Regina v Parkes [2003] NSWCCA 12

Regina v Parkes [2003] NSWCCA 12

Although the trial judge erred in treating Jenkinson's evidence as irrelevant and in the s 128 procedure before the jury, and although non-exhibit documents should not have gone to the jury, no substantial miscarriage of justice occurred. The excluded evidence was not significant, the s 38 leave given to cross-examine Harris was not unfair or an abuse of the section, the s 128/s 132 error caused no significant prejudice, the jury documents were innocuous, and the Crown case on fraudulent intent was overwhelming compared with the appellant's insubstantial claim of right. The proviso in s 6(1) of the Criminal Appeal Act 1912 applied, and the total sentence was within discretion.

Jurisdiction
Australia
Judgment Date
17 February 2003
Procedural Posture
Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court
Outcome
Appeal against convictions dismissed; application for leave to appeal against sentence dismissed.
Legal Topics
['claim of Right' 'hearsay' 'prior Consistent Statements' 'evidence Act 1995 S 38 Cross Examination' 'evidence Act 1995 S 128 Certificate' 'evidence Act 1995 S 132 Jury Procedure' 'criminal Appeal Act 1912 S 6(1) Proviso' 'miscarriage of Justice' 'manifest Excess']
['criminal Law' 'evidence' 'criminal Procedure' 'sentencing'] ['claim of Right' 'hearsay' 'prior Consistent Statements' 'evidence Act 1995 S 38 Cross Examination' 'evidence Act 1995 S 128 Certificate' 'evidence Act 1995 S 132 Jury Procedure' 'criminal Appeal Act 1912 S 6(1) Proviso' 'miscarriage of Justice' 'manifest Excess']

Case Brief

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Procedural Posture

Criminal Appeal Against Convictions and Application for Leave to Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court

Legal Issues

  1. 1 ["Whether the trial judge erred in striking out as irrelevant evidence from Crown witness Perry Cecil Jenkinson that was favourable to the appellant's claim of right and in refusing cross-examination on that topic." "Whether Jenkinson's evidence was inadmissible hearsay or admissible as a prior consistent statement, under s 65, or under s 66 of the Evidence Act 1995." 'Whether the trial judge erred in permitting the Crown to cross-examine Ian Harris under s 38 of the Evidence Act 1995 after the Crown had called him despite anticipating possible unfavourable evidence.' 'Whether the trial judge contravened s 132 of the Evidence Act 1995 by explaining the effect of s 128 to the appellant in the presence of the jury.' 'Whether documents not in evidence being sent to the jury room caused a miscarriage of justice.' 'Whether the overall sentence of five years imprisonment with a non-parole period of three years was manifestly excessive.']

Ratio Decidendi

Although the trial judge erred in treating Jenkinson's evidence as irrelevant and in the s 128 procedure before the jury, and although non-exhibit documents should not have gone to the jury, no substantial miscarriage of justice occurred. The excluded evidence was not significant, the s 38 leave given to cross-examine Harris was not unfair or an abuse of the section, the s 128/s 132 error caused no significant prejudice, the jury documents were innocuous, and the Crown case on fraudulent intent was overwhelming compared with the appellant's insubstantial claim of right. The proviso in s 6(1) of the Criminal Appeal Act 1912 applied, and the total sentence was within discretion.

Court Disposition

Appeal against convictions dismissed; application for leave to appeal against sentence dismissed.

Orders

  • ['Appeal against convictions dismissed.' 'Application for leave to appeal against sentence dismissed.']