Citation: R v Parkes [2024] NSWSC 269
Court: Supreme Court of New South Wales
Date: 21 March 2024
Judge(s): N Adams J
Background
The accused stood trial for the murder of a woman killed in remote bushland near Menai in the early hours of 14 July 2020. The Crown alleged that the accused and a co-offender had agreed to kill the deceased, who had invested $8,000 in their drug operation and whom they feared would inform on them to police. The co-offender had already pleaded guilty to the murder on a joint criminal enterprise basis before the accused's trial commenced.
The central factual dispute was narrow: it was common ground that only the accused and the co-offender were present when the deceased was killed. The contest was over why the accused was there. The Crown relied on extensive circumstantial evidence including CCTV footage, GPS data, telephone records, and the accused's electronically recorded interview with police (ERISP).
While on remand, the accused was recorded by a listening device (installed under a valid warrant) having conversations with his cellmate. Those recordings captured the accused and his cellmate concocting a false story. The accused subsequently repeated a version of that story to police in his ERISP. The defence applied during trial to exclude portions of both the listening device recordings and the ERISP on two separate grounds under the Evidence Act 1995 (NSW).
Legal Issues
- Whether portions of the listening device recordings and related ERISP passages should be excluded under section 90 of the Evidence Act 1995 (NSW) on the basis that admission would be unfair, given that the cellmate had helped the accused fabricate a false account
- Whether a specific statement captured on the listening device on 10 December 2020 should be excluded under section 137 of the Evidence Act 1995 (NSW) on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused
Decision
Section 90 application: refused
Adams J declined to exclude the listening device material or the ERISP passages under section 90. The cellmate had acted on his own initiative and was not an agent of the State. No trickery by investigators was involved in obtaining the ERISP. The conduct underpinning the false story was that of the accused himself, assisted by a fellow prisoner acting independently. The court found no basis for unfairness of the kind that section 90 is designed to address.
Section 137 application: upheld
The court excluded a discrete statement made on 10 December 2020 (described as "the impugned statement") under section 137, which requires exclusion where the danger of unfair prejudice to the defendant substantially outweighs the evidence's probative value. Three considerations drove this conclusion.
First, the unique circumstances of the cellmate's involvement created a risk that the jury would misuse the impugned statement. The cellmate was assessed as lacking credibility, to the point that both parties agreed he should not be called as a witness. That lack of credibility created procedural unfairness to the accused in the way the statement could be used against him.
Second, and most significantly, the Crown proposed to rely on the impugned statement in relation to every lie alleged against the accused in his ERISP. Some of the lies relied upon by the Crown had not been the subject of any conversation between the accused and his cellmate. There was therefore a real risk the jury would extend the impugned statement to matters it could not properly reach. The lies direction the jury would already need to receive was complex, given the number and different character of the alleged lies. Adding a direction to manage the risks from the impugned statement would have added another layer of complexity the court was not satisfied could adequately cure the prejudice. Adams J noted that but for that complexity, a different result may have been reached.
Orders Made
• The impugned statement was excluded from evidence
Key Takeaways
- Section 90 of the Evidence Act 1995 (NSW) was not engaged where a cellmate independently assisted the accused in fabricating a false account, because the cellmate was not acting as an agent of the State and no investigative trickery was used in the subsequent ERISP.
- A finding that a witness lacks credibility so severely that both parties agree not to call them can constitute a form of procedural unfairness relevant to the section 137 balancing exercise.
- Where the Crown proposes to rely on a piece of evidence in relation to a broad range of alleged lies, some of which the evidence cannot logically extend to, a real risk of jury misuse arises that may support exclusion under section 137.
- Under section 137, the question is not merely whether unfair prejudice exists, but whether it can be cured by judicial direction. The cumulative complexity of the directions already required in a trial is a legitimate factor in that assessment.
- Adams J explicitly noted that, absent the complexity of the lies direction already facing the jury, the impugned statement might have been admitted, underscoring that section 137 outcomes are highly fact-specific and turn on the particular circumstances of each trial.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 90, 137
- Surveillance Devices Act 2007 (NSW)
Cases
- Edwards v The Queen (1993) 178 CLR 193
- Em v The Queen (2007) 232 CLR 67
- IMM v The Queen (2016) 257 CLR 300
- Papakosmas v The Queen (1999) 196 CLR 297
- R v Burton (2013) 237 A Crim R 238
- R v Chase (a pseudonym) [2018] NSWCCA 71
- R v Officer A [2023] NSWSC 1265
- R v Rice & Ors (No 4) [2014] NSWSC 1525
- R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141
- R v Swaffield; Pavic v The Queen (1998) 192 CLR 159
- R v Tortell (No 5) [2019] NSWSC 1665
- Regina v Cook [2004] NSWCCA 52
- The Queen v Bauer (2018) 92 ALJR 846
- Zoneff v The Queen (2000) 200 CLR 234