R v Parkes

On 6 April 2020, Benjamin Troy Parkes was charged with the murder of Najma Carroll on 14 July 2020. A co-offender, Robert Sloan was also charged with Ms Carroll’s murder. The Crown case is that the two men formed an agreement that Ms Carroll should be killed, and she was killed by one or both of them pursuant to that agreement.

Although both men initially pleaded not guilty on the basis of “cut throat” defences, on 29 January 2024, Mr Sloan pleaded guilty to Ms Carroll’s murder on a joint criminal enterprise basis. He is awaiting sentence. On 19 February 2024, Mr Parkes’ trial commenced before me (and a jury of 15) on the sole count of murder. Mr Sloan denies being part of any agreement to kill the deceased and asserts that Mr Sloan acted alone in killing her.

On 7 March 2024, (day 13 of the trial), counsel for Mr Parkes sought the exclusion of portions of surveillance device recordings of conversations between Mr Parkes and his cellmate and portions of Mr Parkes’ subsequent electronically recorded interview (ERISP) under ss 90 and 137 of the Evidence Act 1995 (NSW). Although the recordings were made subject to a valid warrant issued under the Surveillance Devices Act 2007 (NSW), I propose to refer to the material as “listening device” material.

A voir dire was conducted at 2:00pm on Friday 8 March 2024. The argument for exclusion was put in the alternative:

At the time of the legal argument on 8 March, counsel had still not agreed upon which portions of the listening device material would be tendered (putting to one side the portions the subject of these objections). Police had obtained nearly three months of conversations between Mr Parkes and Witness I between 1 October and 10 December 2020 and it was proposed that that could be reduced to one or two days. I was provided with an unedited portion of the recording for 10 December 2020 which included the impugned statement but not the full context in which those words were said. I formed the view at that time this would not preclude me from determining the objections. At the end of the hearing, I indicated that I would not be excluding any portions of the ERISP/recordings under s 90 and I reserved my decision regarding the s 137 application until 10:00am on Monday 11 March.

On 11 March, I indicated to the parties that, having reflected on the matter over the weekend, I had formed the view that I did need to know the context of the impugned statement on 10 December 2020 in order to rule on the s 137 argument. I was informed that negotiations were still underway and it was unlikely they would be finalised until Wednesday 13 March. Given that the impugned statement was in the last recording to be (chronologically) played, I suggested that a way forward would be for me to rule on it after all but that recording was played to the jury as an exhibit. The parties agreed that I could give my ruling after the agreed upon recordings were played to the jury.

The listening device material was tendered on Wednesday 13 March and played (except for the last recording on 10 December 2020) until just before lunchtime on Thursday 14 March. I made my ruling at that time that I would exclude the impugned statement and I reserved my reasons. These are my reasons for admitting the material the subject of the first objection and excluding the material the subject of the second objection.

At the time of her death, Ms Carroll was residing at the Hunts Hotel in Casula. Mr Parkes and Mr Sloan were also residing there. They all met due to their shared interest in illegal drugs; both the use and supply thereof. It seems that the three of them only met each other a few weeks or so before Ms Carroll’s death.

The events the subject of the trial took place in the early months of the COVID-19 pandemic at which time Government policy permitted persons to access their superannuation. Ms Carroll accessed her superannuation and gave $8,000 to either Mr Sloan or Mr Parkes (the recipient of the funds is a fact in issue at the trial) to invest in, on the Crown case, Mr Parkes’ drug business in which Mr Sloan was also involved (or on the defence case, Mr Sloan’s drug business).

The Crown case is that the two accused subsequently agreed to kill the deceased for two reasons: because they did not wish to pay her back the money and because they had concerns that she would go to police about their drug dealing (given that she had recently reported a stolen hire car to police). Ms Carroll was killed in remote bushland near Menai (known as “White Rock”) in the early hours of 14 July 2020. Her body was not found until 28 July 2020. Her body was burned as was her motor vehicle located nearby. The post-mortem report revealed head injuries.

Mr Parkes’ case is that Mr Sloan acted alone when he killed Ms Carroll. The factual dispute is narrow but significant. It is common ground that the only two people present at Ms Carroll’s death at White Rock were Mr Sloan and Mr Parkes. The area of dispute concerns the reason why Mr Parkes met with Mr Sloan in remote bushland at that time.

The Crown case comprises evidence from witnesses who spoke to Mr Parkes in the days before and after the murder, including his upline supplier Witness H, Witness H’s flatmate (Witness K), and a young man present in Mr Sloan’s room at the Hunts Hotel in the morning of 14 July 2020 (Witness A). The Crown case also comprises CCTV footage, telephone records, GPS evidence, bank records, photographs, the ERISP and the listening device material. (I note that although there are non-publication orders on the names of some of the civilian witnesses, they have been referred to by their real names before the jury by the witnesses at trial; the somewhat unoriginal pseudonyms are only for publication purposes).

The evidence in support of the Crown case that Mr Parkes was present at the scene as part of a pre-arrangement to kill Ms Carroll includes CCTV footage of Mr Parkes hurriedly escorting Ms Carroll from the Hunts Hotel on 11 July 2020 with an overnight bag and evidence from Witness H and Witness K that Mr Parkes took her to stay in the garage at Witness H’s place instead. Witness H and Witness K have given evidence that she stayed in the garage (which was set up as a living room) until the early hours of 14 July at which time Mr Sloan collected her and drove her away.

There is further evidence (from Witness H, Witness K, CCTV, GPS and telephone records) that Mr Parkes was in Kings Cross with Witness H on the night of the murder. Witness K has given evidence that Mr Parkes called him and asked him to make sure Ms Carroll did not leave Witness H’s house. Mr Sloan collected her shortly thereafter in her Mercedes. Mr Parkes left Kings Cross after that and drove to White Rock. He was recorded by CCTV stopping at the Moorebank 7-Eleven petrol station at which time he purchased some items including $12 worth of unleaded petrol (his Hilux took diesel). He arrived at White Rock at 3:57:44 am. The GPS evidence puts him in that area from 3:41:39 am to 4:38:18am. CCTV footage from the Hunts Hotel records him arriving back there shortly thereafter in his Hilux with Mr Sloan back. Witness A gave evidence that the following day he arranged for his car and some clothing to be washed and other clothing worn that night to be thrown away.

Other evidence relevant to establishing that Mr Parkes was part of the agreement to kill Ms Carroll is that he can be seen on the CCTV footage at the Hunts Hotel on 12 July 2020 (after he had already taken Ms Carroll from the Hunts Hotel to stay at Witness H’s) entering Ms Carroll’s room with a swipe card with his ex-wife and, inferentially, giving his ex-wife a pink speaker from that room as she is seen to leave the room with it shortly thereafter.

The Crown case is that it does not have to prove which of the two men physically killed the deceased; both had agreed to do so beforehand, and both were present at the scene doing acts in furtherance of the joint criminal enterprise.

Mr Parkes’ version of events to police in his ERISP is that he did not know that Ms Carroll would be at White Rock that night and he only went there to burn her car. He told police that when he got there, he remained in his vehicle and saw Ms Sloan kill Ms Carroll with a baseball bat and burn her body from where he was seated in his car. The two men then drove their respective cars a short distance away where Ms Sloan burned Ms Carroll’s car and then Mr Parkes drove Mr Sloan home (back to the Hunts Hotel). On Mr Parkes’ account he did not get out of the car except to ignite Ms Carroll’s car.

Mr Parkes provided an explanation to police in his ERISP as to why he needed to burn Ms Carroll’s car in bushland at 3:40am that morning as follows. He told police that a few days earlier (10 July 2020) Mr Parkes and Witness H set out to drive to Perth to conduct a significant drug deal. Mr Parkes borrowed Ms Carroll’s blue Mercedes SUV to do so. They were stopped by police at the South Australian border due to travel restrictions. Although police did not locate the concealed drugs, they seized over $17,000. This aspect of the account given by Mr Parkes in his ERISP is confirmed by Witness H and the Crown has tendered stills from police body worn cameras confirming that this aspect is truthful. Witness H disputes the rest of Mr Parkes’ explanation to police which is that he and Witness H agreed that the deceased’s car had to be burned because they were in it when pulled over by police.

Mr Parkes was arrested on an unrelated matter on 14 August 2020. He started speaking to his cellmate about the murder, suggesting that he was a witness to it. His cellmate (Witness I) contacted police and offered to assist them. He spoke to them on 29 September 2020. Police did not take Witness I up on this offer as they were not satisfied of his credibility but, unbeknownst to Witness I, after they spoke with him police obtained a warrant to place surveillance devices in the cell. The conversations which subsequently took place between Mr Parkes and Witness I were recorded from 1 October 2020 until at least 10 December 2020. Neither man knew they were being recorded.

I pause to note that by the time Witness I approached police Mr Parkes and Mr Sloan were already suspects in Ms Carroll’s murder. Police were intercepting their phones, going through the Hunts Hotel CCTV footage and making other inquiries based on material they had already uncovered.

I further note that Witness I was not called as a witness in this trial. After Mr Parkes was arrested, police obtained a statement from Witness I and he agreed to give evidence at the trial of Mr Parkes and Mr Sloan. He pleaded guilty to his fraud charges and received a 25% discount for his assistance to authorities past and future.

After that time, police learned that Witness I had in fact tendered false medical certificates at his sentence proceedings. The subsequent decision by the Crown not to call Witness I at trial was based on his credibility issues. Defence counsel agreed that he did not need to be called. Thus, the “evidence” of Witness I is confined to the recorded conversations between the two men in the cell.

Although the Crown relies upon discrete portions of the recordings as admissions and others as lies, for the purposes of these reasons, the relevant portions of the recordings are as follows (although I have summarised them as far as possible, I have extracted some in full).

From early on in the recordings it is apparent that Witness I and Mr Parkes have concocted a story to tell police to help both of them. The concocted story is that Witness I and Mr Parkes had known each other for a while and that Witness I was staying at the Hunts Hotel at the time of the murder. (By sheer coincidence the two men, who had never met before but had mutual friends, realised that Witness I had in fact been staying at the Hunts Hotel at around that time. Unfortunately for the two men, CCTV footage and hotel records show that that was for one night on 11 July 2020 and the murder took place on 14 July 2020).

The concocted story is that when Mr Parkes drove Mr Sloan back to the hotel after the murder in the early hours of 14 July 2020, Witness I was in the carpark. Mr Parkes waved him away when he tried to approach him, and he heard Mr Sloan threaten Mr Parkes and his family if he told anyone about what happened. Mr Parkes then took Witness I to near the scene and told him what Mr Sloan had done. It is now accepted by Mr Parkes that this account is untruthful. It is completely contradicted by the CCTV footage at the Hunts Hotel.

As I understand it, the perceived benefit to Witness I of this fabricated story was that the value of Witness I’s assistance (implicating Mr Sloan) was greater if he was present and saw Mr Sloan’s reaction and Mr Parkes’ contemporaneous account than if Mr Parkes had just told him about it in the cell. The perceived benefit to Mr Parkes was corroboration of his own exculpatory account that Mr Sloan acted alone in killing the deceased.

At some stage prior to the commencement of the recordings, Witness I told Mr Parkes that he had spoken with police, provided them with the concocted story involving him and told them they should speak with Mr Parkes about the assistance he could give. Despite the fact that police did not contact Witness I again until well after the recordings had concluded, Witness I repeatedly lied to Mr Parkes and pretended that he was in regular contact with police through his solicitor and a (non-existent) relative of Witness I in the police force. When police did not immediately speak to Mr Parkes, he and Witness I mused at length over the next few months about why this was the case including whether it was because police had evidence inconsistent with the concocted account.

On 22 October 2020, Mr Parkes’ mother telephoned him (the recorded call has been played to the jury) to tell him that police had seized the blue Hilux he was driving at the time. This is the vehicle Parkes drove to and from White Rock. It was registered to his mother. There is a brief discussion between them as to whether the deceased was ever in that car whereupon his mother informs him that the police have questioned her regarding sightings of the car at the 7-Eleven in Moorebank at some time in July. That leads Mr Parkes to discuss at length what other CCTV evidence police might have which might implicate him.

Throughout all of the recordings a consistent theme discussed between the two men is whether police will consider Mr Parkes to be a witness or a suspect. On occasions, Witness I reassures Mr Parkes that he is not a suspect. As time passes, Witness I becomes increasingly worried that Mr Parkes is not going to tell police the concocted story involving him. Some examples are as follows:

On 7 December 2020, police interviewed Mr Parkes. In that ERISP, Mr Parkes indicates that he knows that they have spoken with Witness I and repeats the concocted story concerning Witness I. He provides his version of events, including that he went to White Rock to burn the deceased’s car as that had been pre-arranged with Mr Sloan having been suggested by Witness H. He describes witnessing the murder whilst seated in his vehicle and being shocked. He tells police he did not know the deceased would be there. He tells police that Mr Sloan took the petrol from him and used some of it to burn the deceased’s body and then they drove the car away and used the rest of the petrol to burn it and then they drove home in his blue Hilux.

After he returns to his cell from the ERISP, there is a discussion with Witness I about what Mr Parkes told police:

On 10 December 2020, Mr Parkes is again taken to speak with police but on this occasion, he receives legal advice and declines to be electronically interviewed a second time. On his return to the cell, he is again grilled by Witness I about whether he stuck to the concocted story about him. Finally, the following exchange occurs:

The italicised portion above is the subject of the application for exclusion under s 137 of the Evidence Act.

In both the ERISP and listening device recordings Mr Parkes says a number of things which the Crown relies upon as lies, some more significant than others. The Crown tendered a document during the legal argument indicating which lies are relied upon as consciousness of guilt (Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63) and which are relied upon as going to his credibility (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28). That document remains subject to legal argument prior to closing addresses.

It is not necessary to set out the alleged lies in these reasons. Although Mr Parkes now accepts that the concocted story with Witness I is a lie, he does not accept that other aspects of his account to police are lies, including the reason why he went to White Rock with Mr Sloan on the morning of 14 July 2020. In that regard, I note that during the listening device recordings, Mr Parkes discussed what he should tell police as to how he knew to be at White Rock that night. Some examples are:

Other alleged lies relied upon by the Crown in the ERISP include matters not discussed with Witness I, including the nature of the drug supply business, that Mr Parkes never paid for the deceased’s hotel room, that the deceased was still residing at the Hunts Hotel at the time of her death and that he did not know where the deceased was collected from by Mr Sloan that morning.

As in any trial, the admissibility argument was somewhat organic.

On 29 February 2024, Mr Steel foreshadowed that he would be seeking the exclusion of admissions (recently relayed to police) said to have been made by another witness (Witness J) under s 90 of the Evidence Act. After a brief discussion of the relevant principles concerning s 90, the argument was re-framed in reliance upon s 137 of the Evidence Act and deferred until that witness was to be called as a witness.

That application was renewed on 4 March 2024. At that time, I drew counsels’ attention to the following four decisions: R v Rice & Ors (No 4) [2014] NSWSC 1525; R v Rogerson; R v McNamara (No 26) [2016] NSWSC 141; R v Officer A [2023] NSWSC 1265; and R v Chase (a pseudonym) [2018] NSWCCA 71. Later that day, the Crown indicated that it would not be adducing the evidence the subject of the objection.

On 5 March 2024, Mr Steel foreshadowed a s 90 application with respect to Witness I. A short legal discussion ensued in which I inquired whether it was contended that Witness I was acting as an agent of the State at the time and directed attention to the observations of the High Court in R v Swaffield; Pavic v The Queen (1998) 192 CLR 159; [1998] HCA 1 and Em v The Queen (2007) 232 CLR 67; [2007] HCA 46.

On 7 March 2024, Mr Steel indicated that it “would be hard to engage section 90” in the circumstances where Witness I was not acting as a police agent but “as a double agent in his own mind”. Later that day, Mr Steel submitted that he did feel obliged to press the objection, particularly given the reference in the recordings to Mr Parkes admitting that he had lied “through his teeth”. The argument was stood over until the afternoon of Friday 8 March after I had sent the jury home.

In written submissions filed on behalf of Mr Parkes dated 8 March 2024 there was no reference to any authorities concerning s 90 of the Evidence Act but reliance upon that section was not disavowed.

It was submitted that police took advantage of the listening device material and delayed interviewing Mr Parkes even though they knew that he was waiting to speak to them. By the time they interviewed him, Mr Parkes had been sharing a cell for some months. It was submitted that the accused’s right to choose to speak to police and give his account was not afforded to him for investigative purposes.

Although it was initially submitted that police may have deliberately sought to elicit lies from Mr Parkes because of knowledge they had of the listening device material (ERISP Q101), it was accepted during oral argument that it was in fact Mr Parkes who introduced the topic of Witness I first.

Reliance was placed on the fact that although Witness I was not engaged by police to adduce any admissions from Mr Parkes, they did ultimately take a statement from him after the fact which makes him “a kind of agent for police”. Further, Witness I pretended to be an agent of police.

It was submitted that the appropriate remedy would be for any reference to Witness I to be excluded from the ERISP pursuant to s 90 of the Evidence Act in conjunction with all aspects of the listening device material where the false story concerning Witness I is discussed.

The alternate position was that the comment in the listening device material that Mr Parkes lied through his teeth be excluded under s 137 of the Evidence Act on the basis that its probative value is outweighed by the danger of its unfair prejudice.

It was submitted that Witness I urged Mr Parkes to lie to police to benefit himself. When Mr Parkes finally says to him on 10 December 2020 that “I lied through my teeth and they fucking know it”, he says this in the context of having previously said to him “I tried to put you there right up until the end of the day”. The difficulty with this, it was submitted, is that the reference to Mr Parkes telling lies in his ERISP may only relate to the lies Witness I concocted with him whilst acting as a “double agent”.

It was submitted that the impugned statement is ambiguous, with the only safe inference being that the accused lied about the presence of Witness I during his ERISP. Counsel for the accused submitted that there was a significant degree of prejudice attendant to the statement on the basis that the jury may interpret the language as suggesting that the whole of the accused’s ERISP is comprised of lies. It was submitted that the probative value of the evidence regarding his lies about Witness I arises not from its truthfulness, but rather from the fact that the ERISP contains lies, which may be relied upon by the Crown as going to the accused’s credit or as consciousness of guilt or both.

It was submitted that the statement was ambiguous, in reliance on R v Rogerson; R v McNamara (No 26).. It was submitted that the ambiguity of the impugned statement arises because it could lead the jury to reject the entirety of the ERISP where the statement is in fact ambiguous as to which statements are lies.

It was also submitted that the conduct of Witness I renders the impugned statement unfairly prejudicial by procedural unfairness in the circumstance that Witness I will not be called as a witness in the trial: R v Rice & Ors (No 4). Counsel for the accused submitted that it was likely at Witness I’s suggestion that the accused gave an account to the police placing Witness I at the Hunts Hotel at the relevant time. It was submitted that Witness I’s criminal history demonstrates that he is a “confidence man” capable of persuading people to unknowingly act to their detriment and to his benefit.

Although the accused consented to the Crown’s proposed course of not calling Witness I as a witness, it was submitted that he suffered some forensic disadvantage from not being able to cross-examine him.

The Crown focussed its submissions on s 137 rather than s 90 of the Evidence Act. It was submitted that the probative value of the references in the ERISP to Witness I were high and relevant to the assessment of the credibility of the accused. The Crown further submitted that the probative value of the admission made by the accused that he lied in his ERISP is high. It was submitted that, consistent with my decision in R v Officer A, I would not have regard to the existence of competing inferences in my assessment of the probative value of the impugned statement for the purposes of s 137.

The Crown submitted that no unfair prejudice arises in the impugned statement as the accused himself made the decision to lie to the police likely with the belief that it would increase the credibility of his version of events.

It was also submitted that no unfair prejudice arises from the involvement of Witness I given that he was not acting under any instruction by police nor informed of the existence of the listening device in the cell.

This application concerns the application of ss 90 and 137 of the Evidence Act to a fabricated exculpatory story provided to police by the accused in his ERISP, concocted in his prison cell at a time he was unknowingly being recorded pursuant to a valid warrant.

Section 90 of the Evidence Act reflects the common law unfairness discretion and is in these terms:

An “admission” is defined in the Dictionary to the Evidence Act as a previous representation that is:

Although the material the subject of the primary objection is, on its face, exculpatory, the Crown relies upon it as a lie. In this way it is a previous representation adverse to Mr Parkes’ interest. The onus is on the accused to establish that it would be unfair to admit the evidence. The focus is on the circumstances in which the admission has been made and on ensuring that the accused has a fair trial. The relevant principles concerning s 90 most pertinent to this application are derived from two High Court decisions.

In R v Swaffield; Pavic v The Queen, the High Court considered the unfairness discretion in two separate appeals heard together, one from Queensland and the other from Victoria, neither of which jurisdictions had enacted s 90. In Mr Pavic’s case, police had interviewed a friend of his (Clancy) who provided a statement implicating Pavic. They considered they had enough to charge Mr Pavic but they asked Clancy to speak to Mr Pavic wearing a listening device. He consented and admissions were made. In that context Brennan CJ observed the following at [35] (footnote omitted):

Similarly, Kirby J observed the following at [155]:

Toohey, Gaudron and Gummow J observed at [67] that the concept of unfairness has been expressed in the widest possible form in s 90 and at [69] that a court’s consideration of s 90 should concentrate on the following matters:

Their Honours observed the following at [91]:

Section 90 of the Evidence Act was considered by the High Court in Em v The Queen. In that case, the question of unfairness arose when police implied to a suspect that he was not being recorded when he was, knowing that he would not speak to them if he knew that he was being recorded. At various times, the police assured the accused that they were not “tricking” him.

The High Court held that there is no relevant unfairness in police recording a conversation covertly in circumstances where an accused person has otherwise exercised their right not to be subject to an electronically recorded interview or to provide a version of events “on the record”: at [78] (Gleeson CJ and Heydon J) and [107]-[116] (Gummow and Hayne JJ).

In Em v The Queen Gleeson CJ and Heydon J observed that the operation of s 90 cannot be described exhaustively (at [56]). Their Honours went on at [67]-[69] to consider the unfairness of secretly recording a suspect and concluded that if courts adopted a rule that a covert recording is unfair per se that would substitute their rule about the merits of statutory schemes such as the Surveillance Devices Act for that which the legislature has adopted. Gummow and Hayne JJ further confirmed at [107] that:

Their Honours went on at [116] to observe:

Having regard to the principles in these decisions as well as the assistance afforded by the factual scenarios upon which they are based, I am not satisfied that the accused has established that it would be unfair to admit into evidence the portions of the ERISP where Mr Parkes repeats the concocted account concerning Witness I (and the corresponding portions of the listening device recordings).

Witness I was acting alone and not as an agent of the State. The listening devices were lawfully obtained and installed. Police monitored them whilst investigating the murder further. When they interviewed Mr Parkes, they cautioned him. Mr Parkes did nearly all of the talking. Early on, he told police that he was aware that they had already spoken with Witness I (which they had). No answer in the ERISP was elicited by the use of any trickery. Mr Parkes spoke freely. It could not be said that his right to exercise a free choice to speak or to be silent was unfairly derogated in any way. Although the facts are somewhat unusual, they do not render the admission of this evidence unfair.

It was for these reasons that I admitted the evidence the subject of the objection under s 90 of the Evidence Act.

Turning to the argument under s 137 of the Evidence Act, it was confined to the exclusion of the following comment by Mr Parkes in the extract of the recording on 10 December 2020:

Section 137 of the Evidence Act is in these terms:

“Probative value” is defined in the Dictionary to the Evidence Act as “[t]he extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. In IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14, the majority held that the assessment of probative value for the purposes of s 137 of the Evidence Act requires that the evidence be taken at its highest, without considering credibility or reliability (at [44], [52]). Nor can the existence of available competing inferences from the evidence play any part in the assessment of probative value for the purpose of s 137: R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 at [196]; R v Tortell (No 5) [2019] NSWSC 1665 at [33].

Although the term “unfair prejudice” is not defined in the Dictionary, it has been held that the danger is of prejudice that is unfair in the context of an accused person’s right to a fair trial, meaning the risk that the evidence would be misused by the jury in some unfair way: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [91]; The Queen v Bauer (2018) 92 ALJR 846; [2018] HCA 40 at [73].

In R v Rogerson; R v McNamara (No 26) Bellew J upheld an objection to an admission by the accused that he had been “a goose” on the basis that the equivocal and ambiguous terms of the impugned evidence engendered a level of danger of misuse or improper attribution of weight by the jury that outweighed its probative value. His Honour held that it was not a matter of weight but of the possible attribution of an adverse meaning where they are open to a number of interpretations. Although the notion of “unfair prejudice” in the Evidence Act has generally been taken to mean the risk that the jury will misuse the evidence in some way, there is authority for the proposition that it is not confined to that risk. In R v Rice & ors (No 4), Bellew J observed the following at [31]-[32]:

Similarly, in R v Chase (a pseudonym) at [32], Basten JA (with whom Johnson and Campbell JJ agreed) observed the following with respect to the meaning of “unfair prejudice” in s 101 of the Evidence Act (footnotes omitted):

It has long been held that in considering whether there is a risk that the jury may misuse the evidence in some way, the court should consider whether the prejudice could be cured by directions: Regina v Cook [2004] NSWCCA 52 at [37] per Simpson J.

On the face of it, the probative value of the comment by Mr Parkes to Witness I is high in that it is an admission by Mr Parkes that he has lied to police. It loses some of its probative value in the context of the other evidence at trial in that Mr Parkes accepts that he has lied to police, particularly in the concocted story involving Witness I. To put this another way, the Crown is in a position to prove by other evidence that Mr Parkes has told lies to police. Questions of whether the jury accepts that the words were said do not arise as they were recorded.

Turning to the question of unfair prejudice, I am satisfied that there is a risk that the jury will use the evidence in an unfair way for the following reasons.

First, I have considered the impugned statement in the context of all of the conversations that preceded it, and I am satisfied that the accused’s response to Witness I (that he had lied to police) was to reassure him that he had maintained the concocted story to assist Witness I. Although that is ultimately a question for the jury, the issue has to be considered in the context of how lies will be relied upon by the Crown in his closing address.

Secondly, I am satisfied that the lack of credibility of Witness I (such that it was agreed he should not be called at trial) has resulted in some procedural unfairness in this matter to the accused relevant to the consideration of the impugned statement under s 137.

Thirdly, the Crown relies upon a large number of alleged lies by the accused in his ERISP. As stated above, some are relied upon as consciousness of guilt and others as relevant to credibility. Some of the lies are admitted by Mr Parkes whilst others are not. The Crown foreshadowed that it proposes to rely on the impugned statement as relevant to every lie in the ERISP. The problem with that position is that some of the lies relied upon in the ERISP were not matters discussed between Witness I and Mr Parkes and would thus not be capable of extending to them. There would be a real risk that the jury would use the impugned comment to extend to such matters in a way that is not open on the evidence.

For these reasons I am satisfied there is a risk of unfair prejudice but that is not the end of the matter.

The final question is whether I am satisfied that the danger of unfair prejudice can be cured by direction. The lies direction in this trial will already be somewhat complex given the number of lies and different ways in which they will be relied upon by the Crown. The Crown relies on lies in the ERISP and the listening device material (and in his evidence in court). Although it may be possible to craft a direction to avoid the potential for unfair prejudice in this matter, I am satisfied that it would add another layer of complexity to an already complex direction. It was on that basis that I excluded the impugned statement. Caution is always required in this area. I was not ultimately satisfied that the unfair prejudice could be cured by direction. But for the complexity of the issue of lies in this matter I may have reached a different conclusion.