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Supreme Court 12 July 2007

PARKER

[2007] NSWSC 753

Homicide
CRIMINAL LAW APPEAL TO CCA REFUSED EARLIER APPN UNDER S474D DISMISSED WHETHER DNA TESTS NOW AVAILABLE

Citation: [2007] NSWSC 753
Court: Supreme Court of New South Wales, Common Law Division, Criminal List
Date: 12 July 2007
Judge(s): Kirby J

Background

The applicant, Michael John Parker, is a man with intellectual disability who was the subject of a Special Hearing in 1988 after being found unfit to stand trial on a charge of murder. The jury returned a verdict that, on the limited evidence available, he was guilty of manslaughter in connection with the death of a 13-year-old girl in Albury in November 1983. He was sentenced to seven years imprisonment.

The Crown case rested almost entirely on confessional statements Parker made to police in the presence of a qualified psychologist, who was his Training Services Manager at the Sheltered Workshop where he was employed. An appeal to the Court of Criminal Appeal was dismissed in 1989, and a previous application for an inquiry under s474D of the Crimes Act 1900 was dismissed by Hunt CJ at CL in 1994.

The current application arose from documents received by the Criminal Registry in May 2006, including an unsigned handwritten letter apparently written by the applicant's mother and a signed statement from a person named T Charlton. These were treated as an application made on the applicant's behalf, and Kirby J considered whether the matters raised gave rise to a doubt about the conviction sufficient to justify ordering an inquiry.

  • Whether the grounds raised in the application had already been determined at trial, on appeal, or in the reasons for dismissing the previous s474D application, thereby precluding reconsideration under s474E(3)(a)(ii) of the Crimes Act 1900
  • Whether DNA testing, now potentially available, could produce evidence giving rise to a doubt as to guilt
  • Whether any of the matters raised, individually or collectively, created a question of doubt as to the applicant's guilt sufficient to justify ordering an inquiry under s474D

Decision

Kirby J examined the materials submitted in support of the application, including the statements touching on alibi evidence and potential new witnesses. His Honour noted that the issue of alibi had already been considered by Hunt CJ at CL in the 1994 application and that no inquiry had been ordered on that basis. Pursuant to s474E(3)(a)(ii) of the Crimes Act 1900, grounds already determined in a previous application need not be revisited, and the alibi question required no further examination.

On the question of DNA evidence, Kirby J considered whether modern forensic testing might now be available that was not accessible at the time of the original proceedings. His Honour found that this ground did not give rise to a question of doubt as to guilt sufficient to warrant the ordering of an inquiry.

Taking all matters raised both individually and collectively, Kirby J found no unease or sense of disquiet in allowing the manslaughter finding to stand. The confession had been found voluntary and admissible at trial, the Court of Criminal Appeal had upheld that finding and characterised aspects of the confessional statements as strongly supportive of their truth, and the materials now before the court did not displace that foundation.

Orders Made

  • The application for an inquiry into the finding under s474D of the Crimes Act 1900 was dismissed.

Key Takeaways

  • A second or subsequent application for an inquiry under s474D of the Crimes Act 1900 may be made on behalf of a convicted person, but grounds already determined at trial, on appeal, or in the reasons for a prior s474D application need not be reconsidered, by operation of s474E(3)(a)(ii).
  • No question of doubt as to guilt was found to arise merely from the theoretical availability of DNA testing, where the other evidence and circumstances of the case did not independently generate unease about the verdict.
  • The Court of Criminal Appeal's earlier confirmation that the confessional statements were voluntary, admissible, and internally supportive of their own truth remained a significant feature underpinning the dismissal of this fresh application.
  • Intellectual disability or mental impairment does not, of itself, render a person incapable of making a truthful admission, as the Supreme Court confirmed by reference to the principle stated in Sinclair v The King (1946) 73 CLR 316.
  • In dismissing the application, Kirby J applied the standard of whether the material gave rise to any "unease or sense of disquiet" about the conviction, and found that standard was not met on the facts presented.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 474D, 474E(3)(a)(ii), 428M

Cases:
- R v Parker (1990) 19 NSWLR 177 (Court of Criminal Appeal)
- Sinclair v The King (1946) 73 CLR 316
- Varley v AG (1987-8) NSWLR 30