Citation: R v Parkes [2025] NSWDC 144
Court: District Court of New South Wales
Date: 24 April 2025
Judge: Fitzsimmons SC DCJ
Background
The accused was charged with four serious offences arising from a home invasion on 12 May 2022: break and enter in circumstances of special aggravation, two counts of robbery (armed with an offensive weapon and in company), and attempting to discharge a firearm with intent to cause grievous bodily harm. The prosecution alleged the accused was either a principal or participant in a joint criminal enterprise during the incident.
In February 2024, Judge Herbert found the accused unfit to be tried due to a mental health impairment, and further found that he would not become fit to stand trial for these offences. As a result, the matter proceeded as a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) rather than an ordinary criminal trial.
The special hearing was conducted as a judge-alone trial before Fitzsimmons SC DCJ. The accused was taken to have pleaded not guilty to all counts. He did not give evidence, though he had participated in an electronically recorded interview with police (ERISP) following his arrest on 1 June 2022.
Legal Issues
- Whether the proceedings were properly conducted as a special hearing under the MHCIFP Act, including the applicable standard for determining guilt
- Whether the Crown proved beyond reasonable doubt that the accused was one of the offenders who participated in the home invasion
- Whether identification evidence from witnesses was reliable, including visual identification, voice identification, and evidence of accent
- Whether inconsistencies in witness accounts and prior statements undermined the Crown case
- Whether the accused's participation could be established through joint criminal enterprise or extended joint criminal enterprise principles
- How the court should treat the accused's ERISP, including the application of a Liberato direction (which applies when an accused makes an exculpatory statement to police that may be neither accepted nor rejected outright)
- How the court should treat alibi evidence adduced by the Crown
Decision
The court approached the special hearing as closely as possible to an ordinary criminal trial, applying the standard criminal burden of proof: the Crown was required to prove each element of each charge beyond reasonable doubt. Fitzsimmons SC DCJ reminded herself that suspicion is not a substitute for proof, that the accused bore no onus, and that his election not to give evidence could not be used against him or to fill gaps in the Crown case.
A significant portion of the judgment addressed the quality and reliability of the identification evidence. Witnesses had provided visual and voice identification evidence, but there were notable inconsistencies across accounts, including discrepancies in the identification of accent and variations between what witnesses told police at different times and what they said in court. The court applied established warnings about the dangers of unreliable identification evidence, consistent with the Evidence Act 1995 (NSW) and relevant case law.
The court also considered the accused's ERISP, applying a Liberato direction. This direction requires the fact-finder to consider three possible scenarios when an accused makes an out-of-court statement: the statement may be accepted as true (requiring acquittal), it may be neither accepted nor rejected (also requiring acquittal if it raises a reasonable doubt), or it may be positively rejected. The court treated the alibi evidence, which was adduced by the Crown rather than the accused, with appropriate scrutiny.
The judgment as provided sets out the charges, applicable legal directions, elements of the offences, and detailed examination of witness evidence, particularly cross-examination revealing inconsistencies in a complainant's account of events involving a firearm. The final verdicts on each count are not reproduced in the text provided to this summary.
Orders Made
No orders were made in this decision.
Key Takeaways
- A special hearing under the MHCIFP Act is conducted as nearly as possible to an ordinary criminal trial, with the same burden and standard of proof applying: the Crown must prove guilt beyond reasonable doubt on every element of each charge.
- Where an accused has been found permanently unfit to stand trial due to mental health impairment, the trial proceeds by judge alone under s 56(9) of the MHCIFP Act, with no election available.
- Identification evidence, including both visual and voice identification, requires careful scrutiny; the District Court applied established warnings about unreliable identification and noted inconsistencies in witness accounts across multiple statements and in-court testimony.
- A Liberato direction applies where an accused has made an exculpatory statement in a police interview: even if the court does not accept the statement as true, it must acquit if the statement nonetheless raises a reasonable doubt.
- Where alibi evidence is adduced by the Crown rather than the defence, the court must still assess that evidence carefully as part of the overall Crown case, without reversing the onus of proof.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 33A(1)(b), 97(1), 97(2), 112(3)
- Criminal Procedure Act 1986 (NSW), s 133
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 53, 56
Cases
- Dyers v The Queen [2002] HCA 45
- Fleming v R (1998) 197 CLR 250
- Huynh v The Queen [2013] HCA 6
- Lehrmann v Network Ten Pty Limited [2024] FCA 369
- May v R [2012] NSWCCA 111
- Youkhana v R [2015] NSWCCA 41