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.

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

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

Anderson (1991) 53 A Crim R 421

Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (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] HCA 8; (1984) 153 CLR 317

Gilham v The Queen [2012] NSWCCA 131

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

Hughes v The Queen [2017] HCA 20

King v The Queen [1986] HCA 59; (1986) 161 CLR 423

Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Parker v The Queen [1997] HCA 15; (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

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.

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] HCA 15; (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] HCA 63; (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] HCA 8; (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.

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] HCA 48; (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] HCA 59; (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 acquittal. Deane J, also in dissent and with whom Mason J agreed, did not address the issue of any default position, presumption in favour of or against an order for a new trial or any onus on the prosecution. His Honour was concerned (at 429) that a new trial would give the Crown, after its election at the first trial as to how it put its case, to present its case in a different way.

22. In the same case, Dawson J, with whom Gibbs CJ, Wilson and Brennan JJ agreed, said (at 433), after referring also to s 8(1) of the Criminal Appeal Act 1912 (NSW):

The section itself lays down the conditions for its own application. The miscarriage of justice to which it refers must be such that it can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. But the section nevertheless confers a broad discretion ... However in this case the sole reason why it was said that a new trial was inappropriate was that, upon the Crown case as it was presented, the verdict brought in against King was unsafe, being inconsistent with the acquittal of Matthews, and that to order a new trial would be to allow the Crown to remedy the deficiency by presenting a new case against King ...

23. Nothing in the reasons suggests that this passage is consistent with the comments of Murphy J.

24. In Spies v The Queen, the plurality referred expressly to what Dawson J had said in King v The Queen and then articulated the approach that should be taken as I have expressed it above (at [19]). There is, in my view, an indication from that statement of the Court that the ordinary consequence of the upholding of an appeal from a conviction is the ordering of a new trial unless there are reasons why that would not properly remedy the injustice. There is no reference, express or implied, to any onus. Indeed, what was said implies that any onus was borne by the accused, though I would not find that either party bore an onus. I consider that I am bound by what was said by the plurality in Spies v The Queen. This, of course, also requires that before a retrial is ordered, the Court must be satisfied that there is evidence to support the charge.

25. Thus, the Full Court of this Court pointed out in Eastman v Director of Public Prosecutions (ACT) (No 2) [2016] ACTSCFC 2; 9 ACTLR 178 at 255; [265], the Court should first assess the available evidence to see that it is sufficient to support a conviction. It must be open to the Court on a retrial to convict the appellant, though the appeal court is, of course, not called upon to decide whether it should do so. It is then that the Court turns to the interests of justice.

26. It does this in the context of three important considerations. In the first place, a new trial is not an opportunity for the prosecution to supplement or "patch up" a defective case or to present a case significantly different to that presented at the first trial. As Dawson J said in King v The Queen at 433:

It is well established that the discretion to order a new trial should not be exercised when the evidence in the court below was not sufficiently cogent to justify a conviction or to allow the Crown to supplement a case which has proved to be defective. In particular, the Crown should not be given an opportunity to make a new case which was not made at the first trial: R v Wilkes [(1948) [1948] HCA 22; 77 CLR 511 at 515].

27. This does not mean, however, that the prosecution is prevented from adducing additional evidence. It may do so if such evidence did not exist or was not known and could not have been known at the time of the first trial: R v Thomas (No 3) [2006] VSCA 300; 14 VR 512 at 515-6; [12]- [16]; Gilham v The Queen [2012] NSWCCA 131 at [686].

28. Secondly, the Court must have regard to the constitutional position of the appellate court and, in particular, that ordinarily it is the trial court which should determine guilt or innocence (Anderson (1991) 53 A Crim R 421 at 453) and that it is not the role of an appellate court to usurp the functions of the properly constituted prosecutorial authorities (R v Thomas (No 3) at 517; [27]).

29. Thirdly, it is important to take account of the public interest in the prosecution and punishment of offenders: R v Taufahema [2007] HCA 11; 228 CLR 232 at 254; [49].

30. In the light of these matters, there are then a range of discretionary matters that are specific to the particular circumstances that must be considered.

31. In Dyers v The Queen [2002] HCA 45; 210 CLR 285 at 314-5; [82]- [83], Kirby J set out a series of such matters.

32. In addition, the Full Court in Eastman v Director of Public Prosecutions (ACT) (No 2) at 256-7; [270] also listed a number of such matters, some of which included those identified by Kirby J. In neither case was it suggested that the list of identified discretionary matters was exhaustive.

33. I will not list all the matters identified in these decisions. Some of them, such as those relating to the sentence imposed, are not relevant in this case. The relevant ones are:

• the length of time that has elapsed since the events that gave rise to the charge is great, that may militate against a retrial: Parker v The Queen at 520, 538;

• where a retrial would, in the circumstances impose unacceptable trauma and distress on witnesses, unwarranted by the seriousness or other significance of the alleged offence and the prospect of conviction: Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 109;

• where the age or mental or physical condition of the appellant are such that they would make a retrial clearly unjust in the circumstances (Dyers v The Queen at 315; [83)], or whether it would be unduly oppressive to the appellant to put her to the expense and worry of a new trial (Spies v The Queen at 638);

• the seriousness of the alleged crimes which, for serious offences, would tell in favour of a retrial: Haoui v The Queen [2008] NSWCCA 209; 188 A Crim R 331 at 360-1; [164];

• the strength of the prosecution case: Anderson at 453; and

• the expense and length of a further trial: Reid v The Queen [1980] AC 343 at 350.

34. Bearing these principles and considerations in mind, I turn to the question of whether a new trial should be ordered.

35. I set out in Parkinson v Alexander at [116], the elements of the offence. It is appropriate to consider the evidence by reference to the elements. They are:

(a) a person (the accused) had made an accusation;

(b) the accusation was made to a law enforcement officer;

(c) the accusation was that someone else had committed an offence;

(d) the accused knew or believed that the other person did not commit the offence; and

(e) the accused intended that the other person would be charged with committing the offence (it not being necessary for this case to consider the alternative intention under s 715(1)(b)(ii).

36. I shall address the evidence below. It is, of course, to be remembered that I am not making any finding about what evidence will or should be accepted. That is for any trial court on a retrial. I merely point to the availability of relevant evidence which, if accepted, would justify the conviction of Ms Parkinson. In this regard, I am of the view, though I can find no authority on point and none was drawn to my attention, that evidence which is lacking in any reasonable credibility or which is so tenuous or speculative as to have little or no probative value can be disregarded.

37. The evidence of a Sergeant Simone Wilson is summarised in Parkinson v Alexander at [88]-[91]. It is probative of elements (a), (b) and (c). Sergeant Wilson is a law enforcement officer, Ms Parkinson made an accusation to her, namely that EK had hit Ms Parkinson's head against a brick wall, which would be an assault.

38. EK denied assaulting Ms Parkinson. He had what is described by the respondent's counsel as "a partial alibi". If this evidence is accepted, EK did not assault Ms Parkinson and, in the circumstances, she must have known that. This evidence is, therefore, probative of element (d).

39. The respondent submits that "[t]he real question is whether it is open for the court hearing the retrial to be satisfied of Ms Parkinson's credibility". With respect, I do not consider that this is a matter with which I have to be concerned directly. It is for the Court on the retrial to consider such a matter. Unless the evidence of Ms Parkinson is unchallengeable or the evidence of EK is so tenuous or devoid of credibility as to be set aside, it is not for the appellate court to engage in an assessment of the relative credibility of a witness, especially one that the appellate court has neither seen nor heard: Fox v Percy [2003] HCA 22; 214 CLR 118 at 125-6; [23]; 146-7; [90].

40. There is a problem with the final element (e), for the latent ambiguity in the prosecution case arose in the context of it. On the evidence as adduced in the Magistrates Court, the only offences which Ms Parkinson could have intended EK be charged when making accusations on 21 March 2014 were offences of assault (including assault occasioning actual bodily harm) and contravening a protection order. No reference was made to the latter charge at the earlier trial, but I do not consider that the prosecution, on a retrial, is prohibited from relying on it, if it can otherwise properly do so.

41. The allegation of sexual intercourse without consent (including sexual assault in the second degree) was not made until after EK had actually been, to Ms Parkinson's knowledge, charged with that offence. So far as any charge contrary to s 715 of the Criminal Code for that offence is concerned, it would be doomed to fail.

42. I reject any suggestion that the state of Ms Parkinson's jeans when Sergeant Wilson found her, namely that the top button was undone and the flaps folded inwards, was an accusation of sexual assault. There was no evidence given by either Sergeant Wilson or Station Sergeant Dora Hofmeier that they so understood this to be such an accusation. As it would breach the principle upon which a court considers whether a retrial should be ordered, the prosecution should not be given an opportunity now to seek to adduce any such evidence.

43. Thus, the only accusation which, on the evidence given, would be an accusation of assault (in the wide sense referred to above (at [40]), or of contravening a protection order. I turn to the final element, then, in that context.

44. This final element (e) is not one of which direct evidence was given. It is, however, a matter about which an inference could be drawn from other evidence, especially the formal statement made by Ms Parkinson to Station Sergeant Hofmeier later on 21 March 2014. Such a statement is taken in the context of where the maker acknowledges that what is stated may be used in court. I am satisfied that there is probative evidence from which it is open for the Court on retrial to draw the inference required to make out element (e).

45. No additional evidence was referred to by the respondents.

46. It seems to me that, on the basis of the evidence available to the prosecution, the offence could be made out.

47. The principles to which I have referred suggest that it is relevant to consider whether the prosecution has a strong case. I am hesitant to make that assessment for two reasons. In the first place, issues of credibility will loom large in a retrial and, for the reasons referred to above (at [39]), that is a matter difficult for the appellate court to address. Secondly, it should not be seen that an appellate court is making any kind of suggestion that a conviction at retrial is inevitable or, worse, required.

48. I would, in this case, prefer to find that the prosecution case is not a weak one and certainly not so weak that there should, so far as that consideration is concerned, not be a retrial.

49. I have set out above (at [33]) a range of discretionary factors. I consider these in the context which I have described, namely that ordinarily it is in the interests of justice that in a case such as this, there should be a retrial, that it is ordinarily for the Magistrates Court in an offence such as this to determine guilt; it is ordinarily the prosecution authorities which should determine which cases are brought to trial and that it is in the public interest that offenders should be prosecuted and punished.

50. Having said that, and taking those matters into account, I turn to the various other matters.

51. Delay. While there is a passage of time between the date of the alleged offence, namely on 21 March 2014 and when a retrial could be had, there are reasons for that. The hearing took place commencing on 20 July 2015 for seven days. Judgment was reserved and delivered on 26 August 2015. Ms Parkinson then appealed her convictions. The appeal was challenged as incompetent. That challenge was rejected on 15 April 2016. The appeal was then heard on 29 July 2016. Regrettably, the decision was not able to be delivered until 4 August 2017, in part because of the complexity of some issues. Ms Parkinson has not yet been sentenced for the matters of which she has been convicted.

52. It is submitted for Ms Parkinson that the offences are "to some degree stale". I agree. It is also asserted that the retrial "would not come on for hearing in the Magistrates Court for some time". There is no time suggested and this is a vague statement. No indication is given as to why, in the circumstances, an apparently justified application for expedition would not be granted and ameliorate any further delay.

53. In the circumstances, any retrial will not be delayed to the extent that would be unjustified and would justify the entry of a verdict of acquittal.

54. Unacceptable trauma for witnesses. None of the witnesses are children, complainants of sexual assault, or otherwise particularly disadvantaged. I do not, of course, refer to Ms Parkinson who may or may not give evidence and who, although a complainant, is the defendant. I address her position below (at [56]).

55. The main witnesses will be police officers, who may be regarded as experienced witnesses, EK, who, no doubt, will be stressed from giving evidence again, and some members of his family. Though the accusation against EK was a serious one, there is no reason that has been suggested as to why the inevitable unpleasantness of giving his evidence again would be other than stressful and neither so traumatic nor distressing that a retrial would be unwarranted.

56. Oppressive to conduct a retrial. I have no evidence to suggest that Ms Parkinson's mental or physical condition would make it unjust to proceed with a retrial, nor that the expense and worry would make the retrial oppressive. I accept that it will, of course, be stressful for her and difficult. While a conviction would be a serious matter, the offence itself, given the nature of the allegation now being made, is less serious than that which she originally faced.

57. Seriousness of the offence. I pointed out in Parkinson v Alexander at [1]-[2] the significance to the administration of justice of the offences of the kind which Ms Parkinson will face at a retrial. She faces a serious offence and one important for the credibility and integrity of the criminal justice system which is to be prosecuted. The seriousness of the offence supports that there be a retrial.

58. Length of Retrial. Based on the likely evidence and the length of the earlier trial, it appears that a retrial could be conducted in less than three days, hopefully much less. The possible length of a retrial would not justify an order that there be no retrial.

59. Accordingly, none of these discretionary factors particularly suggest that a retrial would not be in the interests of justice. Ms Parkinson raised two other matters which were submitted to militate against a retrial.

60. Complexity of the retrial. It was further submitted for Ms Parkinson that the forensic circumstances made a retrial inappropriate. That is to say that the retrial:

will have to take place within the context of a prosecution narrative that will have to steer the complicated course required by the appellant having to be given the full benefit of those acquittals.

61. It is not entirely clear what is here suggested. The benefit of the acquittals is, of course, available at least in part in that no mention in the retrial can be made of those allegations, for her accusations to police are not proven as false accusations since Ms Parkinson has been acquitted of them. Whether the acquittals could be admitted as some kind of tendency evidence that she makes truthful accusations is not a matter that is immediately attractive, that has not been positively found. I have heard no argument one way or the other on this issue and so could not find that she would be disadvantaged as suggested.

62. Ms Parkinson will also have the advantage of the fact that the matters on which she has been convicted cannot be used as tendency evidence for that evidence would not meet the test of admissibility articulated in Hughes v The Queen [2017] HCA 20 for the reasons outlined in Parkinson v Alexander at [42]-[45], [52]-[60]. This would reduce the complexity of the trial.

63. I am not satisfied that there is any disadvantage to Ms Parkinson in a retrial of the charge nor that the complexity of the trial would be unfair, though it may be a challenge to conduct.

64. Prosecution responsibility. Finally, it was submitted for Ms Parkinson that the responsibility for the miscarriage of the trial on this charge was the sole responsibility of the prosecution which "preferred a charge in the vaguest of terms" and then "sought to depart from those particulars in a manner that was unfair and unconscionable". Reliance was also placed on the challenge to the appeal originally taken by the prosecution on the ground that it was incompetent. See Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190.

65. The latter argument can be disposed of quickly. The question of whether the appeal was incompetent was one to which members of this Court had previously given different opinions. It was for this reason that the matter was referred to the Full Court. The prosecution cannot be fairly criticised for the challenge to the appeal which was a reasonable one on the state of the authorities at the time.

66. I accept, however, that the way in which the prosecution conducted the trial was lacking in care and rigour. The charge, however, was not "in the vaguest of terms"; it was, as is appropriate, pleaded using the words of the statute. That is appropriate and customary. See R v Partridge (Unreported, Full Court of the Federal Court of Australia, Gallop, Matthews and Madgwick JJ, 29 May 1998) at 9; R v Kiripatea [1991] 2 Qd R 686 at 694.

67. The particulars were extensive but then Ms Parkinson neither sought further particulars nor, at trial, objected when the prosecution departed from them. Nor did her counsel seek to object to evidence that was arguably inconsistent with the particulars or require them to be amended, which may have justified consequential action, such as an adjournment.

68. I do not see refusal of a retrial as intended to provide some kind of punishment or discipline for prosecution errors, save that the prosecution should not be permitted to put a case different to that it put in the first trial. Here, the comments I have made show that this should not happen and, no doubt, Ms Parkinson's counsel will be astute to see that the retrial is conducted in accordance with those requirements.

69. I do not accept that the conduct of the prosecution justifies the refusal of a retrial on a serious charge.

70. In my view, there should be a retrial. Given, however, the circumstances of the earlier hearing and the way in which the prosecution case was conducted, the retrial should be heard by a different Magistrate. I appreciate that the fragmentation of the charges and consequent sentencing should Ms Parkinson be convicted is undesirable but the fair trial of the charges overrides that consideration.

I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.