R v Parkes (Costs)

Category: Costs

Parties: Rex
Andre Benjamin Parkes

Representation: Counsel:
Amarande Chauvet (Applicant)
Dion Carnell (Crown)
Solicitors:
First Choice Legal (Applicant)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s): 2022/00158614

JUDGMENT

1. The applicant makes an application for a certificate under the Costs in Criminal Cases Act 1967 (NSW) (‘the Act') following verdicts of not guilty on four counts. The verdicts were entered following a Judge-alone trial (special hearing): R v Parkes [2025] NSWDC 144 (Parkes).

2. The application is opposed by the Crown.

Background

3. On the night of 12 May 2022, George Beshara (Beshara) and Leanne Jones (Jones) were the victims of a violent home invasion at their home in Toongabbie perpetrated by two individuals.

4. There is no issue that one of the individuals, Lealofi Namulauulu (the co-offender), was involved in the home invasion whilst armed with a .38 super calibre pistol. The two intruders forced their way into the house. Beshara was assaulted by the two assailants before being forced by the second offender up the stairs and into a bedroom containing several safes.

5. In the meantime, Namulauulu remained in the downstairs living area of the house taking property, at gunpoint, from several victims, including Jones. At some point thereafter Namulauulu and Jones made their way upstairs and entered the same bedroom where the second offender was with Beshara. Beshara engaged in physical altercations with the second offender and Namulauulu. During this time, a shot was fired from the pistol resulting in a hole in the bedroom wall.

6. Namulauulu and his co-offender then fled the scene following which Beshara smashed the upper bedroom window before yelling out to ring the police.

7. Namulauulu pleaded guilty to several offences arising from the home invasion. The sentence hearing involved several witnesses, including the two victims, giving evidence on disputed facts.

The pertinent findings on the special hearing

8. It was the Crown case that the second offender was the applicant which was denied by him. The central issue was the identification of the applicant.

9. In entering verdicts of not guilty to each of the counts on the indictment, the Court made the following findings: –

10. The evidence of Beshara seeking to identify the applicant as the second offender was inherently unreliable.

11. The evidence of Jones seeking to identify the applicant as the second offender was inherently unreliable.

12. The accused's statements to police, contained in an electronically recorded interview of a suspected person (ERISP) were accepted as truthful, including his denials that he was involved in the home invasion and his assertion that at the time of the home invasion he was in the company of Rachelle Kelly at his supported home in Doonside.

13. Contrary to the Crown's contention at trial, the circumstantial evidence was not supportive of the applicant's guilt.

14. The evidence generally, including the evidence of the applicant's carers as to the applicant’s movements on the night of the home invasion, was inconsistent with the applicant being involved in the home invasion.

15. The statement of the applicant's alibi witness, Rachelle Kelly, tendered in the Crown case, was generally consistent with the accused's account of his movements provided in his ERISP, the CCTV footage from a licensed premises recorded on the night in question and the evidence of the carers. The Court was not satisfied beyond reasonable doubt that the alibi evidence should be rejected.

Applicable legal principles

10. Sections 2 and 3 of the Act provides as follows:

2 Certificate may be granted

(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:

(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b) where, on appeal, the conviction of the defendant is quashed and:

(i) the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii) the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.

(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

3 Form of certificate

(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

11. McColl JA (with whom Beazley and Hodgson JJA agreed) in Mordaunt v Director of Public Prosecutions & Anor [2007] NSWCA 121 summarised the relevant principles, by reference to the authorities, in dealing with such an application. Relevantly, they include the following: –

12. The provisions should not be narrowly construed so as to defeat the Act’s beneficial purpose conferring “valuable privileges” upon persons who succeed in criminal prosecutions;

13. The “institution of proceedings” provided in s 3 refer to the time of arrest or charge;

14. It is the applicant who has the onus of showing that it was not reasonable to institute the proceedings;

15. The test is not whether the institution of the proceedings was or would have been reasonable;

16. The Court must ask the hypothetical question of whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings;

17. It is necessary for the Court to find what were “all the relevant facts" and assume the prosecution to have “been in possession of evidence of all the relevant facts". It is then necessary for the Court to determine whether, if the prosecution had been in possession of those facts before proceedings were instituted “it would not have been reasonable to institute them". The applicant must succeed on both the “facts issue” and the “reasonableness issue”;

18. All of the relevant facts include those discovered before arrest or committal, after committal and before trial, during the trial or evidence afterwards admitted under s 3A;

19. The reasonableness of the decision to institute proceedings is not based upon the test of prosecution agencies;

20. In circumstances where there is contradictory evidence, it may be that it was reasonable to expect the prosecutor to make some evaluation of that evidence;

21. The section requires an objective analysis of the whole of the evidence including any inherent weakness in the prosecution case. However, matters of judgment concerning credibility, demeanour and similar matters being matters within the realm of the fact finder “are likely to fall on the other side of the line of unreasonableness";

22. It is also relevant to have regard to the conduct of the defendant whilst observing the adversarial nature of the criminal prosecution and tactical decisions which are legitimately made;

23. All relevant facts, including those that ultimately emerge at trial including evidence which may emerge from cross examination of prosecution witnesses.

The Crown case

12. The Crown case fundamentally relied upon identification evidence given by Beshara and Jones.

13. There was no issue that on the evening of the home invasion, Beshara had identified one of the assailants as the applicant. In evidence, Beshara agreed that he identified the applicant to police by reason of the applicant's voice. However, at the time Beshara did not assert that he was otherwise able to identify the applicant by seeing his face.

14. The purported identification was from hearing “like a Jamaican" accent. However, during his evidence, Beshara claimed that when he and the assailant were in the bedroom the applicant had taken off a balaclava he was wearing, in that he had lifted it from his chin to his hairline or forehead, so that he could see the whole of his face. Despite Beshara having spoken several times to investigating police, the DPP and given evidence in Court on Namulauulu’s disputed facts hearing, he had never previously asserted that he had seen the applicant's face at all, let alone all of it.

15. Jones gave evidence that the second offender was wearing something around his head like a T-shirt. She claimed to have identified the applicant as the second offender when the T-shirt face-covering came off his head whilst fighting with Beshara. She claimed in her evidence that the face covering did not come off “completely" but just “down a bit" so that it uncovered “half of his face". Jones conceded in cross-examination that when identifying the applicant to police after the home invasion, she did not tell the police that she had seen the applicant's face.

16. The Crown contended that the Court would not accept the accused's denials in his interview with investigating police and, consistent with the Liberato direction, his denials would be put to one side.

17. The Crown further contended that there was other circumstantial evidence supporting the applicant's involvement in the home invasion. The Crown relied upon the fact that the second offender apparently referred to Jones by her name “Leigh", in circumstances where the applicant admitted in his interview with police that he referred to Jones as Leigh. Further, the Crown relied upon the fact that the applicant had been involved in a disagreement with Beshara in the days prior to the home invasion and that it was a disagreement over money, thereby providing a motive for the home invasion.

18. The Crown also relied upon the evidence of one of the applicant's carers on the night in question which provided a possible opportunity for the applicant to commit the offence. It was further contended that the evidence of the applicant's second carer, on duty after the alleged home invasion, circumstantially supported the Crown case.

The applicant's contentions

19. The applicant contended that the Crown case fundamentally relied upon the identification evidence of Beshara and Jones, whose credibility and reliability "were entirely lacking". Further, it was contended that the New South Wales Police fundamentally failed to properly investigate any alternatives as to the identity of the second offender, despite several avenues of enquiry which ought to have been pursued, including a proper investigation of the alibi provided by his partner and other persons responsible for the care and movement of the applicant. Both submissions were made in the context that there was no forensic evidence linking the applicant to the crime scene despite the real prospect that if the applicant was one of the offenders, such evidence might well have been available.

20. With respect to the first contention, it was submitted that both identification witnesses were so lacking reliability and credit that it militated “in favour of a finding of unreasonableness". The “blind reliance" on the evidence of the two identification witnesses despite significant issues as to their credit and reliability, where warnings about identification evidence would be given, was unreasonable.

21. Further, with respect to the police investigation, the evidence on the application established that the applicant’s legal representatives wrote to the DPP providing the daily activities report for the applicant on the day of the alleged home invasion and requesting the OIC further investigate the alibi. The evidence further established that there were various entries in the investigation narrative, including contact made with one of the applicant's carers who had provided an alibi for the offender the evening of the home invasion. The narrative noted that further enquiries would be conducted.

22. Further, as part of the investigation, contact was made with the house manager where the applicant resided, again purportedly providing an alibi for the applicant. The investigation noted particularly that this information “cast doubt on the version of the victims."

23. No further investigations were undertaken regarding the alibi. Additionally, despite clear evidence being held by investigating police that the premises the subject of the home invasion was a drug house, and Beshara was selling drugs, no enquiries were made about other potential suspects including those who were purchasing drugs from the victim. There were no enquiries as to the possible motives to “stand over" Beshara regarding possible monies from drug supplies. This was despite the evidence establishing the police had intelligence of the names of persons regularly attending the address for the purposes of purchasing drugs.

24. Further, no enquiries were made despite Namulauulu being involved in “strikingly similar" offending involving a firearm and two co-offenders, one of whom matched the description given by witnesses at the scene of the relevant home invasion.

The Crown submissions

25. The Crown contended, citing Beatson v R [2015] NSWCCA 17, that cases relying solely or in a large part on the evidence of a complainant will, by their very nature, be matters left for a jury's assessment of that witness’s credit. In this context, it was contended that the credibility of each of the complainants was appropriately to be left with the tribunal of fact, even with the retrospective imputation of hindsight contained in s 3(1)(a) of the Act.

26. The Crown noted that it was the evidence of each of the identification witnesses that they knew and identified the accused on the day of the offence; that any inconsistencies in their accounts was ultimately a matter for the tribunal of fact and did not render the matter unreasonable to have been instituted.

27. Further, Namulauulu had signed agreed facts naming the applicant as the co-offender and was in possession of these agreed facts since the date of their signing. Further, the applicant's alibi was self-serving, supported largely by his partner, who did not attend court in contravention of a subpoena served and had a history of dishonesty. Further the records held by the home where the applicant lived were found to be unreliable.

Relevant facts and determination of the application

28. Consistent with the authorities, it is necessary to identify all the relevant facts which include those facts discovered before arrest or committal, after committal and before trial, during the trial or evidence afterwards admitted under s 3A.

29. The Crown case fundamentally rested upon the identification evidence of Beshara and Jones. As was observed in Parkes at [70]-[77], in considering this identification evidence, there was a special need for caution before accepting such evidence. Further, special caution was necessary before accepting identification evidence because of the possibility that a witness may be mistaken in their identification of a person accused of a crime. The experience of criminal courts over the years demonstrated that identification evidence may turn out to be unreliable.

30. In these circumstances, it was always necessary for the Court, as the tribunal of fact, to carefully consider the circumstances in which Beshara and Jones made their observations of the applicant. The circumstances in which both made their observations of the applicant could affect the reliability of their identification evidence.

31. The evidence of Beshara, prior to the trial, was that he only identified the accused by reason of his voice. He had not previously asserted that he had seen the accused's face or identified him by facial recognition. More particularly, Beshara had identified the accused by reference to an alleged Jamaican accent which was “hard not to notice". As the Court found at [99], Beshara's assertion that the accused spoke with a distinct and easily recognisable Jamaican accent was entirely inconsistent with the applicant’s ERISP.

32. Whilst ordinarily questions about the credibility of a witness would be decided by the tribunal of fact (Higgins v R (No 2) [2022] NSWCCA 82 at [20] to [21] and [24]), the present case is distinguishable. As the Court found, Beshara's evidence on several significant aspects was patently untrue. It was unequivocally inconsistent with the evidence of other witnesses including Reese Kovacs, who had given evidence in the disputed facts hearing of Namulauulu. It was also inconsistent with the evidence of Detective Senior Constable Huldin. In particular, Beshara's denial that drugs were supplied from his home or that persons present on the night of the home invasion were using drugs was patently untrue. The contradictory evidence was available to the prosecution prior to the trial. Further, Beshara's belated identification of the accused during the trial was wholly inconsistent with his earlier statements to police.

33. Similarly, Jones’ evidence was found to be unreliable and internally inconsistent with earlier statements to police, particularly as it related to her critical evidence of facial recognition.

34. I am satisfied that the critical evidence of the two identification witnesses was contradictory to such an extent that it was reasonable to expect the prosecution to have made some evaluation of that evidence. I am satisfied, based on the unsatisfactory identification evidence, when considered in the context of directions required as to the special need for caution in accepting identification evidence, that for this reason alone it would not have been reasonable to institute proceedings.

35. However, there was further evidence relating to relevant facts such that it would not have been reasonable to institute proceedings. The applicant had freely engaged in a recorded interview with police that on the evening of the home invasion he had been in the company of the alibi witness and partner Rachelle Kelly. Further, that he had earlier been in the company of his carer, Heng. The applicant further told police that he had returned to his Doonside residence with Kelly who had remained with him throughout the night and until the following morning.

36. The accused's statements to police as to his whereabouts during the afternoon and evening of the home invasion were consistent and corroborated by the evidence of his carers Heng and Aiono and consistent with the statement of his alibi witness Kelly.

37. Whilst the alibi evidence could be considered as self-serving, as the primary judgment noted, the evidence of the alibi witness was consistent with other evidence in the prosecution case including that of the applicant, the applicant’s carers and the CCTV footage. This evidence was clearly available to the prosecution prior to the trial.

38. Additionally, the evidence was otherwise inconsistent with the Crown case that the accused was the second offender. This included: –

39. Despite Beshara and the two assailants being involved in significant violence during the home invasion, unlike Beshara and Namulauulu, there was no evidence that the offender suffered any significant injury. It was the evidence of Beshara that he struck the second offender with a knife involving considerable force being applied by Beshara in this physical altercation. Given the description of this altercation it would have been expected that the person with whom Beshara was fighting would have sustained a significant injury, most likely a serious stab wound.

40. Evidence established that there was a significant amount of blood at the scene of the home invasion, and in particular in the bedroom, with a reasonable expectation that there would have been the presence of blood on the applicant. However, when the applicant’s carer, Aiono, checked on the applicant within 45 minutes of the home invasion, there was no blood on the accused. This was significant in the context of the timing of the 000 call, the distance between the location of the home invasion and the applicant's Doonside residence, and the time at which the carer checked on the applicant.

41. The fact that Namulauulu identified the applicant as his co-offender is of no assistance to the prosecution in circumstances where Namulauulu was not called or formed any part of the prosecution case.

42. Whilst the records from the applicant’s residence were not entirely reliable, the evidence of the applicant’s carers was generally consistent with the applicant's statements to Police in his ERISP and that of his alibi witness.

43. I am comfortably satisfied that if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts identified, either singularly or in combination, it would not have been reasonable to institute proceedings.

44. I make the following order: –

45. I grant to Andre Parkes a certificate pursuant to ss 2 and 3 of the Costs of C**riminal Ca**ses A**ct 1967 (NSW) in relation to the whole of the proceedings.

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