jury that the capsicum spray is, in effect, a ‘non-issue’ takes the matter any further.
Returning to the telephone call on 21 November 2019 about the condom, I have already said I think it is relevant. I think its relevance is so fundamental that it defeats any suggestion of unfair prejudice that might be seen to arise. It is direct evidence relating to the alleged perjury.
In order to give the conversation proper context I think it should be allowed from its commencement up to the accused saying “Know what I mean”. This is the whole of the transcript on page 23.
I make the following orders:
(1)The Crown is permitted to adduce as evidence the telephone conversation between the accused and Ms Parkinson that was recorded on 21 November 2019 from the commencement of the conversation to the accused stating “Know what I mean…”
(2)The Crown is not permitted adduce as evidence the telephone conversations between the accused and Ms Parkinson that occurred 18, 19, 20, 21 and 23 November 2019 other than as described in Order 1, above.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim. Associate: Date: 26 November 2021 |
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