Sarah Jane Parkinson(Appellant) v Leesa Alexander

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 09 October 2017
• Court: Supreme Court of ACT
• Docket Number: File Number: SCA 80 of 2015
• Date: 09 October 2017

[2017] ACTSC 290

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number: SCA 80 of 2015

Sarah Jane Parkinson

(Appellant)

and

Leesa Alexander

(Respondent)

Representation:

Counsel

Mr K Archer (Appellant)

Mr A Williamson (Respondent)

Cases Cited:

Anderson (1991) 53 A Crim R 421

Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627

Dyers v The Queen [2002] HCA 45 ; 210 CLR 285

Eastman v Director of Public Prosecutions (ACT) (No 2) [2016] ACTSCFC 2 ; 9 ACTLR 178

Fingleton v The Queen [2005] HCA 34 ; 227 CLR 166

Fox v Percy [2003] HCA 22 ; 214 CLR 118

Gerakiteys v The Queen (1984) 153 CLR 317

Gilham v The Queen [2012] NSWCCA 131

Haoui v The Queen [2008] NSWCCA 209 ; 188 A Crim R 331

Hoessinger v The Queen (1992) 107 FLR 99

Hughes v The Queen [2017] HCA 20

King v The Queen (1986) 161 CLR 423

Longman v The Queen (1989) 168 CLR 79

M v The Queen (1994) 181 CLR 487

Parker v The Queen (1997) 186 CLR 494

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

Parkinson v Alexander [2017] ACTSC 201

Reid v The Queen [1980] AC 343

R v Kiripatea [1991] 2 Qd R 686

R v Partridge (Unreported, Full Court of the Federal Court of Australia, Gallop, Matthews and Madgwick JJ, 29 May 1998)

R v Taufahema [2007] HCA 11 ; 228 CLR 232

R v Thomas (No 3) [2006] VSCA 300 ; 14 VR 512

Spies v The Queen [2000] HCA 43 ; 201 CLR 603

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

Legislation Cited:

Criminal Appeal Act 1912 (NSW), s 8(1)

Criminal Code 2002 (ACT), s 715

APPEAL — CRIMINAL LAW — Appeal from the Magistrates Court — inadmissible evidence in trial at first instance — latent ambiguity in trial at first instance — conviction set aside due to a miscarriage of justice — whether retrial should be held — principles on which retrial ordered — retrial ordered

Decision:

• 1. That the charge of making a false accusation on 21 March 2014 (CC2014/5648) be remitted to the ACT Magistrates Court for retrial before a different Magistrate in accordance with these reasons and the reasons given for upholding the appeal.

Refshauge J

1 Sarah Jane Parkinson was convicted of five offences and acquitted of one offence in the ACT Magistrates Court arising out of accusations she made to police. Ms Parkinson appealed against the convictions. On 4 August 2017, I partially upheld the appeal: Parkinson v Alexander [2017] ACTSC 201.

2 I set aside the conviction and entered an acquittal on one charge, I also set aside the conviction on a second charge but did not make any consequential order and I confirmed the convictions on the remaining three charges.

3 As far as it is concerned, the charge on which I only set aside the conviction, I sought submissions as to whether the charge should be remitted to the Magistrates Court for retrial or whether I should enter an acquittal.

4 I have now received submissions on that issue.

The Background

5 In order to understand the issue, it is necessary to give a brief background to the matter, by reference to the facts, the proceedings, and the way I decided to set aside the conviction.

6 In brief, Ms Parkinson was in a relationship with a man I referred to as EK. The relationship broke up in acrimonious circumstances and Ms Parkinson accused EK of sexually assaulting her on two occasions. She also accused members of his family of committing various offences involving her or her property.

7 Police investigating the accusations she had made formed the view during the investigations that the accusations she had made were false and, as a result, she was charged with various offences, including three offences under s 715 of the Criminal Code 2002 (ACT) of making a false accusation. Of the allegedly false accusations, the subject of these charges, were the two accusations of sexual assault alleged to have been committed on her by EK.

8 I do not need to refer to the first of these two accusations further, other than to say that I found certain evidence had been wrongly admitted and that, as a result, the evidence, without the inadmissible evidence, could not sustain the charge and I acquitted her.

9 I formed the view that the only way that the prosecution could have proceeded with that charge would be on a different evidentiary basis and that it would, as a result, be wrong to order a new trial: Parker v The Queen (1997) 186 CLR 494 at 520. For this reason, I entered the verdict of acquittal.

10 As to the second charge, for which I set aside the conviction, the flaw in the prosecution case that led to the conviction being set aside arose because of a latent ambiguity in the way the prosecution asserted its case.

11 The prosecution provided particulars, which went beyond the charge, but without amending the charge. In fairness to the prosecution, I have to point out that the defence did not object to this inconsistency nor approach the Court to regularise the proceedings, perhaps lulling the prosecution into considering that the problems later identified by me were not to be relied on by the defence.

12 When the defence pointed out a fundamental defect in the prosecution case, the prosecution made submissions inconsistent with the case as then conducted and which had little, though some slight, evidentiary basis. The learned Chief Magistrate accepted this argument, however, and, on this basis, convicted Ms Parkinson.

13 Relying on the clear view of cases such as Hoessinger v The Queen (1992) 107 FLR 99 and Tyson v The Queen [2005] NTCCA 9; 16 NTLR 161, I found that the latent ambiguity had led to a miscarriage of justice and, as a result, the conviction had to be set aside.

14 The authorities I consulted, however, did not show any uniformity as to the consequence of such a finding. Some showed that a finding of the kind I had made would lead to an acquittal being entered; others showed that the court would order a new trial.

15 This makes it clear that such a finding is not necessarily one which must result in acquittal. It is, thus, to be contrasted with cases where an acquittal must ordinarily result, such as where the conviction is set aside as unsafe and unsatisfactory ( M v The Queen (1994) 181 CLR 487 at 492) or because the prosecution case was flawed ab initio ( Fingleton v The Queen [2005] HCA 34; 227 CLR 166 at 192; [55], 192–3; [59], 211; [125], 228; [182], 232; [199]) or where the evidence could not, as a matter of law, prove the charged offence ( Gerakiteys v The Queen (1984) 153 CLR 317 at 321, 322, 331).

16 Accordingly, I directed the parties, if they wished to do so, to make submissions on the appropriate order I should make in respect of the one charge which I have not finally resolved. They did so and I am grateful for the industry of counsel and the assistance that they provided.

The Law

17 Although many cases are resolved by entry of an acquittal or an order for a new trial without reasons for those orders, there has been substantial consideration of when it is appropriate for an appellate court to order that a new trial be held of a charge where the court has upheld an appeal from a conviction for the charge.

18 The appellate court has a discretion as to whether a retrial should, in the interests of justice, be ordered after a conviction has been quashed: Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630.

19 Nevertheless, the High Court in Spies v The Queen [2000] HCA 43; 201 CLR 603 at 638; [104], held that, unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge when the conviction has been set aside but where there is evidence to support the charge.

20 This was an issue between the parties. Mr K Archer, counsel for Ms Parkinson, referred to what Murphy J had said in King v The Queen (1986) 161 CLR 423 at 426–7:

Under s 8(1) of the Criminal Appeal Act 1912 (NSW), a new trial should only be ordered where it would more adequately remedy the miscarriage of justice than any other order the court is empowered to make.

A new trial is not the inevitable result of a successful appeal against conviction. The onus rests squarely with the prosecution to show the court that a new trial is the most appropriate remedy. In Cheatley v The Queen [ [1981] Tas SR 123 at 137–8], the correct approach is clearly spelled out by Everett J:

My conclusion is that there is no presumption in favour of a second trial being ordered when an appeal succeeds, and that the discretion of the court must be exercised on a consideration of all the relevant facts and circumstances. The accused should be accorded neither more nor less personal consideration than the overall justice of the case requires in recognition of the public interest in the fair and impartial administration of criminal justice. I do not accept the counter argument on behalf of the prosecution that ‘the ordinary course should apply’. I do not consider, for reasons I have expressed, that there should be any ‘ordinary’ course. Each case is individual and should be determined on the basis of the facts and all relevant considerations which apply to it — not to a different case. It is a negation of the wide discretion vested by statute in the Tasmanian Court of Criminal Appeal to suppose that a common mould exists and that all cases should be judged within its framework.

21 In that case, Murphy J was in dissent on the outcome, namely that a retrial should be ordered and not a verdict of an...