Sarah Jane Parkinson(Appellant) v Leesa Alexander

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 04 August 2017
• Docket Number: File Number: SCA 80 of 2015
• Date: 04 August 2017
• Court: Supreme Court of ACT

Sarah Jane Parkinson

(Appellant)

and

Leesa Alexander

(Respondent)

[2017] ACTSC 201

Before:

Refshauge J

File Number: SCA 80 of 2015

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL — CRIMINAL LAW — Appeal from the Magistrates Court — tendency evidence — trial directions — reverse Liberato — Crown's oral submissions inconsistent with written submissions at first instance — latent ambiguity — miscarriage of justice — appeal upheld in part

CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and punishment — accused convicted but not yet sentenced — making a false allegation — public mischief

EVIDENCE — TENDENCY EVIDENCE — False allegations of criminal conduct against people — providing police with false, misleading or inaccurate information — tendency not formulated as per notice — no opportunity for accused to challenge the evidence — evidence inadmissible

Cases Cited:

AE v The Queen [2011] VSCA 168

Anderson [2001] NSWCCA 448 ; 127 A Crim R 116

Carcosa Pty Ltd v Czerwaniw (Department of Health) (1997) 93 A Crim R 287

Di Corrado v His Honour Judge Gebhardt [1999] VSC 35

Eastman v The Queen [2000] HCA 29 ; 203 CLR 1

F (1996) 90 A Crim R 356

Fleming v The Queen [1998] HCA 68 ; 197 CLR 250

Giam [1999] NSWCCA 53 ; 104 A Crim R 416

Glanville v Harris [2017] ACTSC 110

Hamzy (1994) 74 A Crim R 341

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hoessinger v The Queen (1992) 107 FLR 99

Hughes v The Queen [2017] HCA 20

Hussain v The Queen [2013] ACTCA 42

Johnson v Miller (1937) 59 CLR 467

Liberato v The Queen (1985) 159 CLR 507

Neill-Fraser v Tasmania [2012] TASCCA 2

O'Donoghue (1988) 34 A Crim R 397

Parkinson v Alexander [2016] ACTSCFC 1 ; 11 ACTLR 190

Preston v Carnall [2015] ACTSC 325 ; 300 FLR 302

RMP v Western Australia [2017] WASCA 70

Rowland v Police [2001] SASC 179 ; 79 SASR 569

Russell v Western Australia [2011] WASCA 246

R v Collins [2004] ACTSC 48

R v DM [2010] ACTSC 137

R v E (1995) 89 A Crim R 325

R v Evans [2007] ACTSC 11

R v Goonerage [2005] ACTSC 96

R v Helps [2016] SASCFC 154

R v Jacka [2011] ACTSC 63 ; 249 FLR 111

R v Johnson [2013] QCA 91

R v Massey [2000] ACTSC 107

R v McLaughlan [2008] ACTSC 49 ; 218 FLR 158

R v Molloy [1921] 2 KB 364

R v Nona [2015] ACTSC 136

R v Parkes [2010] ACTSC 44 ; 243 FLR 252

R v Rogerson (1992) 174 CLR 268

R v Tran [2003] ACTSC 53

R v Whittington [2006] NTCCA 4

Salmon v The Queen [2001] WASCA 270

Seriban v The Queen [2014] NTCCA 12

S v The Queen (1989) 168 CLR 266

Tyson v The Queen [2005] NTCCA 9 ; 16 NTLR 161

Vojneski v The Queen [2016] ACTCA 57

Walsh v Tattersall (1996) 188 CLR 77

Legislation Cited:

Crimes Act 1900 (ACT), ss 52, 52(1), 396

Crimes Act 1900 (NSW), s 314

Evidence Act 2011 (ACT), ss 97, 97(1)(a), 97(1)(b), 99, 100, 101, 102, 108B, 137, 144(4)

Magistrates Court Act 1930 (ACT), s 216

Supreme Court Act 1933 (ACT), s 68C(2)

Criminal Code 2002 (ACT), ss 44, 713, 715, 715(1), 715(1)(b)(ii)

Texts Cited:

Model Criminal Code Officers Committee, Report: Model Criminal Code; Chapter 7; Administration of Justice Offence (MCCOC, Canberra, July 1998)

J Fitzgerald, The attrition of sexual offences from the New South Wales criminal justice system (Bureau of Crime Statistics and Research, Sydney, 2006)

Representation:

Counsel

Mr K Archer (Appellant)

Mr A Williamson (Respondent)

Decision:

• 1. The conviction of Sarah Jane Parkinson for making a false accusation on 20 December 2012 be set aside.

• 2. Sarah Jane Parkinson be acquitted of making a false accusation on 20 December 2012.

• 3. The conviction of Sarah Jane Parkinson for making a false accusation on 21 March 2014 be set aside.

• 4. The appeal be otherwise dismissed.

• 5. The convictions for public mischief on 1 June 2014, 2 July 2014 and 13 July 2014 be confirmed.

• 6. The parties be invited to make submissions on any consequential orders to be made.

Refshauge J

1 The credibility and value of the criminal justice system depends in a large part upon convicting the guilty and acquitting the innocent. The system, however, being a human system after all, does not always work perfectly to deliver this objective, though the opportunity to appeal a conviction helps reduce its fallibility. The courts continue to strive to meet the objective with fairness and, with the legislature, fashion procedures and laws to maximise the likelihood of achieving the desired outcomes.

2 Some of those laws designed to help achieve the desired outcomes are those that create offences which prohibit such interference with the system as is likely to distort its objective. Conviction for such offences allows courts to punish those who try to subvert the proper outcomes. Those offences are commonly termed, as in the Criminal Code 2002 (ACT), Administration of Justice offences, and include lying to the court (perjury), falsifying or concocting evidence, perverting the course of justice, making false allegations either to waste police investigative time (public mischief), or trying to and having people wrongly prosecuted.

3 Over all these concerns, however, lies the overriding consideration that hearings to determine guilt of a person accused of a crime must be fair as the credibility of the criminal justice system also depends essentially on the process, including the trial, being fair, for without that no conviction can provide that credibility on which community confidence in the criminal justice system depends.

4 The appellant, Sarah Jane Parkinson, was charged with nine Administration of Justice offences, three of making a false accusation contrary to s 715 of the Criminal Code (for some reason erroneously referred to as s 725 in the respondent's submissions), committed with a view to having a person prosecuted for an offence that was not committed, and six offences of public mischief under s 396 of the Crimes Act 1900 (ACT) (for some reason erroneously referred to as s 296 in the respondent's submissions), these latter offences being committed by making a false representation intending to make it appear that an event had occurred that calls for investigation by a police officer where the representation came to the knowledge of the police officer.

Background

5 Ms Parkinson, commenced a romantic relationship with a male, EK, in 2011 and eventually they lived together. The relationship, however, ended on 9 November 2013.

6 About a month later, Ms Parkinson, commenced a relationship with TV, whom she had met at work.

7 On 7 December 2013, Ms Parkinson made a complaint to NSW police about EK. She gave a statement on three occasions over about 20 hours in total. The complaint made included an allegation of non-consensual sexual intercourse between Ms Parkinson and EK where he was said to have assaulted her and later had forcible sexual intercourse with her in December 2012.

8 EK was arrested and charged on 24 December 2013. He was released on bail.

9 On 21 March 2014, a police officer attended at Ms Parkinson's home and found her lying on the floor of the open plan kitchen/dining area. She complained that EK had come to the house and assaulted her and she made a statement to police about it. EK was later charged and remanded in custody. On 26 March 2014, she made a further statement in which she complained that, in the 21 March incident, EK had again forcibly had non-consensual sexual intercourse with her.

10 On 1 June 2014, Ms Parkinson attended at Gungahlin Police Station and complained to police that someone driving a black Ford hatchback car had forced her car off the road on Horse Park Drive, Gungahlin, and had threatened her and attacked her with a knife. She said the car was similar to one driven by EK's father.

11 Ms Parkinson later complained to police on 2 July 2014 that her iPad had been stolen during a break-in of her home a week previously and that it was ‘showing up’ as being located near the house in which EK and his family were living.

12 Finally, on 13 July 2014, Ms Parkinson complained to police that, while parked at The Canberra Hospital, her car had been entered without her consent by someone who had a key, stating that the family of EK had a spare key to the car.

13 It appears that her making these allegations caused police to re-consider complaints that Ms Parkinson had made on 10 May 2008 that a male neighbour, the father of a friend, had, uninvited, kissed her while walking her home one night in December 2007. She told police that he had kissed her on her lips and tongue, down her neck and chest, fondled her breasts, both inside and outside her brassiere, fondled her buttocks and placed his hand inside her underwear, touched her vagina and placed his fingers inside and moved them around. These had not, at the time, led to any prosecution being commenced.

14 As investigations progressed, however, police became concerned about the truth of the accusations she had made and finally came to the view that her accusations were false and had been concocted by her.

15 The making of what police now considered were false accusations were the facts that were said to form the basis for the charges laid against Ms Parkinson as referred to above (at [4]).

16 Following being charged with the offences, Ms Parkinson appeared in the ACT Magistrates Court and, after a hearing before the learned Chief Magistrate,...