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10
Court of Criminal Appeal 17 February 2003

Regina v Parkes

[2003] NSWCCA 12

Also reported as (2003) 147 A Crim R 450
Fraud & dishonesty
CRIMINAL LAW EVIDENCE CLAIM OF RIGHT EXAMINE ON EVIDENCE THAT WAS STRUCK OUT EVIDENCE HEARSAY

Citation: Regina v Parkes [2003] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 17 February 2003
Judge(s): Ipp JA; Hulme J; Bell J

Background

The appellant was convicted in the District Court on seven counts of fraud under section 596(b) of the Corporations Law. The offences involved causing cheques to be drawn on nominated companies and directing the proceeds to third parties, with a total amount of $162,500 transferred across the transactions.

At trial, the appellant's defence was a claim of right: he argued he was entitled to the money as consulting fees for services rendered to one of the companies. The trial was presided over by Dodd DCJ in the District Court. The overall sentence imposed was five years imprisonment with a non-parole period of three years.

The appellant challenged both his convictions and his sentence before the Court of Criminal Appeal, raising multiple grounds relating to the conduct of the trial and several contested evidentiary rulings.

  • Whether the trial judge erred by striking out part of a Crown witness's evidence-in-chief (Jenkinson) that supported the appellant's claim of right, and by refusing to allow cross-examination on that evidence
  • Whether the struck-out evidence was admissible as a prior consistent statement at common law, or under sections 65 or 66 of the Evidence Act 1995
  • Whether the Crown's use of section 38 of the Evidence Act to cross-examine its own witness (Harris) amounted to an abuse of that provision or unfair forensic manipulation
  • Whether the trial judge erred by informing the appellant, in the jury's presence, of the effect of section 128 of the Evidence Act when granting a certificate under that section, potentially contravening section 132
  • Whether a folder of documents sent to the jury room in error gave rise to a miscarriage of justice
  • Whether the sentence was excessive
  • Whether the cumulative effect of all errors identified gave rise to a lost chance of acquittal, constituting a miscarriage of justice under section 6(1) of the Criminal Appeal Act 1912

Decision

Ground 1: Striking out Jenkinson's evidence

The Court of Criminal Appeal held, by majority, that the trial judge erred in striking out Jenkinson's testimony as irrelevant. The struck-out evidence related to a statement the appellant had made to Jenkinson about having performed consultancy work and expecting fees in return, which was directly relevant to the claim of right defence. However, the majority found the evidence was hearsay and was not admissible as a prior consistent statement at common law.

On the question of statutory admissibility, Ipp JA (Bell J agreeing) held that the evidence fell within section 66 of the Evidence Act 1995 because the representation was made when the events were fresh in the appellant's memory, and the appellant was "notionally available" to give evidence confirming the statement's truth. Section 65 did not apply for the same reason. Hulme J dissented, concluding the appellant was not truly "available" and that the evidence was therefore inadmissible, making the refusal to permit cross-examination on it no error. Despite the majority finding a technical error, all three judges agreed the evidence was not significant enough to have affected the outcome.

Ground 2: Crown's use of section 38 to cross-examine Harris

The Court found no error in the trial judge permitting the Crown to cross-examine its own witness Harris under section 38 after Harris gave evidence favourable to the appellant. The Crown had deliberately called Harris knowing he might give unfavourable evidence on some issues, and had chosen not to examine him in chief on three specific topics for that reason. The Court acknowledged this was a calculated forensic decision, but held it did not constitute an abuse of section 38. The Court also noted that while the trial judge made no explicit reference to section 192(2) of the Evidence Act (which lists factors relevant to granting leave), a failure to recite that section expressly is not an error of law, provided the judge conducts a proper inquiry into fairness.

Grounds 3, 4 and 5: Section 128 procedure, documents sent to jury, and sentence

The Court accepted that the trial judge's handling of the section 128 certificate, delivered in the jury's presence in a manner arguably inconsistent with section 132, was procedurally incorrect. However, no significant prejudice to the appellant resulted. The issue of documents sent to the jury room in error was similarly resolved against the appellant. On sentence, leave to appeal was refused. Taking all grounds together, the Court was not satisfied the cumulative effect of the errors identified gave rise to a miscarriage of justice or a lost chance of acquittal, particularly given the strength of the Crown case.

Orders Made

  • Appeal against convictions dismissed.
  • Application for leave to appeal against sentence dismissed.

Key Takeaways

  • A trial judge's incorrect characterisation of relevant evidence as "irrelevant" can constitute error, but that error will not result in a successful appeal unless it caused a miscarriage of justice or a genuine lost chance of acquittal.
  • Under section 66 of the Evidence Act 1995, a prior representation may be admissible as evidence of an asserted fact where the representation was made when the events were fresh in the maker's memory and the maker is "available" to give evidence, including cases where the maker could notionally be called by the defendant (per the majority).
  • The Crown's deliberate decision to call a potentially hostile witness and use section 38 to cross-examine that witness on unfavourable answers does not, without more, constitute an abuse of section 38 or unfair forensic manipulation.
  • A sentencing court or trial judge need not recite section 192(2) of the Evidence Act expressly when granting leave to cross-examine under section 38; what is required is a proper consideration of the fairness of the proposed cross-examination.
  • Procedural irregularities, including errors in how section 128 certificates are communicated in the presence of a jury, will not vitiate a conviction where no significant prejudice to the accused has been demonstrated.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 38, 65, 66, 108, 128, 132, 192(2)
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Corporations Law, s 596(b)

Cases
- Glennon v The Queen (1994) 179 CLR 1
- Graham v The Queen (1998) 195 CLR 606
- Mraz (1955) 93 CLR 493
- Nominal Defendant v Clements (1960) 104 CLR 476
- Stanoevski v The Queen (2001) 202 CLR 115
- R v Esho [2001] NSWCCA 415
- R v Fowler [2000] NSWCCA 142
- R v Hogan [2001] NSWCCA 292
- R v Nguyen [2002] NSWSC 59
- R v Reardon [2002] NSWCCA 203
- R v Van Le [2002] NSWCCA 186
- R v Kingswell (unreported, NSWCCA, 2 September 1998)
- R v Mansour (unreported, NSWSC, 19 November 1996)
- R v Milat (unreported, NSWSC, 23 April 1996)
- R v Pantoja (unreported, NSWCCA, 5 November 1998)