R v Parker

PARTIES : Michael John PARKER (Applicant)

SOLICITORS : G Leeson -Villamanta Legal Service (Appl) W Abadee -Crown Solicitor's Office (Crown)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

2006/72008 APPLICATION OF Michael John PARKER [No 2]

1 KIRBY J: In May 2006, a number of documents were received by the Criminal Registry of the Supreme Court of New South Wales. The documents included an unsigned handwritten letter, a handwritten statement signed by "T Charlton" and a number of newspaper clippings. They related to the "conviction" for manslaughter in 1988 of Michael John Parker ("the applicant"). The victim was Faye Louise Charlton, who died in November 1983. The unsigned letter was apparently written by Mr Parker's mother although he, at the time, had no knowledge of it. 2 The purpose of the unsigned letter was to seek an inquiry under s474D of the Crimes Act 1900 into the "conviction". There had been a previous application for an inquiry, made under the same section, in 1994. It was referred to the Chief Judge at Common Law, Mr Justice David Hunt. Mr Justice Hunt, however, dismissed the application. A person who has been convicted of an offence (or someone on his or her behalf) may make a further application, pointing to fresh evidence which gives rise to a doubt concerning that conviction. Here, it seemed to me appropriate to view the documents submitted by the applicant's mother as an application made on his behalf. The issue is whether the matters identified in these documents give rise to a doubt concerning the conviction, justifying an inquiry. 3 Before examining this material, I should describe the background to this application.

Background. 4 Michael John Parker is a mentally retarded man born in 1956 or thereabouts. In 1983 he was employed in a Sheltered Workshop at Albury. On Thursday 3 November 1983, the body of Faye Louise Charlton was found in the bed of the Bungambrawatha Creek near Albury. She was aged 13 years. The discovery was made by two schoolgirls. The police determined that she had left home on Saturday 29 October 1983 and had later worked at the Albury Show. She was last seen walking alone in Mate Street, Albury, at about 7.30 pm on Monday 31 October 1983. 5 Dr Oxbrow was called to the creek bed after the body was discovered. He made an examination. At the time of that examination he took samples of maggots from the deceased's eyes. He later determined that the cause of death was strangulation. His evidence as to the time of death was summarised by Hunt CJ at CL in his judgment dismissing the previous application, in these terms: (unreported, 8.11.94, p2) "… His original estimate of the time of death was at least thirty six hours before the examination (or shortly after midnight on Tuesday 1 November), but he said that he had subsequently concluded that - because of the cool conditions in the gully - the time of death could have been twenty four hours earlier (or shortly after midnight on Monday 2 November). According to the material placed before me on behalf of the applicant, Dr Oxbrow is not prepared to extend the time of death to any earlier time." 6 A statement was made by a witness who had seen Mr Parker talking to the deceased outside a shop in Mate Street, North Albury, on the afternoon of Monday 31 October 1983. As a result of that information, the applicant was interviewed on Tuesday 8 November 1983. The police offered to arrange for his mother to be present. Mr Parker made it clear, however, that he was anxious that his mother not attend. Rather, he asked for the Training Services Manager at the Sheltered Workshop, Ms Julie Orton, to be present. Ms Orton had formal qualifications as a psychologist. She also had substantial practical experience in dealing with persons with special learning needs. She had been closely associated with Mr Parker for some time. She attended the interview and was present throughout. In the course of the interview, Mr Parker confessed to having strangled the deceased following a crude but unsuccessful attempt to have sexual intercourse. The interview was formally recorded. 7 Mr Parker was then charged with murder. He was later committed for trial. However, when the matter was called on for trial, he was found to be unfit to plead. He was then detained in a mental hospital. Ultimately the Mental Health Review Tribunal recommended that he again be put on trial. Again he was found unfit to be tried. The Attorney General then directed, pursuant to s428M of the Crimes Act 1900, that there be a Special Hearing in which he was deemed to have pleaded not guilty. The jury returned a verdict that, on the limited evidence available, Mr Parker was guilty of manslaughter, the charge of murder having been reduced to manslaughter by reason of his diminished responsibility. He was sentenced to seven years imprisonment.

Appeal against "conviction". 8 An appeal was lodged against the verdict and sentence. It was heard by the Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) ((1990) 19 NSWLR 177) in December 1989. The grounds of appeal included the following: "1. The learned judge erred in admitting the statements made by the appellant in response to police questioning as evidence in the special hearing. 2. The finding of the jury is unsafe and unsatisfactory." 9 The Court recognised, during the trial and on appeal, that the Crown case against Mr Parker was almost entirely based upon the confessional statements to the police made in the presence of Ms Orton. It also recognised that Mr Parker was severely intellectually impaired. Ms Orton gave evidence that, in her professional judgment, he had the mental age of a child of six or seven years. The Supreme Court at trial, and the Court of Criminal Appeal on appeal, recognised that Mr Parker had, when questioned about the events of November 1983, given "grossly contradictory" accounts. He had, for instance, when questioned by certain psychiatrists, denied having had anything to do with the death of Faye Charlton, blaming people he described who were in a car. When seen by Dr William Barclay, he had not confessed, but had given a version which Dr Barclay regarded as "incredible". He had, on the other hand, confessed to Dr Hugh Jolly and consistently maintained to Dr Chiu Wong, that he had killed the deceased by strangling her (Hunt CJ at CL, pp4/5). The Court of Criminal Appeal recognised as well that, as stated by Dixon J, in Sinclair v The King (1946) 73 CLR 316, an insane or handicapped person is not necessarily an incompetent witness. Gleeson CJ said this: (R v Parker (supra) at 183) "Persons who are intellectually handicapped or who suffer from disease or disorder of the mind are by no means necessarily incapable of telling, or admitting, the truth." 10 No issue was raised during the trial as to the accuracy of the recorded interview between the police and Mr Parker. Ms Orton was a witness to what had been said. The only issue, as the Supreme Court and the Court of Criminal Appeal recognised, was the reliability of the "confession". The trial Judge, examining that issue, determined that the confession was voluntary and admissible. Gleeson CJ (Hunt and Loveday JJ agreeing), commenting upon that finding, said this: (at 184) "His Honour found no basis for concluding that the will of the appellant had been overborne at the time of the interview, or that the presence of Miss Orton operated as inappropriate and unacceptable pressure. Moreover, for reasons that have already been mentioned, there were aspects of what the appellant said to the police that strongly supported the conclusion that his confessional statements were in fact true. His Honour concluded, in my view correctly, that the evidence was admissible and that there was no occasion to reject it in the exercise of his discretion." (emphasis added) 11 Turning to the second ground, that the verdict was unsafe and unsatisfactory, Gleeson CJ, on behalf of the Court, said this, referring to the interview: (at 185) "… The content of those answers was damning to the appellant, not only because of his specific admissions that he strangled the girl, but also because of the circumstantial information which he gave which supported the reliability of his admissions. In his summing-up to the jury the learned judge made it clear that a major issue for their consideration was the reliability of the information which the appellant provided to the police and that a particular problem in that regard arose out of the mental condition of the appellant. His Honour said: 'In this case, dealing with a severely mentally handicapped person, you might think it particularly important to look at that second question if you were satisfied as to the first because with his retarded, very simple mind, it may be possible for him to make a false admission of a serious crime in circumstances in which a person of full mental capacity would not do so.' His Honour then went on to draw the attention of the jury to factors relevant to their resolution of that special problem. In my view that constituted a perfectly adequate warning in the circumstances of the case. There was ample material upon which the jury could reach the conclusion reflected in their verdict, and I do not consider that the second ground of appeal has been made out." 12 Accordingly, the appeal against conviction was dismissed. The appeal against sentence was upheld in part. An adjustment was made to the commencement date of the sentence imposed by Roden J. Mr Parker was released in November 1990. He, nonetheless, remains in care by reason of his substantial intellectual handicap.

Application for Inquiry in 1999. 13 There was, an mentioned, an application for an inquiry in 1994. It will be remembered that Dr Oxbrow, who attended the scene, took samples of maggots from the deceased's eye. The maggots were later examined by an entomologist, Dr Brown. Dr Brown reported to Sgt Radford, who was in charge of the prosecution. He stated his view that the maggots had come from first strike blowflies and were between 12 and 36 hours old. First strike blowflies only "strike" and lay their eggs during daylight hours. Hunt CJ at CL, in his judgement in 1994, identified the implications of Dr Brown's opinion in these terms: (p7) "… If that opinion be accepted, the earliest that the blowflies could have laid the eggs which became the maggots would have been at sunrise on the Wednesday morning, and death must therefore have been no earlier than sunset on the Tuesday evening - or almost twenty hours later than Dr Oxbrow estimated in his evidence, and twenty four hours later than the applicant said that he had killed the deceased." 14 The report of Dr Brown was never given to the Crown or the legal representatives for Mr Parker. It was possible that it had never been received by Sgt Radford, or had become lost in the system. It was undisputed that its existence was unknown at the time of the Special Hearing and the appeal. Hunt CJ at CL accepted that it clearly amounted to "fresh material". His Honour then examined whether, in the light of that material, a "doubt or question" as to the guilt of Mr Parker had been demonstrated (s474E(2) Crimes Act 1900). The test for determining that issue was whether the material caused the Judge "unease" (Varley v AG (1987-8) NSWLR 30 at 48) or "a sense of disquiet" (at 35). 15 It will be appreciated that clearly there had been an issue at the original trial as to the time of death. On the evidence presented, there was the possibility (depending upon the view taken) of a mismatch between the time Mr Parker said that he strangled the victim (Monday afternoon) and the time, according to the evidence of Dr Oxbrow, that death ensued. The evidence of Dr Brown tended to suggest a time of death closer to the time the body was discovered and therefore even further from the "Monday afternoon". 16 Hunt CJ at CL, in these circumstances, carefully sifted through the evidence for material that may be thought to corroborate Mr Parker's involvement. He said this: (p4) "The formal interview proceeded when Ms Orton arrived. The applicant was asked what he had done 'on Monday afternoon', and he proceeded to relate having spoken to the deceased at a shop in Mate Street, North Albury, asking if he could walk her home, going via the creek and strangling her after his attempts to have sexual intercourse with her had failed. He was able in his answers not only to identify the location where Miss Charlton's body was found and to say that she had been strangled, but also to say how the body had been left lying (on its front), and to relate the facts that she had been lying on her back in the sand, that she was moved from the sand and that her brassiere had been pulled 'down around her belly'. The applicant then went with the police and Ms Orton to show them the shop in Mate Street where he had spoken to the deceased, the path which they had taken together to Bungambrawatha Creek, the place where he had strangled the deceased and the place where the body had been left." (emphasis added) 17 His Honour examined whether the account of Mr Parker might have come from other sources. There had been publicity of certain aspects, but not others. The girls who discovered the body may have spoken to their friends at school, and so the information may have got out. Each of these matters was considered and carefully weighed. Referring to the submission made on behalf of Mr Parker that the material may, by these means, have come to Mr Parker's notice, his Honour said this: (at p14) "The Solicitor General describes this submission on behalf of the applicant as speculative - as indeed it is, in my respectful view. The reference to the position of the brassiere was indeed a critical one. And, whilst there is a possible explanation for the applicant's knowledge of each of the other matters of circumstantial detail from various different sources, the fact that (with a mental age of only six or seven years) he had knowledge of them all strongly supports the Solicitor General's argument that all such details are quite unlikely to have been within his knowledge unless he had indeed been the person who had killed the girl." (emphases in original) 18 His Honour added: (p14) "I regard the Crown case as a very strong one notwithstanding the unreliability of the applicant's identification of the particular day upon which he killed her."

The present application. 19 Turning to the present application, it will be remembered that a number of documents were forwarded to the Criminal Registry of the Supreme Court of New South Wales. Much of the material in the newspaper clippings and the unsigned letter relates to the findings made by Dr Brown, being the issue dealt with by Hunt CJ at CL in 1994. There is no occasion to revisit these issues (s474E(3)(a)(ii) Crimes Act 1900). The unsigned letter, however, which I assume was written by Michael Parker's mother, included the following statement: "A DNA test will prove beyond a shadow (of) doubt the innocent (sic) of Mr Michael John Parker? The names of the two women with Fay the night she was murdered is (sic) well known to the Charlton Family." 20 The handwritten statement by Mr Tom Charlton is three pages in length. It is signed but undated. Much of the contents are either irrelevant or, at best, indirectly relevant. The statement describes the domestic turmoil within the Charlton family and the alleged association of his former wife with certain police officers for corrupt purposes. Mr Charlton, one gathers, was convicted of having assaulted certain members of his family. Although it is not entirely clear, it appears that he may have been incarcerated in respect of these charges. He clearly blames his wife for his predicament. At some point, it is said that he saw Michael John Parker, his mother and brother and spoke to them. The solicitors for Mr Parker, on this application, sought instructions from their client and were provided with the following: "Q. Do you know the basis for the suggestion that the deceased was accompanied by two of her friends? A. Two of Faye's friends went out with her but she did not come back. One of the women was Faye's aunty, who was married to Tom Charlton (Faye's uncle). The other woman was a friend of Faye's aunty. Tom's wife killed Faye because she was drinking alcohol and using heroin. Faye was killed at Tom Charlton's house. Tom Charlton told me this when I was at his house with my mother." 21 In the light of this material, two issues were identified, namely: · First, whether there has been any DNA examination of the clothing of the deceased and, if not whether that clothing is still available (as presumably it is) and whether tests can be undertaken. · Secondly, whether the issues canvassed by Mr Parker in his explanation were referred to in the original Inquiry, or were the subject of any investigation. 22 These issues were then the subject of submissions by the Crown and Mr Leeson of the Villamanta Legal Service, acting on behalf of Michael Parker. They were the only matters which may conceivably justify an inquiry. I now turn to the submissions made in respect of those issues.

Possible DNA testing. 23 The committal proceedings were held at Albury on 19 January 1984. A number of documents were tendered. They included a certificate of a forensic biologist, Mr Robert Goetz. The certificate was in these terms: "(a) semen was detected on the swabs and smears taken from the high vaginal area, low vaginal area and vulval area in quantities insufficient for grouping purposes; (b) semen was not detected on the shorts, top, briefs and bra taken from the body of the victim." (emphasis in original) 24 DNA testing was not undertaken before the Special Hearing. The technology was not then available. It did not become available until many years later. Although DNA may degrade with time, nonetheless there was the possibility that, had the exhibits been available, they could have been tested for DNA. Such tests may or may not have been successful. Enquiries were therefore made by the Crown to determine whether the specimens taken by Mr Goetz or the clothing of the deceased were still available. Retired Chief Superintendent Ian Radford, who had been a senior officer involved in the investigation, advised the Crown in these terms: (letter 11 January 2007) "At the time of the special hearing in 1988 I was in possession of the clothing, handbag and contents exhibits for production to the court. Subsequent to the hearing these exhibits would have been retained at the Scientific Investigation Section at Albury until destruction in accordance with normal procedures. Exhibits relating to bodily fluids, samples and organs and entomological examination would have been retained by the relevant laboratories and would have been destroyed in accordance with protocols." 25 Mr Goetz said that the forensic samples taken before 1986 had not been retained. The possibility of DNA testing was therefore not available. 26 Does the absence of such material give rise to a doubt, justifying an inquiry? It was submitted on behalf of Mr Parker that it did. However, the semen found in the vagina was probably of limited relevance, and its classification in terms of DNA, would certainly not have been determinative. A submission made in respect of the application before his Honour Justice Hunt summarised the evidence in respect of this issue in these terms: " SEXUAL INTERCOURSE Semen was found in the vagina and vulva but not on the underclothes which were intact. There was no trauma to vagina or vulva. Forensic opinion is expected to be that it is unlikely that intercourse occurred immediately before the death. Det Sgt Radford at the Committal said that while there was mud on the body there was none in the area which the 'briefs and trousers covered' and that 'it appears as though the lower garments in particular had not been touched at all. '" (Committal transcript page 33) (emphasis added) 27 Hunt CJ at CL, in his judgment dismissing the application for the inquiry, drew attention to the nature of the Crown case which was (based upon Mr Parker's statement) that the strangulation occurred "after his attempts to have sexual intercourse with her had failed" (p4). Semen had not been detected on the clothing which the victim had still been wearing. More than twenty years on, even had the exhibits been available, one doubts that anything useful would have emerged from such testing. 28 On this issue, one is thrown back on the case as it existed in 1994 when considered by Hunt CJ at CL. Contrary to submissions made on behalf of the applicant, it is not a case confined to a confession by a person with a severe intellectual impairment. Whilst that confession was the centrepiece of the Crown case, the confession included details which, realistically, could only have been known to the person responsible for the victim's death. The inability now to test for DNA does not, to my mind, give rise to a doubt.

The allegations of the applicant. 29 The second issue relates to the allegations by Mr Parker in the instructions he gave to his solicitors which, for convenience, I repeat:

"Q. Do you know the basis for the suggestion that the deceased was accompanied by two of her friends? A. Two of Faye's friends went out with her but she did not come back. One of the women was Faye's aunty, who was married to Tom Charlton (Faye's uncle). The other woman was a friend of Faye's aunty. Tom's wife killed Faye because she was drinking alcohol and using heroin. Faye was killed at Tom Charlton's house. Tom Charlton told me this when I was at his house with my mother." 30 Mr Parker obviously has no personal knowledge of the matters which he has communicated to his solicitors. They derive, apparently, from a conversation with Mr Charlton. The Crown and the solicitors for Michael Parker have each provided helpful written submissions in respect of this material. The Crown identified the following issues which each party then addressed: Issue (1) - Faye Charlton was killed at Tom Charlton's house by Tom's wife (Faye's aunty by marriage).

Issue (2) - Faye was killed because she was drinking alcohol and using heroin.

Issue (3) - On the night of her death, Faye went out with Tom's wife and a friend of Tom's wife and did not come home.

Issue (4) - Tom Charlton told Michael Parker and his mother, the matters set out in issues (1) and (2) during a visit to his home.

Issue (5) - DNA testing would prove Michael Parker innocent of the manslaughter of Faye Charlton.

Issue (6) - Michael Parker was working at a sheltered workshop in Wodonga from Monday to Friday at the time. 31 It is unnecessary for me to deal with this material at length. The submission from the applicant's solicitors included these words as to instructions that had been received: (p7) "Mrs Parker informed me that Mr Tom Charlton made contact with her some two years after the death of Faye Charlton to inform her of his concerns regarding the conviction of her son Michael Parker for the manslaughter of Faye Charlton. Mrs Parker advises me that she attended Tom Charlton's home at which time Tom Charlton informed her of the allegations set out in Issue (1)." 32 However, the assertion by Mrs Parker cannot be right. Faye Charlton died in early November 1983. There was delay in Mr Parker's trial because he was unfit to be tried. The trial eventually proceeded as a Special Hearing in 1988. It was then that the jury returned a verdict of guilty of manslaughter and Michael Parker was "convicted". It follows that Mr Charlton cannot have expressed concern about the conviction of Michael Parker for manslaughter two years after the death (ie, 1985). Even ignoring that error there was, on any view, delay in Mr Charlton's communicating such knowledge as he may have had concerning the death of Faye Charlton. There was obvious ill will by Mr Charlton towards his ex-wife. It is noteworthy that the handwritten statement of Mr Charlton, although making many serious allegations against his former wife, does not suggest complicity in the death of Faye Charlton. It is also important that, in the version provided by the applicant and his mother, there was no identification of the source of Mr Charlton's knowledge. Was he recounting something he saw or heard? Is this material hearsay, as one suspects? How does he know that Faye Charlton was killed at the house? Her body, of course, was later found in the bed of the Bungambrawatha Creek. 33 Retired Detective Chief Inspector Garry Matthews was a detective sergeant in 1983. He was involved in the investigation into Faye Charlton's death. He provided a letter to the Crown Solicitors in which he gave his recollection of certain information communicated by Mr Charlton to the police soon after the death. He said this: "I am not sure, but I feel that Thomas Charlton may have still been in custody at the time of Faye Charlton's murder. I have it recorded however, that on 26 November, 1983, Thomas Charlton attended Albury Police Station and 'made numerous allegations of (sic) wife and Faye Charlton'. I have it noted that I recorded that information (most probably on running sheets) I cannot recall the details of the information but on 29 November, 1983 I have it recorded that I 'went to 693 Wilkinson Ryan Road and inspect area and bus'. I then interviewed Mrs Kath Charlton re 'same allegations' … One of the allegations raised by Thomas Charlton was that his wife had stolen property in the home and my notes record that on 6 December, 1983 I spoke to Mrs Charlton re attempts by a George Murphy to remove property. … I have recorded on 8 December, 1983 that I attended 691 Wilkinson Street, North Albury and 'interviewed Hazel Charlton re fears of husband and further inquiries re stolen property …'. Later notes relating to Les Scheetz being spoken to about the same matter supports my recollection that the main allegation raised by Thomas Charlton against his wife was one of theft. I am sure that any allegation that his wife was implicated in any way with Faye's murder I would remember and in any event be (sic) forwarded to the Homicide Squad. In late 1989 I was seconded to the Independent Commission Against Corruption and I am aware that the Parkers and Thomas Charlton made a complaint about the system that convicted Michael. I remember being approached with details of the allegation and being shocked at the extent of the allegations raised by Thomas Charlton about his ex-wife. Details I had never heard before. I understand no ICAC investigation was conducted and my recollection is that the information was referred to the Police Department." (emphasis added) 34 The allegations by Mr Charlton are, I believe, worthless. They do not give rise to a doubt in my mind concerning the conviction. 35 I need not review each of the remaining issues, save perhaps the last, Issue (6). That matter was also investigated by Mr Matthews. He provided to the Crown a description of that investigation in these terms: "On 2 March 1984 I received a file from the Director of Public Prosecutions relating to an alibi filed on behalf of Michael Parker. I cannot recall the details of the alibi apart from it was claimed that at the time of the murder, a number of friends and relatives were with Michael, therefore he could not have committed the crime. On 13 March 1984 I attended 1/621 Prune Street, Lavington and spoke to Lynette and Peter Morris and obtained information re the alibi and made arrangements to collect them later that morning to make statements. I then went to the North Albury Caravan park where I located Raymond Furner and Michael [Parker's] sister, Karen Parker and arranged for them to attend Albury Station for statements. … Later that day I interviewed Raymond Furner and Karen Parker. My recollection is that their statements did not confirm the alibi. The attempted alibi began to really unravel, as on 21 March, 1984, Roy Cole, husband of Annette [nee Parker] came to the Albury Police Station and complained 're harassment by Mrs Parker to make false statements re Michael Parker alibi …'. It must be that mention of Hazel Charlton and her sister were mentioned in the alibi as on 28 March, 1984 I interviewed both Hazel Charlton and her sister at 381 and 425 Urana Road, respectively. I have recorded 'information obtained' and must have been of such insignificance that I did not take or arrange for statements. On 11 April 1984 Michael John Parker 'was committed to Governor's Pleasure'. I was not present during the trial but I understand that the 'alibi' was not raised. I was aware that Thomas Charlton attended the trial on a number of occasions with the Parker family but am unaware if he ever gave evidence." 36 The issue of alibi was examined by Hunt CJ at CL in the context of the 1994 application. His Honour's judgment included these words: (p9) " Loss of opportunity to inquire Tuesday 1 November, 1983 was Melbourne Cup Day. The applicant, it is suggested, may have had an alibi for that afternoon and evening, one which cannot now be investigated but which could have been investigated then if this information had been provided to both the Crown and the Applicant's legal advisers." 37 No inquiry was ordered by Hunt CJ at CL arising out of this material. That issue need not be further examined (s474E(3)(a)(ii) Crimes Act 1900). 38 Taking these matters individually and collectively, I have no unease or sense of disquiet in allowing the finding that Michael John Parker committed manslaughter to stand. 39 Accordingly, the application for an inquiry into the finding is dismissed. **********

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