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Supreme Court 21 March 2024

R v Parkes (No 2)

[2024] NSWSC 288

Homicide
CRIME — E VIDENCE — MURDER ACCUSED

Citation: R v Parkes (No 2) [2024] NSWSC 288
Court: Supreme Court of New South Wales
Date: 21 March 2024
Judge: N Adams J

Background

The accused stood trial on a single count of murder before Adams J and a jury of fifteen. The trial involved a "cut throat" defence as between the accused and a co-accused, each effectively blaming the other.

Before trial, the Director of Public Prosecutions applied under s 45(5) of the Crime Commission Act 2012 (NSW) for the release of compelled testimony given by certain witnesses to the NSW Crime Commission. Compelled testimony is evidence that witnesses were legally required to give and that is ordinarily protected from disclosure. In January 2024, Adams J declined that application. The reasons for that refusal are set out in the earlier decision R v Parkes; R v Sloan [2024] NSWSC 16.

The Crown renewed its application mid-trial, after the accused elected to give evidence and made statements that had not been anticipated at the time of the original ruling. Adams J ordered the release of approximately 30 pages of compelled material on 19 March 2024 and subsequently published these reasons explaining that decision.

  • Whether the court could revisit and reverse an earlier refusal to release compelled Crime Commission testimony under s 45(5) of the Crime Commission Act 2012 (NSW), in light of evidence given by the accused at trial.
  • Whether the interests of justice required disclosure, applying the test that those interests would be impeded or frustrated without it.
  • What procedural fairness steps were required before releasing compelled testimony, including affording the compelled witness an opportunity to be heard.
  • Whether the timing of the disclosure, made during the trial itself, weighed against ordering release.

Decision

The accused's own trial evidence introduced matters that had not been foreshadowed before the trial commenced. Those matters cast new light on the significance of the compelled testimony that Adams J had previously declined to release. Her Honour stated on the record that, had she known at the outset what she learned from the accused's evidence, she would have ordered disclosure at that earlier stage.

Adams J applied the test confirmed by Fagan J in R v Munshizada, Danishyar and Baines [2020] NSWSC 566: disclosure is only "required" in the interests of justice where those interests would be impeded or frustrated without it. Her Honour was satisfied that the compelled testimony would have a material bearing on the trial. An additional factor favouring disclosure was that the judge alone was aware of the contents of the compelled material while neither Crown counsel nor the accused's counsel were, a situation that itself added weight to the case for release.

On the question of timing, Adams J distinguished the present case from Munshizada, where the application had been made too close to trial and involved a large volume of material. Here, the original application was made well before the trial date. The renewed application was brought promptly after the accused's evidence gave the material new significance. The volume of material to be released was limited to approximately 30 pages.

Before making the order, Adams J followed the two-stage procedural approach endorsed in R v Quami & Ors (No 11) [2016] NSWSC 252, convening a closed court hearing and affording the compelled witness, through her solicitor, an opportunity to be heard on the objection. The trial was also adjourned briefly, at the request of the accused's counsel and with Crown agreement, to avoid requiring the accused to continue cross-examination while uncertain whether the previously undisclosed material might be released.

Orders Made

  • Release of specified compelled testimony (approximately 30 pages) to the Director of Public Prosecutions and the legal representatives of the accused, under s 45(5) of the Crime Commission Act 2012 (NSW).
  • The precise contents of the released material are not disclosed in the published reasons, consistent with s 45(1) of the Act. Fuller reasoning is contained in confidential reasons attached to the judgment.

Key Takeaways

  • A court may revisit and reverse an earlier refusal to release compelled Crime Commission testimony under s 45(5) of the Crime Commission Act 2012 (NSW) where new evidence at trial materially changes the significance of that testimony.
  • The applicable test requires the court to be satisfied that the interests of justice would be impeded or frustrated without disclosure. The fact that a judge alone is aware of the contents of compelled material, while both parties remain uninformed, is a factor that can weigh in favour of release.
  • Timing of a renewed application matters: a prompt application made in direct response to new evidence at trial does not attract the same concern about trial disruption as a late pre-trial application made close to the hearing date.
  • Procedural fairness requires that a compelled witness be given an opportunity to be heard before compelled testimony is released. The Supreme Court confirmed and applied this two-stage approach, drawn from R v Quami & Ors (No 11) and the court's own earlier ruling in this matter.
  • Because the assessment must be made before trial without the benefit of counsel's assistance on materiality, the trial judge may be required to revisit that assessment once the accused's own evidence reveals issues that were not foreseeable at the pre-trial stage.

Legislation and Cases Referenced

Legislation
- Crime Commission Act 2012 (NSW), s 45 (particularly ss 45(1) and 45(5))

Cases
- R v Parkes; R v Sloan [2024] NSWSC 16
- R v Munshizada, Danishyar and Baines [2020] NSWSC 566
- R v Quami & Ors (No 11) [2016] NSWSC 252