R v Parkes [2024] NSWSC 269

R v Parkes [2024] NSWSC 269

Portions of the ERISP and listening device material concerning the concocted story are admissible, as there was no unfairness under s 90—the cellmate acted individually and not as a police agent, and no trickery or compulsion impaired the accused's free choice. However, the specific statement by the accused that he 'lied through my teeth and they fucking know it' must be excluded under s 137 as its probative value is outweighed by the risk of unfair prejudice including potential jury misuse and procedural unfairness due to the credibility issues surrounding the cellmate, Witness I.

Jurisdiction
Australia
Judgment Date
21 March 2024
Procedural Posture
Criminal / Interlocutory Application During Trial
Outcome
Application to exclude evidence under s 90 dismissed; application under s 137 allowed for the impugned statement.
Legal Topics
['admissibility of Evidence' 'section 90 Discretion – Unfairness' 'section 137 Discretion – Unfair Prejudice' 'covert Recordings' 'police Procedure' 'joint Criminal Enterprise' 'murder']
['criminal Law' 'evidence'] ['admissibility of Evidence' 'section 90 Discretion – Unfairness' 'section 137 Discretion – Unfair Prejudice' 'covert Recordings' 'police Procedure' 'joint Criminal Enterprise' 'murder']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal / Interlocutory Application During Trial

Legal Issues

  1. 1 ['Whether portions of ERISP and listening device material should be excluded under s 90 of the Evidence Act 1995 (NSW) for unfairness' 'Whether a portion of the listening device material should be excluded under s 137 of the Evidence Act 1995 (NSW) due to unfair prejudice']

Ratio Decidendi

Portions of the ERISP and listening device material concerning the concocted story are admissible, as there was no unfairness under s 90—the cellmate acted individually and not as a police agent, and no trickery or compulsion impaired the accused's free choice. However, the specific statement by the accused that he 'lied through my teeth and they fucking know it' must be excluded under s 137 as its probative value is outweighed by the risk of unfair prejudice including potential jury misuse and procedural unfairness due to the credibility issues surrounding the cellmate, Witness I.

Court Disposition

Application to exclude evidence under s 90 dismissed; application under s 137 allowed for the impugned statement.

Orders

  • ['The application to exclude portions of the ERISP and listening device material under s 90 of the Evidence Act 1995 (NSW) is refused.' 'The application to exclude a portion of the listening device material under s 137 of the Evidence Act 1995 (NSW) is allowed.']